What Every Wisconsin Foster Parent Should Know about Changes in Placement of Foster Children
By Lori S. Kornblum, J.D.
10926 N. Port Washington Road, #296, Mequon, WI 53092
Suppose you are a foster parent, licensed in the State of Wisconsin. You hear rumblings that your case manager is planning to move a child or children, either back to a parent, or to a family placement, or to another foster
Q What is a Change in Placement?
A Change in Placement is simply a move of a foster child from one placement to another placement.
Q What laws govern Changes in Placement?
In Wisconsin, we have two statutes, or laws, that govern Changes in Placement. The first is Wisconsin Statutes section 48.357 (Wis. Stats. §48.357). That statute is the general Change in Placement statute under the Wisconsin Children’s Code (Wisconsin Statutes Chapter 48). All laws relating to child protection are under Chapter 48.
The second statute indirectly concerns changes in placement, Wisconsin Statutes section 48.64 (Wis. Stats. §48.64). That is the statute that allows Foster Parents to challenge a Change in Placement indirectly, by challenging the removal of a child from their care.
Q How do these statutes relate to each other?
The two statutes are similar in that they both allow challenges to changes in placement.
However, they are very different in their outcomes and in the rights that Foster Parents have to challenge them.
Challenging a Change in Placement under §48.357 brings the matter into the circuit court. If the judge decides that the agency or department should NOT change the placement, the child either stays in your placement or is returned. That is, section 48.357 gives the person deciding the case (the judge) the power to prevent the move of a child or return the child.
Challenging a Change in Placement under §48.64 brings the matter into the Administrative arena. A foster parent has the right to a “fair hearing,” which an Administrative Law Judge (ALJ) hears. This can be a contested case with evidence. However, at the end of the case, the ALJ only has the power to determine whether the Department or agency had sufficient information and facts to have moved the child. The ALJ has no power to prevent a Change in Placement or to return a child.
Q Do Foster Parents have the right to file a Change in Placement?
The short answer is “no.” Only certain persons, including the agency in charge of the case, can file.
Q Do Foster Parents have the right to object to a Change in Placement?
Yes, Foster Parents can object to a Change in Placement. Foster Parents have the right to receive the notice of Change in Placement, and must file a written objection if they object.
Q What are the timelines for objecting?
Anyone who receives notice of a Change in Placement has 10 days to file a written objection with the court. That deadline is 100% firm. The court cannot change the deadline because a notice got lost in the mail, or because a person forgot to send it. The statute is structured so that in the ordinary case, the agency will file the Notice of Change in Placement before moving the child. If nobody files an objection within 10 days, the agency can move the child at 10 days. If someone files an objection, the court sets a hearing and the agency cannot move the child unless there is an emergency.
The exception is when there is an emergency. For an emergency Change in Placement, the agency can move the child and file the notice within 48 hours. Anyone receiving notice still has the right to object within 10 days, but the court would need to move the child back if the court decides against the agency.
Q What are the Foster Parent’s rights at a hearing contesting a Change in Placement under Wis. Stats. §48.357?
A Foster Parent has very limited rights at a hearing on a Change in Placement. A Foster Parent only has the right to make an oral statement at the hearing, and submit a written statement. The Foster Parent does not have the right to discovery, meaning the Foster Parent does not have the right to see any evidence that the agency has supporting the Change in Placement. (Wis. Stats. §48.357(2r))
Q What are the Foster Parent’s rights at a hearing under Wis. Stats. §48.64?
A Foster Parent has broader rights under §48.64. This is a full-blown due process hearing on the suitability of the Foster Parent for that child(ren). Thus, the Foster Parent has the right to any evidence on which the agency is relying. However, the Foster Parent only gets that evidence a few days before the hearing. In addition, recall that even if the Foster Parent wins the hearing, the child is not returned.
Q Given these statutes, what should a Foster Parent do who objects to a Change in Placement?
These are the steps that I would recommend taking:
- File a written Objection to Change in Placement in court for each child affected, in each court that has a case. Remember that the standard is “best interests of the child.” If you are disappointed that a child is removed from your home, but you know that the child is going to be placed with siblings and the placement is good, then you might not want to object.
Also state in your Objection that you are filing this “pursuant to Wis. Stats. §§48.357 and 48.64, and you are requesting the court to take jurisdiction over the case under Wis. Stats. §48.64.”
Why this language? Wis. Stats. §48.64 states that the court “may” hear cases under that statute. If the court decides to hear both cases together, you have the benefit of having a full contested hearing before the judge who is going to make the orders, and has the power to keep the child in your care. You have much more of a chance if someone else, such as a parent, or Assistant District Attorney or Corporation Counsel or GAL, agree with you. You have almost no chance if you are standing alone, especially if the removal of the child affects other children who have cases in other courts.
- File your Objection to Change in Placement immediately, because you only have 10 days. The Objection can be very simple, such as “I, the Foster Parent,” object to the Change in Placement.” The Objection also can be very detailed, such as explaining why you object. In my experience, filing a more detailed objection is better because then you show that you are looking for the best interests of the child. If you have information that the child is being physically, sexually abused or neglected in the home to which the agency is proposing to move the child, write that information in your objection. If you have photos, hospital or doctor records, police reports, etc., attach copies of them.
- Also file an administrative appeal with the Department on Administration, Division of Hearings and Appeals, under Wis. Stats. §48.64.
- Contact the GAL (Guardian ad Litem) in the case to find out what they think, and to tell them what you know.
- Contact the Assistant District Attorney in the case or the Assistant Corporation Counsel (depending on your county) case to find out what they think, and to tell them what you know.
- Notify other people who may have information, such as the CASA volunteer. The CASA agency should get the notice.
- Be prepared to file and give a comprehensive written statement in court. You have one shot at this. My experience is that people who only intend to speak orally often forget what they intended to say (attorneys included) and walk out of court feeling disappointed because they were unable to relate everything they knew. The only way to prevent that is to have a written statement. Make enough copies for everyone—the judge, the Assistant DA or Assistant Corp Counsel, the GAL and the agency.
- The court may or may not make the decision immediately. Usually they do.
Q Does a Foster Parent need to hire an attorney to do this?
Whether to hire an attorney is a personal question, and I can’t give you legal advice. However, some things to think about:
- Why is the child being moved?
- If the child is being moved to be placed with siblings, or to go to the home of the parent, you probably don’t need an attorney unless you can point to specific problems in those placements. The problems need to be really severe. The chances of winning these contested hearings are minimal. If the problems are really severe, you should connect with the GAL and the Assistant District Attorney or Corporation Counsel to see if they also object. If they object, they will handle the case and your job is to supply information and be a witness.
Email your licensing worker and ask specifically, “is this child being moved due to any problems in my home or with my foster care?” You want affirmation that your home is OK. That way, if the agency retaliates against you by revoking your license, you have good evidence.
- Do you feel comfortable going to court and dealing with the legal issues? Some people do, some don’t.
- How much will it cost to hire an attorney?
- If the issue is solely a Change in Placement, even review of the Foster Parent’s records and appearing in court can cost several thousand dollars (in the range of $4000-$5000).
If the agency revokes a Foster Parent’s license, or refuses to renew it, the Foster Parent has the right to a Due Process hearing on that revocation or failure to renew. The combined total of these cases may cost upward of $10,000.
The good news is that under the laws, if an Administrative Law Judge determines that the removal of the child(ren) and/or revocation of the license was not substantially justified, your attorney can apply for Attorney’s Fees to cover these costs retroactively. Nothing is guaranteed, but this is a help.