SB501: Bill Text

LRB-4998/1

GMM:kg&sg:jlb

1995 - 1996 LEGISLATURE

CORRECTED COPY

1995 Senate BILL 501

January 25, 1996 - Introduced by Joint Legislative Council. Referred to Committee on Judiciary.

SB501,4,2 An Act to repeal 48.01 (1) (b), 48.01 (1) (e), 48.371 (intro.) (except 48.371 (title)), 48.415 (6) (a) 2., 48.981 (1) (a), 48.981 (1) (b), 48.981 (1) (cm), 48.981 (1) (e), 48.982 (1) (a), 813.122 (1) (e), 813.122 (1) (f) and 813.122 (8); to renumber 48.02 (1), 48.235 (3), 48.368 and 48.415 (2) (b); to renumber and amend 48.01 (2), 48.27 (3) (a), 48.299 (6), 48.371 (1) and (2), 48.427 (3) (intro.), 48.428 (2) and 767.53 (1); to consolidate, renumber and amend 48.415 (6) (a) (intro.) and 1.; to amend 48.01 (1) (g), 48.01 (1) (gr), 48.023 (intro.), 48.09 (5), 48.13 (3), 48.13 (3m), 48.13 (4), 48.13 (9), 48.13 (11), 48.13 (11m), 48.14 (2) (b), 48.185 (1), 48.185 (2), 48.205 (1) (b), 48.21 (1) (a), 48.21 (1) (b), 48.235 (1) (c), 48.235 (3) (title), 48.245 (2) (b), 48.299 (1) (a), 48.299 (4) (a), 48.299 (4) (b), 48.31 (2), 48.31 (4), 48.356 (1) and (2), 48.357 (1) and (2m), 48.361 (2) (a) 1., 48.362 (3), 48.363 (1), 48.365 (2), 48.371 (3), 48.375 (4) (b) 3., 48.38 (5) (c) 2., 48.415 (1) (a) (intro.), 48.415 (1) (a) 2., 48.415 (1) (a) 3., 48.415 (2) (intro.), 48.415 (2) (c), 48.415 (3) (intro.), 48.415 (4), 48.415 (5) (intro.) and (b), 48.415 (6) (b), 48.415 (7), 48.415 (8), 48.415 (9) (a), 48.42 (3) (d), 48.42 (4) (c) 3., 48.425 (1) (f), 48.425 (1) (g), 48.43 (1) (a), 48.43 (4), 48.43 (5) (b), 48.43 (5) (c), 48.46 (2), 48.62 (2), 48.831 (title), 48.831 (1), 48.981 (2m) (c) (intro.), 48.981 (3) (c) 4., 48.981 (3) (cm), 48.982 (1) (c), 252.15 (5) (a) 19., 767.075 (1) (a), 767.11 (8) (b) 1., 767.11 (10) (e) 1., 767.24 (2) (b) 2. c., 767.24 (5) (h), 767.45 (1) (i), 767.47 (10), 808.04 (7m), 809.107 (5), 809.107 (6) (e), 809.107 (6) (f), 905.04 (4) (e) 1. a. and 939.45 (5) (b); to repeal and recreate 48.415 (1) (c) and 813.122 (1) (a); and to create 46.40 (7m), 48.01 (1) (ag), 48.01 (1) (bg), 48.01 (1) (br), 48.01 (1) (dm), 48.01 (1) (gt), 48.01 (2) (a) and (b), 48.02 (1), 48.02 (5j), 48.02 (14m), 48.02 (14r), 48.065 (3) (g), 48.235 (3) (b), 48.235 (4) (a) 7g., 48.235 (4) (a) 7m., 48.245 (2r), 48.27 (3) (a) 2., 48.293 (4), 48.299 (1) (ar), 48.299 (6) (b), (c) and (e), 48.299 (7), 48.299 (8), 48.365 (2m) (ag), 48.368 (2), 48.371 (1) (intro.), 48.396 (2) (dm), 48.415 (1) (a) 1m., 48.415 (2) (b) 1., 48.415 (9m), 48.415 (10), 48.42 (1m) (title) and (a), 48.42 (1m) (b), 48.42 (1m) (c), 48.427 (1m), 48.427 (3p), 48.428 (2) (b), 48.977, 48.981 (3) (c) 6m., 48.981 (7) (a) 1m., 756.096 (3) (e), 767.45 (5) (c), 767.45 (6r), 767.47 (1) (cm), 767.475 (7m), 767.53 (1) (c), 808.075 (4) (a) 10. and 808.075 (4) (a) 11. of the statutes; relating to: the grounds for involuntary termination of parental rights over a child, appeals of and motions for relief from orders terminating parental rights and denial of visitation by a parent of a child adjudicated to be in need of protection or services; the statement of legislative purpose in the children's code; abuse and neglect of a child; grounds for jurisdiction over a child alleged to be in need of protection or services; criteria for holding a child in physical custody; payment by a parent for alcohol and other drug abuse services or special treatment or care for a child; duties of a county department of human services or social services with respect to child abuse and neglect investigations; grounds for a child abuse restraining order and injunction; the defense in criminal prosecutions based on the privilege of reasonable discipline of a child; determining whether a child alleged to be in need of protection or services needs protection or services that can be ordered by a juvenile court; extension of an informal disposition for a child when the informal disposition is based on allegations that the child is in need of protection or services; the duties of a guardian ad litem appointed in proceedings involving a child alleged to be in need of protection or services; the right to a jury trial in proceedings involving children alleged to be in need of protection or services; the release of certain information, including the results of tests for the human immunodeficiency virus or viral hepatitis, type B, regarding a child to the child's foster parent or treatment foster parent or the operator of a group home or child caring institution in which the child is placed; a county's authority to use certain community aids funds to employ private attorneys for proceedings under the children's code; disclosure of certain information to certain voluntary reporters of suspected or threatened child abuse or neglect; the time by which a detention hearing must be held and the time by which a petition must be filed under the children's code if a child is held in custody; petitioning a court, at the time a petition is filed for involuntary termination of parental rights to a child, for an order prohibiting visitation or contact with that child; the role of foster parents, treatment foster parents and certain other physical custodians in hearings under the children's code; permitting genetic testing for paternity determinations under the children's code, paternity determination proceedings for a child alleged to be in need of protection or services and disclosure of records relating to paternity determination proceedings; guardianship for certain children adjudged to be in need of protection or services; requesting the joint legislative council to study the use, effectiveness and funding of systems and programs directed at the prevention of child abuse and neglect; and discovery in proceedings under the children's code.

Analysis by the Legislative Reference Bureau

This bill is explained in the Notes provided by the joint legislative council in the bill.

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:

Prefatory note: This bill was prepared for the joint legislative council's special committee on children in need of protection or services.

The bill includes the following provisions:

A. Statement of legislative purpose in the children's code

1. Current Law

Section 48.01, stats., sets forth the statement of legislative purpose section in the children's code [ch. 48, stats.] (hereinafter referred to as ch. 48).

2. The Bill

The bill modifies the legislative purpose section in ch. 48 to reemphasize that the best interests of the child must always be the paramount and guiding interests that must be considered in using, and interpreting, ch. 48. The bill changes the legislative purpose provisions of ch. 48 as follows:

a. Creates a new provision recognizing that children have basic needs, including the need for adequate food, clothing and shelter; to be free from physical, sexual or emotional injury or exploitation; to develop physically, mentally and emotionally to their potential; and for a safe and permanent family.

b. Creates new provisions recognizing that children must be ensured of all of the following:

(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