48.217 Change in placement; child or expectant mother held in custody.

(1) Request by intake worker, agency responsible for custody order, or prosecutor.

(a) Applicable procedures.

1. Except as provided in subd. 2., the intake worker, the agency primarily responsible for providing services under a temporary physical custody order under s. 48.21 (4) or 48.213 (3), the district attorney, or the corporation counsel may request a change in the placement of the child or expectant mother who is the subject of the order as provided in this subsection, whether or not the change requested is authorized in the order.

2. A change in the placement of a child from a placement in the home to a placement outside the home may only be made as provided in s. 48.21 (6). A change in the placement of an adult expectant mother from a placement in the home to a placement outside the home may only be made as provided in s. 48.213 (5).

(b) Notice; information required.

1.

a. The intake worker, the agency primarily responsible for providing services under a temporary physical custody order, the district attorney, or the corporation counsel may request a change in placement under this subsection by causing written notice of the proposed change in placement to be sent to the child, the child's counsel or guardian ad litem, the parent, guardian, and legal custodian or Indian custodian of the child, any foster parent or other physical custodian described in s. 48.62 (2) of the child, and the child's court-appointed special advocate.

b. If the child is the expectant mother of an unborn child under s. 48.133, written notice of the proposed change in placement shall also be sent to the unborn child's guardian ad litem. If the change in placement involves an adult expectant mother of an unborn child under s. 48.133, written notice of the proposed change in placement shall be sent to the adult expectant mother, the physical custodian of the adult expectant mother, and the unborn child's guardian ad litem.

2. The notice shall contain the name and address of the new placement, the reasons for the change in placement, and a statement describing why the new placement is preferable to the present placement. The person sending the notice shall file the notice with the court on the same day that the notice is sent.

(c) Hearing; when required. Any person receiving the notice under par. (b), other than a court-appointed special advocate, may obtain a hearing on the matter by filing an objection with the court within 10 days after the notice is sent to that person and filed with the court. Except as provided in par. (d), if an objection is filed within 10 days after that notice is sent and filed with the court, the court shall hold a hearing prior to ordering any change in placement. At least 3 days before the hearing, the court shall provide notice of the hearing to all persons who are required to receive notice under par. (b). If all parties consent, the court may proceed immediately with the hearing. Except as provided in par. (d), if no objection is filed within 10 days after that notice is sent and filed with the court, the court shall enter an order changing the child's placement as proposed in that notice. Except as provided in par. (d), placements may not be changed until 10 days after that notice is sent and filed with the court unless written waivers of objection are signed as follows:

1. By the parent, guardian, legal custodian, or Indian custodian of the child and by the child, if 12 years of age or over.

2. By the child expectant mother, if 12 years of age or over, her parent, guardian, legal custodian, or Indian custodian, and the unborn child's guardian ad litem.

3. By the adult expectant mother and the unborn child's guardian ad litem.

(d) When hearing not required. Changes in placement that were authorized in the temporary physical custody order may be made immediately if notice is given as required under par. (b). A hearing is not required for changes in placement authorized in the temporary physical custody order except when an objection filed by a person who received notice alleges that new information is available that affects the advisability of the order.

(e) Contents of order. If the court changes a child's placement from a placement outside the home to another placement outside the home, the change-in-placement order shall contain the applicable order under sub. (2v) (a), the applicable statement under sub. (2v) (b), and the finding under sub. (2v) (c).

(2) Emergency change in placement. If emergency conditions necessitate an immediate change in the placement of a child or expectant mother placed outside the home under a temporary physical custody order under s. 48.21 (4) or 48.213 (3), the intake worker or agency primarily responsible for providing services under the order may remove the child or expectant mother to a new placement, whether or not authorized by the existing order, without the prior notice under sub. (1) (b). Notice of the emergency change in placement shall be sent to the persons specified in sub. (1) (b) 1. within 48 hours after the emergency change in placement. Any party receiving notice may demand a hearing under sub. (1) (c). In emergency situations, a child may be placed in a licensed public or private shelter care facility as a transitional placement for not more than 20 days or in any other placement authorized under s. 48.207, 48.208, or 48.209.

(2m) Request by others.

(a) Request; information required.

1. Except as provided in subd. 2., the child, the child's counsel or guardian ad litem, the parent, guardian, legal custodian, or Indian custodian of the child, the expectant mother, or the unborn child's guardian ad litem may request a change in the placement of the child or expectant mother who is the subject of the order as provided in this subsection. The request shall contain the name and address of the new placement requested and shall state what new information is available that affects the advisability of the current placement. The request shall be submitted to the court. The court may also propose a change in placement on its own motion.

2. A change in the placement of a child from a placement in the home to a placement outside the home may only be made as provided in s. 48.21 (6). A change in the placement of an adult expectant mother from a placement in the home to a placement outside the home may only be made as provided in s. 48.213 (5).

(b) Hearing; when required.

1. The court shall hold a hearing prior to ordering any change in placement requested or proposed under par. (a) if the request or proposal states that new information is available that affects the advisability of the current placement. A hearing is not required if written waivers of objection to the proposed change in placement are signed by all persons entitled to receive notice under subd. 2., other than a court-appointed special advocate, and the court approves.

2. If a hearing is scheduled, at least 3 days before the hearing the court shall notify the child, the child's counsel or guardian ad litem, the parent, guardian, and legal custodian or Indian custodian of the child, the agency primarily responsible for providing services under the temporary physical custody order, the district attorney or corporation counsel, any foster parent or other physical custodian described in s. 48.62 (2) of the child, and the child's court-appointed special advocate. If the child is the expectant mother of an unborn child under s. 48.133, the court shall also notify the unborn child's guardian ad litem. If the change in placement involves an adult expectant mother of an unborn child under s. 48.133, at least 3 days before the hearing the court shall notify the adult expectant mother, the unborn child's guardian ad litem, the agency primarily responsible for providing services under the temporary physical custody order, and the district attorney or corporation counsel. A copy of the request or proposal for the change in placement shall be attached to the notice. If all parties consent, the court may proceed immediately with the hearing.

(c) Contents of order. If the court changes the child's placement from a placement outside the home to another placement outside the home, the change-in-placement order shall contain the applicable order under sub. (2v) (a), the applicable statement under sub. (2v) (b), and the finding under sub. (2v) (c).

(2r) Removal from foster home or other physical custodian. If a hearing is held under sub. (1) (c) or (2m) (b) and the change in placement would remove a child from a foster home or other placement with a physical custodian described in s. 48.62 (2), the court shall give the foster parent or other physical custodian a right to be heard at the hearing by permitting the foster parent or other physical custodian to make a written or oral statement during the hearing or to submit a written statement prior to the hearing relating to the child and the requested change in placement. A foster parent or other physical custodian described in s. 48.62 (2) who receives notice of a hearing under sub. (1) (c) or (2m) (b) and a right to be heard under this subsection does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and right to be heard.

(2v) Change-in-placement order. A change-in-placement order under sub. (1) or (2m) shall contain all of the following:

(a) If the change-in-placement order changes the placement of a child who is under the supervision of the county department or, in a county having a population of 750,000 or more, the department to a placement outside the home, an order ordering the child to be continued in the placement and care responsibility of the county department or department as required under 42 USC 672 (a) (2) and assigning the county department or department continued primary responsibility for providing services to the child.

(b) If the change-in-placement order changes the placement of the child to a placement outside the home recommended by the agency primarily responsible for providing services under the temporary physical custody order, a statement that the court approves the placement recommended by that agency or, if the change-in-placement order changes the placement of the child to a placement outside the home that is not a placement recommended by that agency, a statement that the court has given bona fide consideration to the recommendations made by that agency and all parties relating to the child's placement.

(c) If the change-in-placement order changes the placement of the child to a placement outside the home and if the child has one or more siblings, as defined in s. 48.38 (4) (br) 1., who have been placed outside the home or for whom a change in placement to a placement outside the home is requested, a finding as to whether the intake worker, the county department, the department in a county having a population of 750,000 or more, or the agency primarily responsible for providing services under the temporary physical custody order has made reasonable efforts to place the child in a placement that enables the sibling group to remain together, unless the court determines that a joint placement would be contrary to the safety or well-being of the child or any of those siblings, in which case the court shall order the intake worker, county department, department, or agency to make reasonable efforts to provide for frequent visitation or other ongoing interaction between the child and the siblings, unless the court determines that such visitation or interaction would be contrary to the safety or well-being of the child or any of those siblings.

(3) Prohibited placements based on homicide of parent.

(a) Prohibition. Except as provided in par. (c), the court may not change a child's placement to a placement in the home of a person who has been convicted of the homicide of a parent of the child under s. 940.01 or 940.05, if the conviction has not been reversed, set aside, or vacated.

(b) Change in placement required. Except as provided in par. (c), if a parent in whose home a child is placed is convicted of the homicide of the child's other parent under s. 940.01 or 940.05, and the conviction has not been reversed, set aside, or vacated, the court shall change the child's placement to a placement outside the home of the parent on petition of the child, the child's counsel or guardian ad litem, the guardian or legal custodian of the child, the agency primarily responsible for providing services under the temporary physical custody order, or the district attorney or corporation counsel of the county in which that order was entered, or on the court's own motion, and on notice to the parent.

(c) Exception. Paragraphs (a) and (b) do not apply if the court determines by clear and convincing evidence that the placement would be in the best interests of the child. The court shall consider the wishes of the child in making that determination.

(4) Expectant mother; placement outside the home. The court may not change the placement of an expectant mother of an unborn child alleged to be in need of protection or services from a placement in the expectant mother's home to a placement outside of the expectant mother's home unless the court finds that the expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her.

(6) Effective period of order. A change-in-placement order under this section remains in effect until a dispositional order is granted or a consent decree is entered into, the petition under s. 48.25 is withdrawn or dismissed, or the order is modified or terminated by further order of the court.

History: 2015 a. 373; 2017 a. 365 s. 111.