This memo describes changes to Section 48.977 guardianships created in recently enacted 2005 Wisconsin Act 25. These statutory changes apply statewide to all Section 48.977 guardianships.
In 2004, the federal Department of Health and Human Services (DHHS) granted a Title IV-E waiver request from the Wisconsin Department of Health and Family Services (DHFS) which allowed Wisconsin to implement a subsidized guardianship program. The waiver design required that the DHFS obtain changes to Wisconsin's current guardianship laws. Those changes were made in 2005 Wisconsin Act 25, the state's biennial budget, and were effective July 27, 2005. At this time the subsidized guardianship waiver will be implemented in Milwaukee County. However, a number of the statutory changes to Chapter 48 apply statewide. Those statewide changes are discussed in this numbered memo and the related language in Act 25 is attached.
The changes to Section 48.977 guardianships made by 2005 Wisconsin Act 25 apply to those guardianships arising under either CHIPS orders under s. 48.13, Stats. or JIPS orders under s. 938.13(4), Stats.
The court must find that the person would be a suitable guardian and that such appointment would be in the child's best interests. Information compiled through a caregiver background check provides necessary evidence of suitability or unsuitability for all proposed guardians. It is the policy of the Department to require caregiver background checks for all proposed guardians if a caregiver background check has never been done or the check is over two years old which is similar to the foster care rule on renewing background checks. The form, "Court Report for Transfer of Legal Guardianship, in e-WiSACWIS has an area to report to the court whether a background check was done for the guardian and all required persons in the household.
Length of Time in Out of Home Care
Disposition Report to the Court on the Proposed Guardianship
No Change to Current Law
Under Act 25, there is no change to current law requiring that the court find that: the child is likely to stay with the proposed guardian until he or she is 18 years old or for an extended period of time; that the proposed guardian would be willing and able to serve as guardian until the child is 18 years old or for an extended period of time; that it is not in the best interests of the child that a petition to terminate parental rights be filed with respect to the child; and that the child's parent is neglecting, refusing, or unable to carry out the duties of a guardian.
In addition there is no change to current requirements that the court find the agency has made reasonable efforts to return the child to his or her home, but that reunification of the child with the parent or parents is unlikely or contrary to the best interests of the child and further reunification efforts are unlikely to be unsuccessful or are contrary to the best interests of the child. The court is not required to make any of the identified reasonable efforts findings if any of the circumstances specified in s. 48.355(2d)(b) 1. to 5. or s. 938.355(2d)(b)1. to 5., Stats., applies to the parent.
Changes to e-WiSACWIS
Three templates have been created in e-WiSACWIS that reflect the new guardianship law. Two of the templates are applicable statewide. The "Guardian Family Assessment" template gathers information that the caseworker and supervisor may use to assess a potential guardian and his or her family. This is an optional document and may not be necessary in every case if the information has been gathered with another form. It may also be used for Chapter 880 guardianships.
The "Court Report for Transfer of Legal Guardianship" summarizes the information relating to the appointment of a guardian that must be submitted to the court under s. 48.977(4)(e) in support of a petition for guardianship. This is a revised template which will allow a consistent format to be used by all counties for all guardianships under s. 48.977, Stats.
The third template, the "Subsidized Guardianship Agreement," will be used in Milwaukee County for subsidized guardianship cases. Subsidized Guardianship is a new case type; it will be a child only case.
The Subsidized Guardianship Waiver allows the program to be expanded during the five years of the waiver to other counties. Any expansion requires this Department to create and approve a detailed plan which must be submitted to the federal Department of Health and Human Services for its approval. Expansion must occur in accordance with existing state law. A brief description of the Subsidized Guardianship program is attached.
A comparison of guardianships established under s. 48.977 and Chapter 880 is also attached. Chapter 48.977 guardianships were originally developed to provide more permanence for children placed in out of home care for whom termination of parental rights and adoption was not in their best interests. This may assist agencies in choosing the correct type of guardianship for children in their care.
2005 WI Act 25 (PDF, 210 kb)
WI Subsidized Guardianship Program (PDF, 20 kb)