SB706: Bill Text

SB706,30,22 1. Abuses or neglects the child or knowingly permits others to do so.

SB706,30,24 2. Fails to disclose information specified in sub. (3) (c) that would have prevented appointment of the person as guardian.

SB706,31,2 3. Otherwise fails to perform any of his or her duties as a guardian under s. 48.023.

SB706,31,11 (c) Procedure. Any interested person or other person approved by the court may file a petition requesting a review of the conduct of a guardian or the court, on its own motion, may propose such a review. The request or motion shall allege facts sufficient to show cause under par. (b) for the court to impose a remedy under par. (d). The court shall hold a hearing on the request or motion not more than 30 days after the filing of the request or proposal. Not less than 7 days before the date of the hearing, the court shall cause notice of the hearing to be provided to the child, his or her or parents, the guardian, and any other persons as determined by the court. A copy of the request or motion shall be attached to the notice.

SB706,31,14 (d) Remedies of the court. If after hearing the court finds by clear and convincing evidence cause as specified in par. (b) to impose a remedy under this paragraph, the court may do any of the following:

SB706,31,15 1. Remove the guardian.

SB706,31,16 2. Remove the guardian and appoint a successor guardian.

SB706,31,19 3. Enter any other order that may be necessary or appropriate to compel the guardian to carry out the guardian's duties, including an order setting reasonable rules of visitation with the child.

SB706,31,20 4. Modify the duties and authority of the guardian.

SB706,31,23 5. Require the guardian to pay any costs of the proceeding, including costs of service and attorney fees, if the court finds that the guardian's conduct was egregious.

SB706,32,3 (10) Termination of guardianship. (a) Term of guardianship. A guardianship under this section shall continue until the child attains the age of 18 years unless any of the following occurs:

SB706,32,4 1. The guardianship is for a lesser period of time and that time has expired.

SB706,32,5 2. The child marries.

SB706,32,6 3. The child dies.

SB706,32,8 4. The child's residence changes from this state to another state and a guardian is appointed in the new state of residence.

SB706,32,10 5. The guardian dies, or resigns and the resignation is accepted by the court, and a successor guardian is not appointed.

SB706,32,12 6. The guardian is removed for cause under sub. (9) (d) 1. and a successor guardian is not appointed.

SB706,32,14 7. The court terminates the guardianship on the request of a parent of the child under par. (b).

SB706,32,21 (b) Termination on request of parent. 1. A parent of the child may file a petition requesting that a guardianship order entered under sub. (3) (f) 2. (4), (5), or (6) be terminated. The petition shall allege facts sufficient to show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered, that the parent is fit, willing, and able to carry out the duties of a guardian, and that termination of the guardianship would be in the best interests of the child.

SB706,32,24 2. The court shall hold a hearing on the petition unless written waivers of objections to termination of the guardianship are signed by all interested persons and the court approves the waivers.

SB706,33,10 3. If a hearing is to be held, by no less than 7 days before the date of the hearing the court shall cause notice of the hearing to be provided to the child, his or her parents, the guardian, and any other persons as determined by the court. A copy of the request or proposal shall be attached to the notice. The court shall terminate the guardianship if the court finds that the parent has proved by clear and convincing evidence that he or she has remedied the unfitness, unwillingness, or inability to provide for the care, custody, and control of the child or other compelling facts and circumstances on which the guardianship was granted and that he or she is now fit, willing, and able to carry out the duties of a guardian and the court determines that termination of the guardianship would be in the best interests of the child.

SB706, s. 23 Section 23. 48.977 (2) (a) of the statutes is amended to read:

SB706,33,21 48.977 (2) (a) That the child has been adjudged to be in need of protection or services under s. 48.13 (1), (2), (3), (3m), (4), (4m), (5), (8), (9), (10), (10m), (11), or (11m) or 938.13 (4) or (12), or has been adjudged delinquent under s. 938.12, and been placed, or continued in a placement, outside of his or her home pursuant to one or more court orders under s. 48.345, 48.357, 48.363, 48.365, 938.34, 938.345, 938.357, 938.363, or 938.365 or, that the child has been so adjudged and placement of the child in the home of a guardian under this section has been recommended under s. 48.33 (1) or 938.33 (1), or that the child has had a guardian of the person appointed for him or her under ch. 54, 2007 stats., or ch. 880, 2003 stats., and is placed in the home of the guardian.

SB706, s. 24 Section 24. 48.977 (2) (e) of the statutes is amended to read:

SB706,34,2 48.977 (2) (e) That the child's parent is neglecting, refusing, or unable to carry out the duties of a guardian or is not meeting the conditions established in the court order described in par. (a) for the safe return of the child to the home or, if the child has 2 parents, both parents are neglecting, refusing or unable to carry out the duties of a guardian those duties or are not meeting those conditions.

SB706, s. 25 Section 25. 48.977 (2) (f) of the statutes is amended to read:

SB706,34,25 48.977 (2) (f) That the agency primarily responsible for providing services to the child under a court order has made reasonable efforts to make it possible for the child to return to his or her home, while assuring that the child's health and safety are the paramount concerns, but that reunification of the child with the child's parent or parents is unlikely or contrary to the best interests of the child and that further reunification efforts are unlikely to be made or are contrary to the best interests of the child or that the agency primarily responsible for providing services to the child under a court order has made reasonable efforts to prevent the removal of the child from his or her home, while assuring the child's health and safety, but that continued placement of the child in the home would be contrary to the welfare of the child, except that the court is not required to find that the agency has made those reasonable efforts with respect to a parent of the child if any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies to that parent. The court shall make the findings specified in this paragraph on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which those findings are based in the guardianship order. A guardianship order that merely references this paragraph without documenting or referencing that specific information in the order or an amended guardianship order that retroactively corrects an earlier guardianship order that does not comply with this paragraph is not sufficient to comply with this paragraph. This paragraph does not apply to a child who is placed in the home of a guardian under ch. 54, 2007 stats., or ch. 880, 2003 stats., and who is not receiving services from an agency under a court order.

SB706, s. 26 Section 26. 48.977 (4) (b) 3. of the statutes is amended to read:

SB706,35,12 48.977 (4) (b) 3. The date on which the child was adjudged in need of protection or services under s. 48.13 (1), (2), (3), (3m), (4), (4m), (5), (8), (9), (10), (10m), (11), or (11m) or 938.13 (4) or (12), or was adjudicated delinquent under s. 938.12, and the dates on which the child has been placed, or continued in a placement, outside of his or her home pursuant to one or more court orders under s. 48.345, 48.357, 48.363, 48.365, 938.34, 938.345, 938.357, 938.363, or 938.365 ; or, if the child has been so adjudged, but not so placed, the date of the report under s. 48.33 (1) or 938.33 (1) in which placement of the child in the home of the person is recommended ; or, if the child has had a guardian of the person appointed for him or her under ch. 54, 2007 stats., or ch. 880, 2003 stats., the date on which the child was placed in the home of the guardian.

SB706, s. 27 Section 27. 48.977 (4) (b) 6. of the statutes, as affected by 2009 Wisconsin Act 94, is amended to read:

SB706,35,18 48.977 (4) (b) 6. A statement of whether the child may be subject to s. 48.028 or the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and, if the child may be subject to s. 48.028 or that act, the names and addresses of the child's Indian custodian, if any, and Indian tribe, if known.

SB706, s. 28 Section 28. 48.977 (4) (c) 2. of the statutes, as affected by 2009 Wisconsin Act 94, is amended to read:

SB706,36,6 48.977 (4) (c) 2. Except as provided in subd. 2m., service shall be made by 1st class mail at least 7 days before the hearing or by personal service at least 7 days before the hearing or, if with reasonable diligence a party specified in subd. 1. cannot be served by mail or personal service, service shall be made by publication of a notice published as a class 1 notice under ch. 985. In determining which newspaper is likely to give notice as required under s. 985.02 (1), the petitioner shall consider the residence of the party, if known, or the residence of the relatives of the party, if known, or the last-known location of the party. Service is considered to be made by proof that the petition and notice under subd. 1. were mailed to the last-known address of the recipient, by proof of personal delivery of that petition and notice, or, if the recipient is an adult, by the written admission of service of the person served.

SB706, s. 29 Section 29. 48.977 (4) (i) of the statutes is amended to read:

SB706,36,10 48.977 (4) (i) Effect of disposition on permanency plan review process. After a disposition under par. (h), the child's permanency plan shall continue to be reviewed under s. 48.38 (5) or 938.38 (5), if applicable required under s. 48.38 (2) or 938.38 (2).

SB706, s. 30 Section 30. 48.977 (8) of the statutes is amended to read:

SB706,36,14 48.977 (8) Relationship to ch. 54 and ch. 880, 2003 stats other guardianship procedures. (a) This section does not abridge the duties or authority of a guardian appointed under s. 48.976, ch. 54, 2007 stats., or ch. 880, 2003 stats.

SB706,36,16 (b) Nothing in this section prohibits an individual from petitioning a court under ch. 54 s. 48.976 for appointment of a guardian.

SB706, s. 31 Section 31. 48.978 (2) (b) 11. of the statutes, as affected by 2009 Wisconsin Act 94, is amended to read:

SB706,36,22 48.978 (2) (b) 11. A statement of whether the child may be subject to s. 48.028 or the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and, if the child may be subject to s. 48.028 or that act, the names and addresses of the child's Indian custodian, if any, and Indian tribe, if known.

SB706, s. 32 Section 32. 48.978 (7) of the statutes is amended to read:

SB706,37,2 48.978 (7) Relationship to ch. 54 other guardianship procedures. (a) Except when a different right, remedy, or procedure is provided under this section, the rights, remedies, and procedures provided in s. 48.976 or ch. 54, whichever is applicable, shall govern a standby guardianship created under this section.

SB706,37,4 (b) This section does not abridge the duties or authority of a guardian appointed under s. 48.976, ch. 880, 2003 stats., or ch. 54.

SB706,37,7 (c) Nothing in this section prohibits an individual from petitioning a court for the appointment of a guardian of the person under s. 48.976 or a guardian of the estate under ch. 54.

SB706, s. 33 Section 33. 48.979 of the statutes is created to read:

SB706,37,13 48.979 Delegation of power by parent, guardian, or legal custodian. A parent, guardian, or legal custodian of a child, by a properly executed power of attorney, may delegate to another person, for a period not to exceed one year, any of his or her powers regarding the care and custody of the child, except the power to consent to the marriage or adoption of the child.

SB706, s. 34 Section 34. 49.32 (1) (am) of the statutes is amended to read:

SB706,37,18 49.32 (1) (am) Paragraph (a) does not prevent the department or a county department under s. 46.22 or 46.23 from charging and collecting the cost of adoptive placement investigations and child care as authorized under s. 48.837 (7) or the cost of guardianship investigations as authorized under s. 48.976 (3) (d) 2.

SB706, s. 35 Section 35. 51.30 (4) (b) 18. a. of the statutes is amended to read:

SB706,37,25 51.30 (4) (b) 18. a. In this subdivision, "abuse" has the meaning given in s. 51.62 (1) (ag); "neglect" has the meaning given in s. 51.62 (1) (br); and "parent" has the meaning given in s. 48.02 (13), except that "parent" does not include the parent of a minor whose custody is transferred to a legal custodian, as defined in s. 48.02 (11), or for whom a guardian is appointed under, or s. 48.976 or 54.10 or s. 880.33, 2003 stats.

SB706, s. 36 Section 36. 51.30 (4) (b) 18. c. of the statutes is amended to read:

SB706,38,17 51.30 (4) (b) 18. c. If the patient, regardless of age, has a guardian appointed under s. 48.976 or 54.10 or s. 880.33, 2003 stats., or if the patient is a minor with developmental disability who has a parent or has a guardian appointed under s. 48.831 and does not have a guardian appointed under s. 48.976 or 54.10 or s. 880.33, 2003 stats., information concerning the patient that is obtainable by staff members of the agency or nonprofit corporation with which the agency has contracted is limited, except as provided in subd. 18. e., to the nature of an alleged rights violation, if any; the name, birth date and county of residence of the patient; information regarding whether the patient was voluntarily admitted, involuntarily committed or protectively placed and the date and place of admission, placement or commitment; and the name, address and telephone number of the guardian of the patient and the date and place of the guardian's appointment or, if the patient is a minor with developmental disability who has a parent or has a guardian appointed under s. 48.831 and does not have a guardian appointed under s. 48.976 or 54.10 or s. 880.33, 2003 stats., the name, address and telephone number of the parent or guardian appointed under s. 48.831 of the patient.

SB706, s. 37 Section 37. 54.01 (10) of the statutes is amended to read:

SB706,38,22 54.01 (10) "Guardian" means a person appointed by a court under s. 54.10 to manage the income and assets and provide for the essential requirements for health and safety and the personal needs of a minor, an individual found incompetent, or a spendthrift or to manage the income and assets of a minor.

SB706, s. 38 Section 38. 54.10 (1) of the statutes is amended to read:

SB706,39,3 54.10 (1) A court may appoint a guardian of the person or a guardian of the estate, or both, for an individual if the court determines that the individual is a minor. Except as provided in ss. 48.831, 48.977, and 48.978, an appointment of a guardian of the person of a minor shall be conducted under the procedures specified in s. 48.976.

SB706, s. 39 Section 39. 54.52 (1) of the statutes is amended to read:

SB706,39,12 54.52 (1) A person may at any time bring a petition for the appointment of a standby guardian of the person or estate of an individual who is determined under s. 54.10 to be incompetent, a minor, or a spendthrift or for the appointment of a standby guardian of the estate of a minor, except that, as specified in s. 48.97 48.978, a petition for the appointment of a standby guardian of the person or property estate, or both, of a minor to assume the duty and authority of guardianship on the incapacity, death, or debilitation and consent, of the minor's parent may be brought under s. 48.978.

SB706, s. 40 Section 40. 54.56 of the statutes is renumbered 48.976 (11) and amended to read:

SB706,39,17 48.976 (11) Visitation by a minor's child's grandparents and stepparents. (a) In this section subsection, "stepparent" means the surviving spouse of a deceased parent of a minor child, whether or not the surviving spouse has remarried.

SB706,40,3 (b) If one or both parents of a minor child are deceased and the minor child is in the custody of the surviving parent or any other person, a grandparent or stepparent of the minor child may petition for visitation privileges with respect to the minor child, whether or not the person with custody is married. The grandparent or stepparent may file the petition in a guardianship or temporary guardianship proceeding under this chapter section that affects the minor child or may file the petition to commence an independent action under this chapter subsection. Except as provided in sub. (3m) par. (cm), the court may grant reasonable visitation privileges to the grandparent or stepparent if the surviving parent or other person who has custody of the minor child has notice of the hearing and if the court determines that visitation is in the best interest of the minor child.

SB706,40,5 (c) Whenever possible, in making a determination under sub. (2) par. (b), the court shall consider the wishes of the minor child.

SB706,40,11 (cm) 1. Except as provided in par. (b) subd. 2., the court may not grant visitation privileges to a grandparent or stepparent under this section subsection if the grandparent or stepparent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of a parent of the minor child, and the conviction has not been reversed, set aside, or vacated.

SB706,40,15 2. Paragraph (a) Subdivision 1. does not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the minor child. The court shall consider the wishes of the minor child in making the determination.

SB706,40,18 (d) The court may issue any necessary order to enforce a visitation order that is granted under this section subsection, and may from time to time modify the visitation privileges or enforcement order for good cause shown.

SB706,41,2 (dm) 1. If a grandparent or stepparent granted visitation privileges with respect to a minor child under this section subsection is convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of a parent of the minor child, and the conviction has not been reversed, set aside, or vacated, the court shall modify the visitation order by denying visitation with the minor child upon petition, motion, or order to show cause by a person having custody of the minor child, or upon the court's own motion, and upon notice to the grandparent or stepparent granted visitation privileges.

SB706,41,6 2. Paragraph (a) Subdivision 1. does not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the minor child. The court shall consider the wishes of the minor child in making the determination.

SB706,41,9 (e) This section subsection applies to every minor child in this state whose parent or parents are deceased, regardless of the date of death of the parent or parents.

SB706, s. 41 Section 41. 54.57 of the statutes is renumbered 48.976 (12) and amended to read:

SB706,41,19 48.976 (12) Prohibiting visitation or physical placement if a parent kills other parent. (a) Except as provided in sub. (2), in an action under this chapter that affects a minor par. (b), a court may not grant to a parent of the minor a child who is the subject of a proceeding under this section visitation or physical placement rights with the minor child if the parent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of the minor's child's other parent, and the conviction has not been reversed, set aside, or vacated.

SB706,41,23 (b) Subsection (1) Paragraph (a) does not apply if the court determines by clear and convincing evidence that visitation or periods of physical placement would be in the best interests of the minor child. The court shall consider the wishes of the minor child in making the determination.

SB706, s. 42 Section 42. 55.03 (1) of the statutes is amended to read:

SB706,42,4 55.03 (1) Agency as both guardian and provider prohibited. No agency acting as a guardian appointed under s. 48.976, ch. 880, 2003 stats., or ch. 54, 2007 stats., may be a provider of protective services or protective placement for its ward under this chapter.

SB706, s. 43 Section 43. 55.10 (4) (intro.) of the statutes is amended to read:

SB706,42,11 55.10 (4) Rights. (intro.) Sections 54.42, 54.44, and 54.46 and the following provisions apply to all hearings under this chapter involving protective placement or protective services for an adult, and s. 48.976 and the following provisions apply to all hearings under this chapter involving protective placement or protective services for a minor, except transfers of placement under s. 55.15 and summary hearings under ss. 55.18 (3) (d) and 55.19 (3) (d):

SB706, s. 44 Section 44. 55.10 (4) (a) of the statutes is amended to read:

SB706,43,2 55.10 (4) (a) Counsel. The individual sought to be protected has the right to counsel whether or not the individual is present at the hearing on the petition. The court shall require representation by full legal counsel whenever the petition alleges that the individual is not competent to refuse psychotropic medication under s. 55.14, the individual sought to be protected requested such representation at least 72 hours before the hearing, the guardian ad litem or any other person states that the individual sought to be protected is opposed to the petition, or the court determines that the interests of justice require it. If the individual sought to be protected or any other person on his or her behalf requests but is unable to obtain legal counsel, the court shall refer the individual to the state public defender as provided under s. 55.105 for appointment of legal counsel. If the individual sought to be protected is represented by counsel appointed under s. 977.08 in a proceeding for the appointment of a guardian under s. 48.976 or ch. 54, the court shall order the counsel appointed under s. 977.08 to represent under this section the individual sought to be protected.

SB706, s. 45 Section 45. 115.76 (12) (b) 2. of the statutes is amended to read:

SB706,43,7 115.76 (12) (b) 2. The state, a county, or a child welfare agency, if a child was made a ward of the state, county, or child welfare agency under ch. 54, 2007 stats., or ch. 880, 2003 stats., or if a child has been placed in the legal custody or guardianship of the state, county, or child welfare agency under ch. 48 or ch. 767.

SB706, s. 46 Section 46. 146.82 (2) (a) 9. a. of the statutes is amended to read:

SB706,43,13 146.82 (2) (a) 9. a. In this subdivision, "abuse" has the meaning given in s. 51.62 (1) (ag); "neglect" has the meaning given in s. 51.62 (1) (br); and "parent" has the meaning given in s. 48.02 (13), except that "parent" does not include the parent of a minor whose custody is transferred to a legal custodian, as defined in s. 48.02 (11), or for whom a guardian is appointed under s. 48.976 or 54.10 or s. 880.33, 2003 stats.

SB706, s. 47 Section 47. 146.82 (2) (a) 9. c. of the statutes is amended to read:

SB706,44,5 146.82 (2) (a) 9. c. If the patient, regardless of age, has a guardian appointed under s. 48.976 or 54.10 or s. 880.33, 2003 stats., or if the patient is a minor with developmental disability, as defined in s. 51.01 (5) (a), who has a parent or has a guardian appointed under s. 48.831 and does not have a guardian appointed under s. 48.976 or 54.10 or s. 880.33, 2003 stats., information concerning the patient that is obtainable by staff members of the agency or nonprofit corporation with which the agency has contracted is limited, except as provided in subd. 9. e., to the nature of an alleged rights violation, if any; the name, birth date and county of residence of the patient; information regarding whether the patient was voluntarily admitted, involuntarily committed or protectively placed and the date and place of admission, placement or commitment; and the name, address and telephone number of the guardian of the patient and the date and place of the guardian's appointment or, if the patient is a minor with developmental disability who has a parent or has a guardian appointed under s. 48.831 and does not have a guardian appointed under s. 48.976 or 54.10 or s. 880.33, 2003 stats., the name, address and telephone number of the parent or guardian appointed under s. 48.831 of the patient.

SB706, s. 48 Section 48. 214.37 (4) (k) 1. of the statutes is amended to read:

SB706,44,12 214.37 (4) (k) 1. An affidavit stating that the person has standing under s. 867.01 (3) (ac) or 867.02 (2) (ac) to petition for summary settlement or assignment of a decedent's estate or that the person is an heir of the decedent, or was guardian, as defined in s. 54.01 (10) or s. 880.01 (3), 2003 stats., of the estate of the decedent at the time of the decedent's death, and may obtain transfer of property of a decedent under s. 867.03.

SB706, s. 49 Section 49. 215.26 (8) (e) 1. of the statutes is amended to read:

SB706,44,19 215.26 (8) (e) 1. Submits an affidavit stating that the person has standing under s. 867.01 (3) (ac) or 867.02 (2) (ac) to petition for summary settlement or assignment of a decedent's estate or that the person is an heir of the decedent, or was guardian, as defined in s. 54.01 (10) or s. 880.01 (3), 2003 stats., of the estate of the decedent at the time of the decedent's death, and may obtain transfer of property of a decedent under s. 867.03; and

SB706, s. 50 Section 50. 757.69 (1m) (e) of the statutes is amended to read:

SB706,44,22 757.69 (1m) (e) Conduct hearings, make findings, or issue orders in proceedings under s. 48.976, 48.977, or 48.978.