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Wis. Stat.
§ 48.977
Wisconsin Statutes
Social Services
Chapter
48. Children's Code
Subchapter
XIX. Adoption of Minors; Guardianship
§ 48.977. Appointment
of guardians for certain children in need of protection or services
(2) Type of
guardianship.
This section may be used for the appointment of a guardian of the person
for a child if the court finds all of the following:
(a)
That the child has been adjudged to be in need of protection or services
under s. 48.13(1), (2), (3), (3m), (4), (5), (8), (9), (10), (10m), (11),
or (11m) or 938.13(4) and been placed, or continued in a placement, outside
of his or her home pursuant to one or more court orders under s. 48.345,
48.357, 48.363, 48.365, 938.345, 938.357, 938.363, or 938.365 or that
the child has been so adjudged and placement of the child in the home
of a guardian under this section has been
recommended under s. 48.33(1) or 938.33(1).
(b)
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 under par. (a) 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 attains the age of 18 years.
(c)
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 attains the age of 18 years.
(d)
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.
(e)
That the child's parent is neglecting, refusing or unable to carry out
the duties
of a guardian or, if the child has 2 parents, both parents are neglecting,
refusing or unable to carry out the duties of a guardian.
(f)
That the agency primarily responsible for providing services to the child
under a court order 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 the child's parent or parents is unlikely or contrary to
the best interests of the child and that further reunification efforts
are unlikely to be made or are contrary to the best interests of the child
or that the agency primarily responsible for providing services to the
child under a court order has made reasonable efforts to prevent the removal
of the child from his or her home, while assuring the child's health and
safety, but that continued placement of the child in the home would be
contrary to the welfare of the child, except that the court is not required
to find that the agency has made those reasonable efforts with respect
to a parent of the child if any of the circumstances specified in s. 48.355(2d)(b)1.
to 5. applies to that parent. The court shall make the findings specified
in this paragraph on a case-by-case basis based on circumstances specific
to the child and shall document
or reference the specific information on which those findings are based
in the guardianship order. A guardianship order that merely references
this paragraph without documenting or referencing that specific information
in the order or an amended guardianship order that retroactively corrects
an earlier guardianship order that does not comply with this paragraph
is not sufficient to comply with this paragraph.
(3) Designation
as a permanent placement.
If a court appoints a guardian for a child under sub. (2), the court may
designate the child's placement with that guardian as the child's permanent
foster placement, but only for purposes of s. 48.368 (2) or 938.368 (2).
(3r)
Subsidized guardianship.
Subject to s. 48.62(5)(d), if a county department or, in a county having
a population of 500,000 or more, the department has determined under s.
48.62(5)(a)2. that appointing a guardian under sub. (2) for a child who
does not meet the conditions specified under s. 48.62(5)(a)1. and providing
monthly subsidized guardianship payments to the guardian are in the best
interests of the child, the petitioner under
sub. (4)(a) shall include in the petition under sub. (4)(b) a statement
of that determination and a request for the court to include in the court's
findings under sub. (4)(d) a finding confirming that determination. If
the court confirms that determination and appoints a guardian for the
child under sub. (2), the county department or department shall provide
monthly subsidized guardianship payments to the guardian under s. 48.62(5).
(4)
Procedure and disposition.
(a) Who may
file petition.
Any of the following persons may file a petition for the appointment of
a guardian for a child under sub. (2):
1.
The child or the child's guardian or legal custodian.
2.
The child's guardian ad litem.
3.
The child's parent.
4.
The person with whom the child is placed or in whose home placement of
the child is recommended as described in sub. (2)(a), if the person is
nominated as the guardian of the child in the petition.
5.
The department.
6.
A county department under s. 46.22 or 46.23 or, if the child has been
placed pursuant to an order under ch. 938 or the child's placement with
the guardian is recommended under ch. 938, a county department under s.
46.215, 46.22, or 46.23.
7.
A licensed child welfare agency that has been assigned primary responsibility
for providing services to the child under a court order.
8.
The person representing the interests of the public under s. 48.09.
(b)
Contents of
petition. A
proceeding for the appointment of a guardian for a child under sub. (2)
shall be initiated by a petition which shall be entitled "In the
interest of ... (child's name), a person under the age of 18" and
shall set forth all of the following with specificity:
1.
The name, birth date and address of the child.
2.
The names and addresses of the child's parent or parents, guardian and
legal custodian.
3.
The date on which the child was adjudged in need of protection or services
under s. 48.13(1), (2), (3), (3m), (4), (5), (8), (9), (10), (10m), (11),
or (11m) or 938.13(4) and the dates on which the child has been placed,
or continued in a placement, outside of his or her home
pursuant to one or more court orders under s. 48.345, 48.357, 48.363,
48.365, 938.345, 938.357, 938.363, or 938.365 or, if the child has been
so adjudged, but not so placed, the date of the report under s. 48.33(1)
or 938.33(1) in which placement of the child in the home of the person
is recommended.
4.
A statement of the facts and circumstances which the petition alleges
establish that the conditions specified in sub. (2)(b) to (f) are met.
5.
A statement of whether the proceedings are subject to the Uniform Child
Custody Jurisdiction and Enforcement Act under ch. 822.
6.
A statement of whether the child may be subject to the federal Indian
child welfare act, 25 USC 1911 to 1963.
(c)
Service of petition
and notice.
1. The petitioner shall cause the petition and
notice of the time and place of the hearing under par. (cm) to be served
upon all of the following persons:
a.
The child if the child is 12 years of age or older.
b.
The child's guardian and legal custodian.
c.
The child's guardian ad litem.
d.
The child's counsel.
e.
The child's parent.
f.
The persons to whom notice is required to be given under s. 48.27(3)(b)
1.
g.
The person with whom the child is placed or in whose home placement of
the child is recommended as described in sub. (2)(a), if the person is
nominated as the guardian of the child in the petition.
h.
The person representing the interests of the public under s. 48.09.
i.
The agency primarily responsible for providing services to the child under
a court order.
2.
Service shall be made by 1st class mail at least 7 days before the hearing
or by personal service at least 7 days before the hearing or, if with
reasonable diligence a party specified in subd. 1. cannot be served by
mail or personal service, service shall be made by publication of a notice
published as a class 1 notice under ch. 985. In determining which newspaper
is likely to give
notice as required under s. 985.02(1), the petitioner shall consider the
residence of the party, if known, or the residence of the relatives of
the party, if known, or the last-known location of the party.
(cm)
Plea hearing.
1. A hearing to determine whether any party wishes to contest a petition
filed under par. (a) shall take place on a date which allows reasonable
time for the parties to prepare but is no more than 30 days after the
filing of the petition. At the hearing, the nonpetitioning parties and
the child, if he or she is 12 years of age or over or is otherwise competent
to do so, shall state whether they wish to contest the petition. Before
accepting a plea of no contest to the allegations in the petition, the
court shall do all of the following:
a.
Address the parties present and determine that the plea is made voluntarily
and with understanding of the nature of the facts alleged in the petition,
the nature of the potential disposition and the nature of the legal consequences
of that disposition.
b.
Establish whether any promises or threats were made to elicit the plea
of no contest and alert all unrepresented parties to the possibility that
an attorney may discover grounds to contest the petition that would not
be apparent to those parties.
c.
Make inquiries to establish to the satisfaction of the court that there
is a factual basis for the plea of no contest.
2.
If the petition is not contested and if the court accepts the plea of
no contest, the court may immediately proceed to a dispositional hearing
under par. (fm), unless an adjournment is requested. If a party requests
an adjournment, the court shall set a date for the dispositional hearing
which allows reasonable time for the parties to prepare but is no more
than 30 days after the plea hearing.
3.
If the petition is contested or if the court does not accept the plea
of no contest,
the court shall set a date for a fact-finding hearing under par. (d) which
allows reasonable time for the parties to prepare but is not more than
30 days after the plea hearing.
(d)
Fact-finding
hearing. The
court shall hold a fact-finding hearing on the petition on the date set
by the court under par. (cm)3., at which any party may present evidence
relevant to the issue of whether the conditions specified in sub. (2)(a)
to (f) have been met. If the court, at the conclusion of the fact-finding
hearing, finds by clear and convincing evidence that the conditions specified
in sub. (2)(a) to (f) 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 which allows reasonable time for the parties to prepare but is
no more than 30 days after the fact-finding hearing.
(e)
Court report.
For a child who has been placed, or continued in a placement, outside
of his or her home for 6 months or longer, the court shall order the person
or agency primarily responsible for providing services to the child
under a court order to file with the court a report containing the written
summary under s. 48.38(5)(e) and as much information relating to the appointment
of a guardian as is reasonably ascertainable. For a child who has been
placed, or continued in a placement, outside of his or her home for less
than 6 months, the court shall order the person or agency primarily responsible
for providing services to the child under a court order to file with the
court the report submitted under s. 48.33(1) or 938.33(1), the permanency
plan prepared under s. 48.38 or 938.38, if one has been prepared, and
as much information relating to the appointment of a guardian as is reasonably
ascertainable. The agency shall file the report at least 48 hours before
the date of the dispositional hearing under par. (fm).
(fm)
Dispositional
hearing. The
court shall hold a dispositional hearing on the petition at the time specified
or set by the court under par. (cm)2. or (d), at which any party may present
evidence, including expert testimony, relevant to the disposition.
(g)
Dispositional
factors. In
determining the appropriate disposition under this
section, the best interests of the child shall be the prevailing factor
to be considered by the court. In making a decision about the appropriate
disposition, the court shall consider any report submitted under par.
(e) and shall consider, but not be limited to, all of the following:
1.
Whether the person would be a suitable guardian of the child.
2.
The willingness and ability of the person to serve as the child's guardian
for an extended period of time or until the child attains the age of 18
years.
3.
The wishes of the child.
(h)
Disposition.
After receiving any evidence relating to the disposition, the court shall
enter one of the following dispositions within 10 days after the dispositional
hearing:
1.
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.
2.
A disposition ordering that the person with whom the child has been placed
or in whose home placement of the child is recommended as described in
sub. (2)(a) be appointed as the child's guardian under sub. (5)(a) or
limited guardian under sub. (5)(b), if the court determines that such
an appointment is in the best interests of the child.
(i)
Effect of disposition
on permanency plan review process.
After a disposition under par. (h), the child's permanency plan shall
continue to be reviewed under s. 48.38(5), if applicable.
(5)
Duties and authority of guardian.
(a) Full guardianship.
Unless limited under par. (b), a guardian appointed under sub. (2) shall
have all of the duties
and authority specified in s. 48.023.
(b)
Limited guardianship.
The court may order that the duties and authority of a guardian appointed
under sub. (2) be limited. The duties and authority of a limited guardian
shall be as specified by the order of appointment under sub. (4)(h)2.
or any revised order under sub. (6). All provisions of the statutes concerning
the duties and authority of a guardian shall apply to a limited guardian
appointed under sub. (2) to the extent those provisions are relevant to
the duties or authority of the limited guardian, except as limited by
the order of appointment.
(6)
Revision of guardianship order.
(a) Any person authorized to file a petition under sub. (4)(a) may request
a revision in a guardianship order entered under this subsection or sub.
(4)(h)2., or the court may, on its own motion, propose such 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 and shall allege any other information
that affects the advisability of the court's disposition.
(b)
The court shall hold a hearing on the matter prior to any revision of
the guardianship order if the request or court proposal indicates that
new information is available which affects the advisability of the court's
guardianship order, unless written waivers of objections to the revision
are signed by all parties entitled to receive notice under sub. (4)(c)
and the court approves the waivers.
(c)
If a hearing is to be held, the court shall notify the persons entitled
to receive notice under sub. (4)(c) at least 7 days prior to the hearing
of the date, place and purpose of the hearing. A copy of the request or
proposal shall be attached to the notice. The court may order a revision
if, at the hearing, the court finds that it has been proved by clear and
convincing evidence that there has been a substantial change in circumstances
and if the court determines that a revision would be in the best interests
of the child.
(7)
Termination of guardianship.
(a) Term of
guardianship.
Unless the court order entered under sub. (4)(h)2. or (6) specifies that
a guardianship under this section be for a lesser period of time, a guardianship
under this section shall continue until the child attains the age of 18
years or until terminated by the court, whichever occurs earlier.
(b)
Removal for
cause. 1. Any
person authorized to file a petition under sub. (4)(a) may request that
a guardian appointed under sub. (2) 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.
2.
The court shall hold a hearing on the matter unless written waivers of
objections to the removal are signed by all parties entitled to receive
notice under sub. (4)(c) and the court approves the waivers.
3.
If a hearing is to be held, the court shall notify the persons entitled
to receive notice under sub. (4)(c) at least 7 days prior to the hearing
of the date, place and purpose of the hearing. A copy of the request or
court proposal shall be attached to the notice. The court shall remove
the guardian for cause if, at the hearing, the court finds that it has
been proved by clear and convincing evidence 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 if the court determines that removal of the guardian
would be in the best interests of the child.
(c)
Resignation.
A guardian appointed under sub. (2) may resign at any time if the resignation
is accepted by the court.
(d)
Termination
on request of parent.
1. A parent of the child may request that a guardianship order entered
under sub. (4)(h)2. or a revised order entered under sub. (6) 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.
2.
The court shall hold a hearing on the matter unless written waivers of
objections to the termination are signed by all parties entitled to receive
notice under sub. (4)(c) and the court approves the waivers.
3.
If a hearing is to be held, the court shall notify the persons entitled
to receive notice under sub. (4)(c) at least 7 days prior to the hearing
of the date, place and purpose of the hearing. A copy of the request shall
be attached to the notice. The court shall terminate the guardianship
if, at the hearing, the court finds that it has been proved by clear and
convincing evidence that there has been a substantial change in circumstances
since the last order affecting the guardianship was entered and the parent
is willing and able to carry out the duties of a guardian and if the court
determines that termination of the guardianship would be in the best interests
of the child.
(e)
Termination
on termination of parental rights.
If a court enters an order under s. 48.427(3p) or 48.428(2)(b), the court
shall terminate the guardianship under this section.
(8)
Relationship to ch. 880.
(a) This section does not abridge the duties or authority of a guardian
appointed under ch. 880.
(b)
Nothing in this section prohibits an individual from petitioning a court
under ch. 880 for appointment of a guardian.
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