AB463: Bill Text

LRB-3642/1

GMM:mfd:jf

1997 - 1998 LEGISLATURE

1997 Assembly BILL 463

July 31, 1997 - Introduced by Representatives Ladwig, Plale, Jensen, Huebsch, Albers, Dobyns, Duff, Freese, Gard, Goetsch, Gunderson, Handrick, Kelso, F. Lasee, Lazich, Nass, Olsen, Ott, Owens, Porter, Schafer, Staskunas, Sykora, Ward and Ziegelbauer, cosponsored by Senators Huelsman, Darling, Grobschmidt, Fitzgerald, Farrow, Cowles, Drzewiecki and Roessler. Referred to Committee on Children and Families.

AB463,3,17 An Act to renumber and amend 48.207 (2), 48.243 (2), 48.27 (1), 48.27 (4) (intro.) and 48.985 (2) (a); to amend 15.195 (4) (g), 38.24 (1s), 46.001, 46.03 (7) (a), 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 (1e), 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 (8), 48.069 (1) (a), 48.069 (1) (c), 48.07 (4), 48.08 (1), 48.08 (2), 48.09 (5), 48.135 (title), 48.135 (1), 48.135 (2), 48.14 (5), 48.15, 48.185 (1), 48.185 (2), 48.19 (1) (c), 48.20 (title), 48.20 (7) (b), 48.205 (title), 48.205 (1) (intro.), 48.205 (2), 48.207 (title), 48.207 (1) (intro.), 48.208 (4), 48.23 (4), 48.235 (3), 48.235 (6), 48.24 (1), 48.24 (1m), 48.24 (2) (a), 48.24 (3), 48.24 (5), 48.243 (1) (intro.), (a), (b), (c), (d), (e), (f) and (g), 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., 48.275 (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), 48.35 (1) (b) (intro.), 48.35 (1) (b) 1., 48.35 (1) (b) 2., 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), 48.357 (1), 48.357 (2), 48.357 (2m), 48.36 (2), 48.361 (1) (b), 48.361 (1) (c), 48.361 (2) (am) 2., 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), 48.44 (1), 48.45 (1) (b), 48.45 (2), 48.46 (1), 48.48 (1), 48.48 (16), 48.52 (2) (a), 48.547 (1), 48.547 (3) (intro.), (b) and (d), 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) (bm) (intro.), 48.981 (3) (bm) 1., 48.981 (3) (bm) 2., 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) 6m., 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), 48.982 (1) (d), 48.982 (2) (a), 48.982 (2) (g) 1., 48.982 (2) (g) 2., 48.982 (2) (g) 3., 48.982 (2) (g) 4., 48.982 (2) (g) 5., 48.982 (2) (gm), 48.982 (4) (d) (intro.), 48.982 (4) (d) 1., 48.982 (4) (d) 3., 48.982 (4) (e), 48.985 (1), 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); and to create 48.01 (1) (am), 48.01 (1) (bm), 48.02 (1) (am), 48.02 (19), 48.065 (2) (bm), 48.133, 48.193, 48.203, 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 (4) (b), 48.347, 48.355 (2) (b) 2m., 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), 48.78 (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., 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.

Analysis by the Legislative Reference Bureau

Under current law, the children's code grants to the court assigned to exercise jurisdiction under the children's code (juvenile court) jurisdiction over children alleged to be in need of protection or services and authorizes the juvenile court to impose certain dispositions on a child found to be in need of protection or services. The children's code also requires certain individuals to report to the sheriff, local police department or county department of human services or social services (county department) any suspected or threatened abuse or neglect of a child seen in the course of the individual's professional duties and requires the sheriff or police department, and the county department, to investigate those reports. Finally, the children's code permits children to be taken into and held in custody under certain circumstances.

This bill extends, as explained in this analysis, the coverage of the children's code to unborn children, which are defined in the bill as unborn humans who are at that stage of fetal development when there is a reasonable likelihood of sustained survival outside the womb, with or without artificial support.

Jurisdiction

Under current law, the juvenile court has exclusive original jurisdiction over a child who is alleged to be in need of protection or services which can be ordered by the juvenile court and who meets certain jurisdictional grounds, including the ground that the child has been the victim of abuse, which is defined under current law, in part, as physical injury inflicted on a child by other than accidental means.

This bill grants to the juvenile court exclusive original jurisdiction over an unborn child who is alleged to be in need of protection or services which can be ordered by the court and whose expectant mother habitually lacks self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, to the extent that there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered unless the expectant mother receives prompt and adequate treatment for that habitual lack of self-control. The bill also grants to the juvenile court exclusive original jurisdiction over the expectant mother of such an unborn child.

Dispositions

Under current law, if the juvenile court finds that a child is in need of protection or services, the juvenile court must enter a dispositional order imposing one or more of the dispositions authorized under current law. Those dispositions include all of the following:

1. Counseling the child or the child's parent, guardian or legal custodian.

2. Placing the child under the supervision of the county department, a licensed child welfare agency, the department of health and family services (DHFS) or a suitable adult under conditions prescribed by the juvenile court, including reasonable rules for the child's conduct, designed for the well-being of the child.

3. Ordering the child's parents to provide the child with special treatment and care, which is defined under current law as professional services, including medical, psychological or psychiatric treatment, alcohol or other drug abuse treatment or other services, which need to be provided to a child and his or her family to protect the well-being of the child, prevent placement of the child outside of the child's home or meet the special needs of the child.

4. Ordering the child to enter an outpatient alcohol or other drug abuse treatment program or to participate in an alcohol or other drug abuse eduction program.

In addition, under current law, the juvenile court may order the parent, guardian or legal custodian of a child who has been found to be in need of protection or services to comply with any conditions determined by the juvenile court to be necessary for the child's welfare. Such an order may include an order to participate in mental health treatment, anger management, individual or family counseling or parent training and education. Such an order, however, may not include inpatient treatment. Currently, a parent, guardian or legal custodian of a child who is found to be in need of protection or services may be ordered into inpatient treatment only under the mental health act.

This bill authorizes the juvenile court to impose one or more of the following dispositions on the expectant mother of an unborn child who is found to be in need of protection or services:

1. Counsel the expectant mother.

2. Place the expectant mother under the supervision of the county department, DHFS or a suitable adult under conditions prescribed by the juvenile court, including reasonable rules for the expectant mother's conduct, designed for the physical well-being of the unborn child. Such an order may include an order to participate in mental health treatment, anger management, individual or family counseling or parent or prenatal development training and education.

3. Order the expectant mother to obtain special treatment or care, which is defined in the bill as professional services, including medical, psychological or psychiatric treatment, alcohol or other drug abuse treatment or other services, which need to be provided to the expectant mother to protect the physical health of the unborn child and of the child when born.

4. Order the expectant mother to enter an outpatient alcohol or other drug abuse treatment program or to participate in an alcohol or other drug abuse education program.

5. Order the expectant mother to enter an inpatient alcohol or other drug abuse treatment program, but only if the juvenile court finds that the expectant mother is in need of inpatient treatment, that inpatient treatment is appropriate for the expectant mother's needs and that inpatient treatment is the least restrictive treatment consistent with the expectant mother's needs.

Abuse investigations

Under current law, certain individuals, such as physicians, nurses, social workers, teachers, day care providers and law enforcement officers (mandated reporters) 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 will occur must, and any person (discretionary reporter) 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 neglect and that abuse or neglect will occur may, report that suspected or threatened abuse or neglect to the sheriff, local police department or county department. If the reporter requests an immediate investigation, the sheriff or local police department must immediately investigate to determine if there is reason to believe that the child's health or safety is in immediate danger and take necessary action, including taking the child into custody, to protect the child. The county department must initiate a diligent investigation within 24 hours after receiving a report to determine if the child is in need of protection or services and, if the county department determines that the child is in need of services, the county department must offer to provide those services. If those services are refused, the county department may request the district attorney to file a petition alleging that the child is in need of protection or services.

This bill extends the child abuse and neglect reporting law to unborn children who are suspected of having been abused or who are at substantial risk of abuse, which is defined in the bill as serious physical injury inflicted on an unborn child, and on the child when born, 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.

Specifically, under the bill, a mandatory reporter having reasonable cause to suspect that an unborn child seen in the course of professional duties has been abused or having reason to believe that an unborn child seen in the course of professional duties is at substantial risk of abuse must, and a discretionary reporter having reason to suspect that an unborn child has been abused or reason to believe that an unborn child is at substantial risk of abuse may, report that suspected or threatened abuse to the sheriff, local police department or county department. The sheriff or local police department, and county department, then must investigate and take action in the same manner as they investigate and take action with respect to a child abuse or neglect report under current law.

Taking and holding expectant mother in custody

Under current law, a child may be taken into custody under a warrant, a capias or an order of the juvenile court if made on a showing that the welfare of the child demands that the child be immediately removed from his or her present custody. Current law also permits a child to be taken into custody under circumstances in which a law enforcement officer believes on reasonable grounds that the child is suffering from illness or injury or is in immediate danger from his or her surroundings and that removal from those surroundings is necessary or that the child has violated the conditions of the temporary physical custody order. The person taking the child into custody must make every effort to release the child immediately to the child's parent, guardian or legal custodian, but, if the child is not released, that person must deliver the child to the juvenile court intake worker (intake worker). The intake worker must also make every effort to release the child, but may decide to hold the child in custody if the intake worker determines that there is probable cause to believe that the child is within the jurisdiction of the juvenile court and that certain criteria are met, including the criterion that if the child is not held he or she will be subject to injury by others. A child who is held in custody may be held in custody in various places, including the home of a relative; a hospital or a physician's office, if the child is suffering from a serious physical condition that requires prompt diagnosis or treatment; or a treatment facility, if the child is believed to be mentally ill, drug dependent or intoxicated and to be dangerous to himself or herself or others. A child who is held in custody and who is not released must have a hearing within 48 hours, excluding Saturdays, Sundays and holidays, after the decision to hold the child was made to determine whether the child should continue to be held in custody.

This bill permits an expectant mother of an unborn child to be taken into custody under a warrant, a capias or an order of the juvenile court if made on a showing that due to the expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered unless the expectant mother is taken into custody. The bill also permits an expectant mother of an unborn child to be taken into custody under circumstances in which a law enforcement officer believes on reasonable grounds that there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered due to the expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, unless the expectant mother is taken into custody, or that the expectant mother has violated the terms of a temporary physical custody order.

The person taking the expectant mother into custody must make every effort to release the expectant mother to an adult relative or friend of the expectant mother or under her own supervision, but, if the expectant mother is not released, that person must deliver the expectant mother to the intake worker. The intake worker must also make every effort to release the expectant mother, but may decide to hold the expectant mother in custody if the intake worker determines that there is probable cause to believe that the expectant mother is within the jurisdiction of the juvenile court and that, if the expectant mother is not held, there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered by the expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree.

Under the bill, an expectant mother of an unborn child may be held in custody in the home of an adult relative or friend of the expectant mother; a hospital or a physician's office, if the unborn child or expectant mother is suffering from a serious physical condition that requires prompt diagnosis or treatment; or a treatment facility, if the expectant mother is believed to be mentally ill, drug dependent or intoxicated and dangerous to herself, others, the unborn child or the child when born. An expectant mother who is held in custody and who is not released must have a hearing within 48 hours, excluding Saturdays, Sundays and holidays, after the decision to held the expectant mother in custody was made to determine whether she should continue to be held in custody.

Procedures

Under current law, the children's code specifies the procedures governing a child who is referred to the juvenile court as in need of protection or services. Those procedures govern the intake inquiry by the intake worker, which may include administering a multidisciplinary screen for alcohol or other drug abuse or entering into an informal disposition rather than referring the case to the district attorney for the filing of a petition; the authority to file, and the form and content of, a petition alleging the child to be in need of protection or services; the issuing of summonses and notices of hearings on such a petition; prehearing procedures such as substitution of a judge, discovery, motions and physical, psychological, mental or developmental examinations; procedures at hearings on the petition, that is, the plea hearing, the fact-finding hearing and the dispositional hearing; delays, continuances and extensions; and the entering into of a consent decree rather than proceeding to disposition. This bill applies the procedures under current law governing a child alleged to be in need of protection or services to the expectant mother of an unborn child alleged to be in need of protection or services.

Duties and authority

Under current law, DHFS is required to promote the enforcement of laws for the protection of children in need of protection or services. This bill extends that duty to unborn children in need of protection or services.

Under current law, county departments have authority to investigate the conditions surrounding children in need of protection or services and to take every reasonable action within their powers to secure for them the full benefit of all laws enacted for their benefit. This bill extends that authority to include unborn children in need of protection or services.

Under current law, the child abuse and neglect prevention board awards grants and performs other duties to promote the prevention of child abuse and neglect. This bill extends the duties of the board to include the prevention of unborn child abuse.

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:

AB463, s. 1 Section 1. 15.195 (4) (g) of the statutes is amended to read:

AB463,8,12 15.195 (4) (g) Eight public members appointed by the governor for staggered 3-year terms. Six of the public members shall be appointed on the basis of expertise, experience and interest in the prevention of child abuse and neglect or in the prevention of unborn child abuse or on the basis of expertise and experience in intervention in cases of child abuse and neglect or unborn child abuse. One public member shall be an adult who was a victim of abuse or neglect as a child or of abuse as an unborn child. One public member shall be a parent who formerly abused or neglected one or more of his or her children, or who formerly abused one or more of her unborn children, and who has received treatment or advice from an organization that provides child abuse and neglect or unborn child abuse prevention and intervention services.

AB463, s. 2 Section 2. 38.24 (1s) of the statutes is amended to read:

AB463,9,6 38.24 (1s) Additional fees. A district board may establish and charge a fee in addition to the fees under sub. (1m) for 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 (4) (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).

AB463, s. 3 Section 3. 46.001 of the statutes is amended to read:

AB463,9,17 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.

AB463, s. 4 Section 4. 46.03 (7) (a) of the statutes is amended to read: