48.62(5)(b)
(b) Subject to
par. (d), on the death, incapacity, resignation, or removal of a guardian receiving payments under
par. (a), a county department or, in a county having a population of 500,000 or more, the department shall provide monthly subsidized guardianship payments in the amount specified in
par. (e) for a period of up to 12 months to an interim caretaker who meets all of the conditions specified in
par. (c).
48.62(5)(c)
(c) A county department or, in a county having a population of 500,000 or more, the department may not provide monthly subsidized guardianship payments under
par. (a) or
(b) unless all of the following conditions are met:
48.62(5)(c)1.
1. The county department or department inspects the home of the guardian or interim caretaker, interviews the guardian or interim caretaker, and determines that placement of the child with the guardian or interim caretaker is in the best interests of the child.
48.62(5)(c)2.
2. The county department or department conducts a background investigation under
s. 48.57 (3p) of the guardian or interim caretaker, the employees and prospective employees of the guardian or interim caretaker who have or would have regular contact with the child for whom the payments would be made, and any other adult resident, as defined in
s. 48.57 (3p) (a), of the home of the guardian or interim caretaker and determines that those individuals do not have any arrests or convictions that are likely to adversely affect the child or the ability of the guardian or interim caretaker to care for the child.
48.62(5)(c)3.
3. In the case of an interim caretaker, the interim caretaker cooperates with the county department or department in finding a permanent placement for the child.
48.62(5)(d)
(d) The department shall request from the secretary of the federal department of health and human services a waiver of the requirements under
42 USC 670 to
679a that would authorize the state to receive federal foster care and adoption assistance reimbursement under
42 USC 670 to
679a for the costs of providing care for a child who is in the care of a guardian who was licensed as the child's foster parent or treatment foster parent before the guardianship appointment and who has entered into a subsidized guardianship agreement with the county department or department. If the waiver is approved for a county having a population of 500,000 or more, the department shall provide the monthly payments under
par. (a) from the appropriations under
s. 20.437 (1) (cx),
(gx),
(kw), and
(mx). If the waiver is approved for any other county, the department shall determine which counties are authorized to provide monthly payments under
par. (a) or
(b), and the county departments of those counties shall provide those payments from moneys received under
s. 48.569 (1) (d).
48.62(5)(e)
(e) The amount of a monthly payment under
par. (a) or
(b) for the care of a child shall equal the amount received under
sub. (4) by the guardian of the child for the month immediately preceding the month in which the guardianship order was granted. A guardian or an interim caretaker who receives a monthly payment under
par. (a) or
(b) is not eligible to receive a payment under
sub. (4) or
s. 48.57 (3m) or
(3n).
48.62(6)
(6) The department or a county department may recover an overpayment made under
sub. (4) or
(5) from a foster parent, treatment foster parent, guardian, or interim caretaker who continues to receive payments under
sub. (4) or
(5) by reducing the amount of the person's monthly payment. The department may by rule specify other methods for recovering overpayments made under
sub. (4) or
(5). A county department that recovers an overpayment under this subsection due to the efforts of its officers and employees may retain a portion of the amount recovered, as provided by the department by rule.
48.62(7)
(7) In each federal fiscal year, the department shall ensure that there are no more than 2,200 children in foster care and treatment foster care placements for more than 24 months, consistent with the best interests of each child. Services provided in connection with this requirement shall comply with the requirements under
P.L. 96-272.
48.62 History
History: 1977 c. 354 s.
101;
1977 c. 418,
447;
1981 c. 20;
1985 a. 29 s.
3202 (23);
1985 a. 176,
281,
332,
403;
1989 a. 31,
336;
1993 a. 395 ss.
31m,
39;
1993 a. 437 s.
67;
1993 a. 446 ss.
79 to
82,
134m;
1993 a. 491;
1995 a. 275;
1997 a. 27,
334;
1999 a. 9;
2001 a. 69;
2005 a. 25,
232,
387;
2007 a. 20 ss.
810,
1322,
1323; s. 13.93 (2) (c).
48.62 Cross-reference
Cross Reference: See also ch.
DCF 56, Wis. adm. code.
48.62 Annotation
A foster child in a family owned foster home under a one-year dispositional order is a resident of the household for insurance purposes. A. G. v. Travelers Insurance Co.
112 Wis. 2d 18,
331 N.W.2d 643 (Ct. App. 1983).
48.62 Annotation
Foster homes owned, operated, or contracted for by the department or a county department are immune from local zoning ordinances. Foster homes owned, operated, or contracted for by licensed child welfare agencies are not immune. All family operated foster homes are subject to local zoning. Municipal foster home licensing ordinances are unenforceable. 63 Atty. Gen. 34.
48.62 Annotation
State-licensed foster homes are immune from local zoning ordinances restricting the number of unrelated occupants of single family dwellings. 66 Atty. Gen. 342.
48.625
48.625
Licensing of group homes; fees. 48.625(1)
(1) Any person who receives, with or without transfer of legal custody, 5 to 8 children, not including children who under
sub. (1m) are not counted toward that number, to provide care and maintenance for those children shall obtain a license to operate a group home from the department. To obtain a license under this subsection to operate a group home, a person must meet the minimum requirements for a license established by the department under
s. 48.67, meet the requirements specified in
s. 48.685 and pay the license fee under
sub. (2). A license issued under this subsection is valid until revoked or suspended, but shall be reviewed every 2 years as provided in
s. 48.66 (5).
48.625(1m)
(1m) The department may issue a license under
sub. (1) authorizing a group home solely to provide a safe and structured living arrangement for children 12 years of age or over who are custodial parents, as defined in
s. 49.141 (1) (b), or expectant mothers and who are placed in the group home under
s. 48.345 (3) (cm) or
938.34 (3) (cm) and for children 14 years of age or over who are custodial parents, as defined in
s. 49.141 (1) (b), or expectant mothers and who are placed in the group home under voluntary agreements under
s. 48.63 (5), and to provide those children with training in parenting skills, including child development, family budgeting, health and nutrition, and other skills to promote the long-term economic independence of those children and the well-being of the children of those children. In licensing a group home described in this subsection, the department may not count toward the number of children whom the group home is licensed to serve the child of a child who is placed in the group home. The department shall promulgate rules establishing standards for a group home described in this subsection. Those rules shall require such a group home to provide for the health, safety, and welfare of the child of any child custodial parent who has been placed in that group home and to have a policy governing visitation between such a child and the child's noncustodial parent.
48.625(2)(a)(a) Before the department may issue a license under
sub. (1) to a group home, the group home must pay to the department a biennial fee of $121, plus a biennial fee of $18.15 per child, based on the number of children that the group home is licensed to serve. A group home that wishes to continue a license issued under
sub. (1) shall pay the fee under this paragraph by the continuation date of the license. A new group home shall pay the fee under this paragraph no later than 30 days before the opening of the group home.
48.625(2)(b)
(b) A group home that wishes to continue a license issued under
sub. (1) and that fails to pay the fee under
par. (a) by the continuation date of the license or a new group home that fails to pay the fee under
par. (a) by 30 days before the opening of the group home shall pay an additional fee of $5 per day for every day after the deadline that the group home fails to pay the fee.
48.625(2m)
(2m) When the department issues a license to operate a group home, the department shall notify the clerk of the school district in which the group home is located that a group home has been licensed in the school district.
48.625 Cross-reference
Cross-reference: See s.
48.66 for the department's licensing authority.
48.627
48.627
Foster, treatment foster and family-operated group home parent insurance and liability. 48.627(1)
(1) In this section, "family-operated group home" means a home licensed under
s. 48.625 for which the licensee is one or more individuals who operate not more than one group home.
48.627(2)(a)(a) Before the department, a county department or a licensed child welfare agency may issue, renew or continue a foster home, treatment foster home or family-operated group home license, the licensing agency shall require the applicant to furnish proof satisfactory to the licensing agency that he or she has homeowner's or renter's liability insurance that provides coverage for negligent acts or omissions by children placed in a foster home, treatment foster home or family-operated group home that result in bodily injury or property damage to 3rd parties.
48.627(2)(b)
(b) A licensing agency may, in accordance with rules promulgated by the department, waive the requirement under
par. (a) if the applicant shows that he or she is unable to obtain the required insurance, that he or she has had a homeowner's or renter's liability insurance policy canceled or that payment of the premium for the required insurance would cause undue financial hardship.
48.627(2)(c)
(c) The department shall conduct a study to determine the cost-effectiveness of purchasing insurance to provide standard homeowner's or renter's liability insurance coverage for applicants who are granted a waiver under
par. (b). If the department determines that it would be cost-effective to purchase such insurance, it may purchase the insurance from the appropriations under
s. 20.437 (1) (cf) and
(pd).
48.627(2)(d)
(d) The licensing agency shall specify the amounts of liability insurance coverage required under
par. (a).
48.627(2c)
(2c) The department shall determine the cost-effectiveness of purchasing private insurance that would provide coverage to foster, treatment foster, and family-operated group home parents for acts or omissions by or affecting a child who is placed in a foster home, a treatment foster home, or a family-operated group home. If this private insurance is cost-effective and available, the department shall purchase the insurance from the appropriations under
s. 20.437 (1) (cf) and
(pd). If the insurance is unavailable, payment of claims for acts or omissions by or affecting a child who is placed in a foster home, a treatment foster home, or a family-operated group home shall be in accordance with
subs. (2m) to
(3).
48.627(2m)
(2m) Within the limits of the appropriations under
s. 20.437 (1) (cf) and
(pd), the department shall pay claims to the extent not covered by any other insurance and subject to the limitations specified in
sub. (3), for bodily injury or property damage sustained by a licensed foster, treatment foster, or family-operated group home parent or a member of the foster, treatment foster, or family-operated group home parent's family as a result of the act of a child in the foster, treatment foster, or family-operated group home parent's care.
48.627(2s)
(2s) Within the limits of the appropriations under
s. 20.437 (1) (cf) and
(pd), the department may pay claims to the extent not covered by any other insurance and subject to the limitations specified in
sub. (3), for all of the following:
48.627(2s)(a)
(a) Acts or omissions of the foster, treatment foster or family-operated group home parent that result in bodily injury to the child who is placed in the foster home, treatment foster home or family-operated group home or that form the basis for a civil action for damages by the foster child's parent against the foster, treatment foster or family-operated group home parent.
48.627(2s)(b)
(b) Bodily injury or property damage caused by an act or omission of a child who is placed in the foster, treatment foster or family-operated group home parent's care for which the foster, treatment foster or family-operated group home parent becomes legally liable.
48.627(3)(b)(b) A claim under
sub. (2m) shall be submitted to the department within 90 days after the bodily injury or property damage occurs. A claim under
sub. (2s) shall be submitted within 90 days after a foster, treatment foster or family-operated group home parent learns that a legal action has been commenced against that parent. No claim may be paid under this subsection unless it is submitted within the time limits specified in this paragraph.
48.627(3)(c)
(c) The department shall review and approve in whole or in part or disapprove all claims received under this subsection during each 3-month period beginning with the period from July 1, 1985, to September 30, 1985.
48.627(3)(d)
(d) No claim may be approved in an amount exceeding the total amount available for paying claims under this subsection in the fiscal year during which the claim is submitted. No claim for property damage sustained by a foster, treatment foster or family-operated group home parent or a member of a foster, treatment foster or family-operated group home parent's family may be approved in an amount exceeding $250,000.
48.627(3)(e)
(e) The department may not approve a claim unless the foster, treatment foster or family-operated group home parent submits with the claim evidence that is satisfactory to the department of the cause and value of the claim and evidence that insurance coverage is unavailable or inadequate to cover the claim. If insurance is available but inadequate, the department may approve a claim only for the amount of the value of the claim that it determines is in excess of the amount covered by insurance.
48.627(3)(f)
(f) If the total amount of the claims approved during any calendar quarter exceeds 25% of the total funds available during the fiscal year for purposes of this subsection plus any unencumbered funds remaining from the previous quarter, the department shall prorate the available funds among the claimants with approved claims. The department shall also prorate any unencumbered funds remaining in the appropriation under
s. 20.437 (1) (cf) at the end of each fiscal year among the claimants whose claims were prorated during the fiscal year. Payment of a prorated amount from unencumbered funds remaining at the end of the fiscal year constitutes a complete payment of the claim for purposes of this program, but does not prohibit a foster parent or treatment foster parent from submitting a claim under
s. 16.007 for the unpaid portion.
48.627(3)(g)
(g) A claimant whose claim is denied or whose payment is prorated is not entitled to a hearing under
ch. 227 on the issue of the denial or proration.
48.627(3)(h)
(h) If a claim by a foster, treatment foster or family-operated group home parent or a member of the foster, treatment foster or family-operated group home parent's family is approved, the department shall deduct from the amount approved $100 less any amount deducted by an insurance company from a payment for the same claim, except that a foster, treatment foster or family-operated group home parent and his or her family are subject to only one deductible for all claims filed in a fiscal year.
48.627(3)(i)
(i) The department may enter into a contract for the administration of this subsection.
48.627(4)
(4) Except as provided in
s. 895.485, the department is not liable for any act or omission by or affecting a child who is placed in a foster home, treatment foster home, or family-operated group home, but shall, as provided in this section, pay claims described under
sub. (2m) and may pay claims described under
sub. (2s) or may purchase insurance to cover such claims as provided for under
sub. (2c), within the limits of the appropriations under
s. 20.437 (1) (cf) and
(pd).
48.627(5)
(5) The attorney general may represent a foster, treatment foster or family-operated group home parent in any civil action arising out of an act or omission of the foster, treatment foster or family-operated group home parent while acting in his or her capacity as a foster, treatment foster or family-operated group home parent.
48.63
48.63
Restrictions on placements. 48.63(1)
(1) Acting under court order or voluntary agreement, the child's parent or guardian or the department, the department of corrections, a county department, or a child welfare agency licensed to place children in foster homes, treatment foster homes, or group homes may place a child or negotiate or act as intermediary for the placement of a child in a foster home, treatment foster home, or group home. Voluntary agreements under this subsection may not be used for placements in facilities other than foster, treatment foster, or group homes and may not be extended. A foster home or treatment foster home placement under a voluntary agreement may not exceed 180 days from the date on which the child was removed from the home under the voluntary agreement. A group home placement under a voluntary agreement may not exceed 15 days from the date on which the child was removed from the home under the voluntary agreement, except as provided in
sub. (5). These time periods do not apply to placements made under
s. 48.345,
938.183,
938.34, or
938.345. Voluntary agreements may be made only under this subsection and
sub. (5) (b) and shall be in writing and shall specifically state that the agreement may be terminated at any time by the parent or guardian or by the child if the child's consent to the agreement is required. The child's consent to the agreement is required whenever the child is 12 years of age or older. If a county department, the department, or the department of corrections places a child or negotiates or acts as intermediary for the placement of a child under this subsection, the voluntary agreement shall also specifically state that the county department, department, or department of corrections has placement and care responsibility for the child as required under
42 USC 672 (a) (2) and has primary responsibility for providing services to the child.
48.63(2)
(2) No person may place a child or offer or hold himself or herself out as able to place a child, except as provided in this section. Enrollment of a child by a parent or guardian in an educational institution shall not constitute a placement for the purposes of this section.
48.63(3)(b)1.1. At the request of a parent having custody of a child and the proposed adoptive parent or parents of the child, the department, a county department under
s. 48.57 (1) (e) or
(hm), or a child welfare agency licensed under
s. 48.60 may place the child in the home of the proposed adoptive parent or parents prior to termination of parental rights to the child as provided in
subd. 2. or
3., whichever is applicable, and
subd. 4.
48.63(3)(b)2.
2. The department, a county department under
s. 48.57 (1) (e) or
(hm), or a child welfare agency licensed under
s. 48.60 may place a child under
subd. 1. in the home of a proposed adoptive parent or parents who reside in this state if that home is licensed as a foster home or treatment foster home under
s. 48.62.
48.63(3)(b)3.
3. The department, a county department under
s. 48.57 (1) (e) or
(hm), or a child welfare agency licensed under
s. 48.60 may place a child under
subd. 1. in the home of a proposed adoptive parent or parents who reside outside this state if the placement is made in compliance with
s. 48.98 or
48.988, whichever is applicable, if the home meets the criteria established by the laws of the state where the proposed adoptive parent or parents reside for a preadoptive placement of a child in the home of a nonrelative, and if an appropriate agency in that state has completed an investigation of the home and filed a report and recommendation concerning the home with the department, county department, or licensed child welfare agency.
48.63(3)(b)4.
4. Before a child may be placed under
subd. 1., the department, county department, or child welfare agency making the placement and the proposed adoptive parent or parents shall enter into a written agreement that specifies who is financially responsible for the cost of providing care for the child prior to the finalization of the adoption and for the cost of returning the child to the parent who has custody of the child if the adoption is not finalized. Under the agreement, the department, county department, or child welfare agency or the proposed adoptive parent or parents, but not the birth parent of the child or any alleged or presumed father of the child, shall be financially responsible for those costs.
48.63(3)(b)5.
5. Prior to termination of parental rights to the child, no person may coerce a birth parent of the child or any alleged or presumed father of the child into refraining from exercising his or her right to withdraw consent to the transfer or surrender of the child or to termination of his or her parental rights to the child, to have reasonable visitation or contact with the child, or to otherwise exercise his or her parental rights to the child.
48.63(4)
(4) A permanency plan under
s. 48.38 is required for each child placed in a foster home or treatment foster home under
sub. (1). If the child is living in a foster home or treatment foster home under a voluntary agreement, the agency that negotiated or acted as intermediary for the placement shall prepare the permanency plan within 60 days after the date on which the child was removed from his or her home under the voluntary agreement. A copy of each plan shall be provided to the child if he or she is 12 years of age or over and to the child's parent or guardian. If the agency that arranged the voluntary placement intends to seek a court order to place the child outside of his or her home at the expiration of the voluntary placement, the agency shall prepare a revised permanency plan and file that revised plan with the court prior to the date of the hearing on the proposed placement.
48.63(5)(a)(a) Subsection (1) does not apply to the voluntary placement under
par. (b) of a child in a group home described in s.
48.63(5)(a)48.48. 625 (1m). Such placements may be made only as provided in
par. (b).
48.63(5)(b)
(b) If a child who is at least 14 years of age, who is a custodial parent, as defined in
s. 49.141 (1) (b), or an expectant mother, and who is in need of a safe and structured living arrangement and the parent or guardian of the child consent, a child welfare agency licensed to place children in group homes may place the child or arrange the placement of the child in a group home described in
s. 48.625 (1m). Before placing a child or arranging the placement of a child under this paragraph, the child welfare agency shall report any suspected abuse or neglect of the child as required under
s. 48.981 (2). A voluntary agreement to place a child in a group home described in
s. 48.625 (1m) may be made only under this paragraph, shall be in writing, and shall specifically state that the agreement may be terminated at any time by the parent, guardian, or child. An initial placement under this paragraph may not exceed 180 days from the date on which the child was removed from the home under the voluntary agreement, but may be extended as provided in
par. (d) 3. to
6. An initial placement under this paragraph of a child who is under 16 years of age on the date of the initial placement may be extended as provided in
par. (d) 3. to
6. no more than once.
48.63(5)(c)
(c) A permanency plan under
s. 48.38 is required for each child placed in a group home under
par. (b) and for any child of that child who is residing with that child. The agency that placed the child or that arranged the placement of the child shall prepare the plan within 60 days after the date on which the child was removed from his or her home under the voluntary agreement and shall provide a copy of the plan to the child and the child's parent or guardian.
48.63(5)(d)1.1. In this paragraph, "independent reviewing agency" means a person contracted with under
subd. 2. to review permanency plans and placements under
subds. 3. to
6.
48.63(5)(d)2.
2. An agency that places children under
par. (b) or that arranges those placements shall contract with another agency licensed under
s. 48.61 (3) to place children or with a county department to review the permanency plans and placements of those children and of any children of those children who are residing with those children as provided in
subds. 3. to
6.
48.63(5)(d)3.
3. If the agency that has placed a child under
par. (b) or that has arranged the placement of the child wishes to extend the placement of the child, the agency shall prepare a revised permanency plan for that child and for any child of that child who is residing with that child and submit the revised permanency plan or plans, together with a request for a review of the revised permanency plan or plans and the child's placement, to the independent reviewing agency before the expiration of the child's placement. The request shall include a statement that an extension of the child's placement would be in the best interests of the child, together with reliable and credible information in support of that statement, a statement that the child and the parent or guardian of the child consent to the extension of the child's placement, and a request that the independent reviewing agency approve an extension of the child's placement. On receipt of a revised permanency plan or plans and a request for review, the independent reviewing agency shall set a time and place for the review and shall advise the agency that placed the child or that arranged the placement of the child of the time and place of the review.
48.63(5)(d)4.
4. Not less than 10 days before the review, the agency that placed the child or that arranged the placement of the child shall provide a copy of the revised permanency plan or plans and the request for review submitted under
subd. 3. and notice of the time and place of the review to the child, the parent, guardian, and legal custodian of the child, and the operator of the group home in which the child is placed, together with notice of the issues to be determined as part of the permanency plan review and notice of the fact that those persons may have the opportunity to be heard at the review by submitting written comments to that agency or the independent reviewing agency before the review or by participating at the review.
48.63(5)(d)5.
5. At the review, any person specified in
subd. 4. may present information relevant to the issue of extension and information relevant to the determinations specified in
s. 48.38 (5) (c). After receiving that information, the independent reviewing agency shall make the determinations specified in
s. 48.38 (5) (c) and determine whether an extension of the child's placement is in the best interests of the child and whether the child and the parent or guardian of the child consent to the extension. If the independent reviewing agency determines that the extension is in the best interests of the child and that the child and the parent or guardian of the child consent to the extension, the independent reviewing agency shall approve, in writing, an extension of the placement for a specified period of time not to exceed 6 months, stating the reason for the approval, and the agency that placed the child or that arranged the placement of the child may extend the child's placement for the period of time approved. If the independent reviewing agency determines that the extension is not in the best interests of the child or that the child and the parent or guardian of the child do not consent to the extension, the independent reviewing agency shall, in writing, disapprove an extension of the placement, stating the reason for the disapproval, and the agency that placed the child or that arranged the placement of the child may not extend the placement of the child past the expiration date of the voluntary placement unless the agency obtains a court order placing the child in the group home after the expiration date of the voluntary placement. Notwithstanding the approval of an extension under this subdivision, the child or the parent or guardian of the child may terminate the placement at any time during the extension period.
48.63(5)(d)6.
6. Within 30 days after the review, the agency that prepared the revised permanency plan or plans shall prepare a written summary of the determinations specified in
s. 48.38 (5) (c) that were made under
subd. 5. and shall provide a copy of that summary to the independent reviewing agency, the child, the parent, guardian, and legal custodian of the child, and the operator of the group home in which the child was placed.
48.64
48.64
Placement of children in foster homes, treatment foster homes and group homes. 48.64(1)
(1)
Definition. In this section, "agency" means the department, the department of corrections, a county department, or a licensed child welfare agency authorized to place children in foster homes, treatment foster homes, or group homes.
48.64(1m)
(1m) Foster home, treatment foster home and group home agreements. If an agency places a child in a foster home, treatment foster home or group home under a court order or voluntary agreement under
s. 48.63, the agency shall enter into a written agreement with the head of the home. The agreement shall provide that the agency shall have access at all times to the child and the home, and that the child will be released to the agency whenever, in the opinion of the agency placing the child or the department, the best interests of the child require it. If a child has been in a foster home, treatment foster home or group home for 6 months or more, the agency shall give the head of the home written notice of intent to remove the child, stating the reasons for the removal. The child may not be removed before completion of the hearing under
sub. (4) (a) or
(c), if requested, or 30 days after the receipt of the notice, whichever is later, unless the safety of the child requires it or, in a case in which the reason for removal is to place the child for adoption under
s. 48.833, unless all of the persons who have the right to request a hearing under
sub. (4) (a) or
(c) sign written waivers of objection to the proposed removal. If the safety of the child requires earlier removal,
s. 48.19 shall apply. If an agency removes a child from an adoptive placement, the head of the home shall have no claim against the placing agency for the expense of care, clothing or medical treatment.
48.64(1r)
(1r) Notification of school district. When an agency places a school-age child in a foster home, a treatment foster home or a group home, the agency shall notify the clerk of the school district in which the foster home, treatment foster home or group home is located that a school-age child has been placed in a foster home, treatment foster home or group home in the school district.
48.64(2)
(2) Supervision of foster home, treatment foster home and group home placements. Every child in a foster home, treatment foster home or group home shall be under the supervision of an agency.
48.64(4)
(4) Orders affecting the head of a home or the children. 48.64(4)(a)(a) Any decision or order issued by an agency that affects the head of a foster, treatment foster or group home or the children involved may be appealed to the department under fair hearing procedures established under department rules. The department shall, upon receipt of an appeal, give the head of the home reasonable notice and opportunity for a fair hearing. The department may make such additional investigation as the department considers necessary. The department shall give notice of the hearing to the head of the home and to the departmental subunit, county department or child welfare agency that issued the decision or order. Each person receiving notice is entitled to be represented at the hearing. At all hearings conducted under this subsection, the head of the home, or a representative of the head of the home, shall have an adequate opportunity, notwithstanding
s. 48.78 (2) (a), to examine all documents and records to be used at the hearing at a reasonable time before the date of the hearing as well as during the hearing, to bring witnesses, to establish all pertinent facts and circumstances, and to question or refute any testimony or evidence, including opportunity to confront and cross-examine adverse witnesses. The department shall grant a continuance for a reasonable period of time when an issue is raised for the first time during a hearing. This requirement may be waived with the consent of the parties. The decision of the department shall be based exclusively on evidence introduced at the hearing. A transcript of testimony and exhibits, or an official report containing the substance of what transpired at the hearing, together with all papers and requests filed in the proceeding, and the findings of the hearing examiner shall constitute the exclusive record for decision by the department. The department shall make the record available at any reasonable time and at an accessible place to the head of the home or his or her representative. Decisions by the department shall specify the reasons for the decision and identify the supporting evidence. No person participating in an agency action being appealed may participate in the final administrative decision on that action. The department shall render its decision as soon as possible after the hearing and shall send a certified copy of its decision to the head of the home and to the departmental subunit, county department or child welfare agency that issued the decision or order. The decision shall be binding on all parties concerned.
48.64(4)(b)
(b) Judicial review of the department's decision may be had as provided in
ch. 227.
48.64(4)(c)
(c) The circuit court for the county where the dispositional order placing a child in a foster home, treatment foster home, or group home was entered or the voluntary agreement under
s. 48.63 so placing a child was made has jurisdiction upon petition of any interested party over a child who is placed in a foster home, treatment foster home, or group home. The circuit court may call a hearing, at which the head of the home and the supervising agency under
sub. (2) shall be present, for the purpose of reviewing any decision or order of that agency involving the placement and care of the child. If the child has been placed in a foster home, the foster parent may present relevant evidence at the hearing. The petitioner has the burden of proving by clear and convincing evidence that the decision or order issued by the agency is not in the best interests of the child.
48.64 Cross-reference
Cross Reference: See also ch.
DCF 57, Wis. adm. code.
48.64 Annotation
Foster parents' rights were violated by the department's failure to give mandatory written notice under sub. (1), [now (1m)] but, since adoptive placement was found to be in the children's best interest, the foster parents' rights were subordinated to the paramount interest of the children. In matter of Z.
81 Wis. 2d 194,
260 N.W.2d 246 (1977).
48.64 Annotation
A foster parent is entitled to a hearing under sub. (4) (a) regarding the person's interest as a foster parent even when placement of the child cannot be affected by the hearing outcome. Bingenheimer v. DHSS,
129 Wis. 2d 100,
383 N.W.2d 898 (1986).
48.64 Annotation
Sub. (4) (a) requires a hearing when an adoption agency removes a child from an adoptive placement within 6 months. Thelen v. DHSS,
143 Wis. 2d 574,
422 N.W.2d 146 (Ct. App. 1988).
48.64 Annotation
Foster children have a constitutional right under the due process clause to safe and secure placement in a foster home. Whether a public official violated that right will be determined based on a professional judgment standard. Kara B. v. Dane County,
205 Wis. 2d 140,
555 N.W.2d 630 (1996),
94-1081. See also Estate of Cooper v. Milwaukee County,
103 F. Supp. 2d 1124 (2000)
