(1) Protection against the harmful effects resulting from: (a) the absence of
parents or parent substitutes; (b) the inability (other than "financial
inability"--i.e., poverty) of parents or parent substitutes to provide care and
protection for their children; and (c) the destructive behavior of parents or
parent substitutes in providing care and protection for their children.
(2) Good substitute parental care in the event of the absence, temporary or
permanent inability (other than financial inability) or unfitness of parents to
provide care and protection for their children.
c. Creates a new provision emphasizing the significance of prevention and
intervention approaches in legislative, executive and local government
programs, policies and planning strategies for dealing with children under
ch. 48.
d. Specifies that one of the legislative purposes of ch. 48 is to preserve the
unity of the family, whenever appropriate, by strengthening family life
through assisting parents in fulfilling their parental responsibilities.
e. Stresses to juvenile court judges that they have the authority, in
appropriate cases, not to reunite a child with his or her family.
f. Creates a new provision which emphasizes that a parent's duty to support
and maintain his or her minor child continues during any period in which the
minor child may be removed from the custody of the parent under ch. 48.
B. Definition of "Abuse"
1. Current Law
Current law defines "abuse" under s. 48.981 (1) (a), stats., for purposes of
the child abuse and neglect reporting and investigation statute and the child
abuse and neglect prevention board statute but does not define "abuse" for
any other purpose under ch. 48.
2. The Bill
The bill defines "abuse" in the general definitions section of ch. 48 as
meaning any of the following:
a. Physical injury inflicted on a child by other than accidental means.
b. Sexual intercourse or sexual contact under the general sexual assault
statute or the statutes covering sexual assault of a child under the age of 13
(first degree) or under the age of 16 (2nd degree) or repeated acts of sexual
assault against the same child.
c. Sexual exploitation of a child.
d. Permitting, allowing or encouraging a child to violate the prohibition of
prostitution.
e. Causing a child to view or listen to sexual activity.
f. Either causing a child to expose genitals or pubic area or exposing
genitals or pubic area to a child for purposes of sexual arousal or
gratification.
g. Emotional damage.
The bill's definition of "abuse" is extended to other provisions relating to
child abuse throughout the statutes.
C. DEFINITIONS OF "PHYSICAL INJURY" AND "REASONABLE
DISCIPLINE"
1. Current Law
Current law defines "physical injury" under the child abuse and neglect
reporting and investigation statute and then incorporates that definition in
the definition of "abuse" in s. 48.981 (1) (a), stats.
Current law also defines "physical injury" in the child abuse restraining
order and injunction statute. Both of these definitions provide that
"`physical injury' includes but is not limited to lacerations, fractured bones,
burns, internal injuries, severe or frequent bruising or great bodily harm as
defined under s. 939.22 (14)".
2. The Bill
The bill repeals both definitions and defines "physical injury" in the general
definitions section of ch. 48, incorporates that term in the definition of
"abuse" created in the general definitions section of ch. 48 and then defines
"abuse" in the child abuse restraining order and injunction statute by
reference to the newly created definition of "abuse" in ch. 48. The bill
defines "physical injury" as bodily harm as defined under s. 939.22 (4),
stats., that is, "physical pain or injury, illness or any impairment of physical
condition" but includes an exception for "reasonable discipline" by a person
responsible for the child's welfare, as defined in s. 939.45 (5) (a) 3., stats.
The bill defines "reasonable discipline" as discipline that involves only such
force as a reasonable person believes is necessary and specifies that it does
not include the use of force which is intended to cause, or which creates an
unreasonable risk of, lacerations, fractured bones, burns, internal injuries,
severe or frequent bruising, great bodily harm, as defined in s. 939.22 (14),
stats., or death.
With respect to the statute which currently provides that, as a defense to the
prosecution of any crime, a privilege can be asserted that the actor's conduct
is "reasonable discipline" of a child by a person responsible for a child's
welfare and that it is not reasonable discipline to use force which is intended
to cause, or creates an unreasonable risk of, great bodily harm as defined in
s. 939.22 (14), stats., or death, the bill adds language to state that it also is
not reasonable discipline to use force which is intended to cause, or which
creates an unreasonable risk of, lacerations, fractured bones, burns, internal
injuries or severe or frequent bruising.
D. Definition of "Emotional Damage"
1. Current Law
Current law defines "emotional damage" under s. 48.981 (1) (cm), stats., for
purposes of the child abuse and neglect reporting and investigation statute
and then incorporates that definition in the definition of "abuse" in the child
abuse and neglect reporting and investigation statute.
Current s. 48.981 (1) (cm), stats., provides that the harm to the child's
psychological or intellectual functioning must be exhibited by severe
anxiety, depression, withdrawal or outward aggressive behavior, or a
combination of those behaviors. However, it also provides that "emotional
damage" may be demonstrated by a substantial and observable change in
behavior, emotional response or cognition that is not within the normal range
for the child's age and stage of development.
Current law also defines "emotional damage" in s. 813.122 (1) (e), stats., for
purposes of the child abuse restraining order and injunction statute and
provides that the harm must be exhibited by severe anxiety, depression,
withdrawal or outward aggressive behavior, or a combination of those
behaviors. However, this definition does not provide that the harm may be
demonstrated by a substantial and observable change in behavior, emotional
response or cognition that is not within the normal range for the child's age
and stage of development.
2. The Bill
The bill repeals both definitions and defines "emotional damage" in the
general definitions section of ch. 48 as harm to a child's psychological or
intellectual functioning for which the child's parent, guardian or legal
custodian has neglected, refused or been unable either to obtain the
necessary treatment or to take necessary steps to ameliorate the symptoms.
The bill requires that emotional damage be evidenced by one or more of the
following characteristics exhibited to a substantial degree: (a) anxiety; (b)
depression; (c) withdrawal; (d) outward aggressive behavior; or (e)
substantial and observable change in behavior, emotional response or
cognition that is not within the normal range for the child's age and stage of
development.
E. GROUNDS FOR CHIPS JURISDICTION
1. Current Law
1995 Wisconsin Act 77 repeals several grounds for children in need of
protection or services (CHIPS) jurisdiction under ch. 48 effective July 1,
1996. Unless amended by other enactments, as of that date, the grounds for
CHIPS jurisdiction, as set forth in s. 48.13, stats., will be as follows:
a. The child is without a parent or guardian.
b. The child has been abandoned.
c. The child has been the victim of sexual or physical abuse, including
injury which is self-inflicted or inflicted by another by other than accidental
means.
d. The child is at substantial risk of becoming the victim of sexual or
physical abuse, including injury that is self-inflicted or inflicted by another
by other than accidental means, based on reliable and credible information
that another child in the home has been the victim of sexual or physical
abuse.
e. The child's parent or guardian signs the petition requesting jurisdiction
and states that he or she is unable to care for or provide necessary special
treatment or care for the child.
f. The child has been placed for care or adoption in violation of the law.
g. The child is receiving inadequate care during the period of time a parent
is missing, incarcerated, hospitalized or institutionalized.
h. The child is at least age 12, signs the petition requesting jurisdiction and
attests in court that he or she is in need of special care or treatment which the
parent, guardian or legal custodian is unwilling to provide.
i. The child's parent, guardian or legal custodian neglects, refuses or is
unable for reasons other than poverty to provide necessary care, food,
clothing, medical or dental care or shelter so as to seriously endanger the
physical health of the child.
j. The child's parent, guardian or legal custodian is at substantial risk of
neglecting, refusing or being unable for reasons other than poverty to
provide necessary care, food, clothing, medical or dental care or shelter so as
to endanger seriously the physical health of the child, based on reliable and
credible information that the child's parent, guardian or legal custodian has
neglected, refused or been unable for reasons other than poverty to provide
necessary care, food, clothing, medical or dental care or shelter so as to
endanger seriously the physical health of another child in the home.
k. The child is suffering emotional damage for which the parent or guardian
is unwilling to provide treatment, which is evidenced by one or more of the
following characteristics, exhibited to a severe degree: anxiety, depression,
withdrawal or outward aggressive behavior.
L. The child is suffering from an alcohol and other drug abuse impairment,
exhibited to a severe degree, for which the parent or guardian is unwilling to
provide treatment.
m. The child has not been immunized as required by s. 252.04, stats., and
not exempted under s. 252.04 (3), stats.
2. The Bill
The bill makes the following changes in the grounds for CHIPS jurisdiction:
a. With respect to items 1, c and d, above, cross-references certain
paragraphs in the definition of "abuse" created in the general definitions
section of ch. 48 by the bill, thus including them as grounds for CHIPS
jurisdiction. Current law does not define sexual or physical abuse for
purposes of CHIPS jurisdiction.
b. With respect to item 1, e, above, modifies the ground for CHIPS
jurisdiction if a parent or guardian is unable to care for or provide necessary
special treatment or care for a child to also provide a ground for CHIPS
jurisdiction if the parent or guardian needs assistance in doing so. Also
provides that CHIPS jurisdiction is not established simply by the parent's or
guardian's statement that he or she is unable to care for or provide necessary
special treatment or care for a child but, rather, is established only if the
parent or guardian proves that he or she is unable or needs assistance to do
so.
c. With respect to item 1, h, above, provides a ground for CHIPS
jurisdiction if the child 12 years of age or over signs the petition and proves
that the parent, guardian or legal custodian is unwilling, neglecting, unable
or needs assistance to provide needed special treatment or care rather than
the child's merely attesting that the parent, guardian or legal custodian is
unwilling to do so.
d. With respect to item 1, k, above, deletes from the requirement that
"emotional damage" be evidenced by anxiety, depression, withdrawal or
outward aggressive behavior exhibited to a severe degree and refers to the
definition of "emotional damage" as created in the bill. Further, adds
grounds for CHIPS jurisdiction over a child who is suffering emotional
damage if a parent or guardian is neglecting, refusing or unable to provide
treatment rather than merely being unwilling to do so and adds grounds for
CHIPS jurisdiction over a child who is suffering emotional damage if a legal
custodian is neglecting, refusing or unable to provide treatment.
e. With respect to item 1, L, above, adds grounds for CHIPS jurisdiction if
a child is suffering from an alcohol or other drug abuse impairment if a
parent or guardian is neglecting, refusing or unable to provide treatment
rather than merely being unwilling to do so and adds grounds for CHIPS
jurisdiction for alcohol or other drug abuse impairment if a legal custodian
is neglecting, refusing or unable to provide treatment.
F. Use of the Term "Neglects, Refuses or is Unable"
1. Current Law
Several provisions in ch. 48 relate to whether a parent, guardian or legal
custodian is neglecting, refusing, failing, unable or in need of assistance to
take certain actions.
2. The Bill
The bill makes the following changes:
a. With respect to one of the possible criteria for holding a child in physical
custody, provides that there must be probable cause to believe that the
child's parent, guardian or legal custodian or other responsible adult is
neglecting, refusing, unable or unavailable to provide adequate supervision
and care, rather than merely being unavailable, unwilling or unable to do
so.
b. With respect to the criteria to determine whether to continue to hold a
child in physical custody, provides that there must be probable cause to
believe that the child's parent, guardian or legal custodian is neglecting,
refusing, unable or unavailable to provide adequate supervision and care,
rather than merely being unwilling or unavailable to do so.
c. With respect to court-ordered alcohol and other drug abuse services or
court-ordered special treatment or care for a child, provides that a judge
may order the parent to pay for such services if the child's parent
neglects,
refuses or is unable to provide such services through his or her health
insurance or other 3rd-party payments, rather than if the child's parent
merely refuses or is unable to do so.
d. With respect to the duty of a county department of human services or
social services (county department) conducting a child abuse or neglect
investigation and making a determination as to whether emotional damage
has occurred, provides that the county department must establish that the
person alleged to be responsible for the emotional damage is neglecting,
refusing or unable to remedy the harm, rather than being merely
unwilling
to do so.
G. Right to, and size of, jury trial in proceedings
involving A child alleged to be CHIPS
1. Current Law
Under current law, a child and a parent, guardian or legal custodian of a
child have the right under ch. 48 to a trial by jury at a fact-finding hearing in
juvenile court. A trial by jury may be demanded on a petition alleging that
a child is CHIPS and on a petition for termination of parental rights (TPR).
Under current s. 756.096 (3) (b), stats., a jury in civil cases [e.g.,
proceedings under ch. 48] must consist of 6 persons
unless a party requests
a greater number not to exceed 12. The court, on its own motion, may
require a greater number, not to exceed 12.
2. The Bill
The bill retains the right to a jury trial under ch. 48 but requires a trial by a
jury of 6 persons (i.e., does not permit a jury of a larger size as is permitted
under current law) in a juvenile court proceeding involving a child who is
alleged to be CHIPS. The 12-person jury is retained for TPR cases unless
the parties agree to a lesser number.
H. Elements to be Determined by the Court Versus
Elements to be Determined by the Jury when a Child
is Alleged to be CHIPS
1. Current Law
Under current law, a child who is the subject of a CHIPS petition or the
child's parent, guardian or legal custodian may demand a jury trial to
determine whether the allegations of the CHIPS petition are proved. In In
the Interest of Courtney E., 184 Wis. 2d 592 (1994), the Wisconsin supreme
court held that in order for a juvenile court to exercise jurisdiction over a
child alleged to be CHIPS, 2 things must be proved: (a) that one of the
grounds for CHIPS jurisdiction exists; and (b) that the child is in need of
protection or services that can be ordered by the court.
2. The Bill
The bill provides that the juvenile court, not the jury, determines whether the
child needs protection or services which the juvenile court can order, thus
leaving to the jury (or to the court, if a jury trial is not requested) the task of
determining whether one of the underlying grounds for CHIPS jurisdiction,
such as abandonment, abuse or neglect, has been proved.
I. Discovery in Proceedings under the Children's
Code
1. Current Law
Current s. 48.293, stats., sets forth the various discovery procedures
applicable in a proceeding under ch. 48. In general, current chs. 801 to 847,
stats., including ch. 804, stats., regarding discovery in civil proceedings,
govern procedure and practice in civil actions. However, s. 801.01 (2),
stats., specifies that: "Chapters 801 to 847 govern procedure and practice in
circuit courts of this state in all civil actions...except where different
procedure is prescribed by statute or rule.". In In the Interest of Zachary F.
[No. 95-1455, 1995 Wisc. App. LEXIS 1170, September 20, 1995 (ordered
published) (petition for review pending)], the Wisconsin court of appeals
held that the discovery procedure set forth in s. 48.293, stats., is "different"
from that provided under ch. 804, stats., and that, therefore, s. 48.293, stats.,
is the "exclusive source of discovery rights to parties involved in ch. 48,
stats., actions".
2. The Bill
The bill provides that, in addition to the discovery procedures permitted
under s. 48.293, stats., the discovery procedures permitted under ch. 804,
stats., apply to proceedings under ch. 48.
J. SPECIFIED DUTIES OF A Guardian ad litem APPOINTED
IN PROCEEDINGS INVOLVING A CHILD ALLEGED TO BE CHIPS
1. Current Law
Current s. 48.235 (3), stats., provides that a guardian ad litem (GAL) must
be an advocate for the best interests of "the person for whom the
appointment is made" (e.g., the child in a CHIPS case), but does not set forth
in detail any of the duties or responsibilities of the GAL in advocating for
the best interests of the child.
2. The Bill
The bill specifies that, in addition to any other duties and responsibilities
imposed on a GAL, the GAL in a CHIPS case is required to do all of the
following:
a. Personally meet with the child, personally interview the child if the child
is old enough to communicate, determine the child's goals and concerns
regarding his or her placement and assess the appropriateness and safety of
the child's environment in each placement.
b. Personally, or through a trained designee, conduct, when applicable,
interviews with the child's parents, general guardian, legal custodian, foster
parents, caseworkers, therapists, counselors, school personnel and mental
health professionals.
c. If any injuries or abuse have occurred or are alleged, review photographs
and available videotapes or audiotapes of interviews with the child and
contact appropriate health care facilities and health care providers for more
information relating to those injuries or that abuse.
d. Personally, or through a trained designee, determine whether there are
alternatives to initial or continued out-of-home placement of the child,
including in-home services or removal of the perpetrator of any abuse or
alleged abuse from the child's home.
