EAW:amn

2019 - 2020 LEGISLATURE

2019 Senate BILL 532

October 31, 2019 - Introduced by Senators Darling, Olsen and Feyen, cosponsored by Representatives Plumer, Dittrich, Felzkowski, James, Kulp, Magnafici, Milroy, Murphy, Ramthun, Tusler and Edming. Referred to Committee on Universities, Technical Colleges, Children and Families.

SB532,1,7 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:

SB532,1 Section 1. 48.293 (2) of the statutes is amended to read:

SB532,4,3 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.

SB532,2 Section 2. 48.295 (1) of the statutes is amended to read: