AB647: Bill Text

LRB-2177/5

GMM:cmh&wlj:hmh

1999 - 2000 LEGISLATURE

1999 Assembly BILL 647

January 11, 2000 - Introduced by Representative Ladwig, cosponsored by Senator Robson. Referred to Committee on Children and Families.

AB647,2,3 An Act to repeal 48.27 (3) (a) 1m., 48.42 (2g) (am) and 938.27 (3) (a) 1m.; to renumber 48.43 (5) (b); to renumber and amend 48.355 (2b) and 938.355 (2b); to amend 20.435 (3) (pm), 48.27 (3) (a) 2., 48.27 (6), 48.355 (2d) (a) 1., 48.355 (2d) (a) 2., 48.355 (2d) (b) (intro.), 48.355 (2d) (b) 2., 48.355 (2d) (b) 3., 48.355 (2d) (b) 4., 48.38 (5) (b), 48.42 (2g) (b), 48.427 (1m), 938.27 (3) (a) 2., 938.27 (6), 938.355 (2d) (a) 1., 938.355 (2d) (a) 2., 938.355 (2d) (b) (intro.), 938.355 (2d) (b) 2., 938.355 (2d) (b) 3., 938.355 (2d) (b) 4., 938.365 (1) and 938.38 (5) (b); and to create 48.355 (2d) (a) 1d., 48.355 (2d) (a) 1j., 48.355 (2d) (a) 3., 48.355 (2d) (d), 48.38 (4) (am), 48.43 (5) (b) 2., 938.355 (2d) (a) 1d., 938.355 (2d) (a) 1j., 938.355 (2d) (a) 3., 938.355 (2d) (d) and 938.38 (4) (am) of the statutes; relating to: the efforts that are required to prevent the removal of a child or juvenile from the home or to make it possible for a child or juvenile to return safely to his or her home when a juvenile court order places the child or juvenile outside of the home and notice and an opportunity to be heard at certain proceedings under the children's code and the juvenile justice code by a foster parent, treatment foster parent or other substitute care provider of a child or juvenile.

Analysis by the Legislative Reference Bureau

Under current law, an order of the court assigned to exercise jurisdiction under the children's code and the juvenile justice code (juvenile court) that places a child or juvenile in need of protection or services or a juvenile who has been adjudged delinquent outside of his or her home must include a finding as to whether the county department of human services or social services (county department), the department of health and family services (DHFS), in a county having a population of 500,000 or more, or the agency primarily responsible for providing services under a juvenile court order (collectively "agency"), has made reasonable efforts to prevent the removal of the child or juvenile from the home while assuring that the health and safety of the child or juvenile are the paramount concerns or, if applicable, has made reasonable efforts to make it possible for the child or juvenile to return safely to his or her home, except that a juvenile court is not required to find that those reasonable efforts have been made with respect to a parent if the juvenile court finds that the parent has committed certain crimes of homicide against a child of the parent; has committed battery, sexual assault or physical or sexual abuse resulting in great bodily harm or substantial bodily harm to the child or juvenile or to another child of the parent; has had his or her parental rights terminated with respect to another child; or has subjected the child or juvenile to aggravated circumstances, which are defined under current law as including criminal abandonment, torture, chronic abuse and sexual abuse. Current law, in turn, defines sexual abuse as a violation of certain sex crimes. Current law, however, does not, in turn, define abandonment, torture or chronic abuse.

This bill defines those terms for purposes of determining when a parent has subjected a child to aggravated circumstances. Specifically, the bill defines abandonment as a violation of the criminal law against abandonment or an action or inaction that results in a finding that a child is in need of protection or services on the grounds of abandonment. The bill defines chronic abuse as two or more violations of the criminal laws against battery or physical abuse of a child that result in bodily harm (as opposed to great bodily harm or substantial bodily harm). The bill defines torture as a violation of the criminal laws against mayhem or causing mental harm to a child.

Current law permits an agency, at the same time as the agency is making reasonable efforts to prevent the removal of a child or juvenile from the home or to make it possible for a child or juvenile to return to his or her home, to work with DHFS, or a county department or child welfare agency that is authorized to place children for adoption, in making reasonable efforts to place the child or juvenile for adoption, with a guardian or in some other alternative permanent placement (concurrent reasonable efforts). This bill permits an agency to work with any county department or child welfare agency, not just one that is authorized to place children for adoption, in making reasonable efforts to place the child with a guardian or in some alternative permanent placement. The bill also requires an agency to describe any concurrent reasonable efforts that were made in the permanency plan of the child or juvenile or, if no concurrent reasonable efforts were made, the basis for the decision not to make any concurrent reasonable efforts.

Under current law, a foster parent, treatment foster parent or other physical custodian (substitute care provider) of a child or juvenile who is the subject of a child or juvenile in need of protection or services proceeding or of a juvenile who is the subject of a delinquency proceeding is entitled to receive an opportunity to be heard at all hearings involving the child or juvenile, except hearings on motions for which notice need only be provided to the child or juvenile and his or her counsel. A substitute care provider is also entitled to receive an opportunity to be heard at all hearings on a terminating parental rights (TPR) proceeding and at all hearings on certain other matters over which the juvenile court has jurisdiction, such as the appointment and removal of a guardian of a child, the adoption of a child and proceedings under the Mental Health Act concerning a child or juvenile.

This bill eliminates the requirement that a substitute care provider receive an opportunity to be heard at all hearings involving a child or juvenile in need of protection or services or involving a juvenile who is the subject of a delinquency proceeding, such as a plea hearing, a fact-finding hearing or a dispositional hearing, but leaves intact the requirement that a substitute care provider receive an opportunity to be heard at a change in placement hearing or hearing on a revision or extension of a dispositional order. Similarly, the bill eliminates the requirement that a substitute care provider receive an opportunity to be heard at all TPR hearings, such as a plea hearing or a fact-finding hearing, but leaves intact the requirement that a substitute care provider receive an opportunity to be heard at a TPR dispositional hearing. In addition, the bill eliminates the requirement that a substitute care provider receive an opportunity to be heard at hearings on proceedings under the children's code or the juvenile justice code other than TPR, child or juvenile in need of protection or services proceedings and delinquency proceedings.

The bill, however, requires a substitute care provider to receive an opportunity to be heard at a hearing to determine the permanency plan for a child or juvenile when the juvenile court has determined that a parent has subjected the child or juvenile to aggravated circumstances; has committed certain crimes of homicide, battery, sexual assault or sexual or physical abuse against a child of the parent; or has had his or her parental rights terminated with respect to another child of the parent. In addition, the bill requires a substitute care provider to receive an opportunity to be heard at the annual permanency plan review for a child whose parents' parental rights have been terminated, but who has not been adopted.

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:

AB647, s. 1 Section 1. 20.435 (3) (pm) of the statutes is amended to read:

AB647,4,4 20.435 (3) (pm) Federal aid; adoption incentive payments. All federal moneys received as adoption incentive payments under 42 USC 473A 673b, as authorized by the governor under s. 16.54, to be expended for the purposes for which received.

AB647, s. 2 Section 2. 48.27 (3) (a) 1m. of the statutes is repealed.

AB647, s. 3 Section 3. 48.27 (3) (a) 2. of the statutes is amended to read:

AB647,4,16 48.27 (3) (a) 2. Failure to give notice under subd. 1. to a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) does not deprive the court of jurisdiction in the action or proceeding. If a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) is not given notice of a hearing under subd. 1. and if the court is required under this chapter to permit that person to make a written or oral statement during the hearing or to submit a written statement prior to the hearing and that person does not make or submit such a statement, that person may request a rehearing on the matter during the pendency of an order resulting from the hearing. If the request is made, the court shall order a rehearing.

AB647, s. 4 Section 4. 48.27 (6) of the statutes is amended to read:

AB647,5,3 48.27 (6) When a proceeding is initiated under s. 48.14, all interested parties shall receive notice and appropriate summons shall be issued in a manner specified by the court, consistent with applicable governing statutes. In addition, if the child who is the subject of the proceeding is in the care of a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2), the court shall give the foster parent, treatment foster parent or other physical custodian notice and an opportunity to be heard as provided in sub. (3) (a).

AB647, s. 5 Section 5. 48.355 (2b) of the statutes is renumbered 48.355 (2b) (intro.) and amended to read:

AB647,5,11 48.355 (2b) Concurrent reasonable efforts permitted. (intro.) A county department, the department, in a county having a population of 500,000 or more, or the agency primarily responsible for providing services to a child under a court order may, at the same time as the county department, department or agency is making the reasonable efforts required under sub. (2) (b) 6., work do one or both of the following:

AB647,5,14 (a) Work with the department, a county department under s. 48.57 (1) (e) or (hm) or a child welfare agency licensed under s. 48.61 (5) in making reasonable efforts to place the child for adoption,.

AB647,5,17 (b) Work with the department, a county department or a child welfare agency in making reasonable efforts to place the child with a guardian or in some other alternative permanent placement.

AB647, s. 6 Section 6. 48.355 (2d) (a) 1. of the statutes is amended to read:

AB647,5,25 48.355 (2d) (a) 1. "Aggravated circumstances" include abandonment in "Abandonment" means a violation of s. 948.20 or in a violation of the law of any other state or federal law if that violation would be a violation of s. 948.20 if committed in this state, torture, chronic abuse and sexual abuse as evidenced by a final judgment of conviction, or an action or inaction that results in a finding of abandonment under s. 48.13 (2) or under a law of any other state or a federal law that is comparable to s. 48.13 (2), as evidenced by a final order of a court of competent jurisdiction.

AB647, s. 7 Section 7. 48.355 (2d) (a) 1d. of the statutes is created to read:

AB647,6,3 48.355 (2d) (a) 1d. "Aggravated circumstances" include abandonment, chronic abuse, sexual abuse and torture.

AB647, s. 8 Section 8. 48.355 (2d) (a) 1j. of the statutes is created to read:

AB647,6,10 48.355 (2d) (a) 1j. "Chronic abuse" means 2 or more violations of s. 940.19 (1) or (6) or 948.03 (2) (b) or (c) or (3) (b) or (c) or of a law of any other state or federal law, if that violation would be a violation of s. 940.19 (1) or (6) or 948.03 (2) (b) or (c) or (3) (b) or (c) if committed in this state, that result in bodily harm, as defined in s. 939.22 (4), as evidenced by final judgments of conviction on 2 or more separate occasions.

AB647, s. 9 Section 9. 48.355 (2d) (a) 2. of the statutes is amended to read:

AB647,6,16 48.355 (2d) (a) 2. "Sexual abuse" means a violation of s. 940.225, 944.30, 948.02, 948.025, 948.05, 948.055, 948.06, 948.09 or 948.10 or a violation of the law of any other state or federal law if that violation would be a violation of s. 940.225, 944.30, 948.02, 948.025, 948.05, 948.055, 948.06, 948.09 or 948.10 if committed in this state, as evidenced by a final judgment of conviction.

AB647, s. 10 Section 10. 48.355 (2d) (a) 3. of the statutes is created to read:

AB647,6,21 48.355 (2d) (a) 3. "Torture" means a violation of s. 940.21 or 948.04 (1) or a violation of the law of any other state or federal law if that violation would be a violation of s. 940.21 or 948.04 (1) if committed in this state, as evidenced by a final judgment of conviction.

AB647, s. 11 Section 11. 48.355 (2d) (b) (intro.) of the statutes is amended to read:

AB647,7,7 48.355 (2d) (b) (intro.) Notwithstanding sub. (2) (b) 6., the court need not include in a dispositional order a finding as to whether the county department, the department, in a county having a population of 500,000 or more, or the agency primarily responsible for providing services under a court order has made reasonable efforts with respect to a parent of a child to prevent the removal of the child from the home, while assuring that the child's health and safety are the paramount concerns, or, if applicable, a finding as to whether the agency primarily responsible for providing services under a court order has made reasonable efforts with respect to a parent of a child to make it possible for the child to return safely to his or her home, if the court finds, as evidenced by a final judgment of conviction, any of the following:

AB647, s. 12 Section 12. 48.355 (2d) (b) 2. of the statutes is amended to read:

AB647,7,14 48.355 (2d) (b) 2. That the parent has committed, has aided or abetted the commission of, or has solicited, conspired or attempted to commit, a violation of s. 940.01, 940.02, 940.03 or 940.05 or a violation of the law of any other state or federal law, if that violation would be a violation of s. 940.01, 940.02, 940.03 or 940.05 if committed in this state, as evidenced by a final judgment of conviction, and that the victim of that violation is a child of the parent.

AB647, s. 13 Section 13. 48.355 (2d) (b) 3. of the statutes is amended to read:

AB647,7,23 48.355 (2d) (b) 3. That the parent has committed a violation of s. 940.19 (2), (3), (4) or (5), 940.225 (1) or (2), 948.02 (1) or (2), 948.025 or 948.03 (2) (a) or (3) (a) or a violation of the law of any other state or federal law, if that violation would be a violation of s. 940.19 (2), (3), (4) or (5), 940.225 (1) or (2), 948.02 (1) or (2), 948.025 or 948.03 (2) (a) or (3) (a) if committed in this state, as evidenced by a final judgment of conviction, and that the violation resulted in great bodily harm, as defined in s. 939.22 (14), or in substantial bodily harm, as defined in s. 939.22 (38), to the child or another child of the parent.

AB647, s. 14 Section 14. 48.355 (2d) (b) 4. of the statutes is amended to read:

AB647,8,3 48.355 (2d) (b) 4. That the parental rights of the parent to another child have been involuntarily terminated, as evidenced by a final order of a court of competent jurisdiction terminating those parental rights.

AB647, s. 15 Section 15. 48.355 (2d) (d) of the statutes is created to read:

AB647,8,9 48.355 (2d) (d) 1. If a hearing is held under par. (c), at least 10 days before the date of the hearing the court shall notify the child, if 12 years of age or over, any parent, guardian and legal custodian of the child and any foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) of the child of the time, place and purpose of the hearing.

AB647,8,20 2. The court shall give a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) who is notified of a hearing under subd. 1. an opportunity to be heard at the hearing by permitting the foster parent, treatment foster parent or other physical custodian to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, relevant to the issues to be determined at the hearing. Any written or oral statement made under this subdivision shall be made upon oath or affirmation. A foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) who receives a notice of a hearing under subd. 1. and an opportunity to be heard under this subdivision does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and opportunity to be heard.

AB647, s. 16 Section 16. 48.38 (4) (am) of the statutes is created to read:

AB647,8,25 48.38 (4) (am) Any efforts to place the child for adoption, with a guardian or in some other alternative permanent placement that were made under s. 48.355 (2b) at the same time as the services described in par. (a) were offered or provided or, if those efforts were not made, the basis for the decision not to make those efforts.

AB647, s. 17 Section 17. 48.38 (5) (b) of the statutes is amended to read: