Current law provides as follows:

1. Current s. 48.46 (1), stats., permits, except as discussed in item 2., below, a child whose status is adjudicated under ch. 48, stats., by the juvenile court or the parent, guardian or legal custodian of the child to petition the juvenile court for a rehearing on the ground that new evidence has been discovered affecting the advisability of the juvenile court's original adjudication. If there is a showing that such evidence exists, the juvenile court must order a new hearing. Such a petition must be filed within one year after the entering of the court's order.

2. Notwithstanding item 1., above, current s. 48.46 (2), stats., limits the remedies for relief from a TPR judgment or order when the aggrieved party is a parent whose parental rights were terminated voluntarily or who did not contest the TPR petition. In such cases, a motion for relief from the TPR judgment or order must be filed within 30 days after entry of the TPR judgment or order, unless the parent files a timely notice of intent to pursue relief from the TPR judgment or order within 30 days after the date of entry of the TPR judgment or order. In the latter case, the motion must be filed within 30 days after service of the transcript under s. 809.107 (4), stats. According to the judicial council note to the Supreme Court Order creating s. 48.46 (2), stats., the juvenile court must grant a rehearing under s. 48.46 (2), stats., upon a prima facie showing of one or more of the following grounds: mistake, inadvertence, surprise or excusable neglect; newly discovered evidence justifying a new trial under s. 805.15 (3), stats. (that is, evidence has come to the moving party's notice after trial, the moving party's failure to discover the evidence earlier did not arise from a lack of diligence in seeking to discover it, the evidence is material and not cumulative and the new evidence would probably change the result); fraud, misrepresentation or other misconduct of an adverse party; the TPR judgment or order is void; or the TPR judgment or order is based upon a prior judgment which has been reversed or otherwise vacated. A motion under s. 48.46 (2), stats., and an appeal to the court of appeals are the exclusive remedies for such a parent to obtain a new hearing in a TPR proceeding.

This bill amends s. 48.46 (1), stats., as discussed in item 1., above, to provide an exception to the requirement that a petition for rehearing under s. 48.46 (1), stats., must be filed within one year after the entering of the court's order. Under the bill, a petition for a rehearing with respect to a TPR order or an order adjudicating paternity under subch. VIII of ch. 48, stats., based on newly discovered evidence must be filed within one year after the date on which the order is entered, unless within that one-year period a juvenile court in this state or a court in another jurisdiction enters an order granting adoption of the child, in which case the petition for rehearing must be filed before the date on which a juvenile court in Wisconsin or in another jurisdiction enters the order granting adoption of the child or within 30 days after the date on which the TPR order or paternity order is entered, whichever is later. Thus, such a petition may be filed up to one year after the TPR order or paternity order is entered unless the child is adopted within the year after the TPR order or paternity order is entered. In that case, such a petition cannot be filed after the adoption order is entered, unless the adoption order is entered less than 30 days after the date on which the TPR order or paternity order is entered, in which case the petition may be filed within 30 days after the date on which the TPR order or paternity order is entered. This provision does not apply to a TPR order if the parent consented to the TPR or did not contest the TPR petition; in that case, s. 48.46 (2), stats., applies.

Placement With Relative For Adoption

Under current s. 48.835 (2), stats., a parent having custody of a child may place the child for adoption in the home of a relative without a court order. Current s. 48.835 (2) stats., however, does not specify who the person with whom the child may be placed must be a relative of. Section 48.02 (15), stats., which defines “relative" for general purposes in ch. 48, stats., defines that term in terms of specific relationships, such as parent, grandparent, and so on, without specifying who the relationship is to. This bill specifies that the person with whom the child is placed under this provision must be a relative of the child.

Application of Interstate Compact on the Placement of Children

Current law provides that the ICPC does not apply to the sending or bringing of a child into a receiving state by a parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or a guardian and leaving the child with any such relative or nonagency guardian in the receiving state. This bill specifies that the ICPC does not apply to the sending or bringing of a child into a receiving state by the child's parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or guardian and leaving the child with any such relative or nonagency guardian in the receiving state. (This clarification is consistent with the ICPC.)

Time For Hearing on Termination of Parental Rights Petition Filed with Independent Adoptive Placement Petition

Under current law, if a petition for independent adoptive placement of a child with a person who is not a relative of the child (nonrelative) is filed under s. 48.837 (2), stats., a petition for TPR must be filed at the same time [s. 48.837 (3), stats.]. In such cases, juvenile court must schedule a hearing on both petitions within 60 days of the date of filing, except that the hearing may not be held before the birth of the child.

Under current law, if a TPR petition is filed in a case not involving an independent adoptive placement with a nonrelative, a juvenile court must hold a hearing on the TPR petition within 30 days after the petition is filed [s. 48.422 (1), stats.].

This bill provides that when a TPR petition is filed with a petition for independent adoptive placement of a child with a nonrelative under s. 48.837 (2), stats., a juvenile court must hold, rather than schedule, a hearing on both petitions within 30 days after the date of filing of the petitions, rather than within 60 days after that date, except that the hearing may not be held before the birth of the child.

Permanency Plan Documentation For Voluntary Preadoptive Placement

Under current law, for each child living in a foster home, treatment foster home, group home, child-caring institution (CCI), secure detention facility or shelter care facility, the agency that placed the child or arranged the placement or the agency assigned primary responsibility for providing services to a child found to be in need of protection or services must prepare a written permanency plan for the child if certain conditions exist. One of those conditions is that “the child was placed under a voluntary agreement between the agency and the child's parent under s. 48.63 (1)". Under s. 48.63 (1), stats., a child's parent or a child welfare agency licensed to place children may, pursuant to a written, voluntary agreement, place a child or negotiate or act as intermediary for the placement of a child in a foster home or treatment foster home. Thus, section 48.63 (1), stats., applies to the placement by an agency of a child in a foster home after the child is born, but before the child is placed for adoption.

Current law also provides that if a child who has been placed outside the home is living more than 60 miles from his or her home, the permanency plan must include documentation that placement within 60 miles of the child's home is either unavailable or inappropriate. According to staff at the division of children and family services in DHFS, this provision is based on Title IV‐E of the federal Social Security Act, 42 USC 670 to 679a, which requires that each child placed in a licensed foster home or licensed treatment foster home have a case plan designed to achieve placement “in close proximity to the parent's home consistent with the best interest and special needs of the child" [42 USC 675 (5) (A) (emphasis added)].

This bill permits a permanency plan to include documentation that placement more than 60 miles from a child's home is in the child's best interests. The bill also provides that the placement of a child in a licensed foster home or licensed treatment foster home more than 60 miles from the child's home is presumed to be in the best interests of the child if documentation is provided showing all of the following:

1. That the placement is made pursuant to a voluntary agreement under s. 48.63 (1), stats.

2. That the voluntary agreement provides that the child may be placed more than 60 miles from the child's home.

3. That the placement is made to facilitate the anticipated adoptive placement of the child under s. 48.833, stats., which governs adoptive placement of children by DHFS, county departments and child welfare agencies, or s. 48.837, stats., which governs independent adoptive placements of children with nonrelatives.

Removal of Child For Adoptive Placement

Under current law, if a child has been in a foster home, treatment foster home or group home for 6 months or more, the agency that placed the child (agency), that is, DHFS, department of corrections, a county department or a licensed child welfare agency authorized to place children in foster homes or treatment foster homes, must give the head of the home written notice of intent to remove the child, stating the reasons for the removal.

In such cases, current law provides that, unless the safety of the child requires it, a child may not be removed before the later of the following: (1) completion of the hearing under s. 48.64 (4) (a) or (c), stats., described below, if requested; or (2) 30 days after receipt of the notice of intent to remove.

Current s. 48.64 (4) (a), stats., provides, in pertinent part, that any decision or order issued by an agency that affects the head of a foster home, treatment foster home or group home or the children involved may be appealed to DHFS under fair hearing procedures. Thus, if the head of a foster home, treatment foster home or group home in which a child has been placed for 6 months or more requests such a hearing, then, assuming that safety considerations do not require immediate removal of the child under s. 48.19, stats., the child may not be removed until after completion of the administrative hearing or 30 days after the receipt of the notice of intent to remove, whichever is later.

Current s. 48.64 (4) (c), stats., provides, in pertinent part, that if an “interested party" files a petition with the circuit court for the county where a child is placed, the circuit court may call a hearing for the purpose of reviewing any decision or order of the supervising agency involving the placement and care of the child. The head of the foster home, treatment foster home or group home and the supervising agency must be present at such a hearing. If the child has been placed in a foster home, the foster parent may present relevant evidence at the hearing. If, after receiving a petition, a hearing is called by the court under s. 48.64 (4) (c), stats., and if the child has been in the foster home, treatment foster home or group home for 6 months or more, then, assuming safety considerations do not require immediate removal of the child under s. 48.19, stats., the child may not be removed until after completion of the court hearing or 30 days after the receipt of the notice of intent to remove, whichever is later.

This bill provides that if a child has been in a foster home, treatment foster home or group home for 6 months or more and if the reason for removal is to place the child for adoption under s. 48.833, stats., described below, the provision in current law that, absent safety considerations requiring immediate removal, the child may not be removed before completion of the hearing under s. 48.64 (4) (a) or (c), stats., if requested, or 30 days after the receipt of the notice of intent to remove, whichever is later, does not apply if written waivers of objection to the proposed removal are signed by all of the persons who have the right to request a hearing under s. 48.64 (4) (a) or (c), stats. (Section 48.833, stats., provides that an agency that is the guardian of a child or that is making a placement at the request of another agency that is the guardian of a child may place the child for adoption with a proposed adoptive parent who is licensed as a foster parent or treatment foster parent.)