AB809: Bill Text

LRB-3391/3

GMM:jld:rs

2007 - 2008 LEGISLATURE

2007 Assembly BILL 809

February 15, 2008 - Introduced by Representatives Jeskewitz and Grigsby, cosponsored by Senators Coggs and Darling. Referred to Committee on Children and Family Law.

AB809,1,11 An Act to renumber 48.315 (2m) (a) 1. and 48.315 (2m) (a) 2.; to renumber and amend 48.245 (1), 48.315 (2m) (a) (intro.) and 48.315 (2m) (b); and to amend 48.24 (4), 48.24 (5), 48.245 (2) (c), 48.245 (2r), 48.245 (4), 48.245 (5), 48.245 (5m), 48.245 (7), 48.25 (2), 48.315 (1) (intro.), 48.365 (6), 48.375 (7) (a) 3., 48.375 (7) (d) (title), 48.375 (7) (d) 1m., 48.43 (6) (c), 48.43 (6m), 48.63 (1), 938.24 (5), 938.245 (7) (a), 938.25 (2) (title), 938.25 (2) (a), 938.25 (2) (b), 938.25 (4), 938.315 (1) (intro.), 938.315 (2m) (intro.), 938.315 (3), 938.357 (4g) (a), 938.357 (5) (d) and 938.365 (6) of the statutes; relating to: the consequences for failure to act within a time period specified in the Children's Code or the Juvenile Justice Code, extension of certain time periods specified in the Children's Code, and informal dispositions under the Children's Code.

Analysis by the Legislative Reference Bureau

Consequences for failure to act within time period

Under current law, certain actions in a proceeding under the Children's Code, such as a child in need of protection or services (CHIPS) proceeding or a termination of parental rights (TPR) proceeding, must take place within certain time limits. For example, the intake worker of the court assigned to exercise jurisdiction under the Children's Code (juvenile court) must request that a CHIPS petition be filed, enter into an informal disposition, which is a written agreement under which the child and his or her parent, guardian, and legal custodian agree to meet certain obligations, or close the case within 40 days after the receipt of information that a child should be referred to the juvenile court. Similarly, the district attorney or corporation counsel must file a CHIPS petition, close the case, or refer the case back to the intake worker within 20 days after receiving the intake worker's recommendation regarding the case. Currently, if those time limits are not met, the juvenile court must dismiss the case with prejudice, that is, without leave to file a new petition.

In addition, in a CHIPS proceeding, a plea hearing must take place no later than 30 days after the filing of the petition (ten days for a child held in secure custody), a fact-finding hearing must take place no later than 30 days after the plea hearing (20 days for a child held in secure custody), a dispositional hearing must take place no later than 30 days after the fact-finding hearing (ten days for a child held in secure custody), and a hearing on an extension of a dispositional order must take place no later than 30 days after the expiration of the order. Similarly, in a TPR proceeding, a plea hearing must take place no later than 30 days after the petition is filed, a fact-finding hearing must take place no later than 45 days after the plea hearing, and a dispositional hearing must take place no later than 45 days after the fact-finding hearing. If the required action does not take place within any of those time periods, the juvenile court loses competency to exercise jurisdiction and, therefore, must dismiss the proceeding.

In a proceeding under the Juvenile Justice Code, for example, a delinquency proceeding or a proceeding for a juvenile in need of protection or services, failure to comply with a time limit does not require dismissal of the petition with prejudice or deprive the juvenile court of competency to exercise jurisdiction. Instead, if a party does not comply with a time limit specified in the Juvenile Justice Code, the juvenile court may grant a continuance for good cause shown, dismiss the petition with or without prejudice, release the juvenile from secure or nonsecure custody or from the terms of a custody order, or grant any other relief that the juvenile court considers appropriate. Moreover, the Juvenile Justice Code specifies that failure to object if a time limit is not met waives that time limit. The Wisconsin Supreme Court, however, recently held, in State v. Michael S., Jr., 2005 WI 82, 282 Wis. 2d 1, that these provisions do not apply to the expiration of a dispositional order because the expiration of a dispositional order is not a "time limit" under the Juvenile Justice Code.

This bill provides that failure by the juvenile court or a party to act within a time period specified in the Children's Code or the Juvenile Justice Code does not require dismissal of a petition with prejudice or deprive the juvenile court of competency to exercise jurisdiction. Also, under the bill, failure to object to a period or delay or continuance in a proceeding under the Children's Code or the Juvenile Justice Code waives any challenge to the juvenile court's competency to act during the period of the delay or continuance. Finally, under the bill, if the juvenile court or a party fails to act within a time period specified in the Children's Code or the Juvenile Justice Code, the juvenile court may grant a continuance for good cause shown, dismiss the petition (with or without prejudice under the Juvenile Justice Code, without prejudice under the Children's Code), release the child from secure or nonsecure custody or from the terms of a custody order, or grant any other relief that the juvenile court considers appropriate.

Extension of time periods

Current law requires a county department of human services or social services, the Department of Health and Family Services, or a child welfare agency (collectively "agency") that investigates a report of suspected child abuse or neglect to determine, within 60 days after receipt of the report, whether abuse or neglect has occurred. Current law also requires the intake worker to request that a CHIPS petition be filed, enter into an informal disposition, or close the case within 40 days after the receipt of information that the child should be referred to the juvenile court. Recently, in Sheboygan County DHHS v. Jodell G., 2001 WI App 18, 240 Wis. 2d 516, the court of appeals held that the 60-day period within which an agency must determine whether child abuse or neglect has occurred and the 40-day period within which an intake worker must take action following receipt of referral information run concurrently.

This bill increases from 40 days to 60 days the period within which an intake worker must take action following receipt of referral information and codifies Jodell G. by providing that, if the referral information is a report of suspected child abuse or neglect received by an agency, that 60-day period begins on the day on which the report is received by the agency.

Also, under current law, the district attorney or corporation counsel must file a CHIPS petition within ten days after an intake worker cancels an informal disposition for failure of a parent or child to meet the obligations imposed under the informal disposition.

This bill extends the time within which a district attorney or corporation counsel must take action after an intake worker cancels an informal disposition by permitting the intake worker to notify the district attorney or corporation counsel of the cancellation within ten days after the informal disposition is cancelled and the district attorney or corporation counsel to file a CHIPS petition or close the case within 20 days after the date of the notice. Moreover, the bill permits the CHIPS petition to include information received before the effective date of the informal disposition, as well as information received during the period of the informal disposition, including information indicating that a party has not met the obligations imposed under the informal disposition, to provide a basis for conferring jurisdiction on the juvenile court.

Informal dispositions

Under current law, an informal disposition may be entered into only if the child and his or her parent, guardian, and legal custodian consent and may not exceed six months in length, unless extended by the intake worker after notice to the child, parent, guardian, and legal custodian. An informal disposition, however, may not be extended if the child, parent, guardian, or legal custodian objects. A child, parent, guardian, or legal custodian may also terminate an informal disposition on request.

This bill requires the consent of a child to enter into an informal disposition, permits a child to object to an extension of an informal disposition, and permits a child to terminate an informal disposition only if the child is 12 years of age or over. Accordingly, for a child under 12 years of age, only the consent of a parent, guardian, and legal custodian is required to enter into an informal disposition and only a parent, guardian, or legal custodian is permitted to object to an extension of, or request the termination of, an informal disposition.

Similarly, an informal disposition may be entered into with respect to an unborn child only if the unborn child, by the unborn child's guardian ad litem, the expectant mother, and, if the expectant mother is a child, her parent, guardian, and legal custodian consent; may not be extended if the unborn child, by the unborn child's guardian ad litem, the expectant mother, or, if the expectant mother is a child, her parent, guardian, or legal custodian object; and may be terminated upon the request of the unborn child, by the unborn child's guardian ad litem, the expectant mother, or, if the expectant mother is a child, her parent, guardian, or legal custodian.

This bill permits an informal disposition to be entered into without the consent of an unborn child, by the unborn child's guardian ad litem, or of a child expectant mother under 12 years of age and eliminates the right of an unborn child, by the unborn child's guardian ad litem, or of a child expectant mother under 12 years of age to object to an extension of, or to request the termination of, an informal disposition. Accordingly, for an unborn child, only the consent of the expectant mother, if 12 years of age or over, and the parent, guardian, and legal custodian of a child expectant mother are required to enter into an informal disposition and only an expectant mother, if 12 years of age or over, or a parent, guardian, or legal custodian of a child expectant mother are permitted to object to an extension of, or to request the termination of, an informal disposition.

Finally, current law provides that an informal disposition is terminated if the district attorney or corporation counsel files a CHIPS petition within 20 days after receipt of notice that the informal disposition has been entered into. If an informal disposition is terminated by the filing of a CHIPS petition, statements made to the intake worker during the intake inquiry are inadmissible. This bill eliminates the inadmissibility of those statements.

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:

AB809, s. 1 Section 1. 48.24 (4) of the statutes is amended to read:

AB809,5,6 48.24 (4) If the intake worker determines as a result of the intake inquiry that the case should be subject to an informal disposition, or should be closed, the intake worker shall so proceed. If a petition has been filed, informal disposition may not occur or a case may not be closed unless the petition is withdrawn by the district attorney, corporation counsel or other official specified in s. 48.09, or is dismissed by the judge court.

AB809, s. 2 Section 2. 48.24 (5) of the statutes is amended to read:

AB809,6,5 48.24 (5) The intake worker shall request that a petition be filed, enter into an informal disposition, or close the case within 40 60 days or sooner of after receipt of referral information. If the referral information is a report received by a county department or, in a county having a population of 500,000 or more, the department or a licensed child welfare agency under contract with the department under s. 48.981 (3) (a) 1., 1., or 2d., that 60-day period shall begin on the day on which the report is received by the county department, department, or licensed child welfare agency. If the case is closed or an informal disposition is entered into, the district attorney, corporation counsel, or other official under s. 48.09 shall receive written notice of such that action. If a law enforcement officer has made a recommendation concerning the child, or the unborn child and the expectant mother of the unborn child, the intake worker shall forward this recommendation to the district attorney, corporation counsel, or other official under s. 48.09. With respect to petitioning a child or unborn child to be in need of protection or services, If a petition is filed, the petition may include information received more than 40 60 days before filing the petition may be included to establish a condition or pattern which, together with information received within the 40-day 60-day period, provides a basis for conferring jurisdiction on the court. The judge shall dismiss with prejudice any such petition which court shall grant appropriate relief as provided in s. 48.315 (3) with respect to any petition that is not referred or filed within the time limits periods specified within in this subsection. Failure to object to the fact that a petition is not requested within the time period specified in this subsection waives any challenge to the court's competency to act on the petition.

AB809, s. 3 Section 3. 48.245 (1) of the statutes is renumbered 48.245 (1) (intro.) and amended to read:

AB809,6,10 48.245 (1) (intro.) The An intake worker may enter into a written agreement with all parties which that imposes informal disposition under this section if the all of the following apply:

AB809,6,13 (a) The intake worker has determined that neither the interests of the child or unborn child nor of the public require the filing of a petition for circumstances relating to ss. 48.13 to 48.14. Informal disposition shall be available only if the

AB809,6,15 (b) The facts persuade the intake worker that the jurisdiction of the court, if sought, would exist and upon consent of the.

AB809,6,21 (c) The child, if 12 years of age or over, and the child's parent, guardian, and legal custodian; or upon consent of the parent, guardian, and legal custodian of the child expectant mother, her parent, guardian and legal custodian and the unborn child, by the unborn child's guardian ad litem and the child expectant mother, if 12 years of age or over; or upon consent of the adult expectant mother and the unborn child, by the unborn child's guardian ad litem, consent.

AB809, s. 4 Section 4. 48.245 (2) (c) of the statutes is amended to read:

AB809,7,3 48.245 (2) (c) If the informal disposition provides for alcohol and other drug abuse outpatient treatment under par. (a) 4., the child, if 12 years of age or over, and the child's parent, guardian, or legal custodian, or the adult expectant mother, shall execute an informed consent form that indicates that they are, or that she is, voluntarily and knowingly entering into an informal disposition agreement for the provision of alcohol and other drug abuse outpatient treatment.

AB809, s. 5 Section 5. 48.245 (2r) of the statutes is amended to read:

AB809,8,2 48.245 (2r) If an informal disposition is based on allegations that a child or an unborn child is in need of protection or services, the The intake worker may, after giving written notice to the child and, the child's parent, guardian, and legal custodian, and their counsel, if any, or after giving written notice to the child expectant mother, her parent, guardian, and legal custodian, and their counsel, if any, and the unborn child by the unborn child's guardian ad litem, or after giving written notice to the adult expectant mother, and her counsel, if any, and the unborn child, by the unborn child's guardian ad litem, extend the informal disposition for up to an additional 6 months unless the child or the child's parent, guardian, or legal custodian, the child or child expectant mother, her parent, guardian or legal custodian or the unborn child by the unborn child's guardian ad litem, or if 12 years of age or over, or the adult expectant mother or the unborn child by the unborn child's guardian ad litem, objects to the extension. If the child or the child's parent, guardian, or legal custodian, the child or child expectant mother, her parent, guardian or legal custodian or the unborn child by the unborn child's guardian ad litem, or if 12 years of age or over, or the adult expectant mother or the unborn child by the unborn child's guardian ad litem, objects to the extension, the intake worker may recommend to request the district attorney or corporation counsel that to file a petition be filed under s. 48.13 or 48.133. An extension under this subsection may be granted only once for any informal disposition. An extension under this subsection of an informal disposition relating to an unborn child who is alleged to be in need of protection or services may be granted after the child is born.

AB809, s. 6 Section 6. 48.245 (4) of the statutes is amended to read:

AB809,8,13 48.245 (4) The intake worker shall inform the child , if 12 years of age or over, and the child's parent, guardian, and legal custodian, the child expectant mother, if 12 years of age or over, and her parent, guardian, and legal custodian and the unborn child by the unborn child's guardian ad litem, or the adult expectant mother and the unborn child by the unborn child's guardian ad litem, in writing of their right to terminate the informal disposition at any time or object at any time to the fact or terms of the informal disposition. If there is an objection arises, the intake worker may alter the terms of the agreement or request the district attorney or corporation counsel to file a petition. If the informal disposition is terminated , the intake worker may request the district attorney or corporation counsel to file a petition.

AB809, s. 7 Section 7. 48.245 (5) of the statutes is amended to read:

AB809,8,20 48.245 (5) Informal disposition shall be terminated upon the request of the child, if 12 years of age or over, or the child's parent, guardian, or legal custodian, upon request of the child expectant mother, if 12 years of age or over, or her parent, guardian, or legal custodian or the unborn child by the unborn child's guardian ad litem, or upon the request of the adult expectant mother or the unborn child by the unborn child's guardian ad litem.

AB809, s. 8 Section 8. 48.245 (5m) of the statutes is amended to read:

AB809,8,25 48.245 (5m) An informal disposition is terminated if the district attorney or corporation counsel files a petition within 20 days after receipt of notice of the informal disposition under s. 48.24 (5). In such case statements made to the intake worker during the intake inquiry are inadmissible.

AB809, s. 9 Section 9. 48.245 (7) of the statutes is amended to read:

AB809,9,18 48.245 (7) If at any time during the period of informal disposition the intake worker determines that the obligations imposed under it are not being met, the intake worker may cancel the informal disposition. Within 10 days after the cancellation of the informal disposition is cancelled, the intake worker shall notify the district attorney, corporation counsel, or other official under s. 48.09 of the cancellation and may request that a petition be filed. The judge shall dismiss with prejudice any petition which district attorney, corporation counsel, or other official under s. 48.09 shall file the petition or close the case within 20 days after the date of the notice. The petition may include information received before the effective date of the informal disposition, as well as information received during the period of the informal disposition, including information indicating that a party has not met the obligations imposed under the informal disposition, to provide a basis for conferring jurisdiction on the court. The court shall grant appropriate relief as provided in s. 48.315 (3) with respect to any petition that is not filed within the time limit period specified in this subsection. Failure to object to the fact that a petition is not filed within the time period specified in this subsection waives any objection to the court's competency to act on the petition.

AB809, s. 10 Section 10. 48.25 (2) of the statutes is amended to read:

AB809,9,25 48.25 (2) If the proceeding is brought under s. 48.13 or 48.133, the district attorney, corporation counsel, or other appropriate official shall file the petition, close the case, or refer the case back to intake within 20 days after the date that the intake worker's recommendation request was filed. A referral back to intake may be made only when the district attorney, corporation counsel, or other appropriate official decides not to file a petition or determines that further investigation is necessary. If the case is referred back to intake upon a decision not to file a petition, the intake worker shall close the case or enter into an informal disposition within 20 days after the date of the referral. If the case is referred back to intake for further investigation, the appropriate agency or person shall complete the investigation within 20 days after the date of the referral. If another referral is made to the district attorney, corporation counsel, or other appropriate official, it shall be considered a new referral to which the time limits periods of this subsection shall apply. The time limits periods in this subsection may only be extended by a judge court upon a showing of good cause under s. 48.315. If a petition is not filed within the applicable time limitations period set forth in this subsection and the court has not granted an extension, the petition shall be accompanied by a statement of reasons for the delay. The court shall dismiss with prejudice a petition which was not timely filed unless the court finds at the plea hearing that good cause has been shown for failure to meet the time limitations grant appropriate relief as provided in s. 48.315 (3) with respect to any petition that is not filed within the applicable time period specified in this subsection. Failure to object to the fact that a petition is not filed within the applicable time period specified in this subsection waives any challenge to the court's competency to act on the petition.

AB809, s. 11 Section 11. 48.315 (1) (intro.) of the statutes is amended to read: