SB387: Bill Text

LRB-3394/1

GMM:cjs&ae

2015 - 2016 LEGISLATURE

2015 Senate BILL 387

November 12, 2015 - Introduced by Senators Darling, Lassa, LeMahieu and Olsen, cosponsored by Representatives Ballweg, Billings, Bowen, Kleefisch and Rohrkaste. Referred to Committee on Judiciary and Public Safety.

SB387,3,9 An Act to renumber and amend 48.185 (1), 48.357 (1) (am) 1., 48.357 (2), 48.357 (2m) (b), 938.357 (2) and 938.357 (2m) (b); to amend 46.10 (1), 46.10 (14) (b), 46.10 (14) (e) 1., 46.10 (14) (g), 48.028 (2) (e), 48.028 (2) (f), 48.185 (2), 48.235 (1) (e), 48.299 (6) (e) 5., 48.315 (2m) (a), 48.32 (1) (b) 1. (intro.), 48.32 (1) (d) 1., 48.355 (2e) (b), 48.355 (4) (a), 48.355 (4) (b) 1., 48.355 (4) (b) 2., 48.355 (4) (b) 3., 48.355 (4) (b) 4., 48.355 (4) (c), 48.357 (title), 48.357 (1) (a), 48.357 (1) (am) 2. (intro.), 48.357 (1) (am) 2m., 48.357 (1) (am) 3., 48.357 (1) (c) 1., 48.357 (1) (c) 2., 48.357 (1) (c) 2m., 48.357 (1) (c) 3., 48.357 (2m) (a), 48.357 (2m) (bm), 48.357 (2m) (br), 48.357 (2m) (c), 48.357 (2r), 48.357 (2v) (a) 1., 48.357 (2v) (a) 1m., 48.357 (2v) (a) 2., 48.357 (2v) (a) 2m., 48.357 (2v) (d) 1., 48.357 (4d) (a), 48.357 (4d) (am), 48.357 (5m), 48.357 (6) (a) (intro.), 48.357 (6) (a) 1., 48.357 (6) (a) 2., 48.357 (6) (a) 3., 48.357 (6) (a) 4., 48.357 (6) (b), 48.358 (2) (a), 48.36 (1) (a), 48.365 (5) (a), 48.365 (5) (b) 1., 48.365 (5) (b) 2., 48.365 (5) (b) 3., 48.365 (5) (b) 4., 48.38 (4m) (title), 48.75 (1g) (d), 49.345 (1), 49.345 (2), 49.345 (14) (b), 49.345 (14) (e) 1., 49.345 (14) (g), 301.12 (1), 301.12 (2), 301.12 (14) (b), 301.12 (14) (e) 1., 301.12 (14) (g), 757.69 (1) (g) 6., 757.69 (1) (g) 8., 757.69 (1) (g) 9., 757.69 (1m) (d), 767.001 (1) (i), 767.001 (1) (m), 767.59 (1), 767.59 (2) (c), 767.77 (1), 767.78 (1), 780.01 (5), 893.415 (2), 938.028 (2) (c), 938.185 (2), 938.235 (1) (e), 938.299 (6) (e) 5., 938.30 (6) (b), 938.31 (7) (b), 938.315 (2m) (a), 938.32 (1) (c) 1. (intro.), 938.32 (1) (e) 1., 938.355 (2e) (b), 938.357 (title), 938.357 (1) (title), 938.357 (1) (a), 938.357 (1) (am) (title), 938.357 (1) (am) 1., 938.357 (1) (am) 2., 938.357 (1) (am) 2m., 938.357 (1) (am) 3., 938.357 (1) (c) (title), 938.357 (1) (c) 1., 938.357 (1) (c) 2., 938.357 (1) (c) 3., 938.357 (2m) (a), 938.357 (2m) (am) (title), 938.357 (2m) (br), 938.357 (2m) (c), 938.357 (2r), 938.357 (2v) (a) 1., 938.357 (2v) (a) 2., 938.357 (2v) (a) 2m., 938.357 (2v) (c) (title), 938.357 (4d) (am), 938.357 (5m) (a), 938.357 (6) (a) (intro.), 938.357 (6) (a) 2., 938.357 (6) (b), 938.358 (2) (a), 938.36 (1) (a), 938.363 (1) (c) and 938.38 (4m) (title); and to create 48.185 (4), 48.185 (5), 48.21 (5m), 48.213 (4m), 48.217, 48.255 (1) (cg), 48.32 (1) (am), 48.355 (4g), 48.357 (1) (title), 48.357 (1) (am) (title), 48.357 (1) (c) (title), 48.357 (2) (title), 48.357 (2) (b), 48.357 (2m) (title), 48.357 (2m) (am) (title), 48.357 (2m) (b) (title), 48.357 (2v) (title), 48.357 (2v) (a) (title), 48.357 (2v) (b) (title), 48.357 (2v) (c) (title), 48.357 (2v) (d) (title), 48.357 (4d) (title), 48.357 (4d) (b) (title), 48.357 (5r) (title), 48.357 (6) (title), 48.42 (1) (bm), 48.43 (8), 48.437, 757.69 (1) (g) 15., 938.21 (5m), 938.217, 938.255 (1) (cg), 938.32 (1) (bm), 938.355 (4g), 938.357 (2) (b), 938.357 (2v) (d) (title), 938.357 (4d) (a) (title) and 938.357 (4d) (b) (title) of the statutes; relating to: procedures for changing the placement of a child who is subject to a temporary physical custody order or termination of parental rights order of the juvenile court, procedures for amending a consent decree of the juvenile court, emergency change-in-placement procedures for a child who is placed in his or her own home under a dispositional order of the juvenile court, venue in post-dispositional proceedings under the Children's Code and Juvenile Justice Code, procedures for requesting and objecting to a proposed change in placement of a child and for changing the placement of a child when no objection is filed, the appointment of a successor guardian for a child who is subject to a termination of parental rights order of the juvenile court, case closure orders with respect to a child whose dispositional order is terminated, and the effective period of a temporary physical custody order of the juvenile court.

Analysis by the Legislative Reference Bureau

Introduction

Current law provides procedures for the change in placement of a child who is subject to a dispositional order of the court assigned to exercise jurisdiction under the Children's Code (juvenile court), including procedures for making an emergency change in placement of such a child who is placed outside of the child's home.

This bill: 1) creates similar procedures to permit a change in placement of a child alleged to be in need of protection or services who is being held in custody under a temporary physical custody (TPC) order; 2) creates similar procedures to permit a change in placement of a child who, following a termination of parental rights (TPR) and pending adoptive placement, is in the guardianship of the Department of Children and Families, a county department of human services or social services, or a licensed child welfare agency (collectively "agency"); 3) creates a procedure under which a consent decree of the juvenile court, which is an order of the juvenile court suspending a child in need of protection or services (CHIPS) proceeding and placing the child under supervision in the child's home or present placement, may be amended; and 4) creates emergency change-in-placement procedures to permit a child who is placed in the child's home under a dispositional order to be placed outside the home when emergency conditions necessitate an immediate change in placement. The bill also makes certain changes regarding the place of trial (venue) of a post-dispositional proceeding, certain changes regarding the appointment of a successor guardian for a child who is subject to a TPR order, and certain changes in the procedures for requesting and objecting to a proposed change in placement and for changing a child's placement when no objection is filed. In addition, the bill permits the juvenile court to grant certain case closure orders when it terminates the dispositional order of a child. Finally, the bill specifies the effective period of a TPC order.

Current law

Under current law, the person or agency primarily responsible for implementing the dispositional order, the district attorney, or the corporation counsel may request a change in placement of a child, other than a change in placement from a placement in the child's home to a placement outside the child's home, by causing notice of the proposed change in placement to be sent to the child, the parent, guardian, and legal custodian of the child, any foster parent or other physical custodian of the child, the child's court-appointed special advocate (CASA), and, if the child is an Indian child, the Indian child's Indian custodian and tribe. A person receiving that notice, other than a CASA, may obtain a hearing on the matter by filing an objection with the juvenile court within ten days after the notice is sent to the juvenile court.

For a change in placement that would change the placement of a child placed in the child's home to a placement outside the home, the person or agency primarily responsible for implementing the dispositional order, the district attorney, or the corporation counsel must submit a request for the change in placement to the juvenile court, and the juvenile court must hold a hearing prior to ordering the requested change in placement.

Current law also permits the child, the parent, guardian, legal custodian, or Indian custodian of the child, or any person or agency primarily bound by the dispositional order, other than the person or agency primarily responsible for implementing the dispositional order, to request a change in placement. Subject to certain exceptions, the juvenile court must hold a hearing prior to ordering the requested change in placement if the request states that new information is available that affects the advisability of the current placement.

In addition, current law permits the person or agency primarily responsible for implementing the dispositional order to remove a child placed outside the child's home to a new placement if emergency conditions necessitate an immediate change in placement. An emergency change in placement may be made without prior notice, but notice must be sent within 48 hours after the emergency change in placement and any party receiving notice may demand a hearing.

The bill

Venue. Under current law, venue for a change-in-placement proceeding is in the county where the child resides or is present and venue for a proceeding for the revision or extension of a dispositional order (revision or extension proceeding) is in the county where the dispositional order was issued, unless the child's county of residence has changed or the child's parent has resided in a different county for six months, in which case the juvenile court may transfer the case to the county of residence of the child or parent.

This bill provides that venue for a change-in-placement, revision, or extension proceeding is in the county where the dispositional order was issued, unless prior to the proceeding the juvenile court of that county determined that proper venue for the proceeding lies in another county and transferred the case to that other county.

Request and objection procedures. This bill eliminates the authority of a person or agency primarily bound by a dispositional order to request a change in placement. The bill also requires the person or agency responsible for implementing the dispositional order, the district attorney, or the corporation counsel to file a notice of a requested change in placement with the juvenile court on the same day that the notice is sent and permits a person receiving that notice to file an objection with the juvenile court within ten days after that notice is sent, not received. In addition, under the bill, if no objection is filed within those ten days, the juvenile court must enter an order changing the child's placement as proposed in the notice. Current law does not expressly require the juvenile court order to enter a change-in-placement order when no objection is filed.

Child subject to TPC order. The bill creates similar procedures under which: 1) the juvenile court intake worker (intake worker), the agency primarily responsible for providing services under a TPC order, the district attorney, or the corporation counsel may request a change in placement of the child who is subject to the TPC order; 2) the child, the child's counsel or guardian ad litem (GAL), or the parent, guardian, legal custodian, or Indian custodian of the child may request a change in placement of the child who is subject to the TPC order; and 3) the intake worker or the agency primarily responsible for providing services under a TPC order may make an emergency change in placement of a child placed outside the home under the TPC order.

The bill, however, does not permit a change in the placement of a child who is subject to a TPC order from a placement in the child's home to a placement outside the home. Such a change in placement may only be made as provided under current law, which permits a TPC order placing a child with a parent, guardian, legal custodian, or other responsible person to be amended, with notice, so as to place the child in another form of custody for failure to conform to the conditions imposed in the TPC order.

Child under agency guardianship post-TPR. In addition, the bill creates similar procedures under which: 1) the agency appointed as the guardian of a child under a TPR order, the district attorney, or the corporation counsel may request a change in placement of the child who is subject to the TPR order; 2) the child, the legal custodian, or Indian custodian of the child, or any agency responsible for securing the adoption of the child or for establishing the child in a permanent family setting, other than the agency appointed as the guardian of the child, may request a change in placement of the child who is subject to the TPR order; and 3) the agency appointed as the guardian of a child under a TPR order make make an emergency change in placement of the child.

The bill also permits any of those persons to petition the juvenile court for the appointment of a successor guardian of the child or the juvenile court, on its own motion, to propose such an appointment. The bill requires that petition or motion to be heard in the same manner and to be subject to the same requirements as provided under current law for the appointment of a successor guardian.

Under the bill, venue for those change-in-placement and successor guardianship proceedings is in the county where the TPR order was issued.

Child subject to consent decree. The bill also creates a procedure under which a child, if 12 years of age or over; the parent, guardian, or legal custodian of the child; and the person filing the CHIPS petition (generally the district attorney or corporation counsel) may agree to, and the juvenile court may enter, an amended consent decree. An amended consent decree may change the placement of the child who is the subject of the original consent decree or revise any other term or condition of the original consent decree. An amended consent decree may not extend the expiration date of the original consent decree.

Emergency change in placement; child placed in own home. The bill creates a procedure under which the person or agency primarily responsible for implementing a dispositional order placing a child in the child's home may change the placement of the child to a placement outside the home when emergency conditions necessitate an immediate change in placement. Under the bill, a hearing on the emergency change in placement must be held within 48 hours after the emergency change in placement is made, excluding Saturdays, Sundays, and legal holidays. By the time of the hearing, a request for a nonemergency placement under current law must be filed with the juvenile court, and the juvenile court must hold a hearing on that request as provided under current law, except that, if all parties consent, the juvenile court may proceed immediately with the hearing on the nonemergency change-in-placement request in lieu of the hearing on the emergency change in placement.

Case closure orders. The bill permits the juvenile court, on the request of a party or on its own motion and on a finding that granting the request or motion would be in the best interests of the child, to terminate a child's dispositional order before the child attains 18 years of age and to grant an order determining paternity of the child, legal custody of the child, periods of physical placement with the child, visitation rights with respect to the child, or the obligation of the child's parents to provide support for the child (child support) and the responsibility of the child's parents to provide coverage of the child's health care expenses (health care coverage) in the same manner as those determinations are made under the laws governing actions for divorce, paternity, or other actions affecting the family if any of the following apply:

1. The child's parents are parties to a pending action for divorce, annulment, or legal separation, a man determined to be the biological father of the child for purposes of a proceeding under the Children's Code or the Juvenile Justice Code is a party to a pending action to determine paternity of the child, or the child is the subject of a pending independent action to determine legal custody of the child or visitation rights with respect to the child.

2. The child is the subject of an order that has been granted in an action affecting the family determining legal custody, periods of physical placement, visitation, or child support and health care coverage.

The bill provides that an order of the juvenile court determining paternity, legal custody, periods of physical placement, visitation rights, or child support and health care coverage (case closure order) may modify a preexisting order of a court exercising jurisdiction over an action affecting the family (family court) and shall remain in effect until terminated or modified by a family court. The bill also provides that a person seeking enforcement or modification of a case closure order must seek that relief from the family court.

Effective period of TPC order. Finally, the bill specifies that a TPC order remains in effect until a dispositional order is granted or a consent decree is entered into, the CHIPS petition is withdrawn or dismissed, or the TPC order is modified or terminated by further order of the juvenile court. Current law does not specify the effective period of a TPC order.

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:

SB387,1 Section 1. 46.10 (1) of the statutes is amended to read:

SB387,7,5 46.10 (1) Liability and the collection and enforcement of such liability for the care, maintenance, services, and supplies specified in this section is governed exclusively by this section, except in cases of child support ordered by a court under s. 48.355 (2) (b) 4. or (4g) (a), 48.357 (5m) (a) , or 48.363 (2) or ch. 767.

SB387,2 Section 2. 46.10 (14) (b) of the statutes is amended to read:

SB387,7,14 46.10 (14) (b) Except as provided in par. (c) and subject to par. (cm), liability of a parent specified in sub. (2) or s. 46.03 (18) for the care and maintenance of the parent's minor child who has been placed by a court order under s. 48.32, 48.355, or 48.357 in a residential, nonmedical facility such as a group home, foster home, subsidized guardianship home, or residential care center for children and youth shall be determined by the court by using the percentage standard established by the department of children and families under s. 49.22 (9) and by applying the percentage standard in the manner established by the department under par. (g).

SB387,3 Section 3. 46.10 (14) (e) 1. of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

SB387,8,9 46.10 (14) (e) 1. An order issued under s. 48.355 (2) (b) 4. or (4g) (a), 48.357 (5m) (a), or 48.363 (2) for support determined under this subsection constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, income continuation insurance benefits under s. 40.62, duty disability benefits under s. 40.65, benefits under ch. 102 or 108, and other money due or to be due in the future to the county department under s. 46.22 or 46.23 in the county where the order was entered or to the department, depending upon the placement of the child as specified by rules promulgated under subd. 5. The assignment shall be for an amount sufficient to ensure payment under the order.

SB387,4 Section 4. 46.10 (14) (g) of the statutes is amended to read:

SB387,8,17 46.10 (14) (g) For purposes of determining child support under par. (b), the department shall promulgate rules related to the application of the standard established by the department of children and families under s. 49.22 (9) to a child support obligation for the care and maintenance of a child who is placed by a court order under s. 48.32, 48.355, or 48.357 in a residential, nonmedical facility. The rules shall take into account the needs of any person, including dependent children other than the child, whom either parent is legally obligated to support.

SB387,5 Section 5. 48.028 (2) (e) of the statutes is amended to read:

SB387,9,2 48.028 (2) (e) "Out-of-home care placement" means the removal of an Indian child from the home of his or her parent or Indian custodian for temporary placement in a foster home, group home, residential care center for children and youth, or shelter care facility, in the home of a relative other than a parent, or in the home of a guardian, from which placement the parent or Indian custodian cannot have the child returned upon demand. "Out-of-home care placement" does not include an adoptive placement, a preadoptive placement, a delegation of powers, as described in par. (d) 5., an emergency change in placement under s. 48.357 (2) (b), or holding an Indian child in custody under ss. 48.19 to 48.21.

SB387,6 Section 6. 48.028 (2) (f) of the statutes is amended to read:

SB387,9,9 48.028 (2) (f) "Preadoptive placement" means the temporary placement of an Indian child in a foster home, group home, or residential care center for children and youth, in the home of a relative other than a parent, or in the home of a guardian after a termination of parental rights but prior to or in lieu of an adoptive placement. "Preadoptive placement does not include an emergency change in placement under s. 48.437 (2).

SB387,7 Section 7. 48.185 (1) of the statutes is renumbered 48.185 (1) (intro.) and amended to read:

SB387,9,14 48.185 (1) (intro.) Proceedings generally. Subject to sub. subs. (2) to (5), venue for any proceeding under ss. s. 48.13, 48.133, 48.135 and, or 48.14 (1) to (9) may be in any of the following: the

SB387,9,16 (a) The county where the child or the expectant mother of the unborn child resides or the.