I have practiced children’s law for a very long time.

In the beginning of my career, I was a social worker and employed in the delinquency, CHIPS, and family arenas in the court system. During and after law school, I remained entrenched in the court system, working for the district attorney’s office prosecuting delinquency and CHIPS cases, and the Public Defender’s Office as advocate counsel for criminal, chapter 51, CHIPS, TPR, and guardianship cases.

Over the past two years, I have transitioned my general practice of law to concentrate on family, children, and guardianship law.

Currently, my practice encompasses practicing in Jefferson, Milwaukee, and Waukesha counties. I found that each county brings their own uniqueness to the practice of law in the areas of children’s law.

CHIPS Cases are Increasing

However, what I have noticed increasing over the last five years is the number of CHIPS children who are not reunited with either parent by their 18th or 19th birthday. These children remain in out-of-home placements and their permanency goals shift toward independent living versus reunification.

In addition, these aging-out CHIPS children often require uninterrupted services rising to the level of continuous jurisdiction in adult probate court. Often, the mental health issues for the aging-out CHIPS children rise to the level of legal incompetency, and require adult guardianship and often a protective placement order to continue an out-of-home placement.

A Lack of Overlap

The difficulty these cases frequently present is the lack of overlay between the juvenile system and the adult probate system. Often the children’s court caseworkers assigned are well versed in chapter 48 but not the nuances of chapter 54 guardianship law. Similarly, the adult protect service case workers are usually acclimated to working with the elderly population under chapter 54 guardianships and not the young adult population and their age-specific issues when entering the probate system.

Over the years, we seasoned attorneys practicing in this area of law have seen an increase in the severity of addiction and mental health issues encompassing CHIPS parents. This has a ripple effect, directly or indirectly, on their children. In turn, the CHIPS children experience their own traumas, which lead to significant mental health issues. I remind myself just when I think I have seen it all, there is that new case that reminds us that we haven’t.

Transitions: Sometimes Smooth, Sometimes Not

Perhaps each county in Wisconsin has their own way of handling the overlap of the aging-out CHIPS children to probate court when an adult guardianship is needed.

By the time a child reaches age 17½ years old, an adult guardianship can be filed in adult probate court. However, the early guardianship petition appears to be only helpful when a disabled child remains residing in their home with a parent and is enrolled in school.

Often these are considered private guardianships, where the child or family is not involved in the CHIPS system and often bears the expense of filing for an adult guardianship. Some county entities may file an adult guardianship petition on behalf of a child in this type of situation.

However, the CHIPS child often must wait until at least age 18 to file for an adult guardianship so they are not disenrolled in services they are receiving in the juvenile system. Depending on services and funding, these cases are monitored by various agencies the children are enrolled in, and the transition between chapters 48 and 54 jurisdiction is seamless.

There are times where it is not. Sometimes we get caught up in who will be the party responsible for petitioning probate court to request a guardianship and/or protective placement on behalf of the ward.

In some counties, the public is the petitioner for the ward. In other counties the guardian ad litem for the child in the CHIPS case is the petitioner and files the guardianship petition on behalf of their ward. Some counties are small enough where the same public attorney handles both juvenile and probate cases.

Filing for Guardianship and Protective Placement

The procedure for filing guardianship and protective placement in probate court is formatted. Service on all interested parties and a doctor’s report supporting legal incompetence are key ingredients to prevail on the court granting a guardianship.

CHIPS children often have undergone psychological exams or have a long history with a pediatrician who can complete the competency evaluation in support of the guardianship. Counties often will have lists of court appointed psychologist who will perform the competency examinations as well.

Conclusion: Seeking Unity

Perhaps in the future, the transition between juvenile and probate court could be akin to the CHIPS case closure process. The case closure statutes address terminating a CHIPS case and allowing the juvenile court judge to enter family court orders addressing legal custody, physical placement, and child support issues.

As a result, CHIPS parents no longer have to file a separate motion to address these issues in family court to align with how legal custody and physical placement issues were resolved through a successful CHIPS case closure.

As the population of aging-out CHIPS children transferring into adult probate court increases, perhaps in the future there will be unity in how to streamline the transition and process the aging CHIPS children must go through.

This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.