AB532: Bill Text

LRB-3464/1

GMM:kmg&jlg:mrc

1999 - 2000 LEGISLATURE

1999 Assembly BILL 532

October 12, 1999 - Introduced by Representatives Steinbrink, Porter, Kreuser, Ladwig, Kelso, Turner, Coggs, Brandemuehl, Sykora, Reynolds, Meyer, La Fave, Johnsrud and Ryba, cosponsored by Senators Wirch, Plache, Huelsman, Burke, Darling, Clausing, Rosenzweig, Erpenbach and Roessler. Referred to Committee on Children and Families.

AB532,1,11 An Act to amend 46.48 (28), 48.23 (3m), 48.23 (6), 48.235 (2), 48.27 (3) (a) 1., 48.293 (1), 48.293 (2), 48.295 (2), 48.299 (1) (ag), 48.32 (1), 48.32 (2) (c), 48.355 (2) (d), 48.355 (2e) (c), 48.357 (1), 48.357 (2m), 48.363 (1), 48.365 (2), 48.38 (5) (b), 48.38 (5) (d), 48.38 (5) (e), 48.981 (2), 48.981 (7) (a) 11r., 118.125 (2) (L), 938.23 (6), 938.235 (2), 938.27 (3) (a) 1., 938.293 (1), 938.293 (2), 938.295 (2) (b), 938.299 (1) (a), 938.32 (1) (a), 938.32 (2) (c), 938.355 (2) (d), 938.355 (2e) (c), 938.355 (6) (b), 938.355 (6m) (b), 938.357 (1), 938.357 (2m), 938.363 (1), 938.365 (2), 938.38 (5) (b), 938.38 (5) (d) and 938.38 (5) (e); and to create 48.07 (5), 48.236, 48.27 (3) (e), 48.32 (1b), 48.345 (2r), 938.07 (5), 938.236, 938.27 (3) (c), 938.32 (1b) and 938.345 (3) of the statutes; relating to: court-appointed special advocates for children and juveniles in need of protection or services.

Analysis by the Legislative Reference Bureau

Under current law, child abuse and neglect reports and records are confidential and may be disclosed only under certain exceptions. One of those exceptions permits those reports and records to be disclosed to a volunteer appointed or person employed by a court-appointed special advocate (CASA) program recognized by the county board of supervisors (county board) or the county department of human services or social services (county department) or, in a county having a population of 500,000 or more, the department of health and family services (DHFS) or a licensed child welfare agency under contract with DHFS, to the extent necessary to perform the advocacy services in child in need of protection or services proceedings for which the CASA program is recognized.

This bill eliminates the authority of DHFS, a county board, a county department or a licensed child welfare agency to recognize a CASA program and instead permits the chief judge of a judicial administrative district to recognize a CASA program. A chief judge may recognize a CASA program by entering into a memorandum of understanding with the CASA program that specifies the responsibilities of the CASA program and of a CASA volunteer. To be a CASA volunteer, a person must be 21 years of age or older, must demonstrate an interest in the welfare of children, must undergo a satisfactory background investigation, must complete the training program required under the bill and must meet any other qualifications required by the CASA program. Before a person may be designated as a CASA in a proceeding of the court assigned to exercise jurisdiction under the children's code and the juvenile justice code (juvenile court), the person must complete a training program that includes instruction on recognizing child abuse and neglect, cultural competency, child development, juvenile court procedures, permanency planning for children, the responsibilities of a CASA and information gathering and documentation. A CASA volunteer must also complete continuing training annually.

The bill permits the juvenile court to request a CASA program to designate a CASA volunteer to perform certain activities in any proceeding in which it is alleged that a child or juvenile is in need of protection or services and in which the juvenile court finds that providing the services of a CASA would be in the best interests of the child or juvenile. Those proceedings include proceedings in which it is alleged that a child has been the victim of abuse or neglect or that a juvenile is uncontrollable, habitually truant from home or school or a dropout. The bill permits a juvenile court to request a CASA program to designate a CASA volunteer to perform the following activities:

1. Gather information and make observations about the child or juvenile, his or her family and any other person residing in the same home as the child or juvenile and provide that information and those observations to the juvenile court in the form of written reports or, if requested by the juvenile court, oral testimony.

2. Maintain regular contact with the child or juvenile; monitor the appropriateness and safety of the environment of the child or juvenile, the extent to which the child or juvenile and his or her family are complying with any consent decree or dispositional order of the juvenile court or any permanency plan for the child or juvenile and the extent to which any agency that is required to provide services for the child or juvenile and his or her family is providing those services; and, based on that regular contact and monitoring, provide information to the juvenile court in the form of written reports or, if requested by the juvenile court, oral testimony.

3. Advocate for the best interests of the child or juvenile.

4. Undertake any other activities that are consistent with the memorandum of understanding between the chief judge and the CASA program.

A juvenile court that requests a CASA program to designate a CASA volunteer to undertake the activities described in paragraph 1. or 2., above, must include in the order requesting that designation an order authorizing the CASA to do any of the following:

1. Inspect any reports and records relating to the child or juvenile, his or her family and any other person residing in the same home as the child or juvenile that are relevant to the subject matter of the proceeding. Those reports and records include physical, psychological and alcohol or other drug dependency examination reports, law enforcement agency reports and records, juvenile court records, social welfare agency records, abuse and neglect reports and records and pupil records. A CASA that obtains access to such a report or record must keep the information contained in the report or record confidential and may disclose that information only to the juvenile court and, if disclosed to the juvenile court, to all parties to the proceeding.

2. Observe the child or juvenile and his or her living environment and, if the child or juvenile is old enough to communicate, interview the child or juvenile; interview the parent, guardian, legal custodian or other caregiver of the child or juvenile and observe that person's living environment; and interview any other person who might possess any information relating to the child or juvenile and his or her family that is relevant to the proceeding. A CASA may observe or interview the child or juvenile at any location without the permission of the parent, guardian, legal custodian or other caregiver of the child or juvenile if necessary to obtain any information that is relevant to the subject of the proceeding, except that a CASA may enter the home of a child or juvenile only with the permission of the parent, guardian, legal custodian or other caregiver of the child or juvenile or after obtaining a court order permitting the CASA to do so. A CASA that obtains any information from those observations or interviews must keep the information confidential and may disclose that information only to the juvenile court and, if disclosed to the juvenile court, to all parties to the proceeding.

Finally, the bill does all of the following:

1. Makes a CASA a mandatory reporter of suspected or threatened child abuse or neglect.

2. Makes a CASA volunteer and an employe of a CASA program immune from civil liability for any act or omission of the volunteer or employe occurring while acting within the scope of his or her activities and authority as a CASA volunteer or employe.

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:

AB532, s. 1 Section 1. 46.48 (28) of the statutes is amended to read:

AB532,4,10 46.48 (28) Grants for court-appointed special advocates. The department shall distribute $50,000 in each fiscal year as grants to court-appointed special advocate programs that are recognized by a county board, by a county department under s. 46.22 or 46.23 or, in a county having a population of 500,000 or more, by the department or a licensed child welfare agency under contract with the department chief judge of a judicial administrative district under s. 48.07 (5) to perform advocacy services in proceedings under s. 48.13 or by a chief judge of a judicial administrative district under s. 938.07 (5) to perform advocacy services in proceedings under s. 938.13 (4), (6), (6m) or (7).

AB532, s. 2 Section 2. 48.07 (5) of the statutes is created to read:

AB532,4,22 48.07 (5) Court-appointed special advocate program. (a) Memorandum of understanding. The court may obtain the services of a court-appointed special advocate program that has been recognized by the chief judge of the judicial administrative district. A chief judge of a judicial administrative district may recognize a court-appointed special advocate program by entering into a memorandum of understanding with the court-appointed special advocate program that specifies the responsibilities of the court-appointed special advocate program and of a court-appointed special advocate designated under s. 48.236 (1). The memorandum of understanding shall specify that the court-appointed special advocate program is responsible for selecting, training, supervising and evaluating the volunteers participating in the program as provided in pars. (b) to (d).

AB532,5,6 (b) Selection. 1. A court-appointed special advocate program may select a person to participate in the program if the person is 21 years of age or older, demonstrates an interest in the welfare of children, undergoes a satisfactory background investigation as provided under subd. 2., completes the training required under par. (c) and meets any other qualifications required by the court-appointed special advocate program. A court-appointed special advocate program may refuse to permit to participate in the program any person whose participation in the program might pose a risk, as determined by the court-appointed special advocate program, to the safety of any child.

AB532,5,19 2. On receipt of an application from a prospective court-appointed special advocate, the court-appointed special advocate program, with the assistance of the department of justice, shall conduct a background investigation of the applicant. If the court-appointed special advocate program determines that any information obtained as a result of the background investigation provides a reasonable basis for further investigation, the court-appointed special advocate program may require the applicant to be fingerprinted on 2 fingerprint cards, each bearing a complete set of the applicant's fingerprints. The department of justice may provide for the submission of the fingerprint cards to the federal bureau of investigation for the purposes of verifying the identification of the applicant and obtaining the applicant's criminal arrest and conviction record. The court-appointed special advocate program shall keep confidential all information received from the department of justice and the federal bureau of investigation under this subdivision.

AB532,6,4 (c) Training. A court-appointed special advocate program shall require a volunteer selected under par. (b) to complete a training program before the volunteer may be designated as a court-appointed special advocate under s. 48.236 (1). The training program shall include instruction on recognizing child abuse and neglect, cultural competency, as defined in s. 48.982 (1) (bm), child development, the procedures of the court, permanency planning, the activities of a court-appointed special advocate under s. 48.236 (3) and information gathering and documentation, and shall include observation of a proceeding under s. 48.13. A court-appointed special advocate program shall also require each volunteer to complete continuing training annually.

AB532,6,11 (d) Supervision and evaluation. The supervisory support staff of a court-appointed special advocate program shall be easily accessible to the volunteers of the program, shall hold regular case conferences with those volunteers to review case progress and shall conduct annual performance evaluations of those volunteers. A court-appointed special advocate program shall provide its staff and volunteers with written guidelines describing the policies, practices and procedures of the program and the responsibilities of a volunteer with the program.

AB532, s. 3 Section 3. 48.23 (3m) of the statutes is amended to read:

AB532,6,20 48.23 (3m) Guardians ad litem or counsel for abused or neglected children. The court shall appoint counsel for any child alleged to be in need of protection or services under s. 48.13 (3), (3m), (10), (10m) and (11), except that if the child is less than 12 years of age the court may appoint a guardian ad litem instead of counsel. The guardian ad litem or counsel for the child shall may not be the same act as counsel for any other party or any governmental or social agency involved in the proceeding and may not act as court-appointed special advocate for the child in the proceeding.

AB532, s. 4 Section 4. 48.23 (6) of the statutes is amended to read:

AB532,6,25 48.23 (6) Definition. For the purposes of this section, "counsel" means an attorney acting as adversary counsel who shall advance and protect the legal rights of the party represented, and who may not act as guardian ad litem or court-appointed special advocate for any party in the same proceeding.

AB532, s. 5 Section 5. 48.235 (2) of the statutes is amended to read:

AB532,7,7 48.235 (2) Qualifications. The guardian ad litem shall be an attorney admitted to practice in this state. No person who is an interested party in a proceeding, who appears as counsel or court-appointed special advocate in a proceeding on behalf of any party or who is a relative or representative of an interested party in a proceeding may be appointed guardian ad litem in that proceeding.

AB532, s. 6 Section 6. 48.236 of the statutes is created to read:

AB532,7,18 48.236 Court-appointed special advocate. (1) Designation. In any proceeding under s. 48.13 in which the court finds that providing the services of a court-appointed special advocate would be in the best interests of the child, the court may request a court-appointed special advocate program to designate a person who meets the qualifications specified in sub. (2) as a court-appointed special advocate to undertake the activities specified in sub. (3). A court-appointed special advocate does not become a party to the proceeding and, as a nonparty, may not make motions or call or cross-examine witnesses. A designation under this subsection terminates when the jurisdiction of the court over the child under s. 48.13 terminates, unless the court discharges the court-appointed special advocate sooner.

AB532,7,24 (2) Qualifications. A court-appointed special advocate shall be a volunteer who has been selected and trained as provided in s. 48.07 (5) (b) and (c). No person who is a party in a proceeding, who appears as counsel or guardian ad litem in a proceeding on behalf of any party or who is a relative or representative of a party in a proceeding may be designated as a court-appointed special advocate in that proceeding.

AB532,8,2 (3) Activities. A court-appointed special advocate may be designated under sub. (1) to perform any of the following activities:

AB532,8,6 (a) Gather information and make observations about the child for whom the designation is made, the child's family and any other person residing in the same home as the child and provide that information and those observations to the court in the form of written reports or, if requested by the court, oral testimony.

AB532,8,15 (b) Maintain regular contact with the child for whom the designation is made; monitor the appropriateness and safety of the environment of the child, the extent to which the child and the child's family are complying with any consent decree or dispositional order of the court and with any permanency plan under s. 48.38, and the extent to which any agency that is required to provide services for the child and the child's family under a consent decree, dispositional order or permanency plan is providing those services; and, based on that regular contact and monitoring, provide information to the court in the form of written reports or, if requested by the court, oral testimony.

AB532,8,16 (c) Advocate for the best interests of the child.

AB532,8,18 (d) Undertake any other activities that are consistent with the memorandum of understanding entered into under s. 48.07 (5) (a).

AB532,8,22 (4) Authority. A court that requests a court-appointed special advocate program to designate a court-appointed special advocate to undertake the activities specified in sub. (3) shall include in the order requesting that designation an order authorizing the court-appointed special advocate to do any of the following:

AB532,9,13 (a) Inspect any reports and records relating to the child who is the subject of the proceeding, the child's family and any other person residing in the same home as the child that are relevant to the subject matter of the proceeding, including records discoverable under s. 48.293, examination reports under s. 48.295 (2), law enforcement reports and records under ss. 48.396 (1) and 938.396 (1), court records under ss. 48.396 (2) (a) and 938.396 (2) (a), social welfare agency records under ss. 48.78 (2) (a) and 938.78 (2) (a), abuse and neglect reports and records under s. 48.981 (7) (a) 11r. and pupil records under s. 118.125 (2) (L). The order shall also require the custodian of any report or record specified in this paragraph to permit the court-appointed special advocate to inspect the report or record on presentation by the court-appointed special advocate of a copy of the order. A court-appointed special advocate that obtains access to a report or record described in this paragraph shall keep the information contained in the report or record confidential and may disclose that information only to the court. If a court-appointed special advocate discloses any information to the court under this paragraph, the court-appointed special advocate shall also disclose that information to all parties to the proceeding.

AB532,9,25 (b) Observe the child who is the subject of the proceeding and the child's living environment and, if the child is old enough to communicate, interview the child; interview the parent, guardian, legal custodian or other caregiver of the child who is the subject of the proceeding and observe that person's living environment; and interview any other person who might possess any information relating to the child and the child's family that is relevant to the subject of the proceeding. A court-appointed special advocate may observe or interview the child at any location without the permission of the child's parent, guardian, legal custodian or other caregiver if necessary to obtain any information that is relevant to the subject of the proceeding, except that a court-appointed special advocate may enter a child's home only with the permission of the child's parent, guardian, legal custodian or other caregiver or after obtaining a court order permitting the court-appointed special advocate to do so. A court-appointed special advocate who obtains any information under this paragraph shall keep the information confidential and may disclose that information only to the court. If a court-appointed special advocate discloses any information to the court under this paragraph, the court-appointed special advocate shall also disclose that information to all parties to the proceeding.

AB532,10,11 (5) Immunity from liability. A volunteer court-appointed special advocate designated under sub. (1) or an employe of a court-appointed special advocate program recognized under s. 48.07 (5) is immune from civil liability for any act or omission of the volunteer or employe occurring while acting within the scope of his or her activities and authority as a volunteer court-appointed special advocate or employe of a court-appointed special advocate program.

AB532,10,15 (6) Communication to a jury. If a court-appointed special advocate submits a written report or testifies orally in a jury trial under this chapter, the court may tell the jury that the court-appointed special advocate represents the interests of the child for whom the court-appointed special advocate was designated.

AB532, s. 7 Section 7. 48.27 (3) (a) 1. of the statutes is amended to read: