Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Current Through February 2016

Physical Abuse

Citation: Ann. Stat. §§ 48.02; 48.981‘Abuse’ means any of the following:

• Physical injury inflicted on a child by other than accidental means
• When used in referring to an unborn child, serious physical harm inflicted on the unborn child and the risk of serious physical harm to the child when born caused by a habitual lack of self-control of the expectant mother of the unborn child in the use of alcoholic beverages, controlled substances, or controlled substance analogs, exhibited to a severe degree
• Manufacturing methamphetamine in violation of § 961.41(1)(e) under any of the following circumstances:
  • With a child physically present during the manufacture
  • In a child’s home, on the premises of a child’s home, or in a motor vehicle located on the premises of a child’s home
  • Under any circumstances in which a reasonable person should have known that the manufacture would be seen, smelled, or heard by a child

‘Physical injury’ includes, but is not limited to, lacerations, fractured bones, burns, internal injuries, severe or frequent bruising, or great bodily harm.

‘Incident of death or serious injury’ means an incident in which a child has died or been placed in serious or critical condition, as determined by a physician, as a result of any suspected abuse or neglect that has been reported, or in which a child who has been placed outside the home by a court order is suspected to have committed suicide.

‘Incident of egregious abuse or neglect’ means an incident of suspected abuse or neglect that has been reported under this section, other than an incident of death or serious injury, involving significant violence, torture, multiple victims, the use of inappropriate or cruel restraints, exposure of a child to a dangerous situation, or other similar, aggravated circumstances.

Neglect

Citation: Ann. Stat. § 48.02‘Neglect’ means failure, refusal, or inability on the part of a caregiver, for reasons other than poverty, to provide necessary care, food, clothing, medical or dental care, or shelter so as to seriously endanger the physical health of the child.

Sexual Abuse/Exploitation

Citation: Ann. Stat. § 48.02The term ‘abuse’ includes any of the following:

• Sexual intercourse or sexual contact
• Sexual exploitation of a child
• Permitting, allowing, or encouraging a child to engage in prostitution
• Causing a child to view or listen to sexual activity
• The exposure of one’s genitals to a child

Emotional Abuse

Citation: Ann. Stat. § 48.02The term ‘abuse’ includes emotional damage for which the child’s parent, guardian, or legal custodian has neglected, refused, or been unable for reasons other than poverty to obtain the necessary treatment or to take steps to ameliorate the symptoms.

‘Emotional damage’ means harm to a child’s psychological or intellectual functioning. ‘Emotional damage’ shall be evidenced by one or more of the following characteristics exhibited to a severe degree: anxiety, depression, withdrawal, or outward aggressive behavior; a substantial and observable change in behavior or emotional response; or cognition that is not within the normal range for the child’s age and stage of development.

Abandonment

This issue is not addressed in the statutes reviewed.

Standards for Reporting

Citation: Ann. Stat. § 48.981
A report is required when a mandatory reporter has reasonable cause to suspect that a child seen by the person in the course of his or her professional duties has been abused or neglected or has reason to believe that a child seen by the person in the course of his or her professional duties has been threatened with abuse or neglect and that abuse or neglect of the child will occur.

Persons Responsible for the Child

Citation: Ann. Stat. § 48.981‘Caregiver’ means, with respect to a child who is the victim or alleged victim of abuse or neglect or who is threatened with abuse or neglect, any of the following persons:

• The child’s parent, grandparent, great-grandparent, stepparent, brother, sister, stepbrother, stepsister, half-brother, or half-sister
• The child’s guardian or legal custodian
• A person who resides or has resided regularly or intermittently in the same dwelling as the child
• An employee of a residential facility or residential care center for children and youth in which the child was or is placed
• A person who provides or has provided care for the child in or outside of the child’s home
• Any other person who exercises or has exercised temporary or permanent control over the child or who temporarily or permanently supervises or has supervised the child
• Any relative of the child other than one listed above

Exceptions

Citation: Ann. Stat. § 48.02It is not considered neglect when the failure to provide a child with necessary care, food, clothing, shelter, medical, or dental care is due to poverty.

Current Through August 2013

Defined in Domestic Violence Civil Laws

Citation: Ann. Stat. § 813.12‘Domestic abuse’ means any of the following engaged in by an adult family member or adult household member against another adult family member or adult household member, by an adult caregiver against an adult who is under the caregiver’s care, by an adult against his or her adult former spouse, by an adult against an adult with whom the individual has or had a dating relationship, or by an adult against an adult with whom the person has a child in common:

• Intentional infliction of physical pain, physical injury, or illness
• Intentional impairment of physical condition
• A violation of § 940.225 (sexual assault)
• A violation of § 943.01 (damage to property) involving property that belongs to the individual
• A threat to engage in the conduct described above

Defined in Child Abuse Reporting and Child Protection Laws

Citation:This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

Citation: Ann. Stat. § 968.075‘Domestic abuse’ means any of the following engaged in by any person listed below:

• Intentional infliction of physical pain, physical injury, or illness
• Intentional impairment of physical condition
• A violation of § 940.225 (sexual assault)
• A physical act that may cause the other person reasonably to fear imminent engagement in the conduct described above

Persons Included in the Definition

Citation: Ann. Stat. §§ 813.12; 968.075In civil law: Domestic abuse may be engaged in:

• By an adult family or household member against another adult family or household member
• By an adult caregiver against an adult who is under the caregiver’s care
• By an adult against his or her adult former spouse
• By an adult against an adult with whom the individual has or had a dating relationship
• By an adult against an adult with whom the person has a child in common

‘Caregiver’ means an individual who is a provider of in-home or community care to an individual through regular and direct contact.

‘Dating relationship’ means a romantic or intimate social relationship between two adult individuals. It does not include a casual relationship or an ordinary fraternization between two individuals in a business or social context.

In criminal law: An adult person can engage in domestic abuse against his or her spouse or former spouse, against an adult with whom the person resides or formerly resided, or against an adult with whom the person has a child in common.

Current Through June 2013

Confidentiality of Records

Citation: Ann. Stat. § 48.981All reports made under this section and records maintained by an agency and other persons, officials, and institutions shall be confidential.

Persons or Entities Allowed Access to Records

Citation: Ann. Stat. § 48.981Reports and records may be disclosed only to the following persons:

• The subject of a report
• The mandated reporter who made a report of abuse involving the subject child
• Appropriate staff of an agency or a Tribal social services department
• A person providing or authorized to provide intake or dispositional services for the court
• An attending physician for purposes of diagnosis and treatment
• A child’s parent, guardian, or legal custodian
• A child’s foster parent, treatment foster parent, or other person having physical custody of the child, or a person having physical custody of the expectant mother of an unborn child
• A relative of a child placed outside of his or her home to the extent necessary to facilitate the establishment of a relationship between the child and the relative
• A professional employee of a county department who is working with the child or the expectant mother of the unborn child
• A multidisciplinary child abuse and neglect or unborn child abuse team
• A person employed by a child advocacy center
• A law enforcement officer, law enforcement agency, or district attorney for purposes of investigation or prosecution
• The Department of Corrections, the Department of Health Services, a county department, or any other person under contract with those departments to exercise custody or supervision over a person who is subject to community placement for purposes of investigating or providing services
• A court or administrative agency for use in a proceeding relating to the licensing or regulation of a facility regulated under this chapter
• A court conducting proceedings in which abuse or neglect of the child or the unborn child who is the subject of the report or record is an issue
• A Tribal court or other adjudicative body authorized by a Tribe or Band to perform child welfare functions
• The county corporation counsel, district attorney, or agency legal counsel
• The child’s counsel or guardian ad litem
• An attorney representing the interests of an Indian Tribe or Band or Indian child
• A volunteer court-appointed special advocate (CASA) or person employed by a CASA program
• A person engaged in bona fide research
• The department, a county department, or a licensed child welfare agency ordered to conduct a screening or an investigation of a stepparent
• A grand jury when it is necessary for the conduct of its official business
• A judge conducting proceedings under § 968.26
• A child fatality review team
• A citizen review panel
• A coroner, medical examiner, pathologist, or other physician investigating the cause of death of a child
• A Federal agency, State agency of this State or any other State, or local governmental unit located in this State or any other State that has a need for a report or record in order to carry out its responsibility to protect children

When Public Disclosure of Records is Allowed

Citation: Ann. Stat. § 48.981If an agency has reason to suspect that an incident of death or serious injury or egregious abuse or neglect has occurred, within 2 working days the agency shall provide the following information to the subunit of the department responsible for statewide oversight of child abuse and neglect programs:

• Information about the child, including the child’s age
• The date of the incident and the suspected cause of the death, serious injury, or egregious abuse or neglect
• A brief history of any reports received in which the child, a member of the child’s family, or the person suspected of the abuse or neglect was the subject and of any services offered or provided to any of those persons
• A statement of whether the child was residing in his or her home or was placed outside the home when the incident occurred

Within 2 working days after receiving the information, the department shall disclose to the public:

• That the information was received
• Whether the department is conducting a review of the incident
• Whether the child was residing in the home or was placed in an out-of-home placement at the time of the incident
• Information about the child, including the child’s age

The disclosure of information may not include any of the following:

• The identity of the child, any member of the child’s family, any member of the child’s household who is a child, or any caregiver of the child
• The identity of the person suspected of the abuse or neglect
• The identity of a reporter
• Any information the disclosure of which would not be in the best interests of the child, any member of the child’s family, any member of the child’s household who is a child, or any caregiver of the child
• Any disclosure that is not authorized by State or Federal law or regulation

Use of Records for Employment Screening

Citation: Ann. Stat. § 48.981Reports and records may be disclosed to a public or private agency in this State or any other State that is investigating a person for purposes of licensing the person to operate a foster home or placing a child for adoption in the home of the person.

Current Through March 2015

Citation: Ann. Stat. § 48.981(4)

Any person or institution participating in good faith in making a report, conducting an investigation, ordering or taking photographs, or ordering or performing medical examinations of a child or an expectant mother pursuant to this section shall have immunity from any liability, civil or criminal, that results by reason of the action.

For the purpose of any civil or criminal proceeding, the good faith of any person reporting under this section shall be presumed.

The immunity provided herein does not apply to liability for abusing or neglecting a child or for abusing an unborn child.

Current Through February 2013

Individual Responsibility to Report

Citation: Ann. Stat. § 48.981(3)A mandated reporter who has reasonable cause to suspect that a child has been abused or neglected immediately shall make a report, either by telephone or personally.

Content of Reports

Citation: Ann. Stat. § 48.981(3)The report must include the facts and circumstances contributing to a suspicion of child abuse or neglect or of unborn child abuse or to a belief that abuse or neglect will occur.

Reporting Suspicious Deaths

Citation: Ann. Stat. § 48.981(5)A mandated reporter who has reasonable cause to suspect that a child has died as a result of abuse or neglect shall report that fact to the appropriate medical examiner or coroner. The medical examiner or coroner shall accept the report for investigation and shall report the findings to the appropriate district attorney, the department, and if the institution making the report initially is a hospital, to the hospital.

Reporting Substance-Exposed Infants

Citation:This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Citation: Ann. Stat. § 48.981Reports shall be made to the county department or, in a county having a population of 500,000 or more, the Department of Children and Families; a licensed child welfare agency under contract with the department; the sheriff; or city, village, or town police department.

Initial Screening Decisions

Citation: Ann. Stat. § 48.981Immediately after receiving a report, the agency shall evaluate the report to determine whether there is reason to suspect that a caregiver has abused or neglected the child or has threatened the child with abuse or neglect.

The term ‘substantial abuse or neglect’ means abuse or neglect or threatened abuse or neglect that constitutes severe abuse or neglect or a threat of severe abuse or neglect and a significant threat to the safety of a child and his or her family.

The department shall establish a pilot program under which a selected agency or a county department may employ alternative responses to a report of abuse or neglect or of threatened abuse or neglect. Immediately after receiving a report, the agency or county department shall evaluate the report to determine the most appropriate alternative response to the report. Based on that evaluation, the agency or county department shall respond to the report as follows:

• If the agency or county department determines that there is reason to suspect that substantial abuse or neglect has occurred or is likely to occur or that an investigation is otherwise necessary to ensure the safety of the child and his or her family, the agency shall investigate the report.
• If, in conducting that investigation, the agency or county department determines that it is not necessary for the safety of the child to complete the investigation, the agency or county department may terminate the investigation and conduct an assessment.
• If the agency determines that there is reason to suspect that abuse or neglect, other than substantial abuse or neglect, has occurred or is likely to occur, but that under the guidelines developed by the department there is no immediate threat to the safety of the child and his or her family and court intervention is not necessary, the agency shall conduct a comprehensive assessment.

Agency Conducting the Assessment/Investigation

Citation: Ann. Stat. § 48.981If the report is of suspected or threatened abuse, the sheriff or police department and the county department, department, or licensed child welfare agency under contract with the department shall coordinate the planning and execution of the investigation of the report.

If the agency or county department determines that there is reason to suspect that substantial abuse or neglect has occurred or is likely to occur or that an investigation is otherwise necessary to ensure the safety of the child and his or her family, the agency or county department shall investigate the report. If the agency or county department determines that there is reason to suspect that abuse or neglect, other than substantial abuse or neglect, has occurred or is likely to occur, but that there is no immediate threat to the safety of the child and his or her family and court intervention is not necessary, the agency or county department shall conduct a comprehensive assessment.

Assessment/Investigation Procedures

Citation: Ann. Stat. § 48.981The investigation shall include observation of or an interview with the child, and, if possible, an interview with the child’s parents. If the investigation is of a report of child abuse or neglect by a caregiver who continues to reside in the same dwelling as the child, the investigation also shall include, if possible, a visit to that dwelling. The agency may contact, observe, or interview the child at any location without permission from the child’s parent, if necessary, to determine if the child is in need of protection or services.

If the agency determines that there is reason to suspect that abuse or neglect has occurred or is likely to occur, but that there is no immediate threat to the safety of the child and his or her family and court intervention is not necessary, the agency shall conduct a comprehensive assessment of the safety of the child and his or her family, including the risk of subsequent abuse or neglect and the strengths and needs of the child’s family, to determine whether services are needed to address the issues assessed and, based on the assessment, shall offer to provide appropriate services to the child’s family on a voluntary basis or refer the child’s family to a service provider in the community for the provision of those services.

If the agency or county department employs the assessment response, the agency is not required to refer the report to the sheriff or police department or determine by a preponderance of the evidence that abuse or neglect has occurred or is likely to occur or that a specific person has abused or neglected the child.

Timeframes for Completing Investigations

Citation: Ann. Stat. § 48.981Within 24 hours after receiving the report the agency or the county department shall initiate a diligent investigation to determine if the child is in need of protection or services.

The determination of whether abuse has occurred shall be made within 60 days of receipt of the report.

Classification of Reports

Citation: Ann. Stat. § 48.981The county department, department, or a licensed child welfare agency shall determine whether abuse or neglect has occurred or is likely to occur. The determination shall be based on a preponderance of the evidence produced by the investigation.

Current Through August 2015

Professionals Required to Report

Citation: Ann. Stat. § 48.981The following professionals are required to report:

• Physicians, coroners, medical examiners, nurses, dentists, chiropractors, optometrists, acupuncturists, other medical or mental health professionals, physical therapists, physical therapist assistants, dietitians, occupational therapists, speech-language pathologists, audiologists, or emergency medical technicians
• Schoolteachers, administrators, or counselors
• School employees not otherwise specified above
• Child care workers in child care centers, group homes, or residential care centers, or child care providers
• Alcohol or other drug abuse counselors, marriage and family therapists, professional counselors, or members of the treatment staff employed by or working under contract with a county department or a residential care center for children and youth
• Social workers, public assistance workers, first responders, police or law enforcement officers, mediators, or court-appointed special advocates
• Members of the clergy or a religious order, including brothers, ministers, monks, nuns, priests, rabbis, or sisters

Reporting by Other Persons

Citation: Ann. Stat. § 48.981Any person, including an attorney, who has reason to suspect that a child has been abused or neglected or who has reason to believe that a child has been threatened with abuse or neglect and that abuse or neglect of the child will occur may report.

Institutional Responsibility to Report

Citation: Ann. Stat. § 48.981No person making a report in good faith may be discharged from employment, disciplined, or otherwise discriminated against in regard to employment or threatened with any such treatment for so doing.

Standards for Making a Report

Citation: Ann. Stat. § 48.981
A report is required when:

• A reporter, in the course of his or her professional duties, has reasonable cause to suspect that a child has been abused or neglected.
• A reporter, in the course of his or her professional duties, has reason to believe that a child has been threatened with abuse or neglect or that abuse or neglect will occur.

Privileged Communications

Citation: Ann. Stat. § 48.981A member of the clergy is not required to report child abuse information that he or she receives solely through confidential communications made to him or her privately or in a confessional setting if he or she is authorized to hear or is accustomed to hearing such communications and, under the disciplines, tenets, or traditions of his or her religion, has a duty or is expected to keep those communications secret. Those disciplines, tenets, or traditions need not be in writing.

A person delegated care and custody of a child under § 48.979, including a court-appointed special advocate, is not required to report any suspected or threatened abuse or neglect of the child. Such a person who has reason to suspect that the child has been abused or neglected or who has reason to believe that the child has been threatened with abuse or neglect and that the abuse or neglect of the child will occur may report.

Inclusion of Reporter’s Name in Report

Not addressed in statutes reviewed.

Disclosure of Reporter Identity

Citation: Ann. Stat. § 48.981The identity of the reporter shall not be disclosed to the subject of the report.

Current Through April 2015

Citation: Ann. Stat. § 48.205A child may be held [in physical custody] if the intake worker determines that there is probable cause to believe the child is within the jurisdiction of the court and probable cause exists to believe that the child is an expectant mother, that if the child expectant mother is not held, there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered by the child expectant mother’s habitual lack of self-control in the use of alcoholic beverages, controlled substances, or controlled substance analogs, exhibited to a severe degree, and that the child expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her.

An adult expectant mother of an unborn child may be held [in physical custody] if the intake worker determines that there is probable cause to believe that the adult expectant mother is within the jurisdiction of the court, to believe that if the adult expectant mother is not held there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered by the adult expectant mother’s habitual lack of self-control in the use of alcohol beverages, controlled substances, or controlled substance analogs, exhibited to a severe degree, and to believe that the adult expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her.

Citation: Ann. Stat. § 48.02(1)‘Abuse,’ other than when used in referring to abuse of alcohol beverages or other drugs, means any of the following:

• When used in referring to an unborn child, serious physical harm inflicted on the unborn child, and the risk of serious physical harm to the child when born, caused by the habitual lack of self-control of the expectant mother of the unborn child in the use of alcoholic beverages, controlled substances, or controlled substance analogs, exhibited to a severe degree
• Manufacturing methamphetamine in violation of § 961.41(1)(e) under any of the following circumstances:
  • With a child physically present during the manufacture
  • In a child’s home, on the premises of a child’s home, or in a motor vehicle located on the premises of a child’s home
  • Under any other circumstances in which a reasonable person should have known that the manufacture would be seen, smelled, or heard by a child

Current Through August 2014

Making The Appointment

Citation: Ann. Stat. §§ 48.23; 48.235If a child is alleged to be in need of protection or services under § 48.13, the child may be represented by counsel at the discretion of the court. A child age 15 or older may waive counsel if the court is satisfied such waiver is knowingly and voluntarily made and the court accepts the waiver. The court may not place the child outside his or her home unless the child is represented by counsel. For a child younger than age 12, the judge may appoint a guardian ad litem (GAL) instead of counsel.

The court shall appoint a GAL, or extend the appointment of a GAL previously appointed for any child alleged or found to be in need of protection or services, if the court has ordered, or if a request or recommendation has been made that the court order, the child to be placed out of his or her home.

The Use of Court-Appointed Special Advocates (CASAs)

Citation: Ann. Stat. § 48.236In any proceeding under § 48.13 in which the court finds that providing the services of a court-appointed special advocate (CASA) would be in the best interests of the child, the court may request a CASA program to designate a person who meets the qualifications as a CASA to undertake the activities specified below.

A CASA does not become a party to the proceeding and, as a nonparty, may not make motions or call or cross-examine witnesses. A designation under this subsection terminates when the jurisdiction of the court over the child under § 48.13 terminates, unless the court discharges the CASA sooner.

Qualifications/Training

Citation: Ann. Stat. §§ 48.235; 48.236; Wis. Sup. Ct. Rules 35.01; 35.03The GAL shall be an attorney admitted to practice in this State.

A CASA shall be a volunteer or employee of a CASA program who has been selected and trained as provided in the memorandum of understanding entered into under § 48.07(5)(a). No person who is a party in a proceeding, who appears as counsel or GAL in a proceeding on behalf of any party, or who is a relative or representative of a party in a proceeding may be designated as a CASA in that proceeding.

In court rules: Commencing on July 1, 1999, a lawyer may not accept an appointment by a court as a GAL for a minor in an action or proceeding under chapter 48 unless one of the following conditions has been met:

• The lawyer has attended 30 hours of GAL education approved under SCR 35.03.
• The lawyer has attended 6 hours of approved GAL education during the current reporting period at the time he or she accepts an appointment and the immediately preceding reporting period.
• The appointing court has made a finding in writing or on the record that the action or proceeding presents exceptional or unusual circumstances for which the lawyer is otherwise qualified by experience or expertise to represent the best interests of the minor.

The Board of Bar Examiners shall approve courses of instruction at a law school in this State and continuing legal education activities that the board determines to be on the subject of the role and responsibilities of a GAL for a minor or on the subject matter of proceedings under applicable statutes and that are designed to increase the attendees professional competence to act as GAL for a minor in those proceedings.

Specific Duties

Citation: Ann. Stat. §§ 48.235; 48.236The GAL shall be an advocate for the best interests of the child for whom the appointment is made. The GAL shall function independently and shall consider, but shall not be bound by, the wishes of the child or the positions of others as to the best interests of the child. If the GAL determines that the best interests of the child are substantially inconsistent with the wishes of the child, the GAL shall so inform the court and the court may appoint counsel to represent the child.

The GAL shall do all of the following:

• Meet with the child and, if the child is old enough to communicate, interview the child to determine the child’s goals and concerns regarding his or her placement
• Assess the appropriateness and safety of the child’s environment
• Make clear and specific recommendations to the court concerning the best interests of the child at every stage of the proceeding

In a case involving a child in need of protection or services, the GAL may do any of the following:

• Participate in permanency planning
• Petition for a change in placement
• Petition for termination of parental rights or any other matter specified under § 48.14
• Petition for revision or extension of dispositional orders
• Petition for the appointment of a guardian, the revision of a guardianship order, or the removal of a guardian

A CASA may perform any of the following activities:

• Gather information and make observations about the child and the child’s family and provide that information to the court in the form of written reports or, if requested by the court, oral testimony
• Maintain regular contact with the child; monitor the appropriateness and safety of the environment of the child; the extent to which the child and his or her family are complying with any consent decree, dispositional order, or permanency plan; and the extent to which any agency is providing required services
• Promote the best interests of the child

How the Representative Is Compensated

Citation: Ann. Stat. §§ 48.23; 48.235If a child has a right to be represented by counsel or is provided counsel at the discretion of the court and counsel is not knowingly and voluntarily waived, the court shall refer the child to the State public defender and counsel shall be appointed by the State public defender under § 977.08 without a determination of indigence.

A GAL shall be compensated at a rate that the court determines is reasonable, except that, if the court orders a county to pay the compensation of the GAL, the amount ordered may not exceed the compensation payable to a private attorney under § 977.08(4m)(b).

The court may order either or both of the parents of a child for whom a GAL is appointed to pay all or any part of the compensation of the GAL. In addition, upon motion by the GAL, the court may order either or both of the parents of the child to pay the fee for an expert witness used by the GAL, if the GAL shows that the use of the expert is necessary to assist the GAL in performing his or her functions or duties.

If one or both parents are indigent or if the court determines that it would be unfair to a parent to require him or her to pay, the court may order the county of venue to pay the compensation and fees, in whole or in part. If the court orders the county of venue to pay because a parent is indigent, the court may also order either or both of the parents to reimburse the county, in whole or in part, for the payment.

Current Through April 2014

When Case Plans Are Required

Citation: Ann. Stat. § 48.38A permanency plan is required for each child living in a foster home, group home, residential care center for children and youth, juvenile detention facility, shelter care facility, or supervised independent living arrangement.

A plan is required if any of the following conditions exists:

• The child is being held in physical custody under §§ 48.207, 48.208, or 48.209.
• The child is in the legal custody of the agency.
• The child is under the supervision of an agency under § 48.64(2), under a consent decree under § 48.32(1)(b), or under a court order under § 48.355.
• The child was placed under a voluntary agreement between the agency and the child’s parent under § 48.63(1)(a) or (5)(b).
• The child is under the guardianship of the agency.
• The child’s care would be paid for under § 49.19.
• The child’s parent is placed in a foster home, group home, residential care center for children and youth, juvenile detention facility, shelter care facility, or supervised independent living arrangement, and the child is residing with that parent.

The agency shall file the permanency plan with the court within 60 days after the date on which the child was first removed from his or her home, except that if the child is held for less than 60 days in a juvenile detention facility, juvenile portion of a county jail, or a shelter care facility, no permanency plan is required if the child is returned to his or her home within that period.

Who May Participate in the Case Planning Process

Citation: Ann. Stat. § 48.38The agency that placed the child or arranged the placement or the agency assigned primary responsibility for providing services to the child under § 48.355(2)(b)6g shall prepare a written permanency plan.

Contents of a Case Plan

Ann. Stat. § 48.38The permanency plan shall include the following:

• The date on which the child was removed from his or her home and was placed in out-of-home care
• A description of the services offered and provided to prevent the removal of the child from home and to achieve the goal of the permanency plan
• The basis for the decision to place the child outside of his or her home
• A statement as to the availability of a safe and appropriate placement with a fit and willing relative of the child or why such placement is not safe or appropriate
• If the child has one or more siblings who also have been removed from home, a description of the efforts made to place the siblings in a joint placement and, if a decision is made not to place the siblings in a joint placement, a statement as to why a joint placement would be contrary to the safety or well-being of the child or any of those siblings and a description of the efforts made to provide for frequent visitation or other ongoing interaction between the child and those siblings
• The location and type of facility in which the child is currently placed or will be placed
• If the child is living more than 60 miles from home, documentation that placement within 60 miles of the child’s home is either unavailable or inappropriate or that placement more than 60 miles away is in the child’s best interests
• Information about the child’s education, including:
  • The name and address of the child’s current school
  • Any special education programs in which the child is or was previously enrolled
  • The child’s grade level and grade-level performance
  • A summary of all available education records
• If the child must change schools as a result of the placement, documentation that a placement that would maintain the child in that school is either unavailable or inappropriate or that a transfer to another school would be in the child’s best interests
• Medical information relating to the child, including the child’s immunization record, medications, and any known allergies
• A description of the services that will be provided to the child, the child’s family, foster parent, or relative caregiver, including services planned to accomplish all of the following:
  • Ensure proper care and treatment of the child and promote safety and stability in the placement
  • Meet the child’s physical, emotional, social, educational, and vocational needs
  • Improve the conditions of the parents’ home to facilitate the safe return of the child
• The goal of the permanency plan
• If the goal of the permanency plan is to place the child for adoption, with a guardian, with a fit and willing relative, or in some other alternative permanent placement, the efforts made to achieve that goal
• The conditions, if any, upon which the child will be returned safely home, including any changes required in the parents’ conduct, the child’s conduct, or the nature of the home
• If the child is age 15 or older, an independent living plan describing the programs and services that are or will be provided to assist the child in preparing for the transition to independent living
• If the child is an Indian child who is placed outside the home of his or her parent or Indian custodian, all of the following:
  • The name, address, and telephone number of the Indian child’s Indian custodian and Tribe
  • A description of the remedial services and rehabilitation programs offered in an effort to prevent the breakup of the Indian child’s family
  • A statement as to whether the Indian child’s placement is in compliance with the order of placement preference under § 48.028 and, if the placement is not in compliance with that order, a statement as to whether there is good cause for departing from that order

Current Through November 2012

Citation: Wis. Stat. Ann. § 48.355(2b) (LexisNexis through Wis. 2012 Legis. Serv., Act 181)A county department, the Department of Health and Family Services in a county having a population of 500,000 or more, or the agency primarily responsible for providing services to a child under a court order shall determine, in accordance with standards established by the department, whether to engage in concurrent planning. If, according to those standards, concurrent planning is required, the county department, department, or agency shall engage in concurrent planning unless the court or permanency review panel determines under § 48.38(5)(c)5m that concurrent planning is inappropriate.

In this subsection, ‘concurrent planning’ means appropriate efforts to work simultaneously towards achieving more than one of the permanency goals listed in § 48.38(4)(fg), 1 to 5, for a child who is placed in out-of-home care and for whom a permanency plan is required.

Current Through January 2016

Schedule of Hearings

Citation: Ann. Stat. § 48.38The court or a review panel shall review the permanency plan no later than 6 months after the child’s removal from home and every 6 months thereafter as long as the child remains placed outside the home.

The court shall hold a permanency hearing no later than 12 months after the child’s removal from home and every 12 months thereafter.

If the court finds that reasonable efforts to reunify the child with his or her parent are not required, the court shall hold a hearing within 30 days after the date of that finding to determine the permanency plan for the child.

Persons Entitled to Attend Hearings

Citation: Ann. Stat. § 48.38Notice shall be provided to:

• The child if he or she is age 12 or older
• The child’s parent, guardian, and legal custodian
• The foster parent, the operator of the facility, or the relative with whom the child is living
• If the child is an Indian child, the child’s Indian custodian and Tribe
• The person representing the interests of the public
• The child’s counsel, guardian ad litem, and court-appointed special advocate

A child, parent, guardian, custodian, foster parent, operator of a facility, or relative who is provided notice shall have a right to be heard at the review by submitting written comments no less than 10 working days before the date of the review or by participating at the review. A person representing the interests of the public, and the child’s counsel, guardian ad litem, or court-appointed special advocate may have an opportunity to be heard at the review by submitting written comments no less than 10 days before the review. A foster parent, operator of a facility, or relative who receives notice and a right to be heard does not become a party to the proceeding solely on the basis of receiving that notice.

If the child’s age and developmental level are sufficient for the court to consult with the child regarding the child’s permanency plan, the court shall consult with the child, in an age-appropriate and developmentally appropriate manner, regarding the child’s permanency plan and any other matters the court finds appropriate. If consulting with the child is not possible or appropriate, the court may permit the child’s caseworker, counsel, or guardian ad litem to make a statement during the review expressing the child’s wishes, goals, and concerns. If the court permits a statement to be made, the court may nonetheless require the child to be physically present at the review.

Determinations Made at Hearings

Citation: Ann. Stat. § 48.38At the review hearing, the court or panel shall determine:

• The continuing necessity and the safety and appropriateness of the placement
• The extent of compliance with the permanency plan by the agency and any other service providers, the child’s parents, the child, and the child’s guardian, if any
• The extent of efforts to meet the needs of the child and his or her parents
• Progress toward eliminating the causes for the child’s placement outside of the home and toward returning the child safely home or obtaining a permanent placement for the child
• Whether reasonable efforts were made by the agency to achieve the goal of the permanency plan
• The appropriateness of the permanency goal
• The appropriateness of the permanency plan and the circumstances that prevent the child from achieving the permanency goal
• The date by which it is likely that the child will be returned home or placed for adoption, with a guardian, or in an alternative permanent placement
• If the child has one or more siblings who have also been removed from the home, whether reasonable efforts were made by the agency to place the child in a placement that enables the sibling group to remain together or to provide for frequent visitation or other ongoing interaction between the child and those siblings
• If the child is an Indian child who is placed outside the home of his or her parent or Indian custodian, whether active efforts were made to prevent the breakup of the Indian child’s family, whether those efforts have proved unsuccessful, whether the Indian child’s placement is in compliance with the placement preferences required by § 48.028
• If the child is subject to an order that terminates his or her placement, the appropriateness of the transition-to-independent-living plan developed under § 48.385

Permanency Options

Citation: Ann. Stat. § 48.38The goal of the permanency plan shall be one of the following:

• Return of the child to the child’s home
• Placement of the child for adoption
• Placement of the child with a guardian
• Permanent placement of the child with a fit and willing relative.
• Some other planned permanent living arrangement that includes an appropriate, enduring relationship with an adult, including sustaining care or long-term foster care, but not including Independent Living
• If the child has reached age 18, transition to Independent Living

Current Through March 2016

Citation: Ann. Stat. § 48.426(2)-(3)The best interests of the child shall be the prevailing factor considered by the court in determining the disposition of all proceedings under this subchapter. In considering the best interests of the child under this section, the court shall consider, but not be limited to, the following:

• The likelihood of the child’s adoption after termination of the parent’s parental rights
• The age and health of the child, both at the time of the disposition, and, if applicable, at the time the child was removed from the home
• Whether the child has substantial relationships with the parent or other family members, and whether it would be harmful to the child to sever these relationships
• The wishes of the child
• The duration of the separation of the parent from the child
• Whether the child will be able to enter into a more stable and permanent family relationship as a result of the termination of the parent’s parental rights, taking into account the conditions of the child’s current placement, the likelihood of future placements, and the results of prior placements

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Citation: Ann. Stat. § 48.415Grounds for termination of parental rights shall be one of the following:

• The parent has abandoned the child.
• The parent has relinquished custody of the child when the child was 72 hours old or younger.
• The child has been in an out-of-home placement for 6 months or longer, and the parent has failed to meet the conditions established for the safe return of the child to the home and there is a substantial likelihood that the parent will not meet those conditions within 9 months.
• The child has been placed outside the home on three or more occasions, and the conditions that led to the child’s placement were caused by the parent.
• The parent is presently, and for a cumulative period of at least 2 years within the past 5 years was, an inpatient at one or more hospitals on account of mental illness, developmental disability, or other similar incapacities; the condition is likely to continue indefinitely; and the child is not being provided with adequate care by a relative who has legal custody of the child.
• The parent has been denied periods of physical placement or visitation by court order for at least 1 year.
• The parent has exhibited a pattern of physically or sexually abusive behavior that is a substantial threat to the health of the child.
• The parent has failed to assume significant responsibility for the daily supervision, education, protection, and care of the child.
• The parent is also related, either by blood or adoption, to the child’s other parent in a degree of kinship closer than second cousin.
• The parent has been convicted of homicide or solicitation to commit homicide, and the victim was the child’s other parent.
• The parent was convicted of a sexual assault that resulted in the conception of the child.
• The parent was convicted of a felony against a child.
• The parent was convicted of trafficking of a child involving any child.
• The parent has had a prior involuntary termination of parental rights to another child.

Circumstances That Are Exceptions to Termination of Parental Rights

Citation: Ann. Stat. § 48.415(1)(c)Abandonment is not established as grounds for termination if the parent proves all of the following by a preponderance of the evidence:

• The parent had good cause for having failed to visit with the child.
• The parent had good cause for having failed to communicate with the child.
• If the parent proves good cause, including good cause based on evidence that the child’s age or condition would have rendered any communication with the child meaningless, that one of the following occurred:
  • The parent communicated about the child with the person or persons who had physical custody of the child or with the agency responsible for the care of the child.
  • The parent had good cause for having failed to communicate about the child with the person or persons who had physical custody of the child or the agency responsible for the care of the child.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Current Through December 2014

Definitions

Citation: Ann. Stat. § 48.02‘Guardian’ means the person named by the court having the duty and authority of guardianship.

‘Legal custodian’ means a person, other than a parent or guardian, or an agency to whom legal custody of the child has been transferred by a court, but does not include a person who has only physical custody of the child.

‘Relative’ means a parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, brother-in-law, sister-in-law, first cousin, second cousin, nephew, niece, uncle, aunt, stepuncle, stepaunt, or any person of a preceding generation as denoted by the prefix of grand, great, or great-great, whether by blood, marriage, or legal adoption, or the spouse of any person named above, even if the marriage is terminated by death or divorce. For purposes of the Federal Indian Child Welfare Act, 25 USC 1901 to 1963, ‘relative’ includes an extended family member, as defined in § 48.028(2)(am), whether by blood, marriage, or adoption, including adoption under Tribal law or custom.

Purpose of Guardianship

Citation: Ann. Stat. § 48.977The court may appoint a guardian of the person for a child if the court finds all of the following:

• That the child has been adjudged to be in need of protection or services and been placed or continued in a placement outside of his or her home pursuant to court order
• That the person nominated as the guardian of the child is a person with whom the child has been placed or in whose home placement of the child is recommended and that it is likely that the child will continue to be placed with that person for an extended period of time or until the child reaches age 18
• That, if appointed, it is likely that the person would be willing and able to serve as the child’s guardian for an extended period of time or until the child reaches age 18
• That it is not in the best interests of the child that a petition to terminate parental rights be filed
• That the child’s parent or parents are neglecting, refusing, or unable to carry out the duties of a guardian
• That the agency primarily responsible for providing services to the child has made reasonable efforts to make it possible for the child to return to his or her home, while assuring that the child’s health and safety are the paramount concerns, but that reunification of the child with his or her parent or parents is unlikely or contrary to the best interests of the child

A Guardian’s Rights and Responsibilities

Citation: Ann. Stat. §§ 48.02; 48.023Legal custody is a legal status created by the order of a court that confers the right and duty to protect, train, and discipline the child; and to provide food, shelter, legal services, education, and ordinary medical and dental care, subject to the rights, duties, and responsibilities of the guardian of the child and subject to any residual parental rights and responsibilities and the provisions of any court order.

Except as limited by an order of the court under § 48.977(5)(b) or 48.978(6)(b)2., a person appointed by the court to be the guardian of a child has the duty and authority to make important decisions in matters having a permanent effect on the life and development of the child and the duty to be concerned about the child’s general welfare, including, but not limited to:

• The authority to consent to marriage; enlistment in the U.S. armed forces; major medical, psychiatric, and surgical treatment; and obtaining a motor vehicle operator’s license
• The authority to represent the child in legal actions and make other decisions of substantial legal significance concerning the child, but not the authority to deny the child the assistance of counsel as required by this chapter
• The right and duty of reasonable visitation of the child
• The rights and responsibilities of legal custody, except when legal custody has been vested in another person or agency

Qualifying the Guardian

Citation: Ann. Stat. § 48.977In determining the appropriateness of appointing a guardian under this section, the best interests of the child shall be the prevailing factor to be considered by the court. In making this decision, the court shall consider, but not be limited to, all of the following:

• Whether the person would be a suitable guardian of the child
• The willingness and ability of the person to serve as the child’s guardian for an extended period of time or until the child reaches age 18
• The wishes of the child
• If the child is an Indian child, whether the proposed guardian satisfies the order of placement preference under § 48.028(7)(b) or, if applicable, § 48.028(7)(c), unless the court finds good cause, as described in § 48.028(7)(e), for departing from that order

A strong attachment of the child to the person or a strong commitment of the person to caring permanently for the child does not, in itself, constitute good cause for departing from that order.

Procedures for Establishing Guardianship

Citation: Ann. Stat. § 48.977A petition for the appointment of a guardian for a child may be filed by:

• The child or the child’s guardian, legal custodian, or Indian custodian, or guardian ad litem
• The child’s parent
• The person with whom the child is placed, if the person is nominated as the guardian
• The Department of Children and Families or a county department
• The person representing the interests of the public under § 48.09

Notice of the hearing shall be served on:

• The child if the child is age 12 or older
• The child’s guardian and legal custodian
• The child’s guardian ad litem and counsel
• The child’s parent
• The person with whom the child is placed if the person is nominated as the guardian of the child in the petition
• The agency primarily responsible for providing services to the child
• If the child is an Indian child, the Indian child’s Indian custodian, if any, and Tribe, if known

The court shall hold a fact-finding hearing on the petition at which any party may present evidence relevant to the issue of whether the conditions for appointing a guardian have been met. If the court, at the conclusion of the fact-finding hearing, finds by clear and convincing evidence that those conditions have been met, the court shall immediately proceed to a dispositional hearing unless an adjournment is requested. If a party requests an adjournment, the court shall set a date for the dispositional hearing that allows reasonable time for the parties to prepare but is no more than 30 days after the fact-finding hearing.

Contents of a Guardianship Order

Citation: Ann. Stat. § 48.977After receiving any evidence relating to the petition for guardianship, the court shall enter one of the following dispositions within 10 days after the dispositional hearing:

• A disposition dismissing the petition if the court determines that appointment of the person as the child’s guardian is not in the best interests of the child.
• A disposition ordering that the person with whom the child has been placed or in whose home placement of the child is recommended be appointed as the child’s guardian or limited guardian, if the court determines that such an appointment is in the best interests of the child

In a full guardianship, a guardian shall have all of the duties and authority specified in § 48.023. In a limited guardianship, the court may order that the duties and authority of a guardian be limited as specified by the order of appointment. All provisions of the statutes concerning the duties and authority of a guardian shall apply to a limited guardian to the extent those provisions are relevant to the duties or authority of the limited guardian, except as limited by the order of appointment.

Modification/Revocation of Guardianship

Citation: Ann. Stat. § 48.977Any authorized person may request a revision in a guardianship order or the court may, on its own motion, propose a revision. The request or court proposal shall set forth in detail the nature of the proposed revision, shall 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 revision would be in the best interests of the child. The court may order a revision if, at a hearing, the court finds that it has been proved by clear and convincing evidence that there has been a substantial change in circumstances and that a revision would be in the best interests of the child.

Unless the court order specifies that a guardianship be for a lesser period of time, a guardianship shall continue until the child reaches age 18 or until terminated by the court, whichever occurs earlier.

Any person authorized to petition for guardianship may request that a guardian be removed for cause or the court may, on its own motion, propose such a removal. The request or court proposal shall allege facts sufficient to show that the guardian is or has been neglecting, is or has been refusing or is or has been unable to discharge the guardian’s trust and may allege facts relating to any other information that affects the advisability of the court’s disposition.

A guardian may resign at any time if the resignation is accepted by the court.

A parent of the child may request that a guardianship order be terminated. The request shall allege 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 willing and able to carry out the duties of a guardian, and that the proposed termination of guardianship would be in the best interests of the child.

Eligibility for Guardianship Subsidy

Citation: Ann. Stat. § 48.623The department shall provide monthly subsidized guardianship payments to a guardian of a child if the conditions specified below have been met. The department also shall provide those payments for the care of a sibling of the child, regardless of whether the sibling meets the specified conditions if the department and the guardian agree on the appropriateness of placing the sibling in the home of the guardian.

To be eligible for a subsidized guardianship, the child must meet all of the following conditions:

• The child has been removed from his or her home under a voluntary agreement or under a substantially similar Tribal law or under a court order finding that continued placement of the child in his or her home would be contrary to the welfare of the child.
• The child has been residing in the home of the guardian for no less than 6 consecutive months.
• The child’s situation precludes returning the child to his or her home or adoption as appropriate permanency options for the child.
• The child demonstrates a strong attachment to the guardian.
• If the child is age 14 or older, the child has been consulted with regarding the guardianship arrangement.

The guardian must meet all of the following conditions:

• The guardian is a relative of the child or is a person who has a significant emotional relationship with the child and who, prior to the child’s placement in out-of-home care, had an existing relationship with the child that is similar to a familial relationship.
• The guardian has a strong commitment to caring permanently for the child.
• The guardian is licensed as the child’s foster parent, and the guardian and all adults residing in the guardian’s home meet the requirements specified in § 48.685.
• Prior to being named as the guardian of the child, the guardian entered into a subsidized guardianship agreement with the county department or department.

Links to Agency Policies

Wisconsin Administrative Code, Chapter DCF 58, Eligibility for the Kinship Care and Long-Term Kinship Care Program

Wisconsin Department of Children and Families, Subsidized Guardianship

Current Through July 2013

Relative Placement for Foster Care and Guardianship

Citation: Ann. Stat. § 48.57The terms ‘kinship care relative’ and ‘long-term kinship care relative’ mean a relative other than a parent.

The Department of Children and Families shall make payments in the amount of $226 per month beginning on January 1, 2014, and $232 per month beginning on January 1, 2015, to a kinship care relative who is providing care and maintenance for a child. The department shall make monthly payments for each child in the amount of $220 per month to a long-term kinship care relative.

Requirements for Placement with Relatives

Citation: Ann. Stat. § 48.57To receive a kinship care payment, all of the following conditions must be met:

• The relative applies to the department for payments and a license to operate a foster home.
• The department determines that there is a need for the child to be placed with the relative and that the placement is in the best interests of the child.
• The department conducts a background investigation of the kinship care relative, any employee and prospective employee of the relative who has regular contact with the child, and any other adult resident of the home to determine if the kinship care relative, employee, prospective employee, or adult resident has any arrests or convictions that could adversely affect the child or the relative’s ability to care for the child.
• The relative cooperates with the department in the application process, including applying for other forms of assistance for which the child may be eligible.

A long-term kinship care relative must meet the conditions listed above and provide proof that he or she has been appointed as the guardian of the child. In addition, the relative will enter into a written agreement to provide care and maintenance for the child until the earliest of the following dates:

• The child reaches age 18, the date on which the child is granted a high school or high school equivalency diploma if on that date the child is a full-time student in good academic standing at a secondary school or its vocational or technical equivalent and is reasonably expected to complete his or her program of study and be granted a high school or high school equivalency diploma, or the child reaches age 19, whichever occurs first.
• The child dies.
• The child is placed outside the long-term kinship care relative’s home under a court order or voluntary agreement.
• The child ceases to reside with the relative.
• The long-term kinship care guardianship terminates.
• The child moves out of the State.

Requirements for Placement of Siblings

Citation: Ann. Stat. § 48.33(4)(d)If the child has one or more siblings who have been removed from the home or for whom an out-of-home placement is recommended, the department must provide the court with specific information showing that the department has made reasonable efforts to place the child in a placement that enables the sibling group to remain together, unless the department recommends that the child and his or her siblings not be placed in a joint placement. In such a case, the report shall include specific information showing that a joint placement would be contrary to the safety or well-being of the child or any of those siblings.

If a recommendation is made that the child and his or her siblings not be placed in a joint placement, the report must include specific information showing that the department has made reasonable efforts to provide for frequent visits or other ongoing interaction between the child and the siblings, unless the department recommends that such visits or interaction not be provided. In such a case, the report shall include specific information showing that such visits or interaction would be contrary to the safety or well-being of the child or any of those siblings.

Relatives Who May Adopt

Citation: Ann. Stat. § 48.02The term ‘relative’ means a parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, brother-in-law, sister-in-law, first cousin, second cousin, nephew, niece, uncle, aunt, stepuncle, stepaunt, or any person of a preceding generation as denoted by the prefix of ‘grand,’ ‘great,’ or ‘great-great,’ whether by blood, marriage, or legal adoption, or the spouse of any person named in this subsection, even if the marriage is terminated by death or divorce. For purposes of the application of § 48.028 and the Federal Indian Child Welfare Act, 25 U.S.C §§1901 to 1963, ‘relative’ includes an extended family member, whether by blood, marriage, or adoption, including adoption under Tribal law or custom.

The term ‘extended family member’ means a person who is defined as a member of an Indian child’s extended family by the law or custom of the Indian child’s Tribe or, in the absence of such a law or custom, a person who is age 18 or older and who is the Indian child’s grandparent, aunt, uncle, brother, sister, brother-in-law, sister-in-law, niece, nephew, first cousin, second cousin, or stepparent.

Requirements for Adoption by Relatives

Citation: Ann. Stat. §§ 48.834; 48.835Before placing a child for adoption, the department or child welfare agency making the placement shall consider the availability of a placement for adoption with a relative of the child who is identified in the child’s permanency plan or who is otherwise known by the department or agency.

If a child who is being placed for adoption has one or more siblings who have been adopted or who have been placed for adoption, the department or agency making the placement shall make reasonable efforts to place the child for adoption with an adoptive parent of that sibling who is identified in the child’s permanency plan under § 48.38 or 938.38 or who is otherwise known by the department or agency, unless the department or agency determines that a joint placement would be contrary to the safety or well-being of the child or any of those siblings. In such case, the department or agency shall make reasonable efforts to provide for frequent visits or other ongoing interaction between the child and the siblings, unless the department or agency determines that such visits or interaction would be contrary to the safety or well-being of the child or any of those siblings.

A parent may place a child in the home of a relative for adoption without a court order.

If the child’s parent has not filed a petition for the termination of parental rights, the relative with whom the child is placed shall file a petition for the termination of the parent’s rights at the same time the petition for adoption is filed. The court may hold the hearing on the adoption petition immediately after entering the order to terminate parental rights.

Current Through March 2016

What Are Reasonable Efforts

Citation: Ann. Stat. § 48.355Reasonable efforts shall include, but not be limited to:

• A comprehensive assessment of the family’s situation
• Financial assistance to the family, if applicable
• Provision of services, including in-home support and intensive treatment services, community support services, or specialized services for family members with special needs

When Reasonable Efforts Are Required

Citation: Ann. Stat. § 48.355Reasonable efforts must be made:

• To prevent the removal of the child from the home
• To return the child safely to the child’s home
• To achieve the goal of the child’s permanency plan

When Reasonable Efforts Are NOT Required

Citation: Ann. Stat. § 48.355Reasonable efforts are not required if the court finds any of the following:

• The parent has subjected the child to aggravated circumstances, including abandonment, torture, chronic abuse, and sexual abuse.
• The parent has committed, has aided or abetted the commission of, or has solicited, conspired, or attempted to commit, intentional homicide, reckless homicide, or felony murder, and the victim is a child of the parent.
• The parent has committed battery, sexual assault, sexual assault of a child, or physical child abuse that resulted in great or substantial bodily harm to the child or another child of the parent.
• The parental rights of the parent to another child have been involuntarily terminated.
• The parent has relinquished custody of the child when the child was 72 hours old or younger.

Current Through February 2015

Who Can Nominate a Standby Guardian

Citation: Ann. Stat. § 48.978A parent who is at significant risk of incapacity, debilitation, or death within 2 years may petition the court to appoint a standby guardian.

How to Establish a Standby Guardian

Citation: Ann. Stat. § 48.978A proceeding for the appointment of a standby guardian shall be initiated by a petition that shall include:

• The name, birth date, and address of the child
• The names and addresses of the child’s parent or parents, guardian, and legal custodian
• The name and address of the person nominated as standby guardian
• The proposed triggering event
• A statement that there is a significant risk that the petitioner will become incapacitated or debilitated or die, as applicable, within 2 years after the date on which the petition is filed and the factual basis for that statement

Notice of the hearing must be served on the child if the child is age 12 or older, and the child’s guardian, guardian ad litem, counsel, and other parent, if that parent has not joined in the petition and if that parent can with reasonable diligence be located. At the hearing, the court may approve the appointment of the standby guardian if it is found to be in the best interests of the child.

A parent may also designate a standby guardian for his or her child by means of a written designation signed by the parent in the presence of two witnesses who are age 18 or older, neither of which may be the standby guardian, and by the standby guardian. An optional form is provided in the statute.

How Standby Authority is Activated

Citation: Ann. Stat. § 48.978The authority of the standby guardian will commence upon the parent’s death, incapacity, debilitation with consent, or written consent. The attending physician must document incapacity or debilitation.

If the guardianship has prior court approval, the standby guardian has 90 days from the triggering event to file confirming documents. If the guardianship is by written designation only, the standby guardian has 180 days from the triggering event to file confirming documents and petition for appointment.

Involvement of the Noncustodial Parent

Citation: Ann. Stat. § 48.978
The other parent must join in the petition unless he or she refuses, cannot be located, or indicates an unwillingness to assume responsibility for the child. Reasonable diligence is required to locate the parent and serve notice.

Authority Relationship of the Parent and the Standby

Citation: Ann. Stat. § 48.978The commencement of a guardianship does not divest the parent of any parental rights. The authority of the standby guardian is suspended upon a determination of the parent’s recovery or remission.

Withdrawing Guardianship

Citation: Ann. Stat. § 48.978If at any time before the guardianship begins the court finds that the determination of the court no longer applies, the court may rescind the guardianship order.

A person who is appointed as a standby guardian may, at any time before the guardianship begins, renounce that appointment by executing a written renunciation, filing the renunciation with the court, and notifying the petitioner in writing.

The petitioner may revoke a standby guardianship at any time before the guardianship begins by executing a written revocation, filing the revocation with the court, and notifying the standby guardian in writing.

The petitioner may revoke a standby guardianship at any time after the guardianship has commenced by executing a written revocation, filing the written revocation with the court, and notifying the standby guardian in writing of the revocation. The court may rescind the guardianship order if the court determines that rescission is in the best interests of the child.

A parent who has made a written designation may, at any time before the filing of a petition, revoke it by executing a written revocation and notifying the standby guardian in writing, making a subsequent written designation, or verbally revoking the standby guardianship in the presence of two witnesses.

After a petition for confirmation of a written designation has been filed, but before the standby guardian has been judicially appointed, a parent who has created a standby guardianship by written designation may revoke it by filing a revocation with the court and notifying the standby guardian in writing of the revocation. The court may dismiss the petition and rescind the guardianship if the court determines that rescission is in the best interests of the child.