Chapter 54 Minor Guardianships

1. Chapter 54 Minor Guardianships Presented by: Victoria Davis, Pledl & Cohn, S.C., Milwaukee, WI

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

3. 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

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

5. Chapter 54 Guardianships • Covers minors, incompetence, spendthrifts • Juvenile court has exclusive jurisdiction – sec. 48.14(2)(b) • Private actions • Guardianship of person and estate • Statute limits powers of guardian • Different notice and time limit requirements • Has its own forms

6. Ch. 54 - 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

7. 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

8. 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

9. 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

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heard within 90 days of filing • See e.g. In the Matter of the Guardianship and Protective Placement of Elizabeth L., Unpublished, Appeal No. 2011AP152 • Court loses competency to act after 90 days • No procedure to extend time limits i.e. Ch. 48

11. 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

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

13. 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

14. 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

15. 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 48.979 will help • Lasts for up to one year • Allows parent to delegate powers

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

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

18. 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.

19. 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

20. Qualifications • Under SCR 35 • Local Rule 5.1 – must complete questionnaire, statement of compliance, statement of compliance with SCR 35.01 • If less than 5 years GAL experience, meet with Waukesha Juvenile Court Mentor Committee

21. 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

22. 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. 54.40 • File your guardian ad litem report, Form GN-3325

23. 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

24. 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

25. 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