SB560: Bill Text

Termination of guardianship. A guardianship continues until the child attains the age of 18 years unless: 1) the guardianship is for a lesser period of time and that time has expired; 2) the child marries; 3) the child dies; 4) the child's residence changes from this state to another state and a guardian is appointed in the new state of residence; 5) the guardian dies, or resigns and the resignation is approved by the juvenile court, and a successor guardian is not appointed; 6) the guardian is removed for cause and a successor guardian is not appointed; or 7) the guardianship is terminated on the request of a parent.

A parent may request that a guardianship be terminated by filing a petition with the juvenile court alleging 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. The juvenile court must hold a hearing on the petition, unless written waivers of objections to termination of the guardianship are signed by all interested persons and the juvenile court approves the waivers. The juvenile court must terminate the guardianship if the juvenile 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 the 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 juvenile court determines that termination of the guardianship would be in the best interests of the child.

Protection or services guardianships

Under the current Children's Code, a protection or services guardianship may be ordered when a child who has been adjudged to be in need of protection or services under the Children's Code on any grounds other than the grounds of relinquishment of custody or of not having been immunized as required by law, or adjudged to be in need of protection or services under the Juvenile Justice Code on the grounds of uncontrollability, and placed outside the home is likely to be placed in the home of the guardian for an extended period or until the child attains the age of 18 years, it is not in the best interests of the child that a petition for termination of parental rights be filed, and the child's parent is neglecting, refusing, or unable to carry out the duties of a guardian.

This bill expands the applicability of a protection or services guardianship to include a child who has been adjudged to be in need of protection or services under the Children's Code on the grounds of relinquishment of custody or of not having been immunized as required by law, a child who has been adjudged to be in need of protection or services under the Juvenile Justice Code on the grounds of truancy from home or school, being a school dropout, or having committed a delinquent act while under ten years of age, and a child ten years of age or over who has been adjudged delinquent. The bill also permits such a guardianship to be ordered not only when the child's parent is neglecting, refusing, or unable to carry out the duties of a guardian but also when the child's parent is not meeting the conditions established in a juvenile court order for the safe return of the child to the home.

Under current law, service of a petition for a protection or services guardianship and notice of hearing on the petition may be made by 1st class mail, by personal service or, if with reasonable diligence a party cannot be served by mail or by personal service, by publication of the notice in a newspaper that is likely to give notice to the parties. This bill eliminates service by publication for a protection or services guardianship petition.

Standby guardianships

Under current law, a petition for the appointment of a standby guardian to assume the duty and authority of guardianship on the incapacity, death, or debilitation and consent, of a parent of a child must be joined by each parent of the child who with reasonable diligence can be located. If a parent can be located, but refuses to join in the petition or indicates that he or she is unwilling or unable to exercise the duty and authority of guardianship, the petition may be filed without the other parent joining in the petition.

This bill limits that joinder requirement to each parent who has legal custody of the child, which means: 1) a parent to whom a family court has granted the right and responsibility to make major decisions concerning the child; or 2) in the case of a nonmarital child, the child's mother. Accordingly, under the bill, a parent who does not have legal custody of the child is not required to join in the guardianship petition. The bill also permits one parent who has legal custody of a child to file a guardianship petition without the other parent joining in the petition if that other parent fails, rather than refuses, to join in the petition or to indicate that he or she is fit, willing, and able to exercise the duty and authority of guardianship.

In addition, under current law, before the juvenile court may appoint a person as the standby guardian of a child, the juvenile court must make certain findings, including a finding: 1) that there is a significant risk that the petitioner will become incapacitated or debilitated or die within two years after the petition was filed; 2) that, if a parent has refused to join in the petition, the refusal was unreasonable; and 3) that the person nominated as guardian is willing and able to act as standby guardian.

This bill changes the findings that the juvenile court must make before the juvenile court may appoint a standby guardian by: 1) eliminating the two-year window for significant risk of incapacitation, debilitation, or death and instead requiring the juvenile court to find that that the petitioner has a physical or mental impairment or a physical illness, disease, or injury and that there is a significant risk that the petitioner will become incapacitated or debilitated or die as a result of that impairment, illness, disease, or injury; 2) eliminating altogether the finding that a parent's refusal to join in the petition was unreasonable; and 3) requiring a finding that a person is fit, willing, and able to act as standby guardian.

Protective placements

Finally, under current law, the juvenile court may order a protective placement, which is a placement for the residential care and custody of an individual, for a minor 14 years of age or over who is alleged to have a developmental disability and on whose behalf a petition for guardianship has been submitted. This bill eliminates the requirement that a guardianship petition be submitted in order for a juvenile court to order a protective placement for a minor 14 years of age or over who is alleged to have a developmental disability.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB560, s. 1 Section 1. 48.02 (8) of the statutes is amended to read:

SB560,11,3 48.02 (8) "Guardian" means the person named by the court having the duty and authority of guardianship guardian of the person of a child under s. 48.023.

SB560, s. 2 Section 2. 48.023 (intro.) of the statutes is amended to read:

SB560,11,10 48.023 Guardianship. (intro.) Except as limited by an order of the court under s. 48.976 (2) (c) 2., 48.977 (5) (b), or 48.978 (6) (b) 2., a person appointed by the court to be the guardian of the person of a child under this chapter has the duty and authority to make important decisions in matters having a permanent effect on the life and development of the child and the duty to be concerned about the child's general welfare, including but not limited to all of the following:

SB560, s. 3 Section 3. 48.023 (3) of the statutes is amended to read:

SB560,11,14 48.023 (3) The right and duty of reasonable visitation of with the child and, subject to an order of a court of competent jurisdiction, the authority to determine reasonable visitation with the child.

SB560, s. 4 Section 4. 48.023 (4) of the statutes is amended to read:

SB560,12,6 48.023 (4) The rights and responsibilities of physical custody and legal custody, including the right to change the residence of the child from this state to another state, except when physical custody or legal custody has been vested in another person or when the child is under the supervision of the department of corrections under s. 938.183, 938.34 (4h), (4m) or (4n), or 938.357 (4) or the supervision of a county department under s. 938.34 (4d) or (4n).

SB560, s. 5 Section 5. 48.09 (5) of the statutes is amended to read:

SB560,12,13 48.09 (5) By the district attorney or, if designated by the county board of supervisors, by the corporation counsel, in any matter arising under s. 48.13, 48.133, 48.976, or 48.977. If the county board transfers this authority to or from the district attorney on or after May 11, 1990, the board may do so only if the action is effective on September 1 of an odd-numbered year and the board notifies the department of administration of that change by January 1 of that odd-numbered year.

SB560, s. 6 Section 6. 48.14 (2) (b) of the statutes is amended to read:

SB560,12,18 48.14 (2) (b) The appointment and removal of a guardian of the person for a child under ss. 48.427, 48.428, 48.43, 48.831, 48.832, 48.839 (4) (a), 48.976, 48.977, and 48.978 and ch. 54 and for a child found to be in need of protection or services under s. 48.13 because the child is without parent or guardian.

SB560, s. 7 Section 7. 48.14 (11) of the statutes is amended to read:

SB560,12,20 48.14 (11) Granting visitation privileges under s. 54.56 48.976 (11).

SB560, s. 8 Section 8. 48.185 (2) of the statutes is amended to read:

SB560,13,6 48.185 (2) In an action under s. 48.41, venue shall be in the county where the birth parent or child resides at the time that the petition is filed. Venue for any proceeding under s. 48.363, 48.365. or 48.977, or any proceeding under subch. VIII or s. 48.976 when the child has been placed outside the home pursuant to a dispositional order under s. 48.345 or, 48.347, or 938.345 shall be in the county where the dispositional order was issued, unless the child's county of residence has changed, or the parent of the child or the expectant mother of the unborn child has resided in a different county of this state for 6 months. In either case, the court may, upon a motion and for good cause shown, transfer the case, along with all appropriate records, to the county of residence of the child, parent, or expectant mother.

SB560, s. 9 Section 9. 48.235 (1) (c) of the statutes is amended to read:

SB560,13,11 48.235 (1) (c) The court shall appoint a guardian ad litem for any child who is the subject of a proceeding to terminate parental rights, whether voluntary or involuntary, for a child who is the subject of a contested adoption proceeding, and for a child who is the subject of a proceeding under s. 48.976, 48.977, or 48.978.

SB560, s. 10 Section 10. 48.235 (3) (c) of the statutes is created to read:

SB560,13,16 48.235 (3) (c) In addition to any other duties and responsibilities required of a guardian ad litem, a guardian ad litem appointed for a child who is the subject of a proceeding under s. 48.976 shall do all of the following unless granted leave by the court not to do so:

SB560,13,23 1. Personally, or through a trained designee, meet with or observe the child, assess the appropriateness and safety of the environment of the child, and, if appropriate to the age and developmental level of the child, interview the child and determine the child's goals and concerns regarding the proposed guardianship. If the child is 12 years of age or over, the guardian ad litem shall also advise the child that he or she may request the appointment of counsel or retain counsel of his or her own choosing.

SB560,14,3 2. Interview the proposed guardian, personally or through a trained designee, visit the guardian's home, if appropriate, and report to the court concerning the suitability of the proposed guardian to serve as guardian of the child.

SB560,14,7 3. Attend all court proceedings relating to the guardianship, present evidence concerning the best interests of the child, if necessary, and make clear and specific recommendations to the court concerning the best interests of the child at every stage of the proceedings.

SB560,14,8 4. Report to the court on any matter that the court requests.

SB560,14,25 5. To the extent necessary to make recommendations to the court concerning the best interests of the child, to report to the court concerning the suitability of the proposed guardian to serve as guardian of the child and on any other matter that the court requests, and otherwise to fulfill the duties and responsibilities required of the guardian ad litem in the proceedings, inspect reports and records relating to the child, the child's family, and the proposed guardian, including law enforcement reports and records under ss. 48.396 (1) and 938.396 (1) (a), court records under ss. 48.396 (2) (a) and 938.396 (2), social welfare agency records under ss. 48.78 (2) (a) and 938.78 (2) (a), abuse and neglect reports and records under s. 48.981 (7) (a) 11v., pupil records under s. 118.125 (2) (L), mental health records under s. 51.30 (4) (b) 4., and health care records under s. 146.82 (2) (a) 4. The court shall include in the order appointing the guardian ad litem an order requiring the custodian of any report or record specified in this subdivision to permit the guardian ad litem to inspect and copy the report or record on presentation by the guardian ad litem of a copy of the order. A guardian ad litem who obtains access to a report or record described in this subdivision shall keep the information contained in the report or record confidential and may use or further disclose that information only for purpose of the proceedings.

SB560, s. 11 Section 11. 48.255 (1) (cm) of the statutes is amended to read:

SB560,15,5 48.255 (1) (cm) 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.

SB560, s. 12 Section 12. 48.255 (1m) (d) of the statutes is amended to read:

SB560,15,11 48.255 (1m) (d) Whether the unborn child, when born, may be subject to s. 48.028 or the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and, if the unborn child may be subject to s. 48.028 or that act, the name and address of the Indian tribe in which the unborn child may be eligible for affiliation when born, if known.

SB560, s. 13 Section 13. 48.299 (4) (a) of the statutes is amended to read:

SB560,15,15 48.299 (4) (a) Chapters 901 to 911 shall govern the presentation of evidence at the fact-finding hearings under ss. 48.31, 48.42, 48.976, 48.977 (4) (d), and 48.978 (2) (e) and (3) (f) 2.

SB560, s. 14 Section 14. 48.299 (4) (b) of the statutes is amended to read:

SB560,16,6 48.299 (4) (b) Except as provided in s. 901.05, neither common law nor statutory rules of evidence are binding at a hearing for a child held in custody under s. 48.21, a hearing for an adult expectant mother held in custody under s. 48.213, a runaway home hearing under s. 48.227 (4), a dispositional hearing, or a hearing about changes in placement, revision of dispositional orders, extension of dispositional orders or termination of guardianship orders entered under s. 48.976, 48.977 (4) (h) 2. or (6), or 48.978 (2) (j) 2. or (3) (g). At those hearings, the court shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant or unduly repetitious testimony or evidence that is inadmissible under s. 901.05. Hearsay evidence may be admitted if it has demonstrable circumstantial guarantees of trustworthiness. The court shall give effect to the rules of privilege recognized by law. The court shall apply the basic principles of relevancy, materiality and probative value to proof of all questions of fact. Objections to evidentiary offers and offers of proof of evidence not admitted may be made and shall be noted in the record.

SB560, s. 15 Section 15. 48.299 (6) (intro.) of the statutes is amended to read:

SB560,16,11 48.299 (6) (intro.) If a man who has been given notice under s. 48.27 (3) (b) 1., 48.976 (3) (b) 1., 48.977 (4) (c) 1., or 48.978 (2) (c) 1. appears at any hearing for which he received the notice, alleges that he is the father of the child , and states that he wishes to establish the paternity of the child, all of the following apply:

SB560, s. 16 Section 16. 48.299 (6) (d) of the statutes is amended to read:

SB560,16,21 48.299 (6) (d) The court may stay the proceedings under this chapter pending the outcome of the paternity proceedings under subch. IX of ch. 767 if the court determines that the paternity proceedings will not unduly delay the proceedings under this chapter and the determination of paternity is necessary to the court's disposition of the child if the child is found to be in need of protection or services proceeding or if the court determines or has reason to know that the paternity proceedings may result in a finding that the child is an Indian child and in a petition by the child's parent, Indian custodian, or tribe for transfer of the proceeding to the jurisdiction of the tribe.

SB560, s. 17 Section 17. 48.299 (7) of the statutes is amended to read:

SB560,17,5 48.299 (7) If a man who has been given notice under s. 48.27 (3) (b) 1., 48.976 (3) (b) 1., 48.977 (4) (c) 1., or 48.978 (2) (c) 1. appears at any hearing for which he received the notice but does not allege that he is the father of the child and state that he wishes to establish the paternity of the child or if no man to whom such notice was given appears at a hearing, the court may refer the matter to the state or to the attorney responsible for support enforcement under s. 59.53 (6) (a) for a determination, under s. 767.80, of whether an action should be brought for the purpose of determining the paternity of the child.

SB560, s. 18 Section 18. 48.345 (intro.) of the statutes is amended to read:

SB560,17,21 48.345 Disposition of child or unborn child of child expectant mother adjudged in need of protection or services. (intro.) If the judge finds that the child is in need of protection or services or that the unborn child of a child expectant mother is in need of protection or services, the judge shall enter an order deciding one or more of the dispositions of the case as provided in this section under a care and treatment plan, except that the order may not place any child not specifically found under this chapter or chs. 46, 49, 51, 54, or 115 to be developmentally disabled, mentally ill, or to have a disability specified in s. 115.76 (5) in facilities a facility that exclusively treat treats those categories of children, and the court may not place any child expectant mother of an unborn child in need of protection or services outside of the child expectant mother's home unless the court finds that the child expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her. The dispositions under this section are as follows:

SB560, s. 19 Section 19. 48.345 (3) (a) of the statutes is amended to read:

SB560,18,6 48.345 (3) (a) The home of a parent or , other relative, or guardian of the child, except that the judge may not designate the home of a parent or, other relative, or guardian of the child as the child's placement if the parent or, other relative, or guardian 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 child, and the conviction has not been reversed, set aside or vacated, unless the judge determines by clear and convincing evidence that the placement would be in the best interests of the child. The judge shall consider the wishes of the child in making that determination.

SB560, s. 20 Section 20. 48.368 (1) of the statutes is amended to read:

SB560,18,15 48.368 (1) If a petition for termination of parental rights is filed under s. 48.41 or 48.415 or an appeal from a judgment terminating or denying termination of parental rights is filed during the year in which a dispositional order under s. 48.355, an extension order under s. 48.365, a voluntary agreement for placement of the child under s. 48.63, or a guardianship order under ch. 54, 2009 stats., or ch. 880, 2003 stats., or s. 48.976 or 48.977 or ch. 54 is in effect, the dispositional or extension order, voluntary agreement, or guardianship order shall remain in effect until all proceedings related to the filing of the petition or an appeal are concluded.

SB560, s. 21 Section 21. 48.42 (1) (d) of the statutes is amended to read:

SB560,18,20 48.42 (1) (d) A statement of whether the child may be subject to s. 48.028 or the federal Indian t Child Welfare Act, 25 USC 1901 to 1963, and, if the child may be subject to s. 48.028 or that act, the names of the child's Indian custodian, if any, and tribe, if known.

SB560, s. 22 Section 22. 48.62 (2) of the statutes, as affected by 2011 Wisconsin Act 87, is amended to read:

SB560,19,12 48.62 (2) A relative, a guardian of a child, or a person delegated care and custody of a child under s. 48.979 who provides care and maintenance for the child is not required to obtain the license specified in this section. The department, county department, or licensed child welfare agency as provided in s. 48.75 may issue a license to operate a foster home to a relative who has no duty of support under s. 49.90 (1) (a) and who requests a license to operate a foster home for a specific child who is either placed by court order or who is the subject of a voluntary placement agreement under s. 48.63. The department, a county department, or a licensed child welfare agency may, at the request of a guardian appointed under s. 48.976, 48.977, or 48.978, ch. 54, 2009 stats., or ch. 880, 2003 stats., license the guardian's home as a foster home for the guardian's minor ward who is living in the home and who is placed in the home by court order. Relatives with no duty of support and guardians appointed under s. 48.976, 48.977, or 48.978, ch. 54, 2009 stats., or ch. 880, 2003 stats., who are licensed to operate foster homes are subject to the department's licensing rules.

SB560, s. 23 Section 23. 48.831 (1) of the statutes is amended to read:

SB560,19,20 48.831 (1) Type of guardianship. This section may be used for the appointment of a guardian of a child who does not have a living parent if a finding as to the adoptability of a child is sought. Except as provided in ss. 48.977 and 48.978, ch. 54 s. 48.976 applies to the appointment of a guardian for a child who does not have a living parent for all other purposes. An appointment of a guardian of the estate of a child who does not have a living parent shall be conducted in accordance with the procedures specified in ch. 54.

SB560, s. 24 Section 24. 48.831 (1m) (e) of the statutes is amended to read:

SB560,19,24 48.831 (1m) (e) A guardian appointed under s. 48.976, ch. 54, 2009 stats., or ch. 880, 2003 stats., whose resignation as guardian has been accepted by a court under s. 48.976 (10), 54.54 (1), 2009 stats., or s. 880.17 (1), 2003 stats.

SB560, s. 25 Section 25. 48.976 of the statutes is created to read:

SB560,20,2 48.976 Appointment of guardian of the person of a child. (1) Definitions. In this section:

SB560,20,3 (a) "Interested person" means any of the following:

SB560,20,4 1. For purposes of a petition for guardianship of a child, any of the following:

SB560,20,6 a. The child, if he or she has attained 12 years of age, and the child's guardian ad litem and counsel, if any.

SB560,20,7 b. The child's parent, guardian, legal custodian, and physical custodian.

SB560,20,11 c. Any person who has filed a declaration of paternal interest under s. 48.025, who is alleged to the court to be the father of the child, or who may, based on the statements of the mother or other information presented to the court, be the father of the child.

SB560,20,12 d. Any individual who is nominated as guardian or as a successor guardian.

SB560,20,15 e. If the child has no living parent, any individual nominated to act as fiduciary for the child in a will or other written instrument that was executed by a parent of the child.

SB560,20,19 f. If the child is receiving or in need of any public services or benefits, the county department or, in a county having a population of 750,000 or more, the department that is providing the services or benefits, through district attorney, corporation counsel, or other officials designated under s. 48.09.

SB560,20,21 g. If the child is an Indian child, the Indian child's Indian custodian and Indian tribe.

SB560,20,22 h. Any other person that the court may require.

SB560,20,24 2. For purposes of proceedings subsequent to an order for guardianship of a child, any of the following:

SB560,21,2 a. The child, if 12 years of age or over, the child's guardian ad litem, and the child's counsel.

SB560,21,3 b. The child's parent and guardian.

SB560,21,6 c. The county of venue, through the district attorney, corporation counsel, or other official designated under s. 48.09, if the county has an interest in the guardianship.

SB560,21,7 d. If the child is an Indian child, the Indian child's tribe.

SB560,21,8 e. Any other person that the court may require.

SB560,21,12 (b) "Party" means the person petitioning for the appointment of a guardian for a child or any interested person other than a person who is alleged to the court to be the father of the child or who may, based on the statements of the mother or other information presented to the court, be the father of the child.