Chapter DCF 58

DCF 58.10(4)(c)2. 2. A kinship care agency that does not have access to the department’s child welfare automation system shall use the procedures in par. (b) to determine if eligibility is expected to continue when the child turns 18 years old and the relative caregiver is receiving kinship care payments on behalf of a child that was placed in the relative’s home under a court order or a voluntary transition-to-independent-living agreement.

DCF 58.10 Note Note: DCF-F-5373-E, Advance Notice of Termination of Kinship Care at Age 18, is available on the department’s website at https://dcf.wisconsin.gov/forms.

DCF 58.10 History History: CR 19-159: cr. Register October 2020 No. 778, eff. 11-1-20; correction in (1) (a) 19. made under s. 13.92 (4) (b) 7., Stats., Register October 2020 No. 778; CR 21-107: am. (1) (a) 13., 15., 16., (2) (b) 2. Register June 2022 No. 798, eff. 7-1-22; reprinted to correct transcription error Register August 2022 No. 800.

DCF 58.11 DCF 58.11 Appeal rights.

DCF 58.11(1) (1) Kinship care; director review of background check denial.

DCF 58.11(1)(a) (a) Request for review.

DCF 58.11(1)(a)1. 1. A relative caregiver applying for or receiving kinship care payments may submit a request for review by the director of the kinship care agency if the relative caregiver receives a written notice of any of the following:

DCF 58.11(1)(a)1.a. a. Kinship care payments are denied or terminated because the background check of the relative caregiver indicates a conviction or imposition of a penalty specified under s. 48.57 (3p) (g), Stats., and s. DCF 58.05 (6).

DCF 58.11(1)(a)1.b. b. The background check of a prospective adult resident, adult resident, prospective employee, or employee indicates a conviction or imposition of a penalty specified under s. 48.57 (3p) (g), Stats., and s. DCF 58.05 (6), and kinship care payments will be denied or terminated if the relative caregiver permits the prospective adult resident to reside in the relative caregiver’s home, continues to permit the adult resident to reside in the relative caregiver’s home, employs the prospective employee, or continues to employ the employee.

DCF 58.11(1)(a)2. 2. A relative caregiver’s request for review shall be addressed to the director and submitted to the kinship care agency in the manner specified in the notice no later than 45 days after the date of the notice under subd. 1.

DCF 58.11(1)(a)3. 3. The kinship care agency shall continue kinship care payments to a relative caregiver if the relative caregiver submits a request for review by the director within 10 days after the date of a notice of termination, pending the director’s written notice of determination under par. (c) and, if the relative caregiver submits a request for a hearing under sub. (2) within 10 days after the date of the director’s written notice of determination under par. (c), the hearing decision.

DCF 58.11(1)(b) (b) Standard for review. Within 30 days after the kinship care agency receives the relative caregiver’s request for review under par. (a), the director shall determine if the conviction record on which the denial, termination, prospective denial, or prospective termination was based includes any arrests, convictions, or penalties that are likely to adversely affect the child or the ability of the relative caregiver to care for the child. In reviewing the conviction record, the director shall consider all of the following factors:

DCF 58.11(1)(b)1. 1. The length of time between the date of the arrest, conviction, or imposition of the penalty and the date of the review.

DCF 58.11(1)(b)2. 2. The nature of the alleged violation, violation, or penalty and how that alleged violation, violation, or penalty affects the ability of the relative caregiver to care for the child.

DCF 58.11(1)(b)3. 3. Whether making an exception to the denial would be in the best interests of the child.

DCF 58.11(1)(c) (c) Director’s determination. Within 10 working days after making the determination under par. (b), the kinship care agency shall send the relative caregiver a written notice of the director’s determination and a summary of the relative caregiver’s right to a hearing under sub. (2) and s. 48.57 (3m) (f) and (g), Stats.

DCF 58.11 Note Note: A relative caregiver applying for or receiving long-term kinship care is not eligible for a review by the director because the director makes background check determinations for long-term kinship care under s. DCF 58.05 (7).

DCF 58.11(2) (2) Request for hearing.

DCF 58.11(2)(a) (a) Notice of agency action. A relative caregiver may submit a request for a hearing to the division of hearings and appeals in the manner specified in the notice no later than 45 days after the date of a notice from the kinship care agency of any of the following:

DCF 58.11(2)(a)1. 1. A denial or termination of kinship care payments or long-term kinship care payments for a reason other than as specified under s. DCF 58.05 (6) or (7).

DCF 58.11(2)(a)2. 2. A denial or termination of kinship care payments following the director’s review of the relative caregiver’s conviction record under sub. (1).

DCF 58.11(2)(a)3. 3. A determination by a director, after reviewing the conviction record of a prospective adult resident, adult resident, prospective employee, or employee under sub. (1), that kinship care payments will be denied or terminated if the relative caregiver does any of the following:

DCF 58.11(2)(a)3.a. a. Permits the prospective adult resident, or continues to permit the adult resident, to reside in the relative caregiver’s home.

DCF 58.11(2)(a)3.b. b. Employs the prospective employee or continues to employ the employee.

DCF 58.11(2)(a)4. 4. A denial or termination of long-term kinship care payments based on the background check of the relative caregiver under s. DCF 58.05 (7).

DCF 58.11(2)(a)5. 5. A determination by a director, based on the background check of a prospective adult resident, adult resident, prospective employee, or employee, that long-term kinship care payments will be denied or terminated if the relative caregiver does as provided under subd. 3. a. or b.

DCF 58.11(2)(a)6. 6. A determination under s. DCF 58.06 (3) that it is not in the best interests of the child for the relative caregiver to do any of the following:

DCF 58.11(2)(a)6.a. a. Permit a prospective adult resident to reside, or continue to permit an adult resident to reside, in the relative caregiver’s home.

DCF 58.11(2)(a)6.b. b. Employ a prospective employee or continue to employ an employee.

DCF 58.11(2)(a)7. 7. The relative caregiver received the first written notice of an overpayment.

DCF 58.11(2)(b) (b) Failure to act on application. If the kinship care agency fails to act on a relative caregiver’s complete application as specified under s. DCF 58.08 (1) (a), the relative caregiver may submit a request for a hearing to the division of hearings and appeals no later than 45 days after the date of the deadline for the kinship care agency to process the application under s. DCF 58.08 (1) (b).

DCF 58.11 Note Note: A request for a hearing may be mailed to Division of Hearings and Appeals, P.O. Box 7875, Madison, WI 53707-7875; faxed to [phone]; or delivered to 4822 Madison Yards Way, Madison, WI 53705.

DCF 58.11(2)(c) (c) No division of hearings and appeals hearing right. A relative caregiver may not be granted a hearing with the division of hearings and appeals if any of the following conditions is met:

DCF 58.11(2)(c)1. 1. The relative caregiver is applying for or receiving kinship care payments, the kinship care agency sent the relative caregiver the notice specified under sub. (1) (a) 1., and any of the following:

DCF 58.11(2)(c)1.a. a. The relative caregiver has not requested a review by the director under sub. (1).

DCF 58.11(2)(c)1.b. b. The relative caregiver requested a review by the director under sub. (1), the director has not sent a notice of the determination, and the time allowed for the director to send the notice of the determination has not expired.

DCF 58.11(2)(c)2. 2. The kinship care agency determined that the person was ineligible for kinship care or long-term kinship care within the previous 2 years, and the reason for the denial or termination has not changed.

DCF 58.11 Note Note: For kinship care, the procedures for a hearing with the Division of Hearings and Appeals are under s. 48.57 (3m) (g), Stats. For long-term kinship care, the procedures for a hearing with the Division of Hearings and Appeals are under s. 48.57 (3n) (g), Stats.

DCF 58.11 History History: CR 19-159: cr. Register October 2020 No. 778, eff. 11-1-20; correction in (2) (a) 1., (b) made under s. 35.17, Stats., Register October 2020 No. 778.

DCF 58.12 DCF 58.12 Procedures for requesting an exemption for good cause to the requirement for cooperation in securing child support.

DCF 58.12(1) (1) Definitions. In this section:

DCF 58.12(1)(a) (a) “Emotional harm” means that the child or relative caregiver is emotionally impaired to an extent that substantially affects the child’s or relative caregiver’s functioning.

DCF 58.12(1)(b) (b) “Serious nature” means:

DCF 58.12(1)(b)1. 1. In reference to a relative caregiver, that the physical or emotional impairment is or will affect the relative caregiver’s capacity to care for the child.

DCF 58.12(1)(b)2. 2. In reference to a child, that the physical or emotional impairment is or will affect the child’s emotional, mental, or physical functioning.

DCF 58.12(2) (2) Right to request good cause exemption. A relative caregiver may request a good cause exemption from the requirement under s. DCF 58.04 (2) (e) to cooperate with the kinship care agency in referring the child’s parent or parents to the child support agency.

DCF 58.12(3) (3) Claiming good cause.

DCF 58.12(3)(a) (a) Notice.

DCF 58.12(3)(a)1. 1. A kinship care agency shall notify the relative caregiver of the opportunity to claim a good cause exemption in the application for kinship care or long-term kinship care.

DCF 58.12(3)(a)2. 2. The notice shall describe the right to refuse to cooperate for good cause in securing child support and shall advise the relative caregiver of all of the following:

DCF 58.12(3)(a)2.a. a. The potential benefits the child may derive from securing child support.

DCF 58.12(3)(a)2.b. b. That cooperation in securing child support is a condition of eligibility for kinship care and long-term kinship care.

DCF 58.12(3)(a)2.c. c. That good cause for refusing to cooperate may be claimed and if the kinship care agency finds that there is good cause, the relative caregiver will be excused from the cooperation requirement.

DCF 58.12(3)(b) (b) Claim.

DCF 58.12(3)(b)1. 1. A relative caregiver may claim good cause in application form prescribed by the department under s. DCF 58.04 (1). The good cause information in the application shall describe the circumstances that support a good cause claim and how a claim should be documented.

DCF 58.12(3)(b)2. 2. The information on good cause in the application shall include that the kinship care agency directs the child support agency to proceed to attempt to secure child support without the participation of the relative caregiver.

DCF 58.12(3)(b)3. 3. The relative caregiver shall sign and date the good cause claim to initiate the claim.

DCF 58.12(3)(b)4. 4. Within 2 days after the date on which the relative caregiver signs the good cause claim under subd. 3., the kinship care agency shall notify the child support agency that the relative caregiver has filed a good cause claim and instruct the child support agency to either not initiate or to suspend activities to secure child support until the claim is determined.

DCF 58.12(3)(c) (c) Burden on relative caregiver to establish good cause circumstances. A relative caregiver who refuses to cooperate in securing child support and who claims good cause for refusing to cooperate has the burden of establishing good cause, except as provided in subs. (5) (c) and (11) (a).

DCF 58.12(4) (4) Good cause circumstances. The kinship care agency shall determine whether requiring cooperation is contrary to the best interests of the child or the relative caregiver. An exemption may be granted only for one of the following reasons:

DCF 58.12(4)(a) (a) The relative caregiver’s cooperation can be reasonably anticipated to result in any of the following:

DCF 58.12(4)(a)1. 1. Physical harm of a serious nature to the child or to the relative caregiver.

DCF 58.12(4)(a)2. 2. Emotional harm of a serious nature to the child or the relative caregiver.

DCF 58.12(4)(b) (b) One of the following circumstances exists and it can be reasonably anticipated that proceeding to secure child support would be detrimental to the child:

DCF 58.12(4)(b)1. 1. The child was conceived as the result of incest or sexual assault.

DCF 58.12(4)(b)2. 2. A petition for adoption of the child has been filed with a court.

DCF 58.12(4)(b)3. 3. The parent or parents are being assisted by a social services agency in deciding whether to terminate parental rights and the discussions have not gone on for more than 3 months.

DCF 58.12(5) (5)  Determination of good cause.

DCF 58.12(5)(a) (a) Within 45 days from the date a claim is signed, the kinship care agency shall determine if there is good cause for a relative caregiver to refuse to cooperate in securing child support. The 45-day period may be extended by the kinship care agency upon written notice to the relative caregiver if the kinship care agency documents that additional time is needed for any of the following reasons:

DCF 58.12(5)(a)1. 1. Information needed to verify the claim cannot be obtained by the kinship care agency within 45 days.

DCF 58.12(5)(a)2. 2. Supporting evidence was not submitted by the relative caregiver within 20 days as required under sub. (10) (a).

DCF 58.12(5)(b) (b) The kinship care agency’s determination on whether good cause exists shall be reviewed and signed by a supervisor in the agency.

DCF 58.12(5)(c) (c) If there is no evidence or verifiable information available which suggests otherwise, the kinship care agency shall conclude that a refusal to cooperate was a case of cooperation to the fullest extent possible.

DCF 58.12(5)(d) (d) The kinship care agency shall place all of the following in the relative caregiver’s case record:

DCF 58.12(5)(d)1. 1. The agency’s final determination on the relative caregiver’s good cause claim and the reasons for the determination.

DCF 58.12(5)(d)2. 2. All evidence submitted in support of the claim.

DCF 58.12(5)(e) (e) Written notice of the final determination shall be given to the relative caregiver and to the child support agency. If the kinship care agency determines that good cause does not exist, the relative caregiver may, within 45 days from the date of the notification, do one of the following:

DCF 58.12(5)(e)1. 1. Withdraw the claim and cooperate.

DCF 58.12(5)(e)2. 2. Exclude any affected child from the application or case.

DCF 58.12(5)(e)3. 3. Withdraw the application or request that the case be closed.

DCF 58.12(5)(e)4. 4. Request a hearing under s. DCF 58.11 (2).

DCF 58.12(5)(f) (f) A denial or termination of kinship care or long-term kinship care shall remain in effect until there is cooperation or until cooperation is no longer an issue.

DCF 58.12(6) (6)  Approving or continuing payments. If the relative caregiver is cooperating with the kinship care agency in furnishing evidence and information for a determination on good cause, the kinship care agency may not deny, delay, reduce, or discontinue a kinship care or long-term kinship care payment, pending the determination, provided that all other eligibility criteria are met.

DCF 58.12(7) (7)  Participation of the child support agency.

DCF 58.12(7)(a) (a) The kinship care agency shall allow the child support agency to review and comment on the findings of the kinship care agency and shall consider the child support agency’s recommendations prior to the final determination on good cause by the kinship care agency.

DCF 58.12(7)(b) (b) The child support agency may participate in any hearing resulting from a good cause determination.

DCF 58.12(7)(c) (c) The final decision on good cause shall be made by the kinship care agency.

DCF 58.12(8) (8)  Evidence. An initial good cause claim shall be based on evidence in existence at the time of the claim. There is no limitation on the age of the evidence. Once a final decision, including any hearing, is made on the claim, any subsequent claim shall have new evidence as its basis. Any of the following types of evidence may be used in determining good cause:

DCF 58.12(8)(a) (a) Birth certificates or medical or law enforcement records that indicate that the child may have been conceived as a result of incest or sexual assault.