Date	Register	File
11/21/2016	731A3, Emergency Rules Filed with Legislative Reference Bureau	EmR1632 Rule Text
11/21/2016	731A3, Emergency Rules Filed with Legislative Reference Bureau	EmR1632 Fiscal Estimate
12/12/2016	732A2, Rule-Making Notices (Hearing Notices)	EmR1632 Hearing Information

State of Wisconsin

Department of Children and Families

Subsidized Guardianship

DCF 55

Emergency Rule

The Wisconsin Department of Children and Families orders the repeal of s. DCF 55.03 (1) (b) 1. (note); the renumbering of s. DCF 55.10 (5) (c) ; the renumbering and amendment of s. DCF 55.02 (7) and 55.10 (5) (d) ; the amendment of ss. DCF 55.02 (3) and (6) , 55.03 (1) (c) , 55.10 (2) (c) , 55.10 (5) (d) 1. , and 55.13 (title), (1) , (2) (intro.) , (a) to (c) , (c) (Note), (d),(e) 1., 2., (f), (4) (intro.), and (5); the repeal and recreation of s. DCF 55.02 (11) and 55.10 (2) (b) ; and the creation of ss. DCF 55.02 (7) (b) , 55.06 (2) (h) 11. and (m) , (3) , and (3) (note) , 55.10 (1) (j) , (2) (b) (Note), (2) (c) (Note), (5) ( bm ) (intro.) , and (5) (Note), and 55.125, relating to subsidized guardianship.

This emergency rule was approved by the governor on November 14 , 2016

The statement of scope for this rule, SS 09 -16, was app roved by the governor on March 9 , 2016, published in Register 723A2 , on March 14 , 2016, and approved by Secret ary Eloise Anderson on March 31 , 2016.

Finding of Emergency

2015 Wisconsin Act 129 , Section 22 , authorizes the department to promulgate the rules required under s. 48.623 (7) (e) , Stats., without providing a finding of emergency.

2015 Wisconsin Act 143 , Section 4 , authorizes the department to promulgate the rules required under s. 48.623 (7) (d) , Stats., without providing a finding of emergency.

Analysis Prepared by the Department of Children and Families

Statutory authority: Section 48.623 (7) ( dm ) , Stats., as created by 2015 Wisconsin Act 143 ; Section 48.623 (7) (e) , Stats., as created by 2015 Wisconsin Act 129 ; and Section 227.11 (2) (a) , Stats.

Statutes interpreted: Section s 48.623 and 48.685 , Stats.

Related statute or rule: Section 48.977 , Stats.; Chapters DCF 12 and 56

Explanation of Agency Authority

Section 48.623 (7) ( d m ) , Stats., as created by 2015 Wisconsin Act 143 , directs the department to promulgate rules to establish the conditions that must be met for a person specified in s. 48.623 (1) (b) 1. c. , Stats., to be eligible for subsidized guardianship payments. Section 48.623 (1) (b) 1. c. , Stats., as created by 2015 Wisconsin Act 143 , provides that, subject to the rules promulgated under s. 48.623 (7) ( d m ) , Stats., a guardian may be a person who has a significant emotional relationship with the child and who, during the child’s placement in out−of−home care, developed a relationship with the child that is similar to a familial relationship.

Section 48.623 (7) (e) , Stats., as created by 2015 Wisconsin Act 129 , directs the department to promulgate rules governing the payment of monthly subsidized guardianship payments to a successor guardian of a child.

Eligibility for subsidized guardianship under s. 48.623 (1) , Stats., includes the requirement that the child has been removed from his or her home under a voluntary agreement under s. 48.63 , Stats., or under a substantially similar tribal law or under a court order containing a finding that continued placement of the child in his or her home would be contrary to the welfare of the child.

Section 227.11 (2) (a) , Stats., expressly confers rule-making authority on each agency to promulgate rules interpreting the provisions of any statute enforce d or administered by the agency, subject to specified conditions.

Summary of the Emergency Rule

Addition to Definition of Like-kin

Among other conditions , e ligibility for s ubsidized guardianship payments is limited to a guardian of a child who is a relative as defined in s. 48.02 (15) , Stats., or like-kin to the child. The current rule defines “like-kin” as a person who has a significant emotional relationship with the child or the child’s family and who, prior to the child’s placement in out-of-home care, had an existing relationship with the child or the child’s family that is similar to a familial relationship.

2015 Wisconsin Act 143 provides that, subject to the rules promulgated under s. 48.623 (7) ( dm ) , Stats., a guardian may also be a person who has a significant emotional relationship with the child or the child’s family and who, during the child’s placement in out−of−home care, developed a relationship with the child that is similar to a familial relationship. The rules add the following requirements to the new addition to the definition of “like-kin” :

• The person is a foster parent who has had a relationship with the child for at least 2 years.

• The child is 14 years of age or older.

• The child has been in out-of-home care for 15 out of the last 22 months.

• The agency or court determines that placement with a fit and willing relative is not in the child’s best interest.

Successor Guardianship

The federal Preventing Sex Trafficking and Strengthening Families Act provides that upon the death or incapacity of a subsidized guardian, states are required to continue monthly subsidized guardianship payments to a successor guardian i f the prospective successor guardian was named in the guardian’s subsidized guardianship agreement entered into before the guardian’s death or incapacity and other eligibility conditions are met.

Before monthly subsidized guardianship payments can be made to a prospective successor guardian, 2015 Wisconsin Act 129 and the rule require s the agency to first determine whether the prospective succes sor guardian is eligible to enter into a subsidized guardianship agreement. Eligibility requirements include that the prospective successor guardian demonstrates a strong commitment to caring permanently for the child, the child has been consulted about the arrangement if the child is age 14 or over , the agency determines that the prospective guardian is eligible to be licensed as a foster parent, and the agency determines that placement of the child with the prospective successor guardian is in the best interests of the child.

If a prospective successor guardian is eligible, the agency and the prospective successor guardian shall enter into a subsidized guardi anship agreement. An agency ma y not provide subsidized guardianship payments to the prospective successor guardian until the court appoints the person as guardian of the child under s. 48 .977 (5m) , Stats., or a substantially similar tribal law and an agreement under s. DCF 55.01 (2) , and any order under s. 48.345 , 48.357 , 48.363 , 48.365 , 938.345 , 938.357 , 938.363 , or 938.365 , Stats., placing the child, or continuing the placement of the child, outside of the child's home has been terminated, or any proceeding in which the child has been adjudged to be in need of protection or services specified in s. 48.977 (2) (a) , Stats., has been dismissed, as provided in s. 48.977 (3r) (b) , Stats. Once the court appoints the person as guardian under s. 48.977 (5m) , Stats., and dismisses the specified orders, the agency shall provide monthly payments.

Termination of Payments if Parent in Home with Limited Exceptions

The rules provide that a guardian is required to report to the agency if the child’s parent is residing with the guardian and the child . The agency will review the guardian’s eligibility if the parent remains in the guardian’s home for more than 30 days, u nl ess the guardian is providing care for the child’s parent and the child’s parent is a minor or is subject to an order for adult protective services or protective placement under s. 55.12 , Stats . Following the review, the agency will send a notice of termination that will be effective 30 days after the date of the notice if the child’s parent is still residing with the guardian and the child.

Summary of Factual Data and Analytical Methodologies

• The definition of “like-kin” for a person who has a significant emotional relationship with a child that is similar to a familial relationship and that developed during the child’s placement in out-of-home care is based on data that shows children age 14 and over are less likely to be adopted than children under age 14. Adoption is the preferred permanency option for a child.

• The successor guardianship provisions specify procedures to implement state and federal statutes and Administration for Children and Families program interpretations.

• The rule allow s very limited circumstances when a guardian can receive subsidized guardian payments if the child’s paren t is in the home.

Summary of Related Federal Law

42 USC 673 (d) (3), as created by Section 207 of the Preventing Sex Trafficking and Strengthening Families Act , provides for continuation of subsidized guardianship payments if the guardian dies or is incapacitated, and a successor guardian was named in the agreement before the guardian’s death or incapacity. Implementation of Section 207 is required as a condition of funding under Title IV-E of the Social Security Act. Section 207 was effective September 29, 2014, and Wisconsin is currently under a Program Improvement Plan due to delayed implementation.

The Administration for Children and Families (ACF) Program Instruction ACYF-CB-PI-10-11, Fostering Connections to Success and Increasing Adoptions Act of 2008 Comprehensive Guidance , July 9, 2010, provides that a State has discretion to define the term “relative” for the purposes of the subsidized guardianship program. The ACF will accept a Title IV-E plan or amendment that contains a reasonable interpretation of “relative,” including a plan that limits the term to biological and legal familial ties or a plan that more broadly includes tribal kin, extended family and friends, or other “fictive kin.”

Comparison to Adjacent States

Minnesota . The definition of “relative” includes an individual who is an important friend with whom a child has resided or had significant contact. Minnesota has provisions on successor guardianship that are similar to the Wisconsin provisions.

Illinois . The definition of “fictive kin” is an individual who is shown to have close personal or emotional ties with the child or the child ’s family prior to the child’ s placement with the individual . Illinois has provisions on successor guardianship that are similar to the Wisconsin provisions.

Iowa. Iowa does not have a federally-funded subsidized guar dianship program.

Michigan. It appears that nonrelatives may be eligible to be a legal custodian of the child and receive state-funded guardianship assistance. Michigan has successor guardianship provisions that apply to Title IV-E-funded guardianship assistance payments.

Effect on Small Businesses

The rule does not affect small businesses.

Analysis Used to Determine Effect on Small Businesses

The rule affects individuals, county departments of social services and human services , and the department’s Division of Child Protective Services .

Agency Contact Person

Jonelle Brom, Bureau of Permanence and Out-of-Home Care, (608) 422-6930, jonelle.brom@wisconsin.gov .

SECTION 1. DCF 55.02 (3 ) and (6) are amend ed to read:

DCF 55.02 (3 ) “ Child” means a person less than 18 years of age , except as provided in s. DCF 55.10 (4) .

(6) “Interim caretaker” means a person seeking or receiving payments under s. 48.623 (6) (am) , Stats.

SECTION 2 . DCF 55.02 (7) is renumbered t o DCF 55.02 (7) (intro.) and amended to read:

DCF 55.02 (7 ) “ Like-kin” means a person who ha s a significant emotional relationship with the child or the child’s family and to whom any of the following applies :

(a) who , prior Prior to the child’s placement in out-of-home care, t h e person had an existing relationship with the child or the child’s family that is similar to a familial relationship .

SECTION 3 . DCF 55.02 (7) (b) is created to read:

DCF 55.02 (7 ) ( b ) Durin g the child’s placement in out-of-home care, the person developed a relationship with the child or the child’s family that is similar to a familial relationship and all of the following apply :

1. The person is a foster parent who has had a relationship with the child for at least 2 years .

2. The child is 14 years of age or older.

3 . The child has been placed in out-of-home care for 15 out of the last 22 months.

4 . The agency or court determines that placement with a fit and willing relative is not in the child’s best interest.

SECTION 4 . DCF 55.02 (11 ) is repealed and recreated to read:

DCF 55.02 (11 ) “ Relative” has the same meaning as in s. 48.02 (15) , Stats.

SECTION 5 . DCF 55. 03 (1 ) (b) 1. ( note ) is repealed.

SECTION 6 . DCF 55.03 (1) (c) is amended to read:

DCF 55.03 (1) (c) An order under s. 48.32 , 48.345 , 48.357 , 48.363 , 48.365 , 938.32 , 938.345 , 938.357 , 938.363 , or 938.365 , Stats., or a substantially similar Wisconsin tribal court order placing the child, or continuing the placement of the child, outside of the child’s home has been terminated, or any proceeding in which the child has been adjudged to be in need of protection or services specified in s. 48.977 (2) (a) , Stats., has been dismissed as provided in s. 48.977 (3r) (a) , Stats., or a substantially similar proceeding under Wisconsin tribal law has been dismissed.

SECTION 7 . DCF 55.06 (2) (h) 11. and (m) , (3), and (3) (note) are created to read:

DCF 55.06 (2) (h) 11. The child’s parent is residing with the gu ardian and child .

(m) That the guardian may name a prospective successor guardian of the child to assume the duty and authority of guardianship up on the death or incapacity of the guardian. The prospective successor guardian would be eligible for monthly subsidized guardianship payment s only if the conditions specified in s. 48.623 (6) ( bm ) , Stats., and s. DCF 55.125 are met and the court appoints the successor guardian to assume the duty and authority of guardianship under s. 48.977 (5m) , Stats. , or under a substantially similar Wisconsin tribal law and an agreement specified in s. DCF 55.01 (2) .

(3) An agency shall use a form prescribed by the department to amend a subsidized guardianship agreement with a guardian to include a prospective successor guardian.

Note: Form DCF -F-5038-E, Amended Subsidized Guardianship Agreement to Include Successor Guardian , is available in the forms section of the department website, http://dcf.wisconsin.gov , or by writing to the Division of Safety and Permanence, P.O. Box 8916, Madison , WI 53708-8916.

SECTION 8. DCF 55.10 (1) (j) is created to read:

DCF 55.10 (1) (j ) The child’s parent is residing with the guardian and child .

SECTION 9. DCF 55.10 (2) (b) is repealed and recreated to read:

DCF 55.10 (2) (b ) Thirty days after the ef fective date of sub. (1) ( j ), u nl ess the guardian is providing care for the child’s parent and any of the following apply:

1. The child’s parent is a minor.

2. T he child’s parent is subject to an order for adult protective services or protective placement under s. 55.12 , Stats .

SECTION 10. DCF 55.10 (2) (b) (Note) is created to read:

DCF 55.10 (2) (b ) Note : S ection 55.12 , Stats., is the statutory section on adult protective services or protective placement orders.

SECTION 11. DCF 55.10 (2) (c) is amended to read:

DCF 55.10 (2) (c ) If the agency receives notice from the guardian or otherwise knows or suspects that a change listed in sub. (1) has occurred.

SECTION 12. DCF 55.10 (2) (c) (Note) is created to read:

DCF 55.10 (2) (c) Note: If the parent in the guardian’s home poses a threat to the child ’s safety, the agency should take appropriate steps to contact the local child protective services agency in Wisconsin or in the jurisdi ction where the child resides. The agency may also consider notifying the court that ordered the guardianship to determine if the guardianship remains in the child’s best interests. Guardianships under s. 48.977 , Stats., are the result of a previous action under ch. 48 , Stats., in which chil d safety may have been an issue. T herefore , it is imperative that the agency responds accordingly when the agency becomes aware of actions to circumvent or dissolve the guardianship.

SECTION 13. DCF 55.10 (5) ( bm ) (intro.) is created to read:

DCF 55.10 (5) ( bm ) (intro.) S end a notice to the guardian on a form prescribed by the department at least 30 days before the effective date of any of the following:

SECTION 14 . DCF 55.10 (5) (c) is renumbered DCF 55.10 (5) ( bm ) 1.

SECTION 15. DCF 55.10 (5) (d) is renu mbered DCF 55.10 (5) ( bm ) 2., and, as renumbered, DCF 55.10 (5) ( bm ) 2. b . is amended to read:

DCF 55.10 (5) ( bm ) 2. b. A change of circumstances under sub. (1) ( a ) to (g) (h) or (j) has occurred .

SECTION 16 . DCF 55.10 (5) (Note) is created to read:

DCF 55.10 (5) Note: Form DCF-F-CFS 2737, Notification of Subsidized Guardianship Suspension or Termination , is available in the forms section of the department website, http://dcf.wisconsin.gov , or by writing to the Division of Safety and Permanence, P.O. Box 8916, Madison , WI 53708-8916.

SECTION 17 . DCF 55.125 is created to read:

DCF 55.125 Successor guardian . (1) Eligibility. Upon the death or incapacity of a guardian who was receiving subsidized guardianship payments under s. 48.623 , Stats., and this chapter, the agency shall determine the eligibility of a person named as a prospective successor guardian in a subsidized guardianship agreement or amended subsidized guardianship agreement that was entered into before the death or incapacity of the guardian. A prospective successor guardian is eligible to enter into a new subsidized guardianship agreement with the agency if the agency determines all of the following apply:

(a) The prospective successor guardian demonstrates a strong commitment to caring permanently for the child.

(b ) If t he child is age 14 years or older , the child has been consulted with regarding the successor guardianship arrangement.

( c ) The agency determines that the prospective successor guardian is eligible to be licensed as a foster parent under ch. DCF 56 and the prospective guardian and nonclient residents in the prospective guardian’s home meet the requir e ments of the background check in s. 48.685 , Stats., and s. DCF 55.13 .

Note: The agency is not required to issue a license to the prospective successor guardian.

(d ) The agency determines that placement of the child with the prospective successor guardian is in the best interests of the child. In the case of an Indian child, the best interests of the Indian child shall be determined in accordance with s. 48.01 (2) , Stats.

Note: Upon the death or incapacity of a guardian who did not name a prospective successor guardian in a subsidized guardianship agreement or amended subsidized guardiansh ip agreement that was entered into before the guardian’s death or incapacity , eligibility of a person to become a new subsidized guardian would be determined under s. DCF 55.03 . Section DCF 55.03 would also apply to the eligibility determination of a person seeking p ayments under this chapter if the previous guardianship was terminated for a reason othe r than death or incapacity of the guardian.

(2) Eligibility d etermination f orm. An agency that determines a prospective successor guardian’s eligibility shall document the determination on a form prescribed by the department.

Note: Form DCF-F-5069-E, Subsidized Guardianship Successor Guardian Eligibility Determination , is available on the forms page of the department website, http://dcf.wisconsin.gov , or by writing to the Division of Safety and Permanence, P.O. Box 8916, Madison , WI 53708-8916.

(3) Subsidized g uardianship a greement . The agency shall enter into a written, signed subsidized guardianship agreement with the prospective successor guardian under s. DCF 55.06 if the agency determines that the prospective successor guardian is eligible under sub. (1) . The agency shall enter into the subsidized guardianship agreement with the prospective successor guardian before guardianship is established under s. 48.977 (5m) , Stats., or under a substantially similar Wisconsin tribal law and an agreement specified in s. DCF 55.01 (2 ) .

(4 ) Court . An agency may not provide subsidized guardianship payments to a prospective successor guardian until all of the following occur:

(a) A court appoints the successor guardian to assume the duty and authority of guardianship under s. 48.977 (5m) , Stats. , or under a substantially similar Wisconsin tribal law and an agreement spec ified in s. DCF 55.01 (2) .

(b) Any order under s. 48.345 , 48.357 , 48.363 , 48.365 , 938.345 , 938.357 , 938.363 , or 938.365 , Stats., placing the child, or continuing the placement of the child, outside of the child ’ s home has been terminated, or any proceeding in which the child has been adjudged to be in need of protection or services specified in s. 48.977 (2) (a) , Stats., has been dismissed, as provided in s. 48.977 (3r) (b) , Stats , or under a substantially similar Wisconsin tribal law and an agreement speci fied in s. DCF 55.01 (2) .

(5 ) Monthly p ayments . An agency shall provide monthly subsidized guardianship payments in an amount determined under s. DCF 55.07 or 55.08 to a guardian appointed under s. 48.977 (5m) , Stats., or under a substantially similar Wisconsin tribal law and an agreement speci fied in s. DCF 55.01 (2) .

SECTION 18 . DCF 55.13 (title), (1), (2) (intro.) , (a) to (c ) , (c) (Note), (d), (e) 1. and 2., (f), (4) (intro.), and (5) are amended to read:

DCF 55.13 (title ) DCF 55.13 Background check of interim caretaker or prospective successor guardian and nonclient residents. (1) Provide i nformation . ( a) Before an agency provides subsidized guardianship payments to an interim caretaker seeking payments under s. DCF 55.12 or determines that a prospective successor guardian is eligible to enter into a subsidized guardianship agreement , the interim caretaker or prospective successor guardian and any nonclient resident in the interim caretaker’s or prospective successor guardian’s home shall do all of the following:

1. Complete and submit to the agency the department’s background information disclosure form and written authorization for the agency to make follow-up contact with the Wisconsin department of justice and any other person or organization to determine if there is any reason under sub. (4) why the interim caretaker is not eligible to receive subsidized guardianship payments under s. DCF 55.12 or the prospective successor guardian is not eligible to enter into a su bsidized guardianship agreement .

2. Provide the agency with information on their places of residence during the 5-year period before the interim caretaker is seeking subsidized guardianship payments under s. DCF 55.12 or the prospective successor guardian is seeking to enter into a subsidized guardianship agreement .

(b) Before an agency provides subsidized guardianship payments to an interim caretaker seeking payments under s. DCF 55.12 or enters into a subsidized guardianship agreement with a prospective successor guardian , the interim caretaker or prospective successor guardian shall provide the agency or its designated agent with a set of fingerprints sufficiently clear to submit to the Wisconsin department of justice or other law enforcement agency for submission to the national crime information database as provided in s. 48.685 (2) (c) 1. , Stats.

(2) Conduct background check. After the agency receives the information under sub. (1) and before the agency provides subsidized guardianship payments to an interim caretaker or enters into a subsidized guardianship agreement with a prospective successor guardian , the agency shall do all of the following:

(a) The agency shall obtain the information required under s. 48.685 (2) (am) , Stats., regarding the interim caretaker or prospective successor guardian and any nonclient resident in the interim caretaker’s or prospective successor guardian’s home.

(b) The agency shall submit the fingerprints of the interim caretaker or prospective successor guardian under sub. (1) (b) to the Wisconsin department of justice or other law enforcement agency for submission to the national crime information database as provided in s. 48.685 (2) (c) 1. , Stats.

(c) The agency shall conduct a reverse search of the Wisconsin sex offender registry using the interim caretaker’s or prospective successor guardian’s address.

Note: A reverse search by address can be done by entering the interim caretaker’s or prospective successor guardian’s address at http://doc.wi.gov/community-resources/offender-registry. The Wisconsin Sex Offender Registry does not contain information on all convicted sex offenders.

The information is limited by the effective date of the applicable law and to those offenders who have been arrested and convicted, adjudicated, or committed for a crime specified under the law and who meet registration and publication requirements.

For example, certain sex offenses by juveniles or other persons may not meet registration or publication requirements. Please consider these limitations when obtaining information from the sex offender registry.

(d) If the agency is informed that a nonclient resident in the interim caretaker’s or prospective successor guardian’s home resided outside the state of Wisconsin at any time during the 3-year period before the search, the agency shall obtain a criminal history records search from any state in which the person is or was a resident.

(e) 1. If the agency is informed that the interim caretaker or prospective successor guardian or a nonclient resident in the interim caretaker’s or prospective successor guardian’s home resided in the state of Wisconsin at any time during the 5-year period before the search, the agency shall contact each county in Wisconsin in which the person is a resident or was a resident during those 5 years for information on any child abuse or neglect report or finding.

2. If the agency is informed that the interim caretaker or prospective successor guardian or a nonclient resident in the interim caretaker’s or prospective successor guardian’s home resided outside the state of Wisconsin at any time during the 5-year period before the search, the agency shall check any child abuse or neglect registry maintained by any other jurisdiction in which the person is a resident or was a resident during those 5 years for information on any child abuse or neglect report or finding.

(f) If the agency is informed that the interim caretaker or prospective successor guardian or a nonclient resident in the interim caretaker’s or prospective successor guardian’s home served in a branch of the U.S. armed forces, including any reserve component, the agency shall make every reasonable effort to obtain information on the discharge status of the person. This information may be obtained from the discharge papers or from the armed forces branch in which the person served. If the discharge status is other than honorable, the agency shall obtain information on the nature and circumstances of the discharge.

(4) ( intro .) Offenses t hat a re a b ar. Unless the person has demonstrated that he or she has been rehabilitated under s. 48.685 (5) or (5c) , Stats., and ch. DCF 12 , an agency may not provide subsidized guardianship payments to an interim caretaker or determine that a prospective successor guardian is eligible to enter into a subsidized guardianship agreement if any of the following apply regarding the interim caretaker or prospective successor guardian or a nonclient resident in the interim caretaker’s or prospective successor guardian’s home:

(5) Denials . The agency shall provide the department with information about each person who is denied monthly subsidized guardianship payments or permission to reside in the home of an interim caretaker or prospective successor guardian for a reason specified in sub. (4).

SECTION 19 . EFFECTIVE DATE. This rule s hall take effect upon publication as provided in s. 227.24 (1) (c) , Stats.

                    
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