LRBs0219/1
EAW:emw
2017 - 2018 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO ASSEMBLY BILL 784
January 26, 2018 - Offered by Representative Ballweg.
AB784-ASA1,1,5 1An Act to renumber and amend 48.23 (4); to amend 48.20 (8) (a), 48.21 (3) (d),
248.213 (2) (d) and 48.23 (3); and to create 48.233 of the statutes; relating to:
3the appointment of counsel in a child in need of protection or services
4proceeding, providing an exemption from emergency rule procedures, granting
5rule-making authority, and making an appropriation.
Analysis by the Legislative Reference Bureau
This substitute amendment removes the prohibition on assigning counsel to a
parent in a child in need of protection or services (CHIPS) proceeding, and creates
a five-county pilot program run by the state public defender to provide counsel for
such a parent.
Under current law, a parent is entitled to legal representation in a proceeding
under the Children's Code involving a contested adoption or an involuntary
termination of parental rights. In all other cases under the Children's Code, the
court assigned to exercise jurisdiction under the Children's Code (juvenile court) may
appoint counsel to any party to the proceeding except that the juvenile court is
prohibited from appointing counsel in a CHIPS proceeding for any party other than
a child, an Indian parent, or an Indian custodian. This prohibition was ruled
unconstitutional by the Wisconsin Supreme Court in Joni B. v. State, 202 Wis. 2d 1

(1996), on the grounds that the prohibition constitutes a violation of the separation
of powers doctrine of the Wisconsin Constitution. This substitute amendment
eliminates the statutory prohibition placed on a juvenile court regarding
appointment of counsel for adult parents other than Indian parents or Indian
custodians in a CHIPS proceeding.
This substitute amendment also creates a pilot program for the provision of
counsel to a parent in a CHIPS proceeding in Brown, Outagamie, Racine, Kenosha,
and Winnebago counties. The substitute amendment grants the SPD rule-making
authority to implement the pilot program and gives certain exceptions to allow the
pilot program rules to be promulgated through emergency rule making. The pilot
program sunsets on June 30, 2021. Also, the SPD and the Department of Children
and Families must each submit a report by January 1, 2021, to the Joint Committee
on Finance and each house of the legislature regarding the costs of and data from
implementing the pilot program created under the substitute amendment.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB784-ASA1,1 1Section 1. 48.20 (8) (a) of the statutes is amended to read:
AB784-ASA1,3,32 48.20 (8) (a) If a child is held in custody, the intake worker shall notify the
3child's parent, guardian, legal custodian, and Indian custodian of the reasons for
4holding the child in custody and of the child's whereabouts unless there is reason to
5believe that notice would present imminent danger to the child. The parent,
6guardian, legal custodian, and Indian custodian shall also be notified of the time and
7place of the detention hearing required under s. 48.21, the nature and possible
8consequences of that hearing, the right to counsel under s. 48.23, the right to present
9and cross-examine witnesses at the hearing, and, in the case of a parent or Indian
10custodian of an Indian child who is the subject of an Indian child custody proceeding,
11as defined in s. 48.028 (2) (d) 2., the right to counsel under s. 48.028 (4) (b). If the
12parent, guardian, legal custodian, or Indian custodian is not immediately available,
13the intake worker or another person designated by the court shall provide notice as
14soon as possible. When the child is 12 years of age or older, the child shall receive

1the same notice about the detention hearing as the parent, guardian, legal custodian,
2or Indian custodian. The intake worker shall notify both the child and the child's
3parent, guardian, legal custodian, or Indian custodian.
AB784-ASA1,2 4Section 2. 48.21 (3) (d) of the statutes is amended to read:
AB784-ASA1,3,125 48.21 (3) (d) Prior to the commencement of the hearing, the court shall inform
6the parent, guardian, legal custodian, or Indian custodian of the allegations that
7have been made or may be made, the nature and possible consequences of this
8hearing as compared to possible future hearings, the right to counsel under s. 48.23,
9the right to present, confront, and cross-examine witnesses, and, in the case of a
10parent or Indian custodian of an Indian child who is the subject of an Indian child
11custody proceeding under s. 48.028 (2) (d) 2., the right to counsel under s. 48.028 (4)
12(b).
AB784-ASA1,3 13Section 3. 48.213 (2) (d) of the statutes is amended to read:
AB784-ASA1,3,1914 48.213 (2) (d) Prior to the commencement of the hearing, the court shall inform
15the adult expectant mother and the unborn child's guardian ad litem shall be
16informed by the court
of the allegations that have been made or may be made, the
17nature and possible consequences of this hearing as compared to possible future
18hearings, the right to counsel under s. 48.23, and the right to present, confront, and
19cross-examine witnesses, and the right to present witnesses.
AB784-ASA1,4 20Section 4. 48.23 (3) of the statutes is amended to read:
AB784-ASA1,3,2521 48.23 (3) Power of the court to appoint counsel. Except in proceedings under
22s. 48.13, at
At any time, upon request or on its own motion, the court may appoint
23counsel for the child or any party, unless the child or the party has or wishes to retain
24counsel of his or her own choosing. Except as provided in sub. (2g), the court may not
25appoint counsel for any party other than the child in a proceeding under s. 48.13.
AB784-ASA1,5
1Section 5. 48.23 (4) of the statutes is renumbered 48.23 (4) (a) and amended
2to read:
AB784-ASA1,4,133 48.23 (4) (a) If a child or a parent under 18 years of age has a right to be
4represented by counsel or is provided counsel at the discretion of the court under this
5section and counsel is not knowingly and voluntarily waived, the court shall refer the
6child or parent under 18 years of age to the state public defender and counsel shall
7be appointed by the state public defender under s. 977.08 without a determination
8of indigency. If the referral is of a child who has filed a petition under s. 48.375 (7),
9the state public defender shall appoint counsel within 24 hours after that referral.
10Any counsel appointed in a petition filed under s. 48.375 (7) shall continue to
11represent the child in any appeal brought under s. 809.105 unless the child requests
12substitution of counsel or extenuating circumstances make it impossible for counsel
13to continue to represent the child.
AB784-ASA1,4,19 14(b) In any situation under sub. (2), (2g), or (2m) in which a parent 18 years of
15age or over or an adult expectant mother is entitled to representation by counsel;
16counsel is not knowingly and voluntarily waived; and it appears that the parent or
17adult expectant mother is unable to afford counsel in full, or the parent or adult
18expectant mother so indicates; the court shall refer the parent or adult expectant
19mother to the authority for indigency determinations specified under s. 977.07 (1).
AB784-ASA1,4,25 20(c) In any other situation under this section in which a person has a right to be
21represented by counsel or is provided counsel at the discretion of the court,
22competent and independent counsel shall be provided and reimbursed in any
23manner suitable to the court regardless of the person's ability to pay, except that the
24court may not order a person who files a petition under s. 813.122 or 813.125 to
25reimburse counsel for the child who is named as the respondent in that petition.
AB784-ASA1,6
1Section 6. 48.233 of the statutes is created to read:
AB784-ASA1,5,5 248.233 Five-county pilot program. (1) No later than July 1, 2018, the state
3public defender shall establish a pilot program in Brown, Outagamie, Racine,
4Kenosha, and Winnebago counties to provide counsel to any nonpetitioning parent
5after a petition has been filed under s. 48.255 in a proceeding under s. 48.13.
AB784-ASA1,5,7 6(2) This section does not apply to a proceeding commenced under s. 48.13 after
7June 30, 2021.
AB784-ASA1,5,16 8(3) The state public defender may promulgate rules necessary to implement
9the pilot program established under sub. (1). The state public defender may
10promulgate the rules under this subsection as emergency rules under s. 227.24.
11Notwithstanding s. 227.24 (1) (a) and (3), the state public defender is not required
12to provide evidence that promulgating a rule under this subsection as an emergency
13rule is necessary for the preservation of the public peace, health, safety, or welfare
14and is not required to provide a finding of emergency for a rule promulgated under
15this subsection. Notwithstanding s. 227.24 (1) (c) and (2), emergency rules
16promulgated under this subsection remain in effect until June 30, 2021.
AB784-ASA1,5,21 17(4) By January 1, 2021, the department and the state public defender shall
18each submit a report to the joint committee on finance, and to the chief clerk of each
19house of the legislature for distribution to the appropriate standing committees
20under s. 13.172 (3), regarding costs and data from implementing the pilot program
21under sub. (1).
AB784-ASA1,7 22Section 7. Fiscal changes.
AB784-ASA1,6,223 (1) Program operation. In the schedule under section 20.005 (3) of the statutes
24for the appropriation to the public defender board under section 20.550 (1) (a) of the

1statutes, the dollar amount for fiscal year 2018-19 is increased by $739,600 for
2implementation of the pilot program under section 48.233 of the statutes.
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