Date of enactment: June 16, 1998
1997 Assembly Bill 463 Date of publication*: June 30, 1998
* Section 991.11, Wisconsin Statutes 1995-96: Effective date of acts. "Every act and every portion of an act enacted by the legislature over the governor's partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication as designated" by the secretary of state [the date of publication may not be more than 10 working days after the date of enactment].
1997 WISCONSIN ACT 292
An Act to renumber and amend 48.207 (2), 48.27 (1) and 48.27 (4) (intro.); to amend 38.24 (1s) (a), 46.001, 46.03 (7) (a), 46.238, 46.40 (7m), 46.51 (title), 46.51 (1), 46.51 (3), 46.51 (4), 46.51 (5), 46.95 (2) (a), 48.01 (1) (intro.), 48.01 (1) (a), 48.01 (1) (br), 48.01 (1) (dm), 48.02 (17m), 48.06 (1) (a) 1., 48.06 (1) (a) 3., 48.06 (1) (am) 3., 48.06 (2) (c), 48.065 (1), 48.065 (2) (gm), 48.065 (3) (c), 48.065 (3) (e), 48.067 (1), 48.067 (2), 48.067 (3), 48.067 (4), 48.067 (6m), 48.067 (8), 48.069 (1) (a), 48.069 (1) (c), 48.07 (4), 48.08 (1), 48.09 (5), 48.135 (title), 48.135 (1), 48.135 (2), 48.14 (5), 48.15, 48.185 (1), 48.185 (2), subchapter IV (title) of chapter 48 [precedes 48.19], 48.19 (1) (c), 48.20 (title), 48.20 (7) (b), 48.20 (8), 48.205 (title), 48.205 (1) (intro.), 48.205 (2), 48.207 (title), 48.207 (1) (intro.), 48.207 (1) (g), 48.208 (4), 48.21 (1) (b), 48.21 (3) (title), 48.21 (3) (ag), 48.21 (3) (b), 48.21 (6), 48.21 (7), 48.227 (4) (e) 2., 48.23 (4), 48.235 (3), 48.235 (6), 48.24 (1), 48.24 (1m), 48.24 (2) (a), 48.24 (2m) (a) (intro.), 48.24 (3), 48.24 (5), 48.243 (1) (intro.), (a), (b), (c), (d), (e), (f) and (g), 48.243 (4), 48.243 (3), 48.245 (1), 48.245 (2) (a) 1., 48.245 (2) (a) 2., 48.245 (2) (a) 3., 48.245 (2) (a) 4., 48.245 (2) (c), 48.245 (2r), 48.245 (3), 48.245 (4), 48.245 (5), 48.245 (8), 48.25 (1), 48.25 (2), 48.255 (1) (intro.), 48.255 (2), 48.255 (3), 48.255 (4), 48.263 (1), 48.263 (2), 48.27 (3) (a) 1., 48.27 (3) (b) 1. (intro.), 48.27 (8), 48.275 (1), 48.275 (2) (a), 48.275 (2) (b), 48.275 (2) (c), 48.275 (2) (cg) (intro.), 48.29 (1), 48.293 (2), 48.293 (3), 48.295 (1), 48.295 (1c), 48.295 (1g), 48.295 (2), 48.295 (3), 48.297 (4), 48.297 (5), 48.297 (6), 48.299 (1) (a), 48.299 (1) (ag), 48.299 (1) (b), 48.299 (4) (b), 48.299 (5), 48.30 (1), 48.30 (2), 48.30 (3), 48.30 (6), 48.30 (7), 48.30 (8) (a), 48.30 (8) (c), 48.30 (9), 48.305, 48.31 (1), 48.31 (2), 48.31 (4), 48.31 (7), 48.315 (1) (a), 48.315 (1) (b), 48.315 (1) (f), 48.32 (1), 48.32 (2) (a), 48.32 (2) (c), 48.32 (3), 48.32 (5) (intro.), 48.32 (5) (a), 48.32 (5) (b), 48.32 (6), 48.33 (1) (intro.), 48.33 (1) (a), 48.33 (1) (b), 48.33 (1) (c), 48.33 (1) (d), 48.33 (1) (f), 48.33 (2), 48.33 (4) (intro.), 48.335 (1), 48.345 (intro.), 48.345 (2), 48.345 (2m), 48.345 (13) (c), 48.35 (1) (b) (intro.), 48.35 (1) (b) 1., 48.35 (2), 48.355 (1), 48.355 (2) (a), 48.355 (2) (b) 1., 48.355 (2) (b) 1m., 48.355 (2) (b) 7., 48.355 (2) (d), 48.355 (2m), 48.355 (4), 48.355 (5), 48.355 (7), 48.356 (1), 48.356 (2), 48.357 (1), 48.357 (2), 48.357 (2m), 48.36 (2), 48.361 (1) (b), 48.361 (1) (c), 48.361 (2) (am) 1., 48.361 (2) (am) 2., 48.361 (2) (b) 1., 48.361 (2) (c), 48.362 (2), 48.362 (4) (a), 48.362 (4) (c), 48.363 (1), 48.365 (1m), 48.365 (2), 48.365 (2g) (a), 48.365 (2m) (a), 48.365 (2m) (b), 48.396 (1), 48.396 (1b), 48.396 (1d), 48.396 (5) (b), 48.396 (5) (c), 48.396 (5) (e), 48.415 (2) (a), 48.415 (2) (b) 1., 48.415 (2) (b) 2., 48.415 (2) (c), 48.44 (1), 48.45 (1) (b), 48.45 (2), 48.48 (1), 48.48 (16), 48.48 (17) (a) 1., 48.48 (17) (a) 2., 48.48 (17) (a) 3., 48.48 (17) (b), 48.52 (title), 48.52 (2) (a), 48.547 (title), 48.547 (1), 48.547 (2), 48.547 (3) (intro.), (b) and (d), 48.547 (4), 48.57 (1) (a), 48.57 (1) (b), 48.57 (1) (c), 48.57 (1) (g), 48.57 (2), 48.59 (1), 48.59 (2), 48.981 (title), 48.981 (1) (h) (intro.), 48.981 (1) (h) 2., 48.981 (2), 48.981 (3) (a), 48.981 (3) (b) 1., 48.981 (3) (b) 2., 48.981 (3) (bm) (intro.), 48.981 (3) (bm) 1., 48.981 (3) (bm) 2., 48.981 (3) (bm) 3., 48.981 (3) (c) 1., 48.981 (3) (c) 3., 48.981 (3) (c) 5., 48.981 (3) (c) 6., 48.981 (3) (c) 6m., 48.981 (3) (c) 7., 48.981 (3) (c) 8., 48.981 (3) (d) 1., 48.981 (3) (d) 2., 48.981 (4), 48.981 (7) (a) 1m., 48.981 (7) (a) 3m., 48.981 (7) (a) 4., 48.981 (7) (a) 5., 48.981 (7) (a) 6., 48.981 (7) (a) 10., 48.981 (7) (a) 10m., 48.981 (7) (a) 11., 48.981 (7) (a) 11m., 48.981 (7) (a) 11r., 48.981 (7) (a) 17., 48.981 (8) (a), 48.981 (8) (b), 48.981 (8) (c), 48.981 (8) (d) 1., 48.981 (9), 48.985 (1), 48.985 (2), 51.13 (4) (h) 4., 51.30 (4) (b) 9., 51.30 (4) (b) 11., 51.30 (4) (b) 14., 51.30 (4) (b) 17., 51.61 (1) (intro.), 146.0255 (2), 146.0255 (3) (intro.), 146.0255 (3) (b), 146.82 (2) (a) 11., 757.69 (1) (g), 808.075 (4) (a) 4., 813.122 (1) (a), 904.085 (4) (d), 905.04 (4) (e) (title) and 938.245 (8); to repeal and recreate 48.46 (1); and to create 48.01 (1) (am), 48.01 (1) (ap), 48.01 (1) (bm), 48.02 (1) (am), 48.02 (19), 48.029, 48.065 (2) (bm), 48.08 (3), 48.133, 48.19 (1) (cm), 48.19 (1) (d) 8., 48.193, 48.20 (4m), 48.203, 48.205 (1) (d), 48.205 (1m), 48.207 (1m), 48.207 (2) (b), 48.213, 48.23 (2m), 48.235 (1) (f), 48.235 (4m), 48.24 (2m) (a) 6., 48.255 (1m), 48.27 (1) (b), 48.27 (3) (c), 48.27 (3) (d), 48.27 (4) (b), 48.345 (14), 48.345 (15), 48.347, 48.355 (2) (b) 2m., 48.357 (5r), 48.361 (2) (a) 1m., 48.361 (2) (b) 1m., 48.362 (3m), 48.396 (2) (aj), 48.396 (2) (ap), 48.45 (1) (am), 48.45 (1r), 48.52 (1m), 48.78 (2) (aj), 48.78 (2) (ap), 48.981 (1) (ct), 48.981 (1) (h) 1m., 48.981 (3) (b) 2m., 48.981 (3) (c) 2m., 51.30 (4) (b) 11m., 51.46, 301.01 (2) (cm) and 905.04 (4) (e) 3. of the statutes; relating to: unborn children who are at substantial risk of serious physical injury due to the habitual lack of self-control of their expectant mothers in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree and priority for pregnant women for private treatment for alcohol or other drug abuse.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
292,1m Section 1m. 38.24 (1s) (a) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:
38.24 (1s) (a) A court-approved alcohol or other drug abuse education program offered to individuals under s. 48.245 (2) (a) 4., 48.345 (13) (b), 48.347 (5) (b), 938.245 (2) (a) 4., 938.32 (1g) (b), 938.34 (6r) (b) or (14s) (b) 3., 938.343 (10) (c) or 938.344 (2g) (a).
292,2 Section 2. 46.001 of the statutes is amended to read:
46.001 Purposes of chapter. The purposes of this chapter are to conserve human resources in Wisconsin; to provide a just and humane program of services to children and unborn children in need of protection or services and, nonmarital children and the expectant mothers of those unborn children; to prevent dependency, mental illness, developmental disability, mental infirmity and other forms of social maladjustment by a continuous attack on causes; to provide effective aid and services to all persons in need thereof and to assist those persons to achieve or regain self-dependence at the earliest possible date; to avoid duplication and waste of effort and money on the part of public and private agencies; and to coordinate and integrate a social welfare program.
292,3 Section 3. 46.03 (7) (a) of the statutes is amended to read:
46.03 (7) (a) Promote the enforcement of laws for the protection of developmentally disabled children, children and unborn children in need of protection or services and nonmarital children; and to this end cooperate with courts assigned to exercise jurisdiction under chs. 48 and 938 and, licensed child welfare agencies and public and private institutions (public and private) and take the initiative in all matters involving the interests of such those children where and unborn children when adequate provision therefor for those interests has not already been made, including the establishment and enforcement of standards for services provided under s. ss. 48.345 and 48.347.
292,4m Section 4m. 46.238 of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:
46.238 Infants and unborn children whose mothers abuse controlled substances or controlled substance analogs. If a county department under s. 46.22 or 46.23 or, in a county having a population of 500,000 or more, a county department under s. 51.42 or 51.437 receives a report under s. 146.0255 (2), the county department shall offer to provide appropriate services and treatment to the child and the child's mother or to the unborn child, as defined in s. 48.02 (19), and the expectant mother of the unborn child or the county department shall make arrangements for the provision of appropriate services or treatment.
292,5 Section 5. 46.40 (7m) of the statutes is amended to read:
46.40 (7m) Use by county of community aids funds to pay private attorneys for certain proceedings under the children's code. Upon application by a county department under s. 46.215, 46.22 or 46.23 to the department for permission to use funds allocated to that county department under sub. (2) to employ private counsel for the purposes specified in this subsection and a determination by the department that use of funds for those purposes does not affect any federal grants or federal funding allocated under this section, the department and the county department shall execute a contract authorizing the county department to expend, as agreed upon in the contract, funds allocated to that county department under sub. (2) to permit the county department to employ private counsel to represent the interests of the state or county in proceedings under ch. 48 relating to child abuse or neglect cases, unborn child abuse cases, proceedings to terminate parental rights and any ch. 48 cases or proceedings involving the Indian child welfare act, 25 USC 1901 to 1963.
292,6 Section 6. 46.51 (title) of the statutes is amended to read:
46.51 (title) Child abuse and neglect and unborn child abuse services.
292,7 Section 7. 46.51 (1) of the statutes is amended to read:
46.51 (1) From the amounts distributed under s. 46.40 (1) for services for children and families, the department shall distribute funds to eligible counties for services related to child abuse and neglect and to unborn child abuse, including child abuse and neglect and unborn child abuse prevention, investigation and treatment.
292,8 Section 8. 46.51 (3) of the statutes is amended to read:
46.51 (3) The department shall distribute the funds under sub. (1) to counties that have a serious problem with child abuse and neglect or with unborn child abuse according to eligibility criteria and distribution criteria to be developed by the department.
292,9 Section 9. 46.51 (4) of the statutes is amended to read:
46.51 (4) A county may use the funds distributed under this section to fund additional foster parents and treatment foster parents to care for abused and neglected children and to fund additional staff positions to provide services related to child abuse and neglect and to unborn child abuse.
292,10 Section 10. 46.51 (5) of the statutes is amended to read:
46.51 (5) A county may not use the funds distributed under this section to reduce its expenditures from other sources for services related to child abuse and neglect or to unborn child abuse below the level in the year before the year for which the funds are distributed.
292,11m Section 11m. 46.95 (2) (a) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:
46.95 (2) (a) The secretary shall make grants from the appropriations under s. 20.435 (3) (cd) and (hh) to organizations for the provision of any of the services specified in sub. (1) (d). Grants may be made to organizations which have provided those domestic abuse services in the past or to organizations which propose to provide those services in the future. No grant may be made to fund services for child or unborn child abuse or abuse of elderly persons.
292,12 Section 12. 48.01 (1) (intro.) of the statutes is amended to read:
48.01 (1) (intro.)  This chapter may be cited as "The Children's Code". In construing this chapter, the best interests of the child or unborn child shall always be of paramount consideration. This chapter shall be liberally construed to effectuate the following express legislative purposes:
292,13 Section 13. 48.01 (1) (a) of the statutes is amended to read:
48.01 (1) (a) While recognizing that the paramount goal of this chapter is to protect children and unborn children, to preserve the unity of the family, whenever appropriate, by strengthening family life through assisting parents and the expectant mothers of unborn children, whenever appropriate, in fulfilling their parental responsibilities as parents or expectant mothers. The courts and agencies responsible for child welfare should assist parents and the expectant mothers of unborn children in changing any circumstances in the home which might harm the child or unborn child, which may require the child to be placed outside the home or which may require the expectant mother to be taken into custody. The courts should recognize that they have the authority, in appropriate cases, not to reunite a child with his or her family. The courts and agencies responsible for child welfare should also recognize that instability and impermanence in family relationships are contrary to the welfare of children and should therefore recognize the importance of eliminating the need for children to wait unreasonable periods of time for their parents to correct the conditions that prevent their return to the family.
292,14 Section 14. 48.01 (1) (am) of the statutes is created to read:
48.01 (1) (am) To recognize that unborn children have certain basic needs which must be provided for, including the need to develop physically to their potential and the need to be free from physical harm due to the habitual lack of self-control of their expectant mothers in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree. It is further recognized that, when an expectant mother of an unborn child suffers from a habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, in order to ensure that the needs of the unborn child, as described in this paragraph, are provided for, the court may determine that it is in the best interests of the unborn child for the expectant mother to be ordered to receive treatment, including inpatient treatment, for that habitual lack of self-control, consistent with any applicable law relating to the rights of the expectant mother.
292,14g Section 14g. 48.01 (1) (ap) of the statutes is created to read:
48.01 (1) (ap) To recognize the compelling need to reduce the harmful financial, societal and emotional impacts that arise and the tremendous burdens that are placed on families and the community and on the health care, social services, educational and criminal justice systems as a result of the habitual lack of self-control of expectant mothers in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, during all stages of pregnancy.
292,15 Section 15. 48.01 (1) (bm) of the statutes is created to read:
48.01 (1) (bm) To ensure that unborn children are protected against the harmful effects resulting from the habitual lack of self-control of their expectant mothers in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree. To effectuate this purpose and the purpose specified in par. (am), it is the intent of the legislature that the provisions of this chapter that protect unborn children against those harmful effects and that provide for the needs of unborn children, as described in par. (am), shall be construed to apply throughout an expectant mother's pregnancy to the extent that application of those provisions throughout an expectant mother's pregnancy is constitutionally permissible and that expectant mothers who habitually lack self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, be encouraged to seek treatment for that habitual lack of self-control voluntarily when voluntary treatment would be practicable and effective.
292,16 Section 16. 48.01 (1) (br) of the statutes is amended to read:
48.01 (1) (br) To encourage innovative and effective prevention, intervention and treatment approaches, including collaborative community efforts and the use of community-based programs, as significant strategies in planning and implementing legislative, executive and local government policies and programs relating to children and their families and substitute families and to unborn children and their expectant mothers.
292,17 Section 17. 48.01 (1) (dm) of the statutes is amended to read:
48.01 (1) (dm) To divert children and unborn children from formal proceedings under this chapter to the extent that this is consistent with protection of children, unborn children and the public safety.
292,18 Section 18. 48.02 (1) (am) of the statutes is created to read:
48.02 (1) (am) When used in referring to an unborn child, serious physical harm inflicted on the unborn child, and the risk of serious physical harm to the child when born, caused by the habitual lack of self-control of the expectant mother of the unborn child in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree.
292,19 Section 19. 48.02 (17m) of the statutes is amended to read:
48.02 (17m) "Special treatment or care" means professional services which need to be provided to a child or his or her family to protect the well-being of the child, prevent placement of the child outside the home or meet the special needs of the child. "Special treatment or care" also means professional services which need to be provided to the expectant mother of an unborn child to protect the physical health of the unborn child and of the child when born from the harmful effects resulting from the habitual lack of self-control of the expectant mother in the use of alcohol, controlled substances or controlled substance analogs, exhibited to a severe degree. This term includes, but is not limited to, medical, psychological or psychiatric treatment, alcohol or other drug abuse treatment or other services which the court finds to be necessary and appropriate.
292,20d Section 20d. 48.02 (19) of the statutes is created to read:
48.02 (19) "Unborn child" means a human being from the time of fertilization to the time of birth.
292,20r Section 20r. 48.029 of the statutes is created to read:
48.029 Pregnancy testing prohibited. No law enforcement agency, district attorney, corporation counsel, county department, licensed child welfare agency or other person involved in the investigation or prosecution of an allegation that an unborn child has been the victim of or is at substantial risk of abuse may, without a court order, require a person to take a pregnancy test in connection with that investigation or prosecution.
292,21m Section 21m. 48.06 (1) (a) 1. of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:
48.06 (1) (a) 1. In counties with a population of 500,000 or more, the department shall provide the court with the services necessary for investigating and supervising child welfare and unborn child welfare cases under this chapter. The department is charged with providing child welfare and unborn child welfare intake and dispositional services and with administration of the personnel and services of the child welfare and unborn child welfare intake and dispositional sections of the department. The department shall include investigative services for all children and unborn children alleged to be in need of protection or services to be provided by the department.
292,22m Section 22m. 48.06 (1) (a) 3. of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:
48.06 (1) (a) 3. The county board of supervisors does not have authority and may not assert jurisdiction over the disposition of any case or, child , unborn child or expectant mother of an unborn child after a written order is made under s. 48.21 or 48.213 or if a petition is filed under s. 48.25.
292,23m Section 23m. 48.06 (1) (am) 3. of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:
48.06 (1) (am) 3. Each intake worker providing services under this chapter whose responsibilities include investigation or treatment of child abuse or neglect or unborn child abuse shall successfully complete additional training in child abuse and neglect and unborn child abuse protective services approved by the department under s. 48.981 (8) (d). Not more than 4 hours of the additional training may be applied to the requirement under subd. 1.
292,24m Section 24m. 48.06 (2) (c) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:
48.06 (2) (c) Each intake worker providing services under this chapter whose responsibilities include investigation or treatment of child abuse or neglect or unborn child abuse shall successfully complete additional training in child abuse and neglect and unborn child abuse protective services approved by the department under s. 48.981 (8) (d). Not more than 4 hours of the additional training may be applied to the requirement under par. (b).
292,25 Section 25. 48.065 (1) of the statutes is amended to read:
48.065 (1) The board of supervisors of any county may authorize the chief judge of the judicial administrative district to appoint one or more part-time or full-time juvenile court commissioners who shall serve at the discretion of the chief judge. A juvenile court commissioner shall be licensed to practice law in this state and shall have been so licensed for at least 2 years immediately prior to appointment and shall have a demonstrated interest in the welfare of children and unborn children. The chief judge may assign law clerks, bailiffs and deputies to the court commissioner. The chief judge shall supervise juvenile court commissioners, law clerks, bailiffs and deputies, except that the chief judge may delegate any of those duties.
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