Presented by: Victoria Davis, Pledl & Cohn, S.C., Milwaukee, WI

TODAY’S TOPICS Relevant Statutes and Case Law – Outline Procedure & Practice Tips – Atty. Neitzke

Chapter 48 Guardianships Child must be subject to one or more CHIPS orders Filing TPR must not be in child’s best interest Department has made reasonable efforts to reunify Lasts until age 18 unless court terminates earlier Parent may petition for termination, but must prove fitness, substantial change in circumstances and that termination is in the child’s best interests

Chapter 48 Guardianships – Continued Time limits may be extended upon a showing of good cause

Chapter 54 Guardianships Covers minors, incompetence, spendthrifts Juvenile court has exclusive jurisdiction – sec (2)(b) Private actions Guardianship of person and estate Statute limits powers of guardian Different notice and time limit requirements Has its own forms

Ch Notice Petition and notice of hearing must be served upon the following personally, by certified mail with return receipt, or by facsimile Proposed ward’s spouse, if any Proposed ward’s parent, unless there has been TPR The proposed ward, if ward is over 14 Any other person with legal or physical custody of the minor Notice must be served within 10 BUSINESS days

Powers of Guardian of Minor Unlike guardianship due to incompetency, the guardianship over a minor will generally be “full.” Guardian assumes care and custody of the minor, and as such makes all major decisions for the child

Temporary Guardianship Can be done in emergency situations Some leeway with notice (including after the hearing if necessary) GAL must meet with child before hearing if possible; if not, within 7 days of hearing

Co – or Standby Guardians Court can appoint co-guardians (i.e. grandma AND grandpa) Co-guardians must concur unless order states otherwise Standby guardians – nominated in event guardian cannot act Must interview this person – you never know what will happen

Hearing Must be heard within 90 days of filing See e.g. In the Matter of the Guardianship and Protective Placement of Elizabeth L., Unpublished, Appeal No. 2011AP152 Court loses competency to act after 90 days No procedure to extend time limits i.e. Ch. 48

Standard Found in case law – most important case is Barstad v. Frazier, 118 Wis.2d 549 (1984). “Best Interests” is not the standard Parent must be unfit or unable to care for kids OR Compelling reasons must exist

Compelling Reasons Abandonment Persistent Neglect of Parental Responsibilities Extended Disruption of Parental Custody Other similar extraordinary circumstances that would affect welfare of child

Barstad Principles Not within court’s power to displace fit and willing parent simply because someone else could do a “better job” of a parent If best interests were the standard, in most cases parents cannot compete on an equal level with established older relatives Financially Emotionally Physically

Other case law Barstad was a 767 case Jenae K.S. applied Barstad to guardianship under Ch. 880 Ch. 54 came about – 2005 Nicholas C.L. and Clive R.O. apply Barstad principles to Ch. 54 guardianships James D.K. discusses burden of proof on person seeking guardianship when a parent is objecting; clarifies extraordinary circumstances

Alternative to guardianship? “Day to day interactions between parent and child are bound to be diminished if not eliminated where the parent comes on the scene as a court-permitted visitor” – Barstad, 118 Wis. 2d 549 at 555. Consider whether POA under will help Lasts for up to one year Allows parent to delegate powers

Parental Visitation Court has equitable power to order visitation Statute does provide for grandparent or stepparent visitation

Post-Petition Proceedings Court has continuing jurisdiction Statute provides for review of conduct of guardian proceedings Termination under certain circumstances enumerated

Parent initiated termination No statutory procedure Barstad standard is applied See cases cited in outline Generally, the length of the guardianship is not considered a “Compelling circumstance” to keep guardianship in place.

Duties of GAL Appointed when there is a petition for guardianship, review of conduct of guardian, termination proceedings, and any other time the court thinks it’s necessary

Qualifications Under SCR 35 Local Rule 5.1 – must complete questionnaire, statement of compliance, statement of compliance with SCR If less than 5 years GAL experience, meet with Waukesha Juvenile Court Mentor Committee

Responsibilities Advocate for your ward Function independently That means being prepared to advocate for your ward at a contested hearing You may not be completely aligned with either side Consider the wishes of your ward and others regarding ward’s best interest But you are not bound by them

Duties – in the Statute Meet with your ward Advise of rights Interview proposed guardian and standby guardian, for purposes of determining suitability Make required notifications in sec File your guardian ad litem report, Form GN-3325

Duties Gather information Speak with birth parents Obtain necessary releases Look into proposed guardian – CCAP, other resources See the child in the proposed environment with proposed guardian

Fees Compensation for duties required under 54.40(4) and any other acts approved by court/reasonably necessary to promote ward’s best interests See Local Rules in the Appendix Parties pay a deposit set by the court

Changes in the Wind? 2011 SB 560 introduced – good authority that it will be reintroduced Moves minor guardianships into Ch. 48 Different types of guardianships Changes rules for termination of guardianship to be more reflective of current ch. 48, i.e. substantial change in circumstances Other substantial changes – keep an eye out