The Child Welfare and Juvenile Justice Systems and Children with Complex and Enduring Needs

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1 The Child Welfare and Juvenile Justice Systems and Children with Complex and Enduring Needs John Franz, Attorney and Private Consultant Introduction The goal of this chapter is to describe the basic procedures, services and agencies in the child welfare and juvenile justice systems and explain how they operate when children have special needs. Children with exceptional needs and their families come into the child welfare and juvenile justice systems for many reasons. Sometimes the family or their advocates have started the process to get services they need. Sometimes a county agency has intervened because of the conduct of the child or his/her parents. Regardless of the reason, effective advocacy for the child and family requires knowing both how these systems work in general, and how they apply in special circumstances. Being in The System A child and family is in the formal child welfare and juvenile justice systems when they or someone else has started a process that could lead to a juvenile court order. Being in the system can feel overwhelming. Various people tell you things, often contradicting one another. You go to court hearings where lawyers talk but don t make much sense to you. You receive documents that look important but are hard to understand. Even when you haven t done anything wrong, the process can make you feel like a criminal. Who made the systems? Each county has its own approach State law created the child welfare and juvenile justice systems. Chapter 48 of the Wisconsin Statutes defines the child welfare system. Chapter 938 defines the juvenile justice system. Most of the provisions in the two statutes are the same. The laws were separated so that courts and agencies could treat juvenile delinquents differently from children who are abused and neglected. However, the same agencies carry out both statutes. Although Chapters 48 and 938 are very detailed, each county in Wisconsin has developed its own variations on how to operate its child welfare and juvenile justice systems. In some counties, staff who work in child welfare and juvenile justice are different. In other counties, one social worker does both things. Each county has a different array of services and each varies in the percentage of children served in their own homes and those placed in foster care or other residential programs. Child Welfare System - 149

2 WISCONSIN COALITION FOR ADVOCACY Counties also vary in the amount of services provided directly by staff of the county and that provided by private, non-profit agencies operating under contract with the county. For example, even though a county social worker may have been responsible for managing the initial entry into the system, a staff person from a private agency may have ongoing responsibility for coordination of the services and support the child and family receive. Because every county is different, the information in this chapter is just an introduction. Families and advocates must learn the details of how the general principles in the law are interpreted in their own communities. Difference between the child welfare and juvenile justice systems Child welfare system concentrates on family situations and child safety Juvenile justice system focuses on child misconduct and community safety The main differences between the two systems are in the kinds of situations they deal with, the age of the children involved, the focus of attention, and the kinds of interventions that can be used. The child welfare system is designed to protect children who are at risk of harm because of their family situation or because of their own behavior or condition. Thus, the focus in the child welfare system is on the family, often with an emphasis on the conduct and condition of the parents. The juvenile justice system is designed to protect the community from children who violate the law, misbehave or pose a threat to others because of their conduct or condition. Therefore, the juvenile justice system concentrates on children in trouble and offers only a limited role for parents and family members. All of the service options described in Chapter 48 can be accessed through Chapter 938. But Chapter 938 also includes many punitive dispositions that are not in the child welfare laws. While Chapter 48 applies to children of any age, in practice the focus is on younger children. Chapter 938 applies to children from age 10 through age 17, except that when charged with criminal offenses, 17 year olds are treated as adults. Youth in the juvenile justice system can be ordered to pay fines and restitution, can be placed in secure correctional facilities and sent to adult criminal court for confinement in adult jails and prisons. Informal alternatives to court-ordered services may be available While this chapter will focus on the formal or court-based aspects of the child welfare and juvenile justice systems, there are also voluntary, less formal options. Informal services and the agencies that provide them vary even more from county to county than the formal systems. In some counties, services are only provided for children and families who are under court order or being diverted from court-ordered services. Other counties place a strong emphasis on prevention and early intervention and try to serve as many children and families as possible without involving courts and lawyers. Each county government makes the decision on the balance between formal and informal services Child Welfare System

3 Additional sources of informal assistance may, depending on the county, include services offered by a county s human services system (see Overview of County Human Services chapter, pg. 188), and those provided by private non-profit agencies, such as the ARC, United Cerebral Palsy, or the Autism Society of Wisconsin. Court order required to access certain services When resources are scarce, one way that some counties control access is by requiring that certain services be court-ordered. One problem with this approach is that a child and family s situation has to get bad before court intervention can take place. A second problem is that when court orders are made, they are usually directed at children and families, not at agencies. Except in rare situations, the juvenile court only decides whether to permit access to, or mandate participation in, a service made available through the county budget it can t order the county to buy more or different services. Unfortunately, the juvenile court wasn t designed to be a means for controlling access to services. Its basic purpose is to resolve conflicts and to ensure fair treatment when the county intervenes in a family s life or when a child has been accused of a crime. For this reason, using the court to get special services may make the family involved feel like they ve done something wrong, even when they haven t. Provisions for children with special needs A unique aspect of Wisconsin s child welfare and juvenile justice codes are provisions in both statutes specifically directed at providing innovative and comprehensive services for children with special needs and their families. As noted above, having a service mentioned in the law doesn t mean that a county will actually have that service available, but the provisions offer options to advocates and families in Wisconsin that are rarely available in other states. Procedural Steps in the Child Welfare and Juvenile Justice Systems Because the procedural steps in both systems are nearly identical, they will be described together. Any differences between the two systems will be noted. Jurisdiction means the power to act Before a child and family can be involved in the formal aspects of either the child welfare or the juvenile justice system, the system must have jurisdiction to act. To have jurisdiction the facts of the child and family s situation must fit within certain criteria which describe actions, conditions or situations. The biggest differences between Chapters 48 and 938 are in their lists of jurisdictional criteria. Jurisdiction in the Juvenile Justice System Chapter 938 has three basic types of jurisdictional criteria: delinquent conduct, violation of civil ordinances and being a juvenile in need of Child Welfare System - 151

4 WISCONSIN COALITION FOR ADVOCACY protection and services. Chapter 938 also deals with situations in which a child s jurisdiction can be transferred to adult criminal court. Delinquency jurisdiction Sec , Wis. Stats. Civil violations Secs and.17, Wis. Stats. In need of services Sec , Wis. Stats. To be found delinquent, a child must be between the ages of 10 and 16 (i.e., at least 10 and under age 17) and must have violated a state or federal criminal law, with a few exceptions, or have been found in contempt of court. Children who are 17 when they are alleged to have committed a crime are treated as adults regardless of their cognitive development. Civil violations include city, county or state laws that are punished by fines rather than jail. Common examples of civil violations by juveniles include underage drinking citations and some forms of truancy violations. A juvenile between the ages of 10 and 18 can be found to be in need of protection and services (sometimes referred to as JIPS) under several circumstances: If a parent signs a petition to the court stating that the parent is unable to or needs assistance in controlling the child; If a child is habitually truant from school or a school dropout; If the child is a habitual runaway from home, and informal efforts to reconcile the child in the home have failed; If the child is under 10 years of age and is alleged to have violated a criminal law; or, If the child has been charged with violating a criminal law, but has been found incompetent to stand trial or not guilty due to mental disease or defect. Note: Youths 10 and over can also be found to be in need of protection or services under the child welfare jurisdictional standards below, and a child can be under both juvenile justice and child welfare jurisdiction at the same time. A juvenile can be charged in adult criminal court Secs and.183, Wis. Stats. When children are charged with serious criminal offenses, their cases may be brought to the adult justice system. This can happen in two ways. First, a prosecutor may ask the juvenile court to waive its jurisdiction over the child and allow the case to be filed in criminal court. This can be done for certain serious crimes if the child was over 14 at the time the act occurred, and for the violation of any state criminal law if the child was 15 years old at the time the alleged criminal act occurred. Second, for a few heinous crimes, such as murder or attempted murder, or when a child is charged as a repeat offender, the child is automatically charged as an adult. Usually the child must be at least 10 years old for this to happen. There are no Child Welfare System

5 limitations on automatic waiver based on a child s developmental status. When a child has been automatically waived to adult court, there is a procedure for sending the case back to juvenile court, if the presiding judge approves. Waiver to adult court, whether initiated by a prosecuting attorney or occurring automatically, is a complicated procedure beyond the scope of this chapter. Anyone involved with a child at risk of having this happen must work with an attorney who has a thorough knowledge of this area of the law. Child welfare jurisdiction Sec , Wis. Stats. Jurisdiction in the Child Welfare System Chapter 48 has a longer list of criteria. A child can be found to be in need of protection and services, often referred to as CHIPS, if s/he is a child: who is without a parent or guardian; who has been abandoned; who has been the victim of abuse (including self-inflicted injuries); who is at risk of becoming the victim of abuse; whose parent or guardian has signed a petition requesting court jurisdiction because they are unable or need special assistance to care for or provide necessary special treatment or care for the child; who has been placed for care or adoption in violation of the law; who is receiving inadequate care during the time that a parent is missing, incarcerated, hospitalized or institutionalized; who is at least age 12 and has signed a petition requesting court jurisdiction because s/he is in need of special treatment or care which the child s parent or guardian or legal custodian is unwilling, neglecting, unable or needs assistance to provide; whose parent, guardian or legal custodian neglects, refuses or is unable for reasons other than poverty to provide necessary care, food, clothing, medical or dental care so as to seriously endanger the physical health of the child; whose parent, guardian or legal custodian is a substantial risk of neglecting, refusing, or being unable to provide necessary care for the child; who is suffering emotional damage for which the parent, guardian or legal custodian has neglected, refused or been unable to obtain necessary treatment or to take necessary steps to ameliorate the symptoms; Child Welfare System - 153

6 WISCONSIN COALITION FOR ADVOCACY who is suffering from an alcohol or other drug abuse impairment, exhibited to a severe degree, for which the parent, guardian or legal custodian is neglecting, refusing or unable to provide treatment; or who has not been immunized as required under the public health laws, if there has not been an exemption granted. Jurisdiction must be proved for the systems to get involved The four basic steps Some proof of the existence of jurisdiction is required for any of the procedural steps in Chapters 48 and 938 to occur. Until adjudication, those who act must have reasonable grounds to assume that there is jurisdiction. For formal adjudication to occur under Chapter 48, the court must find clear and convincing evidence that grounds for jurisdiction exist. Under Chapter 938, proof of delinquency jurisdiction must be beyond a reasonable doubt. If there is jurisdiction, Chapters 48 and 938 both follow four basic procedural steps: temporary custody, adjudication, disposition and post-dispositional review. The agency responsible for carrying out the provisions of either chapter must follow these steps when it intervenes with a family. A few differences exist between the two chapters in the rules that apply at each stage and each system has some post-dispositional review procedures that don t exist in the other. STEP 1: Temporary Custody Temporary custody is the process used to protect or control children during the remainder of the court process. Thus, the temporary custody process operates parallel to the other court procedures. Usually this is no more than a month or two, but in complex situations, the court process, and a child s stay in a temporary custody arrangement may last for six months or longer. Agencies can bring a family into the formal system without taking custody of their child, but they can t take a child into custody without bringing the family into the system. The main reasons for temporary custody are to protect a child, to keep a child from running away or being taken away, or to keep a child from doing further harm to others or him/herself. Temporary custody usually initiated by police officer or social worker When a police officer or child protection worker intervenes with a child or family they may decide to take the child into temporary custody while the rest of the procedural steps are followed. Chapters 48 and 938 give detailed instructions about when children can be taken into custody, who can do it, where they can be placed while things are being figured out and how the decision to take the child into custody is to be reviewed by the court. The process doesn t have to start with temporary custody. In fact, the statutes favor keeping a child at home pending further action if Child Welfare System

7 Temporary custody not necessary for formal court action to proceed possible. A social worker might interview a child and family and identify some temporary services to help stabilize the situation, pending further court action. If a child isn t taken into custody, the agency can proceed directly to the steps involved in obtaining adjudication. If a child is taken into custody, the court must review the situation to make sure that the right standards were followed, that the child is in an appropriate temporary placement and that the child s immediate needs are being attended to. Grounds for taking custody in the juvenile justice system Secs , Wis. Stats. Grounds for taking custody in the child welfare system Secs , Wis. Stats. Temporary custody of expectant mothers Sec , Wis. Stats. Continuation of temporary custody in the juvenile justice system Sec , Wis. Stats. Temporary custody options The juvenile justice code outlines a variety of situations where a police officer can take a child into custody. The most common are that the officer believes the child has committed an offense or has a court order to pick up the child. It may also be because the child has violated the terms of an earlier court order or is a runaway or truant or is in a dangerous situation. In the child welfare system, the grounds for taking a child into custody are that there is a court order for taking custody, that the child has run away, that the child has violated the terms of a temporary custody order, or that the child is suffering from illness or injury or is in immediate danger from his/her surroundings and removal from those surroundings is necessary. Chapter 48 now also has a provision that allows expectant mothers to be taken into custody to protect their unborn children if there is a substantial risk that the physical health of an unborn child will be seriously affected or endangered due to the mother s habitual lack of self-control in the use of alcohol or drugs. When a child has been picked up by a police officer, unless the officer releases the child immediately to his/her parent or legal custodian, the officer must take the child to an intake worker who is responsible for figuring out where the child will stay while the process continues. The intake worker must apply certain criteria for deciding whether there is a sufficient basis for holding the child (usually risk of harm to others or self, risk of further misconduct, or risk of running away). If the intake worker decides to keep the child in temporary custody, the statute provides for a variety of non-secure (unlocked), as well as secure custody options. Non-secure options can include a foster home or group home, a home of a friend or relative, a hospital, a residential treatment center, a hospital or a shelter care facility. (Shelter care facilities are specially licensed group homes or residential facilities that can provide care usually for up to 30 days.) Juveniles can be kept in locked detention centers and adult jails if certain conditions are met. The statute requires that a judge review the status of the juvenile every 3 days while the child is in an adult jail. In all cases, the intake worker s initial decision to hold a child in temporary custody must be reviewed by a judge or court commissioner within 48 hours. Child Welfare System - 155

8 WISCONSIN COALITION FOR ADVOCACY Continuation of temporary custody in the child welfare system Secs , Wis. Stats. Process the court uses to make sure that it has jurisdiction to act Intake inquiry Secs and 48.24, Wis. Stats. Informal disposition and deferred prosecution Secs and , Wis. Stats. Essentially the same processes must be followed for children taken into custody under Chapter 48 and the same places can be used to hold the child. Under Wisconsin law, children in the child welfare system can even be held in secure detention facilities and county jails. The criteria for using a secure facility or jail are either that the child consents in writing in order to be protected from an imminent physical threat, or that the child has either run from a non-secure placement or has committed a delinquent act, or no other suitable alternative exists. As in the juvenile justice system, a judge must review the status of the child placed in jail every three days. STEP 2: Adjudication The adjudication stage includes the initial intake inquiry, the decision to file a petition starting the court action, and the determination by a judge that there are grounds to take jurisdiction in the case. If everyone agrees to have the court involved, adjudication takes place at a short hearing. If people disagree, there may be a trial to determine whether there are sufficient facts to give the court jurisdiction under the standards in the law. A trial is only necessary if people disagree about whether the child or family should be in the system. If the question is what to do once the child or family is in the formal system, the question should be resolved during the dispositional stage. In both the child welfare and juvenile justice systems, the intake worker has two jobs. If the child has been taken into custody, the first job is to decide whether to continue the child in temporary custody pending a review by the judge. The second job is to decide whether to refer the case for formal action in the court. The intake worker looks at the facts and at the child and family s situation and applies criteria from the statute and from guidelines established by the juvenile court judge. If the intake worker believes the matter should be handled in court, s/he sends the file to a juvenile court prosecutor who then drafts and signs a petition and that starts the court process. The petition has to contain sufficient allegations that if proved, would give the court jurisdiction over the child. The intake worker is also responsible for meeting with the child and his/her parents and telling them about their rights under the law and how the court operates. The intake worker has three options when s/he reviews a case. One is to simply dismiss it. The second is to send it on for formal action in the court. The third is to set up an informal arrangement so that the matter doesn t have to go any further. In the child welfare system, this informal agreement is called informal disposition. In the juvenile justice system, it is called deferred prosecution. Some in-home services may be provided without a court order if they are available. If the child and parents agree to comply with rules of the intake worker, the matter is closed at the end of the period of review and the action is dismissed. On the juvenile justice side an informal Child Welfare System

9 agreement might include doing some community service work, making restitution, going to school, attending a treatment program and abiding with the parent s rules in the home. On the child welfare side, the parents might be expected to participate in a family counseling or parent training program and to take certain steps to assure the intake worker that the child is safe and well cared for. Informal disposition agreements can last for up to 6 months and can be renewed one time for another six months. Deferred prosecution agreements can last for up to one year. If the child or family fail to comply with the requirements in the informal disposition or deferred prosecution, the intake worker can take the matter back to the prosecutor to have a formal action filed in juvenile court. Consent decrees Secs and , Wis. Stats. There is a second option for an informal agreement in both child welfare and juvenile justice proceedings. Even after the matter has gone to court, the child and his/her parents and the district attorney can agree to a consent decree. The difference between an informal disposition or deferred prosecution and a consent decree is that consent decrees are arranged with the judge after a petition has been filed. The consent decree will list the rules that the child and family agree to abide by and any services that will be made available. Consent decrees in the child welfare system can last for 6 months with a 6 month extension. In the juvenile justice system, consent decrees can last for 1 year with no extensions. If the child or family fail to comply with the terms of the consent decree, the judge reopens the case and proceeds with the formal adjudication and disposition process. If the consent decree is successfully completed, the underlying case is dismissed. Consent decrees can sometimes provide an opportunity for families to avoid an out-of-home placement and obtain the in-home services they need. The petition Secs and , Wis. Stats. Plea hearings and trials Secs and.31 and and , Wis. Stats. In both the child welfare and juvenile justice systems, a written document, called a petition, must be filed with the court to start formal proceedings. The petition has to state specifically who is being brought to court, the grounds for jurisdiction, and the facts that give the court jurisdiction. If the matter does proceed formally, there may be several court hearings. The first one will be called a plea hearing. In child welfare proceedings, the parents and the child or the child s legal representative are asked whether they agree with the allegations in the petition. (In the juvenile justice system, the parents only have a right to agree or disagree if the child is alleged to be a juvenile in need of supervision otherwise only the child enters a plea.) If everyone agrees, the judge will enter an order, called an adjudication, stating that the child and family are now under the jurisdiction of the court, and schedule the case for disposition. If there is disagreement, the judge will schedule a trial, called a factfinding hearing. This trial will be the same as a trial in adult criminal Child Welfare System - 157

10 WISCONSIN COALITION FOR ADVOCACY court, except that current law does not give a child in the juvenile justice system the right to a jury trial. Depending on the results of the fact-finding hearing, the judge will either dismiss the case or enter an adjudication. In a complicated case, there are likely to be several hearings between the plea hearing and the fact-finding hearing where lawyers will argue motions and questions of evidence and procedure. Role of the Social Worker Neither the juvenile justice nor the child welfare system could run without social workers. Essentially, everything else in the two systems was created or added on over time to enhance, structure, limit or direct the actions of the men and women whose profession is assisting children and families with complex social and human needs. General powers and duties of social workers in child welfare matters Sec , Wis. Stats. General powers and duties of social workers in juvenile justice matters Sec , Wis. Stats. The role of the social worker in child welfare matters always includes a combination of coercion and compassion. That means they have to intervene to protect children, and then help the parent and child get the services they need to make things better. Both tradition and the law direct social workers to combine assistance and intervention in their interactions with children and families. They have to investigate to see if children are at risk of harm because of their circumstances or the conduct of their caregivers. They have to intervene and take custody of children when the level of risk is so high that they are unsafe in their current surroundings. They have to prove to the court that there was sufficient risk to justify their actions. They have to form a positive relationship with the child and parent in whose lives they have just intervened and help them connect with the services and supports needed to eliminate the risk, repair any harm done, improve the skills of the parent and child to prevent the risk from reoccurring and help the parent and child establish or reestablish connections in the community and with their extended family so that they will have natural sources of support when the social worker leaves. When children must be placed outside the home for their protection, social workers have to find foster homes, license them and place the right children in the right homes. In Wisconsin, social workers also act as probation officers in the juvenile justice system. Unlike most other states, social workers from the county human services department also work with most juvenile offenders. The only exception is that in many counties, when a juvenile has been placed in a correctional facility, a state parole officer is responsible for supervising the juvenile upon release. Social workers acting as probation officers do not have to investigate allegations of crimes. That is the job of law enforcement. But once a youth has been charged and taken into custody, the social worker has to investigate the youth and his/her family s background and prepare a dispositional plan for the court. The worker has to decide what to recommend for punishment and treatment and arrange for the services if the court orders them. Then the social worker has to Child Welfare System

11 monitor the youth s participation to see if s/he is following the orders of the court and making progress in their treatment or supervision program. Some counties are beginning to take over the task of supervising youth returning to the community from a correctional placement. This is called aftercare. Some counties also have separated the social workers in child welfare cases from those in juvenile justice, creating de facto probation departments. This is primarily in larger counties, like Milwaukee. Powers and duties of social workers in court-related services Secs and , Wis. Stats. Dispositional Secs and , Wis. Stats. General services Secs and , Wis. Stats. Advocacy with social workers must recognize their limitations and their strengths Besides their duties in the community, social workers must also provide services to the juvenile court. Intake workers have to screen children taken into temporary custody to see whether the child can be released, or if the child must still be held, where the child s continued placement should be. Intake workers also help decide whether or not a child s case should be handled formally in court, or through an informal agreement. The intake worker is also responsible for making sure that the immediate needs of a child in temporary custody are addressed, such as crisis counseling and health care referrals. Similarly, at the dispositional stage, social workers are responsible for developing a plan of care and delivering needed services personally or arranging for needed services. They also have to prepare reports for the court and, in sweeping language found in both the intake and dispositional sections, basically do anything else the court tells them to do. Under the statutes, the duties of social workers are nearly unlimited. But the statutes don t give social workers the resources to carry out all of their duties, nor do they give social service agencies the resources to hire enough social workers or to ensure that those workers are well trained, supported and supervised. But courts sometimes operate as if there are sufficient resources and social workers to do everything in the statute. As a result, parents and children may be ordered to attend services that don t exist, or have long waiting lists, and social workers are expected to have a service to fix every need. Rather than assuming that the social worker can do everything, it may be more effective to agree on a common goal with the worker and then advocate for a reasonable balance of tasks and responsibilities in addressing the community s resource limitations. The prosecuting attorney Legal Representation Attorneys can fill three roles during a juvenile court proceeding: prosecuting attorneys, defense counsel, and guardians ad litem. The prosecuting attorney is responsible for starting the court action and presenting sufficient evidence to the court to prove the allegations in the petition. Prosecuting attorneys in juvenile justice matters must come from the county district attorney s office. Prosecuting attorneys in child welfare matters can either come from the district attorney s office or the office of the county s corporation counsel. District attorneys are state employees, corporation counsel are county employees, but either way Child Welfare System - 159

12 WISCONSIN COALITION FOR ADVOCACY when they act as prosecuting attorneys they are required to represent the interests of the state. This means they can t represent parents or children. Defense counsel Juveniles charged through a petition in the juvenile justice system have a right to legal representation by a defense lawyer. The defense counsel is charged with representing the position and preferences of the child. This means the lawyer must affirmatively and aggressively advocate for the choices the juvenile makes, although the lawyer is also responsible for carefully informing the juvenile of the risks, options and ramifications of those choices. When juveniles with emotional and cognitive disabilities are charged in the juvenile justice system, the defense counsel role can be especially difficult. The degree to which the youth understands the nature of the proceeding and can make informed decisions about the choices that are presented varies dramatically. Only in the most serious situations will the court find that a child is not competent to stand trial or enter a plea in a court action. The rest of the time the defense counsel has to do whatever s/he can to ensure the juvenile s effective participation. When courts are unsure of the ability of a juvenile to participate, they will sometimes appoint a guardian ad litem (described below) to investigate the situation and report back with a recommendation. Sometimes the guardian ad litem will ask the court to order a psychological evaluation of the juvenile s competency. Defense counsel also represents children over the age of 12 who are named in petitions in the child welfare system. Those under 12 in the child welfare system are represented by guardians ad litem. Most juveniles are represented by public defenders. Public defenders can be attorneys who work for the state s Public Defender s Office or private attorneys appointed by the office who are reimbursed by the state for their time. Attorneys employed by the Public Defender s Office are required to maintain high case loads to stay within budgetary limitations. Appointed attorneys are reimbursed at a low rate and the hours that they can apply to a case are limited. This means that when youth with complex needs are in the juvenile justice or child welfare system, the defense attorney may not be able to participate actively in much of the investigation, negotiation and planning related to that child and family. Some public defender s offices do employ investigative social workers who may be able to participate more actively in certain cases. Parents need to find own attorney Wisconsin s Child Welfare Code contains a provision stating that parents are not allowed to be represented by defense counsel. This was quickly ruled unconstitutional, but remains in the statute. However, the legislature did continue to prevent public defenders from representing parents. This means that either parents have to find and pay for their own lawyers or that the juvenile court judge has to Child Welfare System

13 appoint an attorney for them and pay for the attorney out of county funds. Each county judicial district is different in the standards they apply in deciding whether to appoint counsel for indigent parents in child welfare actions. Guardians ad litem Secs and , Wis. Stats. Courts can appoint a GAL for children or adults with special needs The court is required to appoint an attorney called a guardian ad litem for any child under the age of 12 in a child welfare action when there is a possibility that the child might be placed outside the home. This attorney is called a guardian ad litem (GAL), but does not act as a guardian. The difference between a GAL and a defense counsel is that while a GAL must learn about the position and preferences of a child, s/he is not obligated to act on the child s choices. Instead, the GAL must investigate all of the aspects of the case and take a position in the matter that the GAL finds to be most aligned with the best interests of the child. The GAL has all the rights of any other attorney in the case to admit or deny allegations in the petition, to advance or refute motions, to call witnesses and make objections to evidence at trial, to file appeals and even to file additional petitions on behalf of the child, such as petitions for guardianship, termination of parental rights and adoption. Youth who come into the juvenile justice system under petitions alleging them to be juveniles in need of protection or services are also entitled to GALs if there is a possibility that they will be placed outside their homes. Courts can also appoint GALs to represent the interests of parents in child welfare actions when the parents have mental or cognitive impairments. Some individuals may have both a defense attorney representing their choices and a GAL reporting to the court on what the attorney finds to be in the individual s best interests. GALs can be critical advocates when a child with special needs comes into the child welfare or juvenile justice system. However, to do so they must have adequate information about the nature and impact of the child s condition. GALs have the power to request additional evaluations and can hire trained assistants to help in gathering and assessing information about the person they represent. Advocates will find that courts tend to give a great deal of weight to the positions taken by GALs. Court decides what to do to help a child and family STEP 3: Dispositional Stage Once the court has taken jurisdiction, it must decide what to do. This is the dispositional stage. It begins with any evaluations or assessments that are required. Then the social worker responsible for supervising the case must prepare a report and recommendation to the judge. As was the case for adjudication, if people agree with the social worker s recommendation, the dispositional plan is approved at a short hearing. If people disagree, a longer hearing where each side presents its point of view may be necessary. (This is called a contested dispositional hearing.) The final decision by the judge is contained in a written document Child Welfare System - 161

14 WISCONSIN COALITION FOR ADVOCACY called a dispositional order. The key elements of the dispositional phase of a juvenile court proceeding are any evaluations ordered by the court, the dispositional report presented by the social worker and the dispositional order entered by the judge. Evaluations Secs and , Wis. Stats. The dispositional report Secs and , Wis. Stats. Even before a final adjudication, the judge has the power to order a variety of evaluations, including physical, mental, developmental and drug and alcohol assessments. This is the opportunity for the court to learn from an impartial examiner more about the underlying needs of the child and family. In the case of a child with a developmental disability, this would be how the judge would learn about the limits of the child s understanding of right and wrong, driving forces behind the behavior, and special treatment needs that the child might present. Usually the results of the evaluation are submitted to the court in written reports. The judge must decide whether parents can have direct access to these reports, but counsel for parents must be given copies of any reports sent to the court. The social worker assigned to the child and family must research the family s situation and submit a report containing: a social history of the child, a recommended plan of rehabilitation or treatment, a description of the specific services to be offered, the objectives of the plan, the educational components of the plan, and any conditions that will apply to the child s parent or guardian. If the recommendation is for placement outside the home, including placement in a correctional facility, the report has to document that the criteria for those placements have been met. The dispositional report is presented to the court and the child and family at the dispositional hearing. If the child and family objects to the proposed dispositional plan, they have the right to present alternatives to the court and to question any witnesses, including the social worker regarding the reasons for the proposed plan. The dispositional order Sec , Wis. Stats. Conditions for return The judge s final decision about what should happen to the child and family and what services should be provided is contained in a written court order. If services are ordered, they will have to be mentioned in the order. If a child is placed outside of the home, the order will say what has to be done for the child to be able to come home again. There are two basic elements of what must be done: actions and services required of the agency responsible for services to the child and family, and actions and changes required of the child s parents. Actions and changes required of the parents are called the conditions for return. Parents must be told exactly what these conditions for return are and must be warned that their failure to meet these conditions could form the basis for an action to terminate their parental rights. (See pg. 172.) When the reasons for a child being placed outside the home primarily relate to the child s complex needs, these conditions for return may have little to do with changes the family has to Child Welfare System

15 make, but instead the nature of supports and services that would have to be put in place to help the family meet the child s needs. Nonetheless, the court will still be required to give the conditions for return warning to the parents. The written dispositional order must also document the services the agency is required to provide, the conditions for return and the warning to the parents. Dispositions in child welfare and juvenile justice matters Secs and , Wis. Stats. Dispositional options found in both Chapters 48 and 938 Dispositional Options Wisconsin s Child Welfare and Juvenile Justice Codes contain a variety of dispositional options. Not all of the options listed will be available in any given county. Some of the options are rare anywhere in the state. In most cases, the legislature creates the option; the county decides whether or not to put it in place. Occasionally, assertive judges may use their authority to push the county to make a given option available when it shows a clear possibility of helping a child or family and no other reliable alternative exists. Only one option, special treatment or care, includes a specific provision that gives the court the power to order the county to pay for a specific service. The child welfare and juvenile justice codes have several dispositional entries in common: counsel the child or parents; place the child under the supervision of an agency or a suitable adult, which may include a friend of the child, under conditions set by the judge to ensure that the child is well taken care of and behaves appropriately; place the child in his/her own home while ordering an agency or the department to provide specified services to the child and family that may include but are not limited to: individual, family or group counseling; homemaker or parent aide services; respite care; housing assistance; day care; parent skills training or prenatal development training or education; place the child outside the parental home in: the home of a relative, the home of a non-related person who need not be licensed as a foster parent if the placement is for less than 30 days, a foster home, group home or treatment foster home, or a residential treatment center; transfer legal custody of the child to a relative, county agency, the state or a licensed child welfare agency if it is shown that the care and treatment of the child cannot be accomplished by means of the voluntary consent of the parent or guardian of the child; Child Welfare System - 163

16 WISCONSIN COALITION FOR ADVOCACY Wisconsin distinguishes between legal and physical custody of children. Legal custody means the authority to make parental decisions on behalf of a child, such as approving school placements and consenting to medical care. Physical custody is the authority to keep a child in your home and provide ordinary discipline and care. This way most parents are able to retain decision-making authority even when their child is placed outside the home. Dispositional options for children with special needs Secs (6) and (6m) and (6) and (6m), Wis. Stats. order the parent, or if a parent is financially unable to do so, an appropriate agency to provide necessary special treatment or care for the child. Special treatment or care is defined as professional services which need to be provided to a child or his/her family to protect the well-being of the child, prevent placement of the child outside the home, or meet the special needs of the child. The statute goes on to state that the term includes, but is not limited to: medical, psychological or psychiatric treatment, alcohol or other drug abuse treatment or other services which the court finds to be necessary and appropriate ; order the child to attend any of a variety of alternative educational programs; and order the child to enter an outpatient clinic for drug and alcohol treatment. Payment for costs of court ordered special treatment and care Secs and , Wis. Stats. Special treatment or care provisions give parents and advocates unique opportunities The child welfare and juvenile codes have special provisions relating to payment of the costs for dispositional options under the special treatment or care sections noted above. Section of Wisconsin Statutes, and its identical counterpart in Chapter 938, give the court two important powers not generally available when entering dispositional orders. First, if the court orders the treatment, the parent consents to have their insurance pay for it and the insurance company or HMO refuses to pay for it, the statute gives the court the power to order the company to comply within the terms of its insurance contract. Second, if the court finds that the parent is unable to pay for the treatment, the statute gives the court the power to order the county to pay for it. Wisconsin s Child Welfare and Juvenile Justice Codes provide useful tools for developing individualized services for children and families with special needs. However, to use these opportunities advocates and parents may need to learn to be creative in order to overcome a hidden paradox in this provision. The court can t order a special service if it doesn t exist, but if it doesn t exist, the court may not know that the service should be ordered. Sometimes what s needed goes beyond the ordinary categories of services. Then the issue is not the lack of a standard service like foster care or day treatment, but the Child Welfare System

17 need for a unique option that may never have been used before. That s when the disposition of special treatment or care can be most useful. For the court to be able to order unique services, someone has to be able to provide them. This is where the creativity part comes in. If a child or family has complex needs, the advocate should look for a provider who is willing to develop a flexible, non-standard response specifically designed to address those unique needs. For example, if a child with a cognitive disability and limited ability to use words to converse has been sexually abused, a standard treatment program may be of limited benefit. An alternative response might be to bring together a team of people whose combined experience will help them adapt material and strategies from both the developmental disabilities and trauma therapy fields to fashion a creative treatment and support plan for the child. Sec provides opportunity for comprehensive and integrated support Another Wisconsin statute, often referred to as the Children Come First statute, gives counties the power to create integrated systems of care (sometimes called Integrated Services ) for families with children who have complex and enduring needs. Many counties in Wisconsin have implemented the provisions of the statute. (See Integrated Services for Youth with Mental Health Needs chapter, pg. 146.) Under Children Come First, a county designates a care coordinating agency that is responsible for developing and implementing a plan of care that integrates services from a variety of sources, including special education, mental health, child welfare, juvenile justice, developmental disabilities and other county agencies. This plan is called an integrated services plan. A child does not have to be under the jurisdiction of the juvenile court for his/ her family to have an integrated services plan. However, if the child is in court, the child welfare and juvenile justice codes allow that plan to be incorporated as part of the court s dispositional order. (See pg. 162.) Dispositions Only Available Under the Juvenile Justice Code The dispositions listed above are available under both the Child Welfare and Juvenile Justice Codes. Chapter 938 has several pages of options that aren t in Chapter 48. Most of these are related to punishment for specific offenses and are beyond the scope of this chapter. Some are common and may involve children with special needs. Those used more frequently are listed below. Intensive supervision Sec (2r), Wis. Stats. Sec , Wis. Stats. Counties have the option of developing intensive supervision programs that can be used instead of secure placements. For youth with special needs who often do poorly in conventional juvenile correctional facilities and who may need access to ongoing treatment that may not be available in placement facilities, intensive supervision provides a good alternative that protects the community while helping the child to develop needed social competencies. Intensive supervision involves regular monitoring of a child at a rate far higher than what is usually experienced in ordinary probation supervision. It also allows the super- Child Welfare System - 165

18 WISCONSIN COALITION FOR ADVOCACY visory staff to use short-term detention as a backup to enforce the rules of supervision. Electronic monitoring can be used in connection with intensive supervision, but it can also be a separate disposition. Type 2 Child Caring Facilities Sec (4d), Wis. Stats. When Wisconsin lowered the ages for which children can be found to be delinquent, children as young as 10 could be sent to correctional facilities. In addition, many of the youth being sent to corrections had a variety of emotional and developmental disabilities. Consequently, the legislature created the possibility of using Type 2 Child Caring Facilities. In essence, these are residential treatment centers for youth with special needs who are in the juvenile justice system. The statute does not contain a specific age limitation on who can be placed in these facilities. The criteria are that the child has been found to be delinquent for the violation of a law that carries a six month or greater sentence if committed by an adult, that the child is a danger to the public and in need of restrictive custodial placement, but that placement in a secure correctional facility or the serious juvenile offender program would not be appropriate. The statute creates the possibility of establishing several tiers of correctional placement options: Type1 and 2 correctional facilities, Type 2 Child Caring Facilities, secure child caring institutions and boot camps. Not all of these options have been put into operation, but depending on politics and budgets, they may be established in the future. The challenge for advocates, as always, will be to separate the promotional materials from the reality of the program. This can best be done by visiting the facilities and looking at the strategies and services used to respond when youth have complex needs. Serious Juvenile Offender program Secs (4h) and , Wis. Stats. Day treatment Sec (7w), Wis. Stats Child Welfare System For youth who have been found to have committed serious criminal offenses, a program for serious juvenile offenders has been created. The statute proposes a multi-component program that can include intensive, community-based treatment, including mental health services. Youth can also be placed in various types of secure facilities under this program. The difference between Type 2 facility placement and the serious juvenile offender (SJO) program is that with the SJO program a variety of components are included, and that more serious offenses are required for enrollment. However, as one component, the statutes would permit a youth in the SJO program to be placed in a Type 2 facility. Different sorts of SJO programs exist in each county, and not all counties have such programs. If the dispositional report indicates that the child has what the statute describes as specialized educational needs, the court can order the child to participate in a day treatment program. Specialized educational needs is not defined or differentiated from special education needs. Day treatment programs must be licensed by the state and are required to include both an educational and a therapeutic component.

19 Other dispositions: restitution, supervised work, community service and forfeitures Victim-offender conferencing Juvenile Justice Code is based on balanced and restorative justice approach Sec (2), Wis. Stats. Most juvenile court dispositions do not involve serious offenses. Many are for relatively minor property crimes. The dispositions of restitution, community service, supervised work and forfeitures are frequently included for offenses. Restitution may involve paying the victim directly or through the court or a victim compensation program. Supervised work usually is coordinated by community agencies. They arrange for jobs with private employers or sometimes bring in contract work. Youth get paid for their work and some goes to the victim for restitution and some the youth gets to keep. Community service is generally volunteer work, such as a youth corps camp, but may involve a stipend. Forfeiture means payment of a fine. Youth with disabilities may have difficulty with these options because most programs have few accommodations for children with special needs. However, to the degree advocates or other support persons can assist a youth in carrying out restorative activities like restitution or community service, both the youth and the community benefit. Note: With the passage of crime-victim legislation, district attorneys must send notice to victims and discuss the case with them. Most dispositions now include victim-offender conferences. When advocates for youth with special needs become involved with juvenile delinquency proceedings they sometimes have difficulty persuading the court and the prosecuting attorney of the merit of their recommendations. Understanding the basic elements of the balanced approach to restorative justice (BARJ) can help in making proposals that are more effective. Those elements are echoed in the statement of legislative intent in Chapter 938: It is the intent of the legislature to promote a juvenile justice system capable of dealing with the problem of juvenile delinquency, a system which will protect the community, impose accountability for violations of the law and equip juveniles with competencies to live responsibly and productively. BARJ recognizes that effective juvenile justice plans have to balance three elements: safety, accountability and competency development. Advocates may sometimes be perceived as pursuing treatment and ignoring safety and accountability. Winning proposals immediately confront those two issues before showing how treatment will increase the youth s basic competencies or ameliorate the driving forces behind the misbehavior. It is usually less effective to argue simply that a youth should not be held accountable because of his/her special needs. As an extreme example, imagine an advocate arguing that a juvenile should not be held accountable for robbing a convenience store because the youth had ADHD (attention deficit hyperactivity disorder). The judge s response will likely be to ask the advocate if that means that every kid with ADHD is entitled to a get out of jail free card. A better response is to show how the treatment plan will allow the youth to make reparation for the crime, provide supervision and services to ensure that no additional criminal acts will occur, and treatment to improve the youth s ability to control inappropriate impulses. Child Welfare System - 167

20 WISCONSIN COALITION FOR ADVOCACY In the last five years, more and more youth with special needs have been placed in facilities in the juvenile justice system. Many advocates argue that this is the result of inadequate services in the child welfare and other human service systems. In many counties, the juvenile justice system has become the primary conduit for services for youth with complex needs. A large majority of the youth in juvenile corrections would qualify for special educational services based on cognitive, learning or emotional disabilities. Many suffer from mental disorders and have co-occurring problems with drugs and alcohol. A surprising number also have physical health problems. Yet options for meeting these needs remain limited and the negative impact of punitive interventions may be exacerbated because of the youths vulnerabilities. For advocates to make changes in this situation, they will have to find ways of reducing the perceived level of threat to safety that these youth generate in the community while demonstrating that their proposed services can reliably produce positive outcomes. STEP 4: Post-dispositional Reviews After the judge enters the initial dispositional order, Chapters 48 and 938 provide for a variety of review hearings so that the court can keep track of the case. There are four basic kinds of post-dispositional hearings: permanency plan reviews, change of placement reviews, dispositional reviews and extension hearings. In juvenile justice cases, a fifth kind of hearing, called a sanctions hearing can be held to see if a child should be punished for violating the terms of his/her court order. Permanency plan reviews Secs and , Wis. Stats. Permanency Planning Reviews Both the child welfare and the juvenile justice systems are required to do everything possible to ensure that children placed outside their homes do not remain in temporary situations like foster care for long periods of time. This effort must be documented in a permanency plan that describes the agency s goal for the child s permanent placement and the steps the agency will take to reach that goal. Every six months the statutes require a hearing to review the progress being made toward the goal. This hearing can occur with a judge in court or in front of an administrative review panel. The administrative review panel consists of three people approved by the court, at least two of whom do not work for the agency responsible for implementing the dispositional plan. At the hearing, the judge or the administrative review panel must examine: the continuing necessity for placing the child outside the home; the extent of compliance with the permanency plan by the agency, other service providers, the child and the child s parents; Child Welfare System

21 the extent of any efforts to involve additional appropriate service providers to help meet the special needs of the child and his/her parents; the progress toward eliminating the causes for the child s placement outside the home and either returning the child to his/her home or obtaining an alternative permanent community placement for the child; the date by which the child is likely to be returned home, freed for adoption or moved to some other alternative permanent community placement; if the child has been outside his/her home for 15 or more of the past 22 months, the appropriateness of the current permanency plan and the circumstances that prevent the child from going home, being freed for adoption through a voluntary or involuntary termination of parental rights, or being placed in sustaining care; and whether reasonable efforts were made by the agency to make it possible to return home. Reviews in the juvenile justice system Exceptions where reasonable efforts not required Secs (2d) and (2d), Wis. Stats. Permanency plan review important for advocacy for children with special needs Even when a child has been brought under the jurisdiction of the juvenile court for delinquent behavior, the statute still requires that treatment and services be provided to address the root causes of the misbehavior. The agency must do everything possible to return the child to his/her home. Thus, reasonable efforts are required even if the placement was done under Chapter 938. Reasonable efforts determinations are not required in aggravated circumstances such as torture or sexual abuse, or if the parent has already had parental rights of another child terminated. The challenging part of the reasonable efforts requirements is that parents of a misbehaving child must also comply with the requirements of the permanency plan, ultimately at the risk of termination of their parental rights. This can cause a great deal of frustration for parents of children with special needs that express themselves in challenging and uncontrollable behaviors. They may have been seeking help for years from a variety of systems without success, only to have things start rolling when their child is accused of a crime. Nonetheless, if the child is placed outside the home, they will be warned at every court hearing that if the conditions for return of the child are not met, they may be subject to termination of their parental rights. It should be noted that one of the requirements of the permanency plan review is an inquiry into whether adequate services to address the special needs of the child and parent have been sought and obtained. This provides an important forum for advocacy in both the child welfare and the juvenile justice systems. The panel conducting the Child Welfare System - 169

22 WISCONSIN COALITION FOR ADVOCACY review should look at how well interagency cooperation is taking place in support of the child and family and make suggestions if there are areas where improvement can occur. For a child with complex needs, necessary cooperation might include many agencies and services that may all have an effect on the reunification of the family. The permanency review panel must look at the conditions requiring the child s placement and whether those conditions have been overcome. When a key element of the conditions is the fact that the child s needs are more than the parent can manage, it sometimes feels like the panel is asking the parent to do the impossible. This can cause the review meeting to become highly emotional and threatening. On the other hand, we cannot say that a child with serious impairments has any less a right to a permanent home than other children. There is no way to make a review in a situation like this easy, but focusing on situations rather than blaming people is a good first step. The review can also have more balance if it begins by looking at the strengths of the child and parents before delving into the challenges they are facing. Any resolution that will meet the needs of the family and the child will have to build on their gifts and capacities rather than their faults and limitations. Another way to help make the review more effective is to take time to be creative about identifying strategies for achieving permanency in the child s family relationships. What are all the ways that those connections can be supported? When children have very complex and challenging needs, the classic alternatives of either return home or place for adoption may not make sense. Sometimes it takes the cooperation and energy of several families to provide safe and stable support and nurturing. The permanency plan review can also help by clarifying the reality of the circumstances of the child, the family and the support and services they are receiving. On paper, there may appear to be sufficient resources to ensure that the family can safely care for the child at home. At the review it may turn out that those services are inconsistent or provided in a way that makes it difficult for the child and family to take advantage of them. Especially with children that have complex needs, permanency has as much or more to do with creating a community context that insures stability for the child as it does with helping parents learn or use specific skills or behaviors. Adoption and Safe Families Act A new federal law, the Adoption and Safe Families Act (AFSA), was enacted with the specific requirement of reducing the length of time children spend in foster care. The details of AFSA are beyond the scope of this chapter, and in general, Wisconsin s existing laws are in fairly close compliance, but the philosophy or assumptions behind AFSA may raise some concerns for families with children with a high level of needs. The impact of AFSA should also be considered carefully when parents seek out foster care for their child. AFSA sets a Child Welfare System

23 15 month deadline for meeting the conditions for return of the child to the home and puts most of the burden of complying with that on the parents. Mandatory termination of parental rights if certain conditions apply Sec (1)(a)-(d), Wis. Stats. Judges are now required to state why termination of parental rights is not in the child s best interest when s/he has been in alternative care for over 15 months. One assumption behind this deadline is that most of the changes needed to reunify families are those the parents must make, the other is that child welfare services should be short term, with primary goals of treatment and repair. The repair philosophy works this way: If a child is placed outside the home, something must be broken. The purpose of child welfare services is to fix the things that are broken. When they are restored, the child should be able to return. If they can t be fixed within 15 months, that creates a presumption of irreparability and the focus should shift to finding another place for the child to live. Families and advocates may encounter child welfare systems operating strictly from this perspective. In fact, there is flexibility in the law. Review panels can decide that there are special circumstances which indicate that the best interests of the child are better met by a continuation of the current process. The presence of these circumstances allows an expanded time line. Some children s conditions are such that under our current technology we have no tools for eliminating the challenges they present. The best we can do is learn how to manage the challenges so as to keep the child from hurting himself or others and to ensure that the child is able to live a positive life in the community with reliable involvement with family and friends. Change of placement and dispositional review hearings Secs and.363 and and.363, Wis. Stats. Extension hearings Secs and , Wis. Stats. Sanctions hearings Secs (6d), (6g) and (6m), Wis. Stats. Other Reviews and Hearings Hearings to change aspects of the court order besides the placement of the child are called review hearings. Hearings to change placement are called, appropriately, change of placement hearings. Everyone involved has to have notice of these hearings, but if everyone agrees to the changes, the hearing can be waived. Most court orders only last one year. (Some juvenile justice orders in serious cases can last longer.) For any order to continue after the date it is scheduled to expire, an extension hearing must be held where the court reviews everything that has happened during the term of the order. The court must then decide whether there is sufficient cause to continue jurisdiction over the child and family and whether the terms of the court order should be changed. If the court does decide to continue jurisdiction, an extension order with all the new conditions must be entered. In juvenile justice proceedings, a fifth kind of hearing can be held. If the child violates the dispositional order, s/he can be brought back to court for a sanctions hearing. Sanctions can include placing the child in secure detention for up to 10 days for each violation. If a child who has been adjudged delinquent violates a court order, s/he can be put into Child Welfare System - 171

24 WISCONSIN COALITION FOR ADVOCACY secure or non-secure detention, or jail in certain circumstances, for up to 72 hours without any hearing. TPR Sec , Wis. Stats. Child in continuing need of protection and services Sec (2), Wis. Stats. Termination of Parental Rights and Adoption Termination of Parental Rights Termination of parental rights (TPR) is a separate action from the other child welfare proceedings. It is started with its own petition and has its own plea, fact and dispositional hearings. However, TPR and adoption may follow regular child welfare proceedings when it has been determined that the child cannot be returned to his/her parents and should instead be freed for adoption. There are two basic TPR proceedings: voluntary and involuntary. As the name implies, a voluntary proceeding is one where a parent gives his/her consent to the termination, usually so that the child can be freed for adoption by another family. An involuntary TPR is an adversarial proceeding in which an agency tries to terminate the parent s rights although the parent objects. This would be done when the agency decides that the parent will never be able to care for the child. Although the statute lists 11 grounds for involuntary TPR, the basis used most frequently in child welfare actions is the continuing need of protection and services. To prove that a child is in continuing need of protection and services six elements are necessary: first, the child has to have been found to be in need of protection and services in a child welfare proceeding and placed outside of his/her home pursuant to a court order; second, this order must have contained a warning to the parents that if they fail to meet the conditions for return of the child they could ultimately be at risk of termination of their parental rights; third, the agency responsible for services after the child was placed outside the home must have made a reasonable effort to provide the services ordered by the court; fourth, the child must have been placed outside the home for a cumulative total period of 6 months or more or longer; fifth, the parents must have failed to meet the conditions established in the court order for the safe return of the child to the parent s home; and sixth, the court must find that there is a substantial likelihood that the parent will not meet those conditions within the 12 month period following the hearing on the petition for the TPR. Grounds for involuntary TPR Other grounds for involuntary TPR include abandonment, continuing parental disability, continuing denial of periods of physical placement or visitation, failure to assume parental responsibility, incestuous Child Welfare System

25 parenthood, intentional or reckless homicide of a parent, parenthood as a result of sexual assault, commission of a serious felony against one of the person s children, and prior involuntary termination of parental rights to another child. Proving that a TPR is appropriate Proving that grounds exist for a TPR is necessary but not sufficient to obtain an order of termination. At the dispositional phase of the process, it must also be shown that TPR is in the best interest of the child in light of several factors: the likelihood of adoption after TPR, the age and health of the child now and at the time the child was removed from the parents home, whether the child has substantial relationships with the parent or other family members and whether it would be harmful to the child to sever those relationships, the wishes of the child, the duration of separation of the parent from the child, and whether the child will be able to enter into a more stable and permanent family relationship as a result of the termination, taking into account the conditions of the child s current placement, the likelihood of future placements and the results of prior placements. A court order terminating parental rights permanently severs all rights, powers, privileges, immunities, duties and obligations existing between a parent and a child. This includes all relationships the child has through the parents with grandparents, uncles and aunts. The rights of both the mother and the father must be individually terminated before a child is free for adoption. Even if one of the parents is unknown, or cannot be found, the court must hold a hearing to make sure that the identity of the parent can t be determined or that the missing parent can t be tracked down. Sustaining Care Sec , Wis. Stats. The Child Welfare Code has one alternative to adoption following a TPR. If a child s parental rights have been terminated, but the court finds that the child is unlikely to be adopted, or that adoption is not in the child s best interests, the child can be placed in a permanent foster home under an arrangement called sustaining care. In this arrangement, the foster parent agrees to provide care for the child until the child s 18 th birthday. A supervising agency is given guardianship of the child but day to day power to consent to health care, education and similar decisions is given to the foster parents. The child must have lived with the foster parents for at least 6 months before a sustaining care relationship can be established. One reason for using sustaining care might be that the foster parents are unwilling to adopt a child with extraordinary needs because of the long term liability for the costs of the child s medical, mental health and other types of treatment. Children do not have to have the parental rights of their parents terminated in order to be placed in a sustaining care relationship. All that is required is that guardianship of the child has been transferred to someone other than the parents. Child Welfare System - 173

26 WISCONSIN COALITION FOR ADVOCACY Adoption is a separate legal action Sec , Wis. Stats. The Process of Adoption Adoption is a separate legal action from a child welfare or TPR proceeding. To be free for adoption a child s birth parents must be dead or have had their parental rights terminated. The adoption proceeding is started with its own petition. A number of different kinds of adoption procedures are used in Wisconsin. All create a permanent parent-child relationship, but they vary based on the way the adoption was arranged, and on the prior relationship between the child and the adoptive parents. Adoptions can be done independently or through agencies The four stages of an adoption proceeding Pre-placement studies Relative adoptions Out of state and foreign adoptions Finalization of the adoption Adoption hearings Child Welfare System Adoptions may be done through agencies or independently. Step parents and relatives may also adopt children. Finally, there are procedures that are used when residents of Wisconsin adopt children from other states and other countries. This chapter will only discuss adoption procedures briefly. An attorney experienced in adoptions should be consulted on particular questions. Four stages occur in most adoptions: a pre-placement study, a placement for adoption, a post-placement study and the finalization of the adoption. When a non-relative is adopting a child, a pre-placement study of the home is required by law, and the placement cannot be made without a court order, unless the placement is being made by an adoption agency. The study can be conducted by almost any child welfare agency, even county departments of social services that are not licensed to make adoptions. A birth parent can place a child with a relative for adoption without a court order or a pre-placement study. A number of conditions must be met before a child from out of state or especially one from a foreign country can be adopted. The proposed adoptive parents must have documents valid under the laws of the other state or country freeing the child for adoption and appointing the proposed adoptive parents as guardians for the child. The adoptive parents must also post a bond with the state Department of Health and Family Services as a guarantee that the child will not become dependent on public funds for his/her primary support before he or she is adopted. Federal law also requires a home study prior to the entry of a child into the United States for adoption. Once a child is placed for adoption, a petition to finalize the adoption is filed, and the court will schedule a hearing on the petition. The child must have lived in the home of the proposed adoptive parent(s) for 6 months unless it is a step parent, relative, or foreign adoption, or the guardian of the child has consented to a shorter time period. The hearing on the petition for adoption must occur within 90 days of the filing of the petition. Prior to the hearing a pre-adoptive investigation must be conducted and a report filed with the court

27 concerning the appropriateness of the adoption. If there is evidence in the report that the adoption may not be in the child s best interests, a lawyer is appointed as guardian ad litem for the child to further investigate the matter and present evidence to the court on whether the adoption should occur. At the final hearing on adoption the court must check to make sure that all the necessary consents or recommendations have been filed, that the child is legally free for adoption, and that the adoption is in the best interests of the child. If so, the court may make an order granting the adoption. Financial support to families adopting children with special needs Sec , Wis. Stats. Maintenance payments Medicaid coverage Reimbursement of adoption costs Weaknesses of the adoption assistance program Adoption Assistance Agencies that arrange special needs adoptions will tell you that there is a home out there for every child. The job is finding that family to let them know that their child is waiting. However, even when that family has been found, another stumbling block may emerge the cost of care a family may be taking on by adopting the child. To help overcome that barrier, Wisconsin has established a procedure known as subsidized adoption. In a subsidized adoption, the adoptive parents can receive maintenance payments just as if they were foster parents. The amount of the maintenance payments is based on how much the parents received or would have received if they were foster parents. Foster care rates are set using a point system that measures the degree of challenge a child presents to caregivers across domains such as physical needs, health care, behavioral difficulties, cognitive impairments and emotional and mental health issues. If the prospective adoptive parents are already the child s foster parents, then the rates they are already receiving can be the basis for calculating the ongoing adoption subsidy. If they are new to the relationship, the rate is determined as if they were going to be foster parents. The rate may be limited based on a family s assets. The child is also eligible for Wisconsin Medicaid to cover his/her medical expenses. This assistance is accomplished by allowing the child to continue to be eligible for a Medicaid card after adoption, even if the adoptive parents do not meet the income eligibility requirements for that program. Adoptive children are also usually covered by their parents private insurance. Private insurance will be charged first for most expenses. A third resource available through the adoption assistance program is a one time payment of up to $2,000 to cover the cost of the adoption process. There are limitations to the benefits of the adoption assistance program. First the rate is set at the time of adoption and does not increase with the child s age as a foster care rate would. Second, the rate is set based on the current needs observed in the care of the child and currently cannot be adjusted to account for impairments that are discovered as the child grows older, such as learning disabilities, late Child Welfare System - 175

28 WISCONSIN COALITION FOR ADVOCACY emerging genetic disorders or emotional disabilities. Third, potential adoptive parents sometimes have to ask to participate in the program. There have been circumstances where the families weren t told that they might be eligible for this assistance. Fourth, the subsidy may not cover extraordinary costs of care that are also not covered by the parents insurance or by Medicaid. For example, if the child requires placement in foster care or residential treatment, the parents may be charged a certain percentage of their income to cover the cost of that care, even though the charge exceeds the adoption subsidy. The program also does not include coverage for potential liability the adoptive parents may incur due to the behavior of child. Finally, although there are some post-adoptive resources available, the adoption assistance program does not include many of the services that might be available if the child were still in the child welfare or juvenile justice system. These might include options such as respite, counseling, crisis intervention and assistance with advocacy in the educational system. Despite these limitations, subsidized adoption is the keystone of permanency planning for children with special needs. Many children with special needs are placed through this program every year. The availability of adoption assistance is rarely the sole reason for adoption. The real benefit comes from discovering the gifts hidden within children with special needs that can be unwrapped only through unselfish care and dedication of their adoptive parents. The Department of Health and Family Services has developed rules for the operation of the program. Anyone interested should contact the Division of Children and Families Services, Office of Adoption Assistance at Appealing decisions related to adoption assistance HFS , Admin. Code The rules for adoption assistance are contained in administrative code Chapter 50. It covers the rules for eligibility for the program and the ways adoptive parents can appeal unfavorable decisions about adoption assistance. Wisconsin places a 3 year limitation on appeals. The administrative rule reads that adoptive parents must appeal within 3 years of the time they knew or reasonably should have known about the circumstances leading to a need for a review of the decision. The meaning of reasonably should have known is not defined, but it places an additional burden of proof on the parents. Circumstances that might be the basis for an appeal can include: 1. Facts regarding the child, the child s biological family or the child s background that were relevant to the proposed adoption and were known to those arranging the adoption but not disclosed to the adoptive family; Child Welfare System

29 2. Adoption assistance was denied based upon a means test of the adoptive family; 3. The Department erroneously determined that the child was ineligible for adoption assistance; or 4. The adoptive parents were not advised by the department about the availability of adoption assistance. Appeals under HFS 50 are held before administrative hearing officers rather than in court. The Department of Health and Family Services will be represented by an attorney vigorously defending the department s position at these hearings. The Special Needs Adoption Network Post-Adoption Resource Centers Laws relating to records and confidentiality are confusing To facilitate the adoption of special needs children throughout Wisconsin, the legislature has authorized the Department of Health and Human Services to support the operation of the Special Needs Adoption Network. The network provides statewide access to information about children available for adoption and offers detailed information, assistance and referrals for families who are interested in special needs adoption. The network publishes Adopt!, a monthly magazine featuring pictures and stories of children waiting for adoptions. They also have an excellent web site with information and linkages to many other resources. They can be reached at Wisconsin is developing five regional post-adoption resource centers offering assistance to families that have adopted special needs children. The above web site for the special needs adoption network contains a map showing the geographical areas served by each center and contact information. Confidentiality of Records Wisconsin s (and the nation s) statutes on records and confidentiality are complex, contradictory, scattered, numerous and confusing. The laws affecting records in every human service and educational system are different and there is no general guideline for aligning them. So, different rules apply depending upon who created the report or record. Some of these rules governing confidentiality are in state statutes, some are in administrative codes, some are the result of case law created through appellate court decisions, some are in federal laws and regulations and some are general rules of thumb or customs without specific written authority. For this reason, a general discussion of records and confidentiality is beyond the scope of this chapter. However, it is possible to summarize some of the provisions on records and confidentiality in the current juvenile and children s codes, as long as the reader recognizes that even Child Welfare System - 177

30 WISCONSIN COALITION FOR ADVOCACY these basic provisions are enforced differently in every county and are understood to a greater or lesser degree by each person working in the child welfare and juvenile justice systems. Social service agency records Secs and , Wis. Stats. The way records laws in Wisconsin work is that there is usually a general provision stating that records are confidential followed by a long list of exceptions to that rule. Sections and use that pattern. The general rule is that No agency may make available for inspection or disclose the contents of any record kept or information received about an individual in its care or legal custody except. (followed by a number of exceptions). A general exception that applies to most records is that the information in a record can be disclosed if a court orders it. Other examples of major exceptions are that records can be released upon the request of a parent or a child, if the child is over the age of 14, unless release of the record would result in imminent danger to anyone. Another exception is that the parent or child over the age of 14 can give his/her permission to other people to see the record, again unless it would result in imminent danger. Another general exception is that relatively open exchange of information is allowed between social welfare agencies, law enforcement agencies, and public and private schools. The law states that once a record has been passed between one agency and another, the receiving agency must abide by the confidentiality provisions that applied to the first agency. Juvenile justice records of youth who received correctional placements as dispositions can be released to the Department of Corrections to be used in pre-sentencing investigations in adult correctional proceedings. Records of juveniles charged with sexually aggressive crimes can be released as part of sexual predator determinations and public warnings. Law enforcement records Secs (1) and (1), Wis. Stats. Juvenile court records Secs (2) and (2), Wis. Stats. The statutes also require law enforcement records relating to children to be kept confidential, except when an exception applies. Some of the exceptions are that news reporters can see juvenile records and use the information in news stories if they don t reveal the identity of the child. However, there is no specific penalty if they do reveal the child s identity, as sometimes happens. Law enforcement records can also be shared with schools, other law enforcement agencies and social welfare agencies. As with agency records, parents and children over 14 can give permission to other people to view a child s records, but the imminent harm phrase in Sections and , Wis. Stats. is not present. As with the other records, juvenile court records are closed and confidential, except when there is an exception or when the court authorizes their release. Parents and children 14 and older can give Child Welfare System

31 permission for release, but the imminent harm provision is again present. The court records section also contains the procedures for petitioning a court to provide access to records. Access to records Generally speaking, a legal advocate for a party in a juvenile court action, including guardians ad litem, can obtain access, if not always copies, of records relating to their clients. To be safe, an attorney for an adult parent should obtain written permission for access from the parent. Depending on practice in a given county, guardians ad litem may obtain access simply by showing the court order appointing them to their role, although sometimes a separate court order allowing access may be required. Non-attorney advocates can often obtain access with a written permission from an adult or child of 14 or older, but in some jurisdictions they may encounter oversight that is more stringent and may need court authorization. If a child has a juvenile court record, especially a juvenile justice record, most agencies and schools can get a copy of it, either directly or after jumping through a few hoops. This is a factor parents may want to keep in mind when they consider using the court as leverage for obtaining services for a child with complex needs. A parent may have no other choice, but sometimes parents get advice that implies that going through the court is the fastest, safest way to get services. This advice should be taken with caution. First, there is no guarantee that some services will be available, even with a court order. Second, a delinquency finding could have a long term impact on the child s ability to get a job, get into a school, obtain certain types of insurance or enter the military. Expungement of record Unlike some other states, Wisconsin does not have a specific law regarding expungement of records. Expungement means destroying the records so that no evidence that the child was under the jurisdiction of the court or had been apprehended by law enforcement remains. In some counties, judges have authorized expungement under their general powers of supervision over juvenile court matters. This was done more frequently in the past than currently. Legal advocates should examine case law on expungement before proceeding. However, for good cause an advocate may attempt to petition the court for expungement. This petition should explain the special circumstances that apply in the situation, the harm that might occur without expungement, and why expungement would not create any risk to other people or the community. Child Welfare System - 179