SB475: Bill Text

LRB-2534/2

GMM:skg:km

1995 - 1996 LEGISLATURE

1995 Senate BILL 475

January 3, 1996 - Introduced by Senator Wineke, cosponsored by Representatives Boyle, Notestein, Plache, Turner, Coggs, Krusick and Baldwin. Referred to Committee on Judiciary.

SB475,1,10 An Act to renumber 48.981 (6); to amend 48.981 (2), 48.981 (3) (c) 1., 48.981 (3) (c) 2., 48.981 (7) (a) (intro.), 813.122 (1) (d), 813.122 (2), 813.122 (3) (b) 1., 813.122 (3) (bm), 813.122 (3) (c), 813.122 (4) (a) (intro.), 813.122 (4) (a) 2., 813.122 (5) (a) (intro.), 813.122 (5) (a) 3., 813.122 (5) (d) 1., 813.122 (5) (d) 2., 813.122 (5) (d) 3., 813.122 (6) (a) 1., 813.122 (6) (a) 3. and 813.122 (7); and to create 48.981 (1) (bm), 48.981 (3) (c) 4m., 48.981 (6) (b), 48.981 (7) (cd), 48.981 (7) (cg), 813.122 (1) (ar) and 813.122 (1) (g) of the statutes; relating to: the re porting and investigation of child abuse or neglect that occurs out of a child's home, restraining and enjoining child abuse that takes place in a care or ser vices setting and providing a penalty.

Analysis by the Legislative Reference Bureau

Under current law, certain persons, such as physicians, teachers, social work ers and child care workers, who have reasonable cause to believe that a child seen in the course of professional duties has been abused or neglected, or that a child seen in the course of professional duties has been threatened with abuse or neglect and that abuse or neglect will occur, must report that suspected or threatened abuse or neglect to a local law enforcement agency or to the county department of human ser vices or social services (county department). This bill requires an intake worker of the court assigned to exercise jurisdiction under the children's code (juvenile court) and a person who provides care and supervision or other services for a child in a child welfare agency, foster home, treatment foster home, group home, shelter care facility or day care setting, as defined in the bill, to report any suspected or threatened abuse or neglect of a child seen in the course of professional duties. The bill defines "day care setting" as a location, other than a child's dwelling, in which a day care provider, including a person who cares for less than 4 children and therefore is not required to be licensed, provides care and supervision for children under 7 years of age for less than 24 hours a day.

Under current law, a county department that receives a report of suspected or threatened child abuse or neglect by a caregiver must investigate that report by ob serving or interviewing the child, or both, and by visiting the child's dwelling, if pos sible, and interviewing the child's parent, guardian or legal custodian. Currently, if the person making the investigation determines that any child in the home requires immediate protection, the county department must take the child into custody and deliver the child to the juvenile court intake worker. This bill requires a county de partment that is investigating a report of suspected or threatened child abuse or ne glect in a day care setting to visit the day care setting and interview any person who had access to the child in the day care setting, if possible. The bill also requires the county department to do all of the following if the report is substantiated:

1. Take into custody and deliver to the juvenile court intake worker any child in the day care setting who requires immediate protection (the juvenile court intake worker must then notify the child's parent, guardian or legal custodian of the report and of the child being taken into custody).

2. Require the person responsible for the day care setting to ameliorate immedi ately and permanently the circumstances or conditions that placed the child at risk of abuse or neglect.

3. Require the person responsible for the day care setting to provide the county department with the name of every child who currently is receiving care in the day care center, or who was receiving care in the day care center when the report was made, and who may have had direct contact with the suspected perpetrator of the abuse or neglect and to provide the county department with the name and address of the parent, guardian or legal custodian of each of those children.

4. Ensure that the parents, guardians or legal custodians specified in item 3, above, are informed as soon as possible of all of the following:

a. That the county department received and investigated a report of suspected or threatened abuse or neglect in the day care setting and that the report was sub stantiated.

b. The nature or type of abuse or neglect that occurred and when it occurred.

c. Whether the suspected perpetrator of the abuse or neglect is an adult or a child.

d. Whether the circumstances or conditions that caused or contributed to the abuse or neglect have been ameliorated.

5. Advise the parent, guardian or legal custodian of every child who is removed from the day care setting whether the circumstances or conditions that placed their child at risk of abuse or neglect have been ameliorated and provide those persons with the name of a person at the county department whom they may contact with any concerns relating to their child.

Under current law, on the petition of a child who is the victim or alleged victim of child abuse (child victim) or of the parent, stepparent or legal guardian of a child victim, a court must issue a temporary restraining order and may issue an injunction ordering a person to avoid the residence of the child victim and to avoid contact with the child victim if the court finds reasonable grounds to believe that the person has engaged or, based on prior conduct, may engage in abuse of the child victim. Current ly, a child abuse injunction may remain in effect for not more than 2 years or until the child victim attains 18 years of age, whichever occurs first, unless the injunction is extended for an additional 2 years or until the child victim attains 18 years of age, whichever occurs first. This bill permits the legal custodian of a child victim to peti tion for a child abuse restraining order and injunction.

The bill also creates special provisions relating to restraining and enjoining child abuse in a care or services setting, which is defined in the bill as a place, other than a child's dwelling, in which a child receives any type of care or services. Under the bill, on the petition of a child victim, a potential child victim (defined in the bill as a child who is receiving care or services in the same care or services setting as a child victim), a parent, stepparent, legal guardian or legal custodian of a child victim or a potential child victim, the district attorney or the county department, a court must issue a temporary restraining order and may issue an injunction ordering a person to stop providing care or services for children, to avoid the residence of the child victim, a potential child victim or any other child and to avoid contact with the child victim, a potential child victim or any other child if the court finds reasonable grounds to believe that the person has engaged in abuse of the child victim or, based on prior conduct, may engage in abuse of the child victim, a potential child victim or any other child. Under the bill, an injunction restraining child abuse in a care or ser vices setting may remain in effect and may be extended for such time as the court considers appropriate, based on the evidence.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB475, s. 1 Section 1. 48.981 (1) (bm) of the statutes is created to read:

SB475,3,7 48.981 (1) (bm) "Day care setting" means a place, other than a child's dwelling, in which a day care provider that holds a license under s. 48.65 or a probationary li cense under s. 48.69, that is certified under s. 48.651 or that is established or con tracted for under s. 120.13 (14) or any other person, including a person who provides care and supervision for less than 4 children, provides care and supervision for chil dren under 7 years of age for less than 24 hours a day.

SB475, s. 2 Section 2. 48.981 (2) of the statutes, as affected by 1993 Wisconsin Act 443, is amended to read:

SB475,4,23 48.981 (2) Persons required to report. A physician, coroner, medical examin er, nurse, dentist, chiropractor, optometrist, acupuncturist, other medical or mental health professional, social worker, marriage and family therapist, professional coun selor, public assistance worker, school teacher, administrator or counselor, mediator under s. 767.11, child care worker in a day care center intake worker, person who pro vides care and supervision or other services for a child in a child welfare agency, fos ter home, treatment foster home, group home, shelter care facility, day care setting or child caring institution, day care provider, alcohol or other drug abuse counselor, member of the treatment staff employed by or working under contract with a county department under s. 46.23, 51.42 or 51.437, physical therapist, occupational thera pist, dietitian, speech-language pathologist, audiologist, emergency medical techni cian or police or law enforcement officer having reasonable cause to suspect that a child seen in the course of professional duties has been abused or neglected or having reason to believe that a child seen in the course of professional duties has been threatened with abuse or neglect and that abuse or neglect of the child will occur shall, except as provided under sub. (2m), report as provided in sub. (3). Any other person, including an attorney, having reason to suspect that a child has been abused or neglected or reason to believe that a child has been threatened with abuse or ne glect and that abuse or neglect of the child will occur may make such a report. No person making a report under this subsection may be discharged from employment for so doing.

SB475, s. 3 Section 3. 48.981 (3) (c) 1. of the statutes is amended to read:

SB475,6,5 48.981 (3) (c) 1. Within 24 hours after receiving a report under par. (a), the county department or licensed child welfare agency under contract with the county department shall, in accordance with the authority granted to the county depart ment under s. 48.57 (1) (a), initiate a diligent investigation to determine if the child is in need of protection or services. The investigation shall be conducted in accor dance with standards established by the department for conducting child abuse and neglect investigations. If the investigation is of a report of abuse or neglect or threat ened abuse or neglect by a caregiver specified in sub. (1) (am) 5. to 8. who continues to have access to the child or a caregiver specified in sub. (1) (am) 1. to 4., or of a report that does not disclose who is suspected of the abuse or neglect and in which the inves tigation does not disclose who abused or neglected the child, the investigation shall also include observation of or an interview with the child, or both, and, if possible, an interview with the child's parents, guardian or legal custodian. If the investiga tion is of a report of abuse or neglect suspected or threatened abuse or neglect by a caregiver who continues to reside in the same dwelling as the child, the investigation shall also include, if possible, a visit to that dwelling. If the investigation is of a report of suspected or threatened abuse or neglect in a day care setting, the investigation shall also include, if possible, a visit to the day care setting and an interview with any person who had access to the child in the day care setting. At the initial visit to the child's dwelling or day care setting, the person making the investigation shall identi fy himself or herself and the county department or licensed child welfare agency in volved to the child's parents, guardian or legal custodian or to the person responsible for the child's care in the day care setting. The county department or licensed child welfare agency under contract with the county department may contact, observe or interview the child at any location without permission from the child's parent, guard ian or legal custodian if necessary to determine if the child is in need of protection or services, except that the person making the investigation may enter a child's dwelling or a day care setting only with permission from the child's parent, guardian or legal custodian or the person responsible for the child's care in the day care setting or after obtaining a court order to do so.

SB475, s. 4 Section 4. 48.981 (3) (c) 2. of the statutes is amended to read:

SB475,6,12 48.981 (3) (c) 2. a. If the person making the investigation is an employe of the county department and he or she determines that it is consistent with the child's best interest in terms of physical safety and physical health to remove the child from his or her home dwelling or day care setting for immediate protection, he or she shall take the child into custody under s. 48.08 (2) or 48.19 (1) (c) and deliver the child to the intake worker under s. 48.20.

SB475,6,19 b. If the person making the investigation is an employe of a licensed child wel fare agency which is under contract with the county department and he or she deter mines that any child in the home dwelling or day care setting requires immediate protection, he or she shall notify the county department of the circumstances and to gether with an employe of the county department shall take the child into custody under s. 48.08 (2) or 48.19 (1) (c) and deliver the child to the intake worker under s. 48.20.

SB475, s. 5 Section 5. 48.981 (3) (c) 4m. of the statutes is created to read:

SB475,6,23 48.981 (3) (c) 4m. If a report under par. (a) of suspected or threatened abuse or neglect in a day care setting is substantiated under subd. 4., the county depart ment shall do all of the following:

SB475,7,4 a. Determine whether any child who is receiving care and supervision in the day care setting is at risk of abuse or neglect and, if a child in the day care setting is at risk of abuse or neglect and requires immediate protection, remove the child from the day care setting under subd. 2. and require the person responsible for the day care setting to ameliorate immediately and permanently the circumstances or conditions that placed the child at risk of abuse or neglect.

SB475,7,10 b. Require the person responsible for the day care setting to provide to the county department the name of every child who is currently, or was at the time the report under par. (a) was made, receiving care and supervision in the day care setting and who may have had direct contact while in the day care setting with the person who is suspected of the abuse or neglect or who has been determined to have abused or neglected a child.

SB475,7,13 c. Require the person responsible for the day care setting to provide to the county department the name and address of the parent, guardian or legal custodian of every child identified under subd. 4m. b.

SB475,7,15 d. Ensure that the information specified in sub. (7) (cg) is provided to the par ents, guardians or legal custodians specified in subd. 4m. c. as soon as possible.

SB475,7,22 e. Advise the parent, guardian or legal custodian of any child who is removed from the day care setting under subd. 2. whether the person responsible for the day care setting has ameliorated the circumstances or conditions that placed the child at risk of abuse or neglect and provide the parent, guardian or legal custodian with the name of a person at the county department whom the parent, guardian or legal custodian may contact if the parent, guardian or legal custodian has any concerns relating to his or her child.

SB475, s. 6 Section 6. 48.981 (6) of the statutes is renumbered 48.981 (6) (a).

SB475, s. 7 Section 7. 48.981 (6) (b) of the statutes is created to read:

SB475,8,3 48.981 (6) (b) Any person responsible for a day care setting who fails to provide the information required under sub. (3) (c) 4m. b. may be required to forfeit not more than $1,000.

SB475, s. 8 Section 8. 48.981 (7) (a) (intro.) of the statutes is amended to read:

SB475,8,10 48.981 (7) (a) (intro.) All reports made under this section, notices provided un der sub. (3) (bm) and records maintained by the department, county departments or licensed child welfare agencies under contract with the county departments and oth er persons, officials and institutions shall be confidential. Reports Subject to any conditions specified in subds. 1. to 14., reports and records may shall be disclosed only to the following persons on request:

SB475, s. 9 Section 9. 48.981 (7) (cd) of the statutes is created to read:

SB475,8,20 48.981 (7) (cd) Notwithstanding par. (a), if following a report under sub. (3) (a) of suspected or threatened abuse or neglect in a day care setting a child who is receiv ing care and supervision in the day care setting is taken into custody under s. 48.08 (2) or 48.19 (1) (c) or (d) 5. and delivered to the intake worker under s. 48.20, the in take worker shall inform the parent, guardian or legal custodian of the child that a report under sub. (3) (a) was received and that the child was taken into custody under s. 48.08 (2) or 48.19 (1) (c) or (d) 5., whichever is applicable. An intake worker may disclose no other information under this paragraph relating to a report except as per mitted under this paragraph.

SB475, s. 10 Section 10. 48.981 (7) (cg) of the statutes is created to read:

SB475,9,2 48.981 (7) (cg) Notwithstanding par. (a), if a report under sub. (3) (a) of sus pected or threatened abuse or neglect in a day care setting is substantiated under sub. (3) (c) 4., the county department shall ensure that the parent, guardian or legal custodian of every child identified under sub. (3) (c) 4m. b. is informed as soon as pos sible of all of the following:

SB475,9,5 1. That the county department received and investigated a report of suspected or threatened abuse or neglect in the day care setting and that, based on a preponder ance of evidence produced by the investigation, the report was substantiated.