AB562: Bill Text

LRB-4083/1

EAW:amn

2019 - 2020 LEGISLATURE

2019 Assembly BILL 562

October 23, 2019 - Introduced by Representatives Plumer, Dittrich, Felzkowski, James, Kulp, Magnafici, Milroy, Murphy, Ramthun, Tusler, Thiesfeldt, Tranel and Tittl, cosponsored by Senators Darling and Olsen. Referred to Committee on Family Law.

AB562,1,7 An Act to renumber and amend 48.357 (2r), 48.437 (2r), 48.64 (4) (a), 48.64 (4) (c) and 938.357 (2r); to amend 48.293 (2), 48.295 (1), 48.295 (3), 48.357 (1) (am) 2. a., 48.437 (2r) (title), 48.78 (2) (a), 938.293 (2), 938.295 (1) (b), 938.295 (3) and 938.78 (2) (a); and to create 48.357 (2r) (b), 48.437 (2r) (b), 48.64 (4) (a) 2., 48.64 (4) (c) 3. and 938.357 (2r) (b) of the statutes; relating to: the rights of a foster parent or other physical custodian of a child on removal of the child from the person's home.

Analysis by the Legislative Reference Bureau

This bill changes the rights of a foster parent or other physical custodian in a proceeding for a change of placement under the Children's Code and the Juvenile Justice Code.

Under current law, a child who is subject to a dispositional order of the court assigned to exercise jurisdiction under the Children's Code and the Juvenile Justice Code (juvenile court), the child's parent, guardian, or legal custodian, or any agency bound by the dispositional order may request a change in placement of the child. Currently, if the agency requests the change in placement, the agency must provide notice to the child, the child's parent, guardian, and legal custodian, and the child's foster parent, treatment foster parent, or other physical custodian stating the reasons for the change in placement, why the new placement is preferable to the current placement, and how the new placement satisfies the objectives of the child's treatment plan. A person who receives notice of such a change in placement may obtain a hearing on the change in placement by filing an objection to the change in placement.

Current law provides a slightly different procedure for when the child or the child's parent, guardian, or legal custodian requests a change in placement. In that case, the notice must state what new information affects the advisability of the current placement and a hearing must be held unless all parties waive their objections to the change in placement.

Finally, under current law, when an agency is appointed the guardian of a child after parental rights are terminated and the district attorney or corporation counsel requests a change in placement, the juvenile court may decide whether to hold a hearing on the change in placement.

Under any of these three procedures, if a hearing is held and the change in placement would remove the child from a foster home or from the home of another physical custodian, the juvenile court must give the foster parent or other physical custodian the right to be heard by permitting that person to make a written or oral statement at the hearing or to submit a written statement prior to the hearing relating to the child and to the change in placement. Current law specifies that a foster parent is not a party to a proceeding solely on the basis of receiving notice of the proceeding and the right to be heard.

This bill expands the rights of a foster parent or other physical custodian in connection with a change-in-placement proceeding. Specifically, the bill provides that, if a hearing is held and the change in placement would remove the child from a foster home or from the home of another physical custodian in which the child has been placed for six months or more, the foster parent or other physical custodian is a party to the proceeding and, as a party, has the right to be represented by counsel, to inspect and copy, through counsel, all records relating to the child, to request that the child be examined or assessed by an expert of the foster parent's, treatment foster parent's, or other physical custodian's own choosing, to present evidence, including expert testimony, to confront and cross-examine witnesses, and to present alternative placement recommendations

Also, under current law, any decision or order issued by an agency that affects the head of a foster home or group home, the head of the home of a relative other than a parent in which a child is placed, or the child involved may be appealed to the Department of Children and Families under fair hearing procedures. Under those procedures, the head of the home is entitled to be represented by counsel, to examine documents and records, to bring witnesses, to confront and cross-examine adverse witnesses, and to have judicial review of DCF's decision.

In addition, under current law, an interested party may file a petition with the circuit court for the county where a child is placed alleging that a decision or order of the agency supervising the child's placement is not in the best interests of the child. On receipt of a petition, the circuit court may call a hearing for the purpose of reviewing the decision or order. If the child is placed in a foster home or in the home of a relative other than a parent, the foster parent or relative may present relevant evidence at the hearing.

This bill makes the rights of the head of a foster home, group home, or home of a relative other than a parent in connection with an appeal of an agency decision or order removing a child from the person's home consistent with the rights of a foster parent or other physical custodian in connection with a change-in-placement proceeding. Specifically, the bill provides that, if the head of a foster home, group home, or home of a relative other than a parent in which a child has been placed for six months or more appeals an agency decision affecting the head of the home to DCF or files a petition with the circuit court requesting the circuit court to review the agency decision or order, the head of the home is a party to the proceeding and, as a party, has the right to be represented by counsel, to inspect and copy, through counsel, all records relating to the child, to request that the child be examined or assessed by an expert of his or her own choosing, to present evidence, including expert testimony, to confront and cross-examine witnesses, and to present alternative placement recommendations.

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:

AB562,1 Section 1. 48.293 (2) of the statutes is amended to read:

AB562,4,3 48.293 (2) All records relating to a child, or to an unborn child and the unborn child's expectant mother, that are relevant to the subject matter of a proceeding under this chapter shall be open to inspection by a guardian ad litem or counsel for any party and to inspection, by the court-appointed special advocate for the child, or by counsel for any foster parent or other physical custodian described in s. 48.357 (2r) (b), 48.437 (2r) (b), or 48.64 (4) (a) 2. or (c) 3., upon demand and upon presentation of releases when necessary, at least 48 hours before the proceeding. Persons entitled to inspect the records may obtain copies of the records with the permission of the custodian of the records or with permission of the court. The court may instruct counsel, a guardian ad litem, or a court-appointed special advocate not to disclose specified items in the materials records to the child or, the parent, or to the expectant mother, or the child's foster parent or other physical custodian described in s. 48.357 (2r) (b), 48.437 (2r) (b), or 48.64 (4) (a) 2. or (c) 3. if the court reasonably believes that the disclosure would be harmful to the interests of the child or the unborn child.

AB562,2 Section 2. 48.295 (1) of the statutes is amended to read:

AB562,5,3 48.295 (1) After the filing of a petition and upon a finding by the court that reasonable cause exists to warrant a physical, psychological, mental, or developmental examination or an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 48.547 (4), the court may order any child coming within its jurisdiction to be examined as an outpatient by personnel in an approved treatment facility for alcohol and other drug abuse, by a physician, psychiatrist or licensed psychologist, or by another expert appointed by the court holding at least a master's degree in social work or another related field of child development, in order that the child's physical, psychological, alcohol or other drug dependency, mental, or developmental condition may be considered. The court may also order a physical, psychological, mental, or developmental examination or an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 48.547 (4) of a parent, guardian, or legal custodian whose ability to care for a child is at issue before the court or of an expectant mother whose ability to control her use of alcohol beverages, controlled substances, or controlled substance analogs is at issue before the court. The court shall hear any objections by the child or, the child's parents, guardian, or legal custodian, or the child's foster parent or other physical custodian described in s. 48.357 (2r) (b), 48.437 (2r) (b), or 48.64 (4) (a) 2. or (c) 3. to the request for such an examination or assessment before ordering the examination or assessment. The expenses of an examination, if approved by the court, shall be paid by the county of the court ordering the examination in a county having a population of less than 750,000 or by the department in a county having a population of 750,000 or more. The payment for an alcohol and other drug abuse assessment shall be in accordance with s. 48.361.

AB562,3 Section 3. 48.295 (3) of the statutes is amended to read:

AB562,5,10 48.295 (3) If the child, the child's parent or, the expectant mother, or the child's foster parent or other physical custodian described in s. 48.357 (2r) (b), 48.437 (2r) (b), or 48.64 (4) (a) 2. or (c) 3. objects to a particular physician, psychiatrist, licensed psychologist or other expert as required under this section, the court shall appoint a different physician, psychiatrist, psychologist or other expert as required under this section.

AB562,4 Section 4. 48.357 (1) (am) 2. a. of the statutes is amended to read:

AB562,5,15 48.357 (1) (am) 2. a. By the parent, guardian, legal custodian, or Indian custodian, the foster parent or other physical custodian described in sub. (2r) (b), the child, if 12 years of age or over, and the child's tribe, if the child is an Indian child who has been removed from the home of his or her parent or Indian custodian.

AB562,5 Section 5. 48.357 (2r) of the statutes is renumbered 48.357 (2r) (a) and amended to read:

AB562,6,4 48.357 (2r) (a) If a hearing is held under sub. (1) (am) 2. or (2m) (b) 1. and the change in placement would remove a child from a foster home or other placement with a physical custodian described in s. 48.62 (2) in which the child has been placed for less than 6 months, the court shall give the foster parent or other physical custodian a right to be heard at the hearing by permitting the foster parent or other physical custodian to make a written or oral statement during the hearing or to submit a written statement prior to the hearing relating to the child and the requested change in placement. A foster parent or other physical custodian described in s. 48.62 (2) who receives notice of a hearing under sub. (1) (am) 1. or (2m) (b) 2. and a right to be heard under this subsection paragraph does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and right to be heard.

AB562,6 Section 6. 48.357 (2r) (b) of the statutes is created to read:

AB562,6,21 48.357 (2r) (b) If a hearing is held under sub. (1) (am) 2. or (2m) (b) 1. and the change in placement would remove a child from a foster home or other placement with a physical custodian described in s. 48.62 (2) in which the child has been placed for 6 months or more, the foster parent or other physical custodian is a party to the proceeding and, as a party, has the right to be heard as described in par. (a), to be represented by counsel, to request an examination or assessment of the child under s. 48.295 by an expert of the foster parent's or other physical custodian's own choosing, to present evidence relative to the issue of placement, including expert testimony, to confront and cross-examine witnesses, and to make alternative placement recommendations. In addition, counsel for the foster parent or other physical custodian may inspect and obtain copies of all records relating to the child as provided under s. 48.293. If counsel for the foster parent or other physical custodian discloses a record to the foster parent or other physical custodian, counsel shall advise that person that the information contained in the record is confidential and may be disclosed only for the purpose of participating in the change-in-placement proceeding.

AB562,7 Section 7. 48.437 (2r) (title) of the statutes is amended to read:

AB562,6,24 48.437 (2r) (title) Removal from foster home, sustaining parent, or other physical custodian.

AB562,8 Section 8. 48.437 (2r) of the statutes is renumbered 48.437 (2r) (a) and amended to read:

AB562,7,13 48.437 (2r) (a) If a hearing is held under sub. (1) (bm) and the change in placement would remove a child from a foster home or other placement with a physical custodian described in s. 48.62 (2) in which the child has been placed for less than 6 months, the court shall give the foster parent or other physical custodian a right to be heard at the hearing by permitting the foster parent or other physical custodian to make a written or oral statement during the hearing or to submit a written statement prior to the hearing relating to the child and the requested change in placement. A foster parent or other physical custodian described in s. 48.62 (2) who receives notice of a hearing under sub. (1) (bm) and a right to be heard under this subsection paragraph does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and right to be heard.

AB562,9 Section 9. 48.437 (2r) (b) of the statutes is created to read:

AB562,8,5 48.437 (2r) (b) If a hearing is held under sub. (1) (bm) and the change in placement would remove a child from a foster home or other placement with a physical custodian described in s. 48.62 (2) in which the child has been placed for 6 months or more, the foster parent or other physical custodian is a party to the proceeding and, as a party, has the right to be heard as described in par. (a), to be represented by counsel, to request an examination or assessment of the child under s. 48.295 by an expert of the foster parent's or other physical custodian's own choosing, to present evidence relative to the issue of placement, including expert testimony, to confront and cross-examine witnesses, and to make alternative placement recommendations. In addition, counsel for the foster parent or other physical custodian may inspect and obtain copies of all records relating to the child as provided under s. 48.293. If counsel for the foster parent or other physical custodian discloses a record to the foster parent or other physical custodian, counsel shall advise that person that the information contained in the record is confidential and may be disclosed only for the purpose of participating in the change-in-placement proceeding.

AB562,10 Section 10. 48.64 (4) (a) of the statutes is renumbered 48.64 (4) (a) 1. and amended to read:

AB562,8,25 48.64 (4) (a) 1. Except as provided in par. (d), any decision or order issued by an agency that affects the head of a foster home or group home, the head of the home of a relative other than a parent in which a child is placed, or the child involved may be appealed to the department under fair hearing procedures established under rules promulgated by the department. Upon receipt of an appeal, the department shall give the head of the home reasonable notice and an opportunity for a fair hearing. The department may make any additional investigation that 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 of the hearing is entitled to be represented at the hearing. At all hearings conducted under this paragraph, 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 an opportunity to confront and cross-examine adverse witnesses.

AB562,9,16 3. 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.

AB562,11 Section 11. 48.64 (4) (a) 2. of the statutes is created to read:

AB562,9,25 48.64 (4) (a) 2. The head of a foster or group home or the head of the home of a relative other than a parent who receives notice of intent to remove the child under sub. (1m) and who requests a hearing under subd. 1. is a party to the proceeding under this paragraph and, as a party, shall have the right to be heard, to be represented by counsel, to request an examination or assessment of the child as provided in s. 48.295 by an expert of his or her own choosing, to present evidence relative to the issue of placement, including expert testimony, to confront and cross-examine witnesses, and to make alternative placement recommendations. In addition, counsel for the head of the foster or group home or for the head of the home of the relative other than a parent may inspect and obtain copies of all records relating to the child as provided under s. 48.293. If counsel for the head of the foster or group home or for the head of the home of the relative other than a parent discloses a record to the head of the foster or group home or to the head of the home of the relative other than a parent, counsel shall advise him or her that the information contained in the record is confidential and may be disclosed only for the purpose of participating in the proceeding under this paragraph.

AB562,12 Section 12. 48.64 (4) (c) of the statutes is renumbered 48.64 (4) (c) 1. and amended to read:

AB562,10,16 48.64 (4) (c) 1. Except as provided in par. (d), the circuit court for the county where the dispositional order placing a child in a foster home or group home or in the home of a relative other than a parent was entered or the voluntary agreement under s. 48.63 placing a child in a foster home or group home was made has jurisdiction upon petition of any interested party over the child who is placed in the foster home, group home, or home of the relative. The

AB562,10,22 2. Subject to subd. 3., 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 or in the home of a relative other than a parent, the foster parent or relative may present relevant evidence at the hearing.

AB562,10,24 4. 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.

AB562,13 Section 13. 48.64 (4) (c) 3. of the statutes is created to read:

AB562,11,20 48.64 (4) (c) 3. If the head of a foster or group home or the head of the home of a relative other than a parent who receives notice of intent to remove the child under sub. (1m) petitions for a hearing under this paragraph, the circuit court shall call a hearing, at which the head of the foster or group home, or the head of the home of the relative other than a parent, and the supervising agency under sub. (2) shall be present, for the purpose of reviewing the decision to remove the child from the home. The head of the foster or group home or the head of the home of the relative other than a parent is a party to the proceeding under this paragraph and, as a party, has the right to be heard, to be represented by counsel, to request an examination or assessment of the child as provided in s. 48.295 by an expert of his or her own choosing, to present evidence relative to the issue of placement, including expert testimony, to confront and cross-examine witnesses, and to make alternative placement recommendations. In addition, counsel for the head of the foster or group home or for the head of the home of the relative other than a parent may inspect and obtain copies of all records relating to the child as provided under s. 48.293. If counsel for the head of the foster or group home or for the head of the home of the relative other than a parent discloses a record to the head of the foster or group home or to the head of the home of the relative other than a parent, counsel shall advise him or her that the information contained in the record is confidential and may be disclosed only for the purpose of participating in the proceeding under this paragraph.

AB562,14 Section 14. 48.78 (2) (a) of the statutes is amended to read:

AB562,12,2 48.78 (2) (a) No agency may make available for inspection or disclose the contents of any record kept or information received about an individual who is or was in its care or legal custody, except as provided under sub. (2m) or s. 48.293 (2), 48.371, 48.38 (5) (b) or (d) or (5m) (d), 48.396 (3) (bm) or (c) 1r., 48.432, 48.433, 48.48 (17) (bm), 48.57 (2m), 48.66 (6), 48.93, 48.981 (7), 938.293 (2), 938.396 (2m) (c) 1r., 938.51, or 938.78 or by order of the court.

AB562,15 Section 15. 938.293 (2) of the statutes is amended to read:

AB562,12,17 938.293 (2) Records relating to juvenile. All records relating to a juvenile which are relevant to the subject matter of a proceeding under this chapter shall be open to inspection by a guardian ad litem or counsel for any party or by counsel for any foster parent or other physical custodian described in s. 938.357 (2r) (b), upon demand and upon presentation of releases where when necessary, at least 48 hours before the proceeding. Persons entitled to inspect the records may obtain copies of the records with the permission of the custodian of the records or with the permission of the court. The court may instruct counsel not to disclose specified items in the materials records to the juvenile or, the parent, or the juvenile's foster parent or other physical custodian described in s. 938.357 (2r) (b) if the court reasonably believes that the disclosure would be harmful to the interests of the juvenile. Section 971.23 shall be applicable in all delinquency proceedings under this chapter, except that the court shall establish the timetable for the disclosures required under s. 971.23 (1), (2m), (8), and (9).

AB562,16 Section 16. 938.295 (1) (b) of the statutes is amended to read:

AB562,12,22 938.295 (1) (b) The court shall hear any objections by the juvenile and the juvenile's parents, guardian, or legal custodian or the juvenile's foster parent or other physical custodian described in s. 938.357 (2r) (b) to the request under par. (a) for an examination or assessment before ordering the examination or assessment.