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LRB-4083/1
EAW:amn
2019 - 2020 LEGISLATURE
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 1An Act to renumber and amend 48.357 (2r), 48.437 (2r), 48.64 (4) (a), 48.64 (4)
2(c) and 938.357 (2r); to amend 48.293 (2), 48.295 (1), 48.295 (3), 48.357 (1) (am)
32. a., 48.437 (2r) (title), 48.78 (2) (a), 938.293 (2), 938.295 (1) (b), 938.295 (3) and
4938.78 (2) (a); and to create 48.357 (2r) (b), 48.437 (2r) (b), 48.64 (4) (a) 2., 48.64
5(4) (c) 3. and 938.357 (2r) (b) of the statutes; relating to: the rights of a foster
6parent or other physical custodian of a child on removal of the child from the
7person'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 1Section 1. 48.293 (2) of the statutes is amended to read:
AB562,4,32 48.293 (2) All records relating to a child, or to an unborn child and the unborn
3child's expectant mother, that are relevant to the subject matter of a proceeding
4under this chapter
shall be open to inspection by a guardian ad litem or counsel for
5any party and to inspection, by the court-appointed special advocate for the child,
6or by counsel for any foster parent or other physical custodian described in s. 48.357
7(2r) (b), 48.437 (2r) (b), or 48.64 (4) (a) 2. or (c) 3.,
upon demand and upon presentation
8of releases when necessary, at least 48 hours before the proceeding. Persons entitled
9to inspect the records may obtain copies of the records with the permission of the
10custodian of the records or with permission of the court. The court may instruct
11counsel, a guardian ad litem, or a court-appointed special advocate not to disclose
12specified items in the materials records to the child or, the parent, or to the expectant

1mother, or the child's foster parent or other physical custodian described in s. 48.357
2(2r) (b), 48.437 (2r) (b), or 48.64 (4) (a) 2. or (c) 3.
if the court reasonably believes that
3the disclosure would be harmful to the interests of the child or the unborn child.
AB562,2 4Section 2. 48.295 (1) of the statutes is amended to read:
AB562,5,35 48.295 (1) After the filing of a petition and upon a finding by the court that
6reasonable cause exists to warrant a physical, psychological, mental, or
7developmental examination or an alcohol and other drug abuse assessment that
8conforms to the criteria specified under s. 48.547 (4), the court may order any child
9coming within its jurisdiction to be examined as an outpatient by personnel in an
10approved treatment facility for alcohol and other drug abuse, by a physician,
11psychiatrist or licensed psychologist, or by another expert appointed by the court
12holding at least a master's degree in social work or another related field of child
13development, in order that the child's physical, psychological, alcohol or other drug
14dependency, mental, or developmental condition may be considered. The court may
15also order a physical, psychological, mental, or developmental examination or an
16alcohol and other drug abuse assessment that conforms to the criteria specified
17under s. 48.547 (4) of a parent, guardian, or legal custodian whose ability to care for
18a child is at issue before the court or of an expectant mother whose ability to control
19her use of alcohol beverages, controlled substances, or controlled substance analogs
20is at issue before the court. The court shall hear any objections by the child or, the
21child's parents, guardian, or legal custodian, or the child's foster parent or other
22physical custodian described in s. 48.357 (2r) (b), 48.437 (2r) (b), or 48.64 (4) (a) 2. or
23(c) 3.
to the request for such an examination or assessment before ordering the
24examination or assessment. The expenses of an examination, if approved by the
25court, shall be paid by the county of the court ordering the examination in a county

1having a population of less than 750,000 or by the department in a county having a
2population of 750,000 or more. The payment for an alcohol and other drug abuse
3assessment shall be in accordance with s. 48.361.
AB562,3 4Section 3. 48.295 (3) of the statutes is amended to read:
AB562,5,105 48.295 (3) If the child, the child's parent or, the expectant mother, or the child's
6foster parent or other physical custodian described in s. 48.357 (2r) (b), 48.437 (2r)
7(b), or 48.64 (4) (a) 2. or (c) 3.
objects to a particular physician, psychiatrist, licensed
8psychologist or other expert as required under this section, the court shall appoint
9a different physician, psychiatrist, psychologist or other expert as required under
10this section.
AB562,4 11Section 4. 48.357 (1) (am) 2. a. of the statutes is amended to read:
AB562,5,1512 48.357 (1) (am) 2. a. By the parent, guardian, legal custodian, or Indian
13custodian, the foster parent or other physical custodian described in sub. (2r) (b), the
14child, if 12 years of age or over, and the child's tribe, if the child is an Indian child who
15has been removed from the home of his or her parent or Indian custodian.
AB562,5 16Section 5. 48.357 (2r) of the statutes is renumbered 48.357 (2r) (a) and
17amended to read:
AB562,6,418 48.357 (2r) (a) If a hearing is held under sub. (1) (am) 2. or (2m) (b) 1. and the
19change in placement would remove a child from a foster home or other placement
20with a physical custodian described in s. 48.62 (2) in which the child has been placed
21for less than 6 months
, the court shall give the foster parent or other physical
22custodian a right to be heard at the hearing by permitting the foster parent or other
23physical custodian to make a written or oral statement during the hearing or to
24submit a written statement prior to the hearing relating to the child and the
25requested change in placement. A foster parent or other physical custodian

1described in s. 48.62 (2) who receives notice of a hearing under sub. (1) (am) 1. or (2m)
2(b) 2. and a right to be heard under this subsection paragraph does not become a party
3to the proceeding on which the hearing is held solely on the basis of receiving that
4notice and right to be heard.
AB562,6 5Section 6. 48.357 (2r) (b) of the statutes is created to read:
AB562,6,216 48.357 (2r) (b) If a hearing is held under sub. (1) (am) 2. or (2m) (b) 1. and the
7change in placement would remove a child from a foster home or other placement
8with a physical custodian described in s. 48.62 (2) in which the child has been placed
9for 6 months or more, the foster parent or other physical custodian is a party to the
10proceeding and, as a party, has the right to be heard as described in par. (a), to be
11represented by counsel, to request an examination or assessment of the child under
12s. 48.295 by an expert of the foster parent's or other physical custodian's own
13choosing, to present evidence relative to the issue of placement, including expert
14testimony, to confront and cross-examine witnesses, and to make alternative
15placement recommendations. In addition, counsel for the foster parent or other
16physical custodian may inspect and obtain copies of all records relating to the child
17as provided under s. 48.293. If counsel for the foster parent or other physical
18custodian discloses a record to the foster parent or other physical custodian, counsel
19shall advise that person that the information contained in the record is confidential
20and may be disclosed only for the purpose of participating in the
21change-in-placement proceeding.
AB562,7 22Section 7. 48.437 (2r) (title) of the statutes is amended to read:
AB562,6,2423 48.437 (2r) (title) Removal from foster home, sustaining parent, or other
24physical custodian.
AB562,8
1Section 8. 48.437 (2r) of the statutes is renumbered 48.437 (2r) (a) and
2amended to read:
AB562,7,133 48.437 (2r) (a) If a hearing is held under sub. (1) (bm) and the change in
4placement would remove a child from a foster home or other placement with a
5physical custodian described in s. 48.62 (2) in which the child has been placed for less
6than 6 months
, the court shall give the foster parent or other physical custodian a
7right to be heard at the hearing by permitting the foster parent or other physical
8custodian to make a written or oral statement during the hearing or to submit a
9written statement prior to the hearing relating to the child and the requested change
10in placement. A foster parent or other physical custodian described in s. 48.62 (2)
11who receives notice of a hearing under sub. (1) (bm) and a right to be heard under this
12subsection paragraph does not become a party to the proceeding on which the
13hearing is held solely on the basis of receiving that notice and right to be heard.
AB562,9 14Section 9. 48.437 (2r) (b) of the statutes is created to read:
AB562,8,515 48.437 (2r) (b) If a hearing is held under sub. (1) (bm) and the change in
16placement would remove a child from a foster home or other placement with a
17physical custodian described in s. 48.62 (2) in which the child has been placed for 6
18months or more, the foster parent or other physical custodian is a party to the
19proceeding and, as a party, has the right to be heard as described in par. (a), to be
20represented by counsel, to request an examination or assessment of the child under
21s. 48.295 by an expert of the foster parent's or other physical custodian's own
22choosing, to present evidence relative to the issue of placement, including expert
23testimony, to confront and cross-examine witnesses, and to make alternative
24placement recommendations. In addition, counsel for the foster parent or other
25physical custodian may inspect and obtain copies of all records relating to the child

1as provided under s. 48.293. If counsel for the foster parent or other physical
2custodian discloses a record to the foster parent or other physical custodian, counsel
3shall advise that person that the information contained in the record is confidential
4and may be disclosed only for the purpose of participating in the
5change-in-placement proceeding.
AB562,10 6Section 10. 48.64 (4) (a) of the statutes is renumbered 48.64 (4) (a) 1. and
7amended to read:
AB562,8,258 48.64 (4) (a) 1. Except as provided in par. (d), any decision or order issued by
9an agency that affects the head of a foster home or group home, the head of the home
10of a relative other than a parent in which a child is placed, or the child involved may
11be appealed to the department under fair hearing procedures established under
12rules promulgated by the department. Upon receipt of an appeal, the department
13shall give the head of the home reasonable notice and an opportunity for a fair
14hearing. The department may make any additional investigation that the
15department considers necessary. The department shall give notice of the hearing to
16the head of the home and to the departmental subunit, county department, or child
17welfare agency that issued the decision or order. Each person receiving notice of the
18hearing
is entitled to be represented at the hearing. At all hearings conducted under
19this paragraph, the head of the home, or a representative of the head of the home,
20shall have an adequate opportunity, notwithstanding s. 48.78 (2) (a), to examine all
21documents and records to be used at the hearing at a reasonable time before the date
22of the hearing as well as during the hearing, to bring witnesses, to establish all
23pertinent facts and circumstances, and to question or refute any testimony or
24evidence, including an opportunity to confront and cross-examine adverse
25witnesses.
AB562,9,16
13. The department shall grant a continuance for a reasonable period of time
2when an issue is raised for the first time during a hearing. This requirement may
3be waived with the consent of the parties. The decision of the department shall be
4based exclusively on evidence introduced at the hearing. A transcript of testimony
5and exhibits, or an official report containing the substance of what transpired at the
6hearing, together with all papers and requests filed in the proceeding, and the
7findings of the hearing examiner shall constitute the exclusive record for decision by
8the department. The department shall make the record available at any reasonable
9time and at an accessible place to the head of the home or his or her representative.
10Decisions by the department shall specify the reasons for the decision and identify
11the supporting evidence. No person participating in an agency action being appealed
12may participate in the final administrative decision on that action. The department
13shall render its decision as soon as possible after the hearing and shall send a
14certified copy of its decision to the head of the home and to the departmental subunit,
15county department, or child welfare agency that issued the decision or order. The
16decision shall be binding on all parties concerned.
AB562,11 17Section 11. 48.64 (4) (a) 2. of the statutes is created to read:
AB562,9,2518 48.64 (4) (a) 2. The head of a foster or group home or the head of the home of
19a relative other than a parent who receives notice of intent to remove the child under
20sub. (1m) and who requests a hearing under subd. 1. is a party to the proceeding
21under this paragraph and, as a party, shall have the right to be heard, to be
22represented by counsel, to request an examination or assessment of the child as
23provided in s. 48.295 by an expert of his or her own choosing, to present evidence
24relative to the issue of placement, including expert testimony, to confront and
25cross-examine witnesses, and to make alternative placement recommendations. In

1addition, counsel for the head of the foster or group home or for the head of the home
2of the relative other than a parent may inspect and obtain copies of all records
3relating to the child as provided under s. 48.293. If counsel for the head of the foster
4or group home or for the head of the home of the relative other than a parent discloses
5a record to the head of the foster or group home or to the head of the home of the
6relative other than a parent, counsel shall advise him or her that the information
7contained in the record is confidential and may be disclosed only for the purpose of
8participating in the proceeding under this paragraph.
AB562,12 9Section 12. 48.64 (4) (c) of the statutes is renumbered 48.64 (4) (c) 1. and
10amended to read:
AB562,10,1611 48.64 (4) (c) 1. Except as provided in par. (d), the circuit court for the county
12where the dispositional order placing a child in a foster home or group home or in the
13home of a relative other than a parent was entered or the voluntary agreement under
14s. 48.63 placing a child in a foster home or group home was made has jurisdiction
15upon petition of any interested party over the child who is placed in the foster home,
16group home, or home of the relative. The
AB562,10,22 172. Subject to subd. 3., the circuit court may call a hearing, at which the head
18of the home and the supervising agency under sub. (2) shall be present, for the
19purpose of reviewing any decision or order of that agency involving the placement
20and care of the child. If the child has been placed in a foster home or in the home of
21a relative other than a parent, the foster parent or relative may present relevant
22evidence at the hearing.
AB562,10,24 234. The petitioner has the burden of proving by clear and convincing evidence
24that the decision or order issued by the agency is not in the best interests of the child.
AB562,13 25Section 13. 48.64 (4) (c) 3. of the statutes is created to read:
AB562,11,20
148.64 (4) (c) 3. If the head of a foster or group home or the head of the home of
2a relative other than a parent who receives notice of intent to remove the child under
3sub. (1m) petitions for a hearing under this paragraph, the circuit court shall call a
4hearing, at which the head of the foster or group home, or the head of the home of the
5relative other than a parent, and the supervising agency under sub. (2) shall be
6present, for the purpose of reviewing the decision to remove the child from the home.
7The head of the foster or group home or the head of the home of the relative other than
8a parent is a party to the proceeding under this paragraph and, as a party, has the
9right to be heard, to be represented by counsel, to request an examination or
10assessment of the child as provided in s. 48.295 by an expert of his or her own
11choosing, to present evidence relative to the issue of placement, including expert
12testimony, to confront and cross-examine witnesses, and to make alternative
13placement recommendations. In addition, counsel for the head of the foster or group
14home or for the head of the home of the relative other than a parent may inspect and
15obtain copies of all records relating to the child as provided under s. 48.293. If counsel
16for the head of the foster or group home or for the head of the home of the relative
17other than a parent discloses a record to the head of the foster or group home or to
18the head of the home of the relative other than a parent, counsel shall advise him or
19her that the information contained in the record is confidential and may be disclosed
20only for the purpose of participating in the proceeding under this paragraph.
AB562,14 21Section 14. 48.78 (2) (a) of the statutes is amended to read:
AB562,12,222 48.78 (2) (a) No agency may make available for inspection or disclose the
23contents of any record kept or information received about an individual who is or was
24in its care or legal custody, except as provided under sub. (2m) or s. 48.293 (2), 48.371,
2548.38 (5) (b) or (d) or (5m) (d), 48.396 (3) (bm) or (c) 1r., 48.432, 48.433, 48.48 (17) (bm),

148.57 (2m), 48.66 (6), 48.93, 48.981 (7), 938.293 (2), 938.396 (2m) (c) 1r., 938.51, or
2938.78 or by order of the court.
AB562,15 3Section 15. 938.293 (2) of the statutes is amended to read:
AB562,12,174 938.293 (2) Records relating to juvenile. All records relating to a juvenile
5which are relevant to the subject matter of a proceeding under this chapter shall be
6open to inspection by a guardian ad litem or counsel for any party or by counsel for
7any foster parent or other physical custodian described in s. 938.357 (2r) (b)
, upon
8demand and upon presentation of releases where when necessary, at least 48 hours
9before the proceeding. Persons entitled to inspect the records may obtain copies of
10the records with the permission of the custodian of the records or with the permission
11of the court. The court may instruct counsel not to disclose specified items in the
12materials records to the juvenile or, the parent, or the juvenile's foster parent or other
13physical custodian described in s. 938.357 (2r) (b)
if the court reasonably believes
14that the disclosure would be harmful to the interests of the juvenile. Section 971.23
15shall be applicable in all delinquency proceedings under this chapter, except that the
16court shall establish the timetable for the disclosures required under s. 971.23 (1),
17(2m), (8), and (9).
AB562,16 18Section 16. 938.295 (1) (b) of the statutes is amended to read:
AB562,12,2219 938.295 (1) (b) The court shall hear any objections by the juvenile and the
20juvenile's parents, guardian, or legal custodian or the juvenile's foster parent or other
21physical custodian described in s. 938.357 (2r) (b)
to the request under par. (a) for an
22examination or assessment before ordering the examination or assessment.
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