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  • Wisconsin Lawyer
    March 31, 2008

    Legislative Watch

    Changes to the Children's and Juvenile Justice codes harmonize Wisconsin law with the requirements of the Adoption and Safe Families Act.

    Wisconsin Lawyer
    Vol. 75, No. 12, December 2002

    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 conviction.

    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 plan.

    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 act.9

    Foster Parents. Foster parents, among others, are no longer required to make their oral or written statements under oath.10

    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 the plans.15

    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 juvenile's welfare.16

    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 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, §§ 101h-j, 529j-k.

    4 Id., §§ 101p-q, 529 r-t.

    5 Id., §§ 101x-z, 531p-532k.

    6 Id., §§ 102cg., 532t.

    7 Id., §§ 532v-533b.

    8 Id., §§ 102dg-gb, 533bf-cb, cp.

    9 Id., §§ 533cd-cn.

    10 Id., §§ 102em, 102gd, 533br, etc.

    11 Id., § 102gf.

    12 Id., § 533ct.

    13 Id., §§ 102gh, gm, gr; 533 cv, cz, db.

    14 Id., §§ 102hr, 533dh.

    15 Id., §§ 102j-102rm, 533dj-fb.

    16 Id., § 533bb.

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