3. If the child is an Indian child, the order of placement preference required for
an Indian child in an Indian child custody proceeding, unless the juvenile court finds
good cause for departing from that order.
4. Whether appointment of the proposed guardian is in the best interests of the
child.
Disposition. At the conclusion of the fact-finding and dispositional hearing,
the juvenile court must either: 1) dismiss the petition if the juvenile court finds that
the petitioner has not proved the allegations in the petition by clear and convincing
evidence or determines that appointment of the proposed guardian is not in the best
interests of the child; or 2) order the proposed guardian to be appointed as the child's
guardian if the juvenile court finds that the petitioner has proved those allegations
by clear and convincing evidence and determines that the appointment is in the best
interests of the child. A disposition ordering the appointment of a guardian may also
designate an amount of support to be paid by the child's parents and may include
reasonable rules of parental visitation.
Procedures for appointment of emergency guardian
Petition. Any person may petition for the appointment of an emergency
guardian for a child. The petitioner must give notice of the petition and of the time
and place of the hearing on the petition to the child, if 12 years of age or over, the
child's guardian ad litem, and the child's counsel, if any; the child's parents,
guardian, and legal custodian; and the person nominated as emergency guardian.
Notice of the petition and a copy of the petition must be served by the most practical
means possible, including personal service or service by electronic mail or telephone,
as soon after the filing of the petition as possible and must include notice of the right
to counsel and of the right to petition for reconsideration or modification of the
emergency guardianship.
GAL. The juvenile court must appoint a GAL for the child as soon as possible
after the filing of the petition and must attempt to appoint the GAL before the
hearing on the petition, but may appoint the GAL after the hearing if exigent
circumstances require the immediate appointment of an emergency guardian. The
GAL must attempt to meet with the child before the hearing or as soon as is
practicable after the hearing, but not later than three days after the hearing, and
must report to the juvenile court on the advisability of the emergency guardianship
at the hearing or not later than seven days after the hearing.
Hearing. The juvenile court must hold a hearing on the emergency
guardianship petition as soon as possible after the filing of the petition or, for good
cause shown, may issue a temporary order appointing an emergency guardian
without a hearing, which remains in effect until a hearing is held on the petition.
If the juvenile court appoints an emergency guardian, any person entitled to receive
notice of the emergency guardianship petition may petition for reconsideration or
modification of the emergency guardianship and the juvenile court must hold a
rehearing on the issue of appointment of the emergency guardian within 30 days
after the filing of the petition.
Immunity. An emergency guardian of a child is immune from civil liability for
his or her acts or omissions in performing the duties of emergency guardianship if
he or she performs the duties in good faith, in the best interests of the child, and with
the degree of diligence and prudence that an ordinarily prudent person exercises in
his or her own affairs.
Post-appointment procedures
Successor guardian. If a guardian dies, is removed by order of the juvenile
court, or resigns and the resignation is accepted by the juvenile court, the juvenile
court may appoint a competent and suitable person as successor guardian. The
appointment may be made on the juvenile court's own motion or on the petition of
any interested person, which, for purposes of proceedings subsequent to an order for
guardianship of a child, means: 1) the child, if 12 years of age or over, the child's
guardian ad litem, and the child's counsel; 2) the guardian; 3) the child's parents; 4)
the county of venue, if the county has an interest in the guardianship; 5) if the child
is an Indian child, the child's tribe; and 6) any other person that the juvenile court
may require.
A successor guardian may be appointed without a hearing, but the juvenile
court may, upon request of any interested person or on its own motion, direct that the
petition or motion for the appointment of a successor guardian be heard in the same
manner and subject to the same requirements as provided for an original
appointment of a guardian. If a successor is appointed without a hearing, the
successor guardian must provide notice to all interested persons of the appointment,
the right to counsel, and the right to petition for reconsideration of the appointment.
Modification of guardianship order. Any interested person or other person
approved by the juvenile court may request a modification of a guardianship order
or the juvenile court may, on its own motion, propose such a modification. The
request or motion must set forth in detail the nature of the proposed modification,
allege facts sufficient to show that there has been a substantial change in
circumstances since the last order affecting the guardianship was entered and that
the proposed modification would be in the best interests of the child, and allege any
other information that affects the advisability of the juvenile court's disposition. The
juvenile court must hold a hearing on the matter prior to any modification of the
guardianship order if the request or motion indicates that new information is
available that affects the advisability of the juvenile court's guardianship order,
unless written waivers of objections to the modification are signed by all interested
persons and the juvenile court approves the waivers. The juvenile court may order
a modification if, at the hearing, the juvenile court finds that the person proposing
the modification has proved by clear and convincing evidence that there has been a
substantial change in circumstances and determines that a modification would be
in the best interests of the child.
Review of conduct of guardian. The juvenile court that appointed the
guardian of a child has continuing jurisdiction over the guardian and may impose
certain remedies if the guardian abuses or neglects the child or knowingly permits
others to do so, fails to disclose information that would have prevented his or her
appointment as guardian, or otherwise fails to perform any of his or her duties as
guardian. If the juvenile court finds by clear and convincing evidence that any of
those circumstances apply, the juvenile court may remove the guardian, remove the
guardian and appoint a successor guardian, enter any other order that may be
necessary or appropriate to compel the guardian to carry out his or her duties, modify
the duties and authority of the guardian, or, if the guardian's conduct was egregious,
require the guardian to pay any costs of the proceeding.
Termination of guardianship. A guardianship continues until the child
attains the age of 18 years unless: 1) the guardianship is for a lesser period of time
and that time has expired; 2) the child marries; 3) the child dies; 4) the child's
residence changes from this state to another state and a guardian is appointed in the
new state of residence; 5) the guardian dies, or resigns and the resignation is
approved by the juvenile court, and a successor guardian is not appointed; 6) the
guardian is removed for cause and a successor guardian is not appointed; or 7) the
guardianship is terminated on the request of a parent.
A parent may request that a guardianship be terminated by filing a petition
with the juvenile court alleging facts sufficient to show that there has been a
substantial change in circumstances since the last order affecting the guardianship
was entered, that the parent is fit, willing, and able to carry out the duties of a
guardian, and that termination of the guardianship would be in the best interests
of the child. The juvenile court must hold a hearing on the petition, unless written
waivers of objections to termination of the guardianship are signed by all interested
persons and the juvenile court approves the waivers. The juvenile court must
terminate the guardianship if the juvenile court finds that the parent has proved by
clear and convincing evidence that he or she has remedied the unfitness,
unwillingness, or inability to provide for the care, custody, and control of the child
or the compelling facts and circumstances on which the guardianship was granted
and that he or she is now fit, willing, and able to carry out the duties of a guardian
and the juvenile court determines that termination of the guardianship would be in
the best interests of the child.
Protection or services guardianships
Under the current Children's Code, a protection or services guardianship may
be ordered when a child who has been adjudged to be in need of protection or services
under the Children's Code, or adjudged to be in need of protection or services under
the Juvenile Justice Code on the grounds of uncontrollability, and placed outside the
home is likely to be placed in the home of the guardian for an extended period or until
the child attains the age of 18 years, it is not in the best interests of the child that
a petition for termination of parental rights be filed, and the child's parent is
neglecting, refusing, or unable to carry out the duties of a guardian.
This bill expands the applicability of a protection or services guardianship to
include a child under ten years of age who has been adjudged to be in need of
protection or services under the Juvenile Justice Code on the grounds of having
committed a delinquent act and a child ten years of age or over who has been
adjudged delinquent. The bill also permits such a guardianship to be ordered not
only when the child's parent is neglecting, refusing, or unable to carry out the duties
of a guardian but also when the child's parent is not meeting the conditions
established in a juvenile court order for the safe return of the child to the home.
Under current law, service of a petition for a protection or services guardianship
and notice of hearing on the petition may be made by 1st class mail, by personal
service or, if with reasonable diligence a party cannot be served by mail or by personal
service, by publication of the notice in a newspaper that is likely to give notice to the
parties. This bill eliminates service by publication for a protection or services
guardianship petition.
Delegation of power by parent, guardian, or legal custodian
Finally, the bill permits a parent, guardian, or legal custodian of a child, by a
properly executed power of attorney, to delegate to another person, for a period not
to exceed one year, any of his or her powers regarding the care and custody of the
child, except the power to consent to the marriage or adoption of the child.
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:
SB706, s. 1
1Section
1. 48.02 (8) of the statutes is amended to read:
SB706,9,32
48.02
(8) "Guardian" means the person named by the court having the duty and
3authority of
guardianship guardian of the person of a child under s. 48.023.
SB706, s. 2
4Section
2. 48.023 (intro.) of the statutes is amended to read:
SB706,9,10
548.023 Guardianship. (intro.) Except as limited by an order of the court
6under s.
48.976 (2) (c) 2., 48.977 (5) (b)
, or 48.978 (6) (b) 2., a person appointed by the
7court to be the guardian of a child under this chapter has the duty and authority to
8make important decisions in matters having a permanent effect on the life and
9development of the child and the duty to be concerned about the child's general
10welfare, including
but not limited to all of the following:
SB706, s. 3
11Section
3. 48.023 (3) of the statutes is amended to read:
SB706,9,1412
48.023
(3) The right and duty of reasonable visitation
of with the child
and,
13subject to an order of a court of competent jurisdiction, the authority to determine
14reasonable visitation with the child.
SB706, s. 4
15Section
4. 48.023 (4) of the statutes is amended to read:
SB706,10,6
148.023
(4) The rights and responsibilities of
physical custody and legal custody
,
2including the right to change the residence of the child from this state to another
3state, except when
physical custody or legal custody has been vested in another
4person or when the child is under the supervision of the department of corrections
5under s. 938.183, 938.34 (4h), (4m) or (4n)
, or 938.357 (4) or the supervision of a
6county department under s. 938.34 (4d) or (4n).
SB706, s. 5
7Section
5. 48.09 (5) of the statutes is amended to read:
SB706,10,138
48.09
(5) By the district attorney or, if designated by the county board of
9supervisors, by the corporation counsel, in any matter arising under s. 48.13, 48.133
,
1048.976, or 48.977. If the county board transfers this authority to or from the district
11attorney on or after May 11, 1990, the board may do so only if the action is effective
12on September 1 of an odd-numbered year and the board notifies the department of
13administration of that change by January 1 of that odd-numbered year.
SB706, s. 6
14Section
6. 48.14 (2) (b) of the statutes is amended to read:
SB706,10,1815
48.14
(2) (b) The appointment and removal of a guardian of the person for a
16child under ss. 48.427, 48.428, 48.43, 48.831, 48.832, 48.839 (4) (a),
48.976, 48.977,
17and 48.978
and ch. 54 and for a child found to be in need of protection or services
18under s. 48.13 because the child is without parent or guardian.
SB706, s. 7
19Section
7. 48.14 (11) of the statutes is amended to read:
SB706,10,2020
48.14
(11) Granting visitation privileges under s.
54.56 48.976 (11).
SB706, s. 8
21Section
8. 48.235 (1) (c) of the statutes is amended to read:
SB706,10,2522
48.235
(1) (c) The court shall appoint a guardian ad litem for any child who is
23the subject of a proceeding to terminate parental rights, whether voluntary or
24involuntary, for a child who is the subject of a contested adoption proceeding
, and for
25a child who is the subject of a proceeding under s.
48.976, 48.977
, or 48.978.
SB706, s. 9
1Section
9. 48.235 (3) (c) of the statutes is created to read:
SB706,11,52
48.235
(3) (c) In addition to any other duties and responsibilities required of
3a guardian ad litem, a guardian ad litem appointed for a child who is the subject of
4a proceeding under s. 48.976 shall do all of the following unless granted leave by the
5court not to do so:
SB706,11,116
1. Personally, or through a trained designee, meet with the child, assess the
7appropriateness and safety of the environment of the child, and, if appropriate to the
8age and developmental level of the child, interview the child and determine the
9child's goals and concerns regarding the proposed guardianship. If the child is 12
10years of age or over, the guardian ad litem shall also advise the child that he or she
11may request the appointment of counsel or retain counsel of his or her own choosing.
SB706,11,1412
2. Interview the proposed guardian, personally or through a trained designee,
13visit the guardian's home, if appropriate, and report to the court concerning the
14suitability of the proposed guardian to serve as guardian of the child.
SB706,11,1815
3. Attend all court proceedings relating to the guardianship, present evidence
16concerning the best interests of the child, if necessary, and make clear and specific
17recommendations to the court concerning the best interests of the child at every stage
18of the proceeding.
SB706,11,1919
4. Report to the court on any matter that the court requests.
SB706,11,2522
48.255
(1) (cm) Whether the child may be subject to
s. 48.028 or the federal
23Indian Child Welfare Act,
25 USC 1901 to
1963, and, if the child may be subject to
24s. 48.028 or that act, the names and addresses of the child's Indian custodian, if any,
25and Indian tribe, if known.
SB706,12,73
48.255
(1m) (d) Whether the unborn child, when born, may be subject to
s.
448.028 or the federal Indian Child Welfare Act,
25 USC 1901 to
1963, and, if the
5unborn child may be subject to
s. 48.028 or that act, the name and address of the
6Indian tribe in which the unborn child may be eligible for affiliation when born, if
7known.
SB706, s. 12
8Section
12. 48.299 (4) (a) of the statutes is amended to read:
SB706,12,119
48.299
(4) (a) Chapters 901 to 911 shall govern the presentation of evidence at
10the fact-finding hearings under ss. 48.31, 48.42,
48.976, 48.977 (4) (d)
, and 48.978
11(2) (e) and (3) (f) 2.
SB706, s. 13
12Section
13. 48.299 (4) (b) of the statutes is amended to read:
SB706,13,213
48.299
(4) (b) Except as provided in s. 901.05, neither common law nor
14statutory rules of evidence are binding at a hearing for a child held in custody under
15s. 48.21, a hearing for an adult expectant mother held in custody under s. 48.213, a
16runaway home hearing under s. 48.227 (4), a dispositional hearing, or a hearing
17about changes in placement, revision of dispositional orders, extension of
18dispositional orders or termination of guardianship orders entered under s.
48.976, 1948.977 (4) (h) 2. or (6)
, or 48.978 (2) (j) 2. or (3) (g). At those hearings, the court shall
20admit all testimony having reasonable probative value, but shall exclude
21immaterial, irrelevant or unduly repetitious testimony or evidence that is
22inadmissible under s. 901.05. Hearsay evidence may be admitted if it has
23demonstrable circumstantial guarantees of trustworthiness. The court shall give
24effect to the rules of privilege recognized by law. The court shall apply the basic
25principles of relevancy, materiality and probative value to proof of all questions of
1fact. Objections to evidentiary offers and offers of proof of evidence not admitted may
2be made and shall be noted in the record.
SB706, s. 14
3Section
14. 48.345 (intro.) of the statutes is amended to read:
SB706,13,18
448.345 Disposition of child or unborn child of child expectant mother
5adjudged in need of protection or services. (intro.) If the judge finds that the
6child is in need of protection or services or that the unborn child of a child expectant
7mother is in need of protection or services, the judge shall enter an order deciding one
8or more of the dispositions of the case as provided in this section under a care and
9treatment plan, except that the order may not place any child not specifically found
10under
this chapter or chs. 46, 49, 51, 54, or 115 to be developmentally disabled,
11mentally ill, or to have a disability specified in s. 115.76 (5) in
facilities a facility that
12exclusively
treat treats those categories of children, and the court may not place any
13child expectant mother of an unborn child in need of protection or services outside
14of the child expectant mother's home unless the court finds that the child expectant
15mother is refusing or has refused to accept any alcohol or other drug abuse services
16offered to her or is not making or has not made a good faith effort to participate in
17any alcohol or other drug abuse services offered to her. The dispositions under this
18section are as follows:
SB706, s. 15
19Section
15. 48.345 (3) (a) of the statutes is amended to read:
SB706,14,320
48.345
(3) (a) The home of a parent
or
, other relative
, or guardian of the child,
21except that the judge may not designate the home of a parent
or, other relative
, or
22guardian of the child as the child's placement if the parent
or, other relative
, or
23guardian has been convicted under s. 940.01 of the first-degree intentional homicide,
24or under s. 940.05 of the 2nd-degree intentional homicide, of a parent of the child,
25and the conviction has not been reversed, set aside or vacated, unless the judge
1determines by clear and convincing evidence that the placement would be in the best
2interests of the child. The judge shall consider the wishes of the child in making that
3determination.
SB706, s. 16
4Section
16. 48.368 (1) of the statutes is amended to read:
SB706,14,125
48.368
(1) If a petition for termination of parental rights is filed under s. 48.41
6or 48.415 or an appeal from a judgment terminating or denying termination of
7parental rights is filed during the year in which a dispositional order under s. 48.355,
8an extension order under s. 48.365, a voluntary agreement for placement of the child
9under s. 48.63, or a guardianship order under
ch. 54, 2007 stats., or ch. 880, 2003
10stats., or s.
48.976 or 48.977
or ch. 54 is in effect, the dispositional or extension order,
11voluntary agreement, or guardianship order shall remain in effect until all
12proceedings related to the filing of the petition or an appeal are concluded.
SB706,14,1815
48.42
(1) (d) A statement of whether the child may be subject to
s. 48.028 or the
16federal Indian
t Child Welfare Act,
25 USC 1901 to
1963, and, if the child may be
17subject to
s. 48.028 or that act, the names of the child's Indian custodian, if any, and
18tribe, if known.
SB706, s. 18
19Section
18. 48.62 (2) of the statutes is amended to read:
SB706,15,920
48.62
(2) A relative
,, or a guardian of a child who provides care and
21maintenance for the child is not required to obtain the license specified in this
22section. The department, county department, or licensed child welfare agency as
23provided in s. 48.75 may issue a license to operate a foster home or a treatment foster
24home to a relative who has no duty of support under s. 49.90 (1) (a) and who requests
25a license to operate a foster home or treatment foster home for a specific child who
1is either placed by court order or who is the subject of a voluntary placement
2agreement under s. 48.63. The department, a county department, or a licensed child
3welfare agency may, at the request of a guardian appointed under s.
48.976, 48.977
, 4or 48.978, ch. 54,
2007 stats., or ch. 880, 2003 stats., license the guardian's home as
5a foster home or treatment foster home for the guardian's minor ward who is living
6in the home and who is placed in the home by court order. Relatives with no duty of
7support and guardians appointed under s.
48.976, 48.977
, or 48.978, ch. 54,
2007
8stats., or ch. 880, 2003 stats., who are licensed to operate foster homes or treatment
9foster homes are subject to the department's licensing rules.
SB706,15,2512
48.62
(2) A relative or a guardian of a child who provides care and maintenance
13for the child is not required to obtain the license specified in this section. The
14department, county department, or licensed child welfare agency as provided in s.
1548.75 may issue a license to operate a foster home to a relative who has no duty of
16support under s. 49.90 (1) (a) and who requests a license to operate a foster home for
17a specific child who is either placed by court order or who is the subject of a voluntary
18placement agreement under s. 48.63. The department, a county department, or a
19licensed child welfare agency may, at the request of a guardian appointed under s.
2048.976, 48.977, or 48.978, ch. 54, 2007 stats., or ch. 880, 2003 stats., license the
21guardian's home as a foster home for the guardian's minor ward who is living in the
22home and who is placed in the home by court order. Relatives with no duty of support
23and guardians appointed under s. 48.976, 48.977, or 48.978, ch. 54, 2007 stats., or
24ch. 880, 2003 stats., who are licensed to operate foster homes are subject to the
25department's licensing rules.
SB706, s. 20
1Section
20. 48.831 (1) of the statutes is amended to read:
SB706,16,82
48.831
(1) Type of guardianship. This section may be used for the appointment
3of a guardian of a child who does not have a living parent if a finding as to the
4adoptability of a child is sought. Except as provided in ss. 48.977 and 48.978,
ch. 54 5s. 48.976 applies to the appointment of a guardian for a child who does not have a
6living parent for all other purposes. An appointment of a guardian of the estate of
7a child who does not have a living parent shall be conducted in accordance with the
8procedures specified in ch. 54.
SB706, s. 21
9Section
21. 48.831 (1m) (e) of the statutes is amended to read:
SB706,16,1210
48.831
(1m) (e) A guardian appointed under
s. 48.976, ch. 54
, 2007 stats., or
11ch. 880, 2003 stats., whose resignation as guardian has been accepted by a court
12under s.
48.976 (10), 54.54 (1)
, 2007 stats., or s. 880.17 (1), 2003 stats.
SB706, s. 22
13Section
22. 48.976 of the statutes is created to read:
SB706,16,15
1448.976 Appointment of guardian of the person of a child. (1) Definition. 15In this section, "interested person" means any of the following:
SB706,16,1616
(a) For purposes of a petition for guardianship of a child, any of the following:
SB706,16,1817
1. The child, if he or she has attained 12 years of age, and the child's guardian
18ad litem and counsel, if any.
SB706,16,1919
2. The child's parents, guardian, legal custodian, and physical custodian.
SB706,16,2320
3. Any person who has filed a declaration of paternal interest under s. 48.025,
21who is alleged to the court to be the father of the child, or who may, based on the
22statements of the mother or other information presented to the court, be the father
23of the child.
SB706,16,2424
4. Any individual who is nominated as guardian.
SB706,17,3
15. If the child has no living parent, any individual nominated to act as fiduciary
2for the child in a will or other written instrument that was executed by a parent of
3the child.
SB706,17,74
6. If the child is receiving any public services or benefits, the county department
5or, in a county having a population of 500,000 or more, the department that is
6providing the services or benefits, through the person representing the interests of
7the public under s. 48.09.
SB706,17,98
7. If the child is an Indian child, the Indian child's Indian custodian and Indian
9tribe.
SB706,17,1010
8. Any other person that the court may require.
SB706,17,1211
(b) For purposes of proceedings subsequent to an order for guardianship of a
12child, any of the following:
SB706,17,1413
1. The child, if 12 years of age or over, the child's guardian ad litem, and the
14child's counsel.
SB706,17,1515
2. The guardian.
SB706,17,1616
3. The parents of the child.
SB706,17,1817
4. The county of venue, through the person representing the interests of the
18public under s. 48.09, if the county has an interest in the guardianship.
SB706,17,1919
5. If the child is an Indian child, the Indian child's tribe.
SB706,17,2020
6. Any other person that the court may require.
