Vol. 75, No. 12, December
Budget Reform Bill Enacts Adoption and Safe Families Act
Changes to the Children's and Juvenile Justice
codes harmonize Wisconsin law with the requirements of the Adoption and
Safe Families Act.
by Tony Jamieson
The State Budget Repair bill, now Wisconsin Act 109, deals primarily
with state finances, but it also includes substantial changes to both
chapters 48 and 938, respectively the Children's and Juvenile Justice
codes. Most of the changes in Act 109 harmonize Wisconsin law with the
requirements of the Adoption and Safe Families Act (ASFA). While the
ASFA primarily has a fiscal focus, the changes in the Wisconsin Statutes
may have a profound effect on everyday practice. The changes to chapters
48 and 938 took effect on July 29, 2002.
This article focuses on a few of the more important changes; for
specific changes affecting individuals' law practices, please read the
act, available through the Internet.1
Changes Incorporate ASFA Factors
Many of the statutory changes incorporate the "ASFA factors." When
the child is placed outside the home, AFSA factors require specific
findings that: continued placement in the parental home is contrary to
the child's welfare; the agency removing the child from the home has
made reasonable efforts to prevent removal; and the agency has made
reasonable efforts to make it possible to return the child safely home.
In some instances, found at Wis. Stat. sections 48.355(2d)(b) and
938.355(2d) (b) 1.-5., reasonable efforts are not required. The act
amends the "not required" (NR) factors to require, in most cases, that
the proof of a crime or aggravated factors be supported by a judgment of
Orders Must Document ASFA Factors
Throughout the act, the ASFA amendments specifically provide that
orders "that merely reference" ASFA factors are insufficient to comply
with the act's requirements - the order must document or reference
specific information with regard to those factors.2
Custody Hearing. Sections 101b-g and 529b-h of the
budget repair bill make several changes to the custody hearing statutes.
At custody hearings, the court must make findings about the AFSA
factors, or require the responsible agency to provide sufficient
information to make that finding within five days of the order.
Petition. The changes made to Wis. Stat. sections
48.255 and 938.255 now require that if a child is held in custody
outside the home, the petition either needs to contain information
regarding the ASFA and NR factors or a statement by the petitioner that
the facts are not known or cannot be ascertained.3
Time Limits. Act sections 101k and 529m-n prohibit
delays and continuances that result in AFSA factor findings being
delayed more than 60 days after removal from the home or more than 12
months after the reasonable efforts finding with regard to a permanency
Consent Decrees. Act sections 101m and 529p-q
require that if a child is placed outside the home or maintained in an
out-of-home placement by the consent decree, the court must make the
appropriate findings about ASFA and NR factors.
Court Reports. If a court report recommends
placement outside the home, it must include specific information
addressing the ASFA and NR factors.4
Dispositional Hearings. Act sections 101r and 529v
require an agency recommending out-of-home placement to present evidence
of "specific information" about the ASFA and NR factors.
Dispositional Orders. Act sections 101s-102cg and
531d-533b govern dispositional orders. The court must make findings
regarding the ASFA and NR factors. The NR subsection requires evidence
of a final judgment of conviction.5
The potentially most dramatic change is that dispositional orders in
chapter 48 and chapter 938 cases placing a child in a foster home,
treatment foster home, group home, relative home, or residential care
center shall now terminate at age 18, age 19 if the child is attending
school, or one year after entry, whichever is later, unless the court
specifies a shorter time.6 In-home
placements are still capped at one year. Delinquency corrections orders
are not significantly affected by the act.7
Change of Placement. The revisions to the
change-of-placement statute also require the court to make findings
regarding the ASFA and NR factors if the child is placed outside the
home. If a change of placement is from in-home to out-of-home, the court
is empowered under the statute to extend the dispositional order until
age 18 or older.8 Changes of placement to
correctional institutions are not significantly altered by the
Foster Parents. Foster parents, among others, are no
longer required to make their oral or written statements under
Extension. Act sections 102gf-hr and 533ct-dh govern
extensions. The date the child was placed outside of his or her home is
the date of first removal.11 In delinquency
cases, if the child was first placed in detention, the date of the move
from secure to nonsecure confinement governs.12
At extension hearings, the agency needs to provide specific
information showing efforts to achieve the permanency plan's goals, and
the court must make specific findings about reasonable efforts.13 An order under Wis. Stat. section 48.365 that
continues placement in a nonsecure out-of-home setting may be until age
18, age 19 if attending school, or one year after entry.14
Permanency Plans. The act makes many changes to the
permanency planning section, expanding the cases in which plans are
required. Plans must include specific school and medical information, a
plan for ensuring the safety and appropriateness of the placement, a
description of services to be provided to various parties, a specific
statement of the goal of the permanency plan including a rationale for
setting that goal, and transition plans for children 15 or older. Courts
are required to hold hearings at least once every 12 months to review
Tony Jamieson, U.W.
1997 cum laude, is a Waukesha County assistant corporation counsel. His
primary duties are prosecuting CHIPS, JIPS, and TPR cases. He is chair
of the State Bar Children and the Law Section.
Sanctions. In delinquency and status offensecases,
when the court orders a child into a place of nonsecure custody, the
court must make findings, on a case-by-case basis, that the agency has
made reasonable efforts to prevent the removal of the juvenile from the
home and that continued placement in the home is contrary to the
In a nutshell, the changes involve the ongoing obligation of the
departments and agencies to make the ASFA and NR factor inquiries and
further require the courts to make the requisite findings. Attorneys
should review Act 109 for any other changes that may specifically affect
their individual practices.
1 2001 Wis. Act 109 can be accessed
online at www.legis.state.wi.us.pdf.
The changes to chapter 48 start at section 101b; the changes to chapter
938 begin at section 529. The effective date section for Act 109 begins
at section 9309.
2 See, e.g., 2001
Wis. Act 109, § 101(f).
3 2001 Wis. Act 109, §§
4 Id., §§
101p-q, 529 r-t.
5 Id., §§
6 Id., §§
7 Id., §§
8 Id., §§
102dg-gb, 533bf-cb, cp.
9 Id., §§
10 Id., §§
102em, 102gd, 533br, etc.
11 Id., §
12 Id., §
13 Id., §§
102gh, gm, gr; 533 cv, cz, db.
14 Id., §§
15 Id., §§
16 Id., §