STATE OF WISCONSIN
Department of Health and Family Services
Division of Children and Family Services
             DCFS Memo Series 2005 - 11
                 October 12, 2005
              Re:  Statewide Changes to 
                     Section 48.977 Guardianships

 

To: Area Administrators/Human Services Area Coordinators
Bureau Directors
County Departments of Community Programs Directors
County Departments of Developmental Disabilities
Services Directors
County Departments of Human Services Directors
County Departments of Social Services Directors
Licensing Chiefs/Section Chiefs
Tribal Chairpersons/Human Services Facilitators
From: Burnie Bridge
Administrator

 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.

Background

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.

Significant Changes

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.

Non-Relative Guardians
Under prior law, a guardian under s. 48.977 was required to be a relative. Under Act 25, a non-relative may petition to be and be appointed a guardian. The intent of this change was not to make it possible for anyone to be a guardian; rather it was to include those people who have a familial type of relationship with the child.

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
Under prior law, a child (or juvenile, but child will represent both in this memo) had to be determined to be a child in need of protection or services (CHIPS or JIPS) and be placed in out-of-home care for one year before a petition for guardianship could be filed. Under Act 25, the child must still be determined to be a child in need of protection or services and must be placed in out-of-home care under a court order, or the child must be determined to be a child in need of protection or services and the report to the court made prior to CHIPS/JIPS disposition must recommend placement in the home of a guardian identified under s. 48.977(2), Stats. [Ref. s. 48.33(1) or s. 938.33(1), Stats.] However, there is no minimum time required, and the child may be placed directly into a guardianship after an initial CHIPS/JIPS disposition order is entered provided all other statutory requirements are met.

Guardianship Standards
Before appointing a guardian, the court must make findings that the agency primarily responsible for providing services to the child has made reasonable efforts to prevent removal of the child from the home, and that the continued placement of the child in the home would be contrary to the welfare of the child. Except that the court need not make a finding of reasonable efforts to prevent removal of the child from the home with respect to a parent if any of the circumstances specified under s. 48.355(2d)(b) 1. to 5. or s. 938.355(2d)(b) 1. to 5., Stats. applies to a parent. These findings are typically made at the beginning of a case.

Disposition Report to the Court on the Proposed Guardianship
Act 25 changes the information required to be in the report under s. 48.977(4)(e) which the agency primarily responsible for providing services to the child is required to submit to the court before the final hearing on the guardianship petition. If the child has been placed outside his or her home for six months or longer, the agency must submit to the court a summary of the permanency plan review determinations as required under s. 48.38(5)(e), Stats., and as much information relating to the appointment of a guardian as is reasonably ascertainable. If the child has been placed outside his or her home for less than six months, the agency will submit to the court a permanency plan if it has been prepared, the court report submitted to the court prior to the CHIPS/JIPS disposition [Ref. s. 48.33(1) or s. 939.33(1), Stats.] and as much information relating to the appointment of a guardian as is reasonably ascertainable.

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.

Other Information

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.

REGIONAL OFFICE CONTACT: Area Administrator
CENTRAL OFFICE CONTACT:  For general changes to s. 48.977 Stats.
Cathleen Connolly
Legislative and Policy Consultation Section
DHFS/DCFS/BPP
P.O. Box 8916
Madison, WI 53708-8916
Phone: 608-261-8316
E-Mail: connoc1@dhfs.state.wi.us
For Subsidized Guardianship
David Sorenson
DHFS/DCFS/OPEP
P.O. Box 8916
Madison, WI 53708-8916
Phone: 608-261-8896
E-Mail: sorendm@dhfs.state.wi.us

Attachments:

Comparison of Chapter 48.977 and Chapter 880 Guardianships  (PDF, 17 kb)

2005 WI Act 25  (PDF, 210 kb)

WI Subsidized Guardianship Program  (PDF, 20 kb)

cc: County CPS Supervisors
Tribal Child Welfare Contacts

 


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