AB632: Bill Text

LRB-2594/2

GMM:med:rs

2011 - 2012 LEGISLATURE

2011 Assembly BILL 632

February 24, 2012 - Introduced by Representatives Kleefisch, Grigsby, Bies, Jacque, Sinicki, Ballweg, Endsley, Spanbauer, Toles, C. Taylor, Strachota, Molepske Jr and Berceau, cosponsored by Senator Lassa. Referred to Committee on Children and Families.

AB632,2,2 An Act to repeal 48.27 (3) (e); to renumber and amend 48.27 (3) (a) 1.; to amend 48.19 (2), 48.20 (3), 48.20 (7) (d), 48.20 (8) (a), 48.21 (3) (am), 48.21 (3) (b), 48.21 (3) (d), 48.21 (3) (e), 48.24 (1m), 48.24 (2) (a), 48.243 (1) (intro.), 48.243 (3), 48.245 (1) (c), 48.245 (2r), 48.245 (3), 48.245 (4), 48.245 (5), 48.245 (8), 48.255 (1) (b), 48.255 (4), 48.27 (3) (a) 1m., 48.27 (3) (a) 2., 48.29 (1), 48.295 (1), 48.295 (3), 48.299 (1) (a), 48.30 (2), 48.31 (2), 48.32 (1) (a), 48.32 (2) (c), 48.32 (6), 48.355 (2) (b) 1m., 48.355 (2) (d), 48.357 (1) (am) 1., 48.357 (1) (am) 2. a., 48.357 (1) (c) 2., 48.357 (2m) (a), 48.357 (2m) (b), 48.363 (1) (a), 48.363 (1) (b), 48.365 (1m), 48.365 (2), 48.38 (4) (ag), 48.38 (4m) (b), 48.38 (5) (b), 48.38 (5) (bm) 1., 48.38 (5) (d), 48.38 (5) (e), 48.38 (5m) (b), 48.38 (5m) (c) 1., 48.38 (5m) (d), 48.38 (5m) (e), 48.396 (1b), 48.396 (1d), 48.396 (2) (ag), 48.396 (2) (am), 48.42 (1) (b), 48.42 (2) (c), 48.427 (6) (b) 2., 48.46 (1), 48.46 (1m), 48.63 (5) (d) 4., 48.63 (5) (d) 6., 48.78 (2) (ag), 48.78 (2) (am), 48.977 (4) (a) 3., 48.977 (4) (b) 2., 48.977 (4) (c) 1. e., 48.981 (7) (a) 3m. and 48.981 (7) (cr) 8.; and to create 48.02 (12j) and 48.27 (3) (a) 1. b. of the statutes; relating to: participation of the next of kin of a parental homicide victim in proceedings under the Children's Code.

Analysis by the Legislative Reference Bureau

Current law grants to the parents, guardian, and legal custodian of a child the right to participate in proceedings under the Children's Code concerning the child. This bill grants similar rights to the next of kin of a parent who is the victim of a homicide for which the child's other parent has been convicted (next of kin of a parental homicide victim), which the bill defines as the next of kin of a parental homicide victim, as determined by the court assigned to exercise jurisdiction under the Children's Code (juvenile court) in the following order of priority:

1. The spouse or domestic partner of the parental homicide victim, unless the spouse or domestic partner committed the homicide.

2. If the parental homicide victim does not have a spouse or domestic partner who has not committed the homicide (spouse or domestic partner), the adult child of that victim whom the juvenile court determines is best able to represent the interests of the family of that victim in a proceeding under the Children's Code.

3. If the parental homicide victim does not have a spouse, domestic partner, or adult child, the parent of that victim whom the juvenile court determines is best able to represent the interests of that family in such a proceeding.

4. If the parental homicide victim does not have a spouse, domestic partner, adult child, or parent, the adult sibling of that victim whom the juvenile court determines is best able to represent the interests of that family in such a proceeding.

5. If the parental homicide victim does not have a spouse, domestic partner, adult child, parent, or adult sibling, the grandparent of that victim whom the juvenile court determines is best able to represent the interests of that family in such a proceeding.

6. If the parental homicide victim does not have a spouse, domestic partner, adult child, parent, adult sibling, or grandparent, the adult relative of that victim in the next degree of kinship whom the juvenile court determines is best able to represent the interests of that family in such a proceeding.

Specifically, the bill:

1. Temporary physical custody of a child. Requires the next of kin of a parental homicide victim to be notified when a child of that homicide victim is taken into custody and, if the child is held in custody, to be notified of the time and place of the temporary physical custody hearing for the child, the nature and possible consequences of the hearing, and the right to present and cross examine witnesses at the hearing.

2. Intake inquiry and informal disposition. Requires the next of kin of a parental homicide victim to be notified of intake conferences conducted as part of the intake inquiry conducted by the intake worker of the juvenile court when a child of that homicide victim is referred to the juvenile court as being in need of protection or services. The bill also requires the consent of the next of kin of a parental homicide victim to an agreement that imposes an informal disposition when the intake worker determines that the filing of a child in need of protection or services (CHIPS) petition is not required and permits the next of kin of a parental homicide victim to terminate, or object to an extension of, an informal disposition.

3. CHIPS proceedings. Requires the next of kin of a parental homicide victim to be provided with a copy of the petition initiating a CHIPS proceeding concerning a child of that homicide victim, to receive notice of all hearings in such a CHIPS proceeding, and to receive a copy of the dispositional order in such a CHIPS proceeding. The bill also grants to the next of kin of a parental homicide victim the right to request a substitution of the judge and a jury trial, to object to a public hearing, and to object to a physical, psychological, mental, or developmental examination of the child or to an alcohol and other drug abuse assessment of the child in such a CHIPS proceeding. In addition, the bill requires the agreement of the next of kin of a parental homicide victim to a consent decree suspending such a CHIPS proceeding and placing the child under supervision and permits the next of kin of a parental homicide victim to object to an extension of such a consent decree.

4. Post-dispositional proceedings. Permits the next of kin of a parental homicide victim to request a change in the placement of a child of that homicide victim who is the subject of a CHIPS order or a revision or extension of a CHIPS order concerning that child. The bill also requires the next of kin of a parental homicide victim to receive notice of a proposed change in placement of such a child or a proposed revision or extension of such an order and permits the next of kin of a parental homicide victim to object to such a proposal.

5. Permanency planning. Requires the next of kin of a parental homicide victim to receive notice of permanency plan reviews and hearings concerning a child of that homicide victim who is placed outside the home, to receive a copy of the child's permanency plan before the review or hearing, and to receive a copy of the determinations made at the review or hearing. The bill also grants the next of kin of a parental homicide victim the right to be heard at a permanency plan review or hearing by submitting written comments before the review or hearing or by participating at the review or hearing. Under current law, a permanency plan is a plan designed to ensure that a child is reunified with his or her family whenever appropriate or that the child quickly attains a placement providing long-term stability.

6. Other proceedings under the Children's Code. Requires the next of kin of a parental homicide victim to receive notice of termination of parental rights and guardianship proceedings concerning a child of that homicide victim and permits the next of kin of a parental homicide victim to file a petition for the guardianship of such a child.

7. Rehearings. Permits the next of kin of a parental homicide victim to petition the juvenile court for a rehearing on a juvenile court order determining the status of a child of that homicide victim on the grounds of newly discovered evidence. Under current law, those petitions generally must be filed within one year after the date of the order.

8. Records. Permits the next of kin of a parental homicide victim to request access to law enforcement agency, juvenile court, and social services agency records concerning a child of that homicide victim and to authorize disclosure of those records to a person named by that relative. The bill also permits child abuse and neglect reports and records concerning a child of that homicide victim to be disclosed to the next of kin of a parental homicide victim without revealing the identity of the reporter of the child abuse or neglect. Under current law, law enforcement agency, juvenile court, social services agency, and child abuse and neglect records concerning a child generally are confidential.

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:

AB632, s. 1 Section 1. 48.02 (12j) of the statutes is created to read:

AB632,4,8 48.02 (12j) "Next of kin of a parental homicide victim" means, in a case in which a parent has been convicted under s. 940.01, 940.02, 940.05, 940.06, 940.07, 940.08, 940.09, or 940.10 or under any comparable federal law or law of another state of the homicide of the child's other parent and in which a family member of the parent who is the victim of that homicide is not the guardian, legal custodian, or Indian custodian of the child, the next of kin of the parent who is the victim of that homicide, as determined by the court in the following order of priority:

AB632,4,10 (a) The spouse or domestic partner under ch. 770 of the parent who is the victim of that homicide, unless the spouse or domestic partner committed that homicide.

AB632,4,14 (b) If the parent who is the victim of that homicide does not have a spouse or domestic partner described in par. (a), the adult child of that parent whom the court determines is best able to represent the interests of the family of that parent in a proceeding under this chapter.

AB632,5,2 (c) If the parent who is the victim of that homicide does not have a spouse or domestic partner described in par. (a) or an adult child, the parent of that parent whom the court determines is best able to represent the interests of the family of that parent in a proceeding under this chapter.

AB632,5,6 (d) If the parent who is the victim of that homicide does not have a spouse or domestic partner described in par. (a), an adult child, or a parent, the adult sibling of that parent whom the court determines is best able to represent the interests of the family of that parent in a proceeding under this chapter.

AB632,5,10 (e) If the parent who is the victim of that homicide does not have a spouse or domestic partner described in par. (a), an adult child, a parent, or an adult sibling, the grandparent of that parent whom the court determines is best able to represent the interests of the family of that parent in a proceeding under this chapter.

AB632,5,15 (f) If the parent who is the victim of that homicide does not have a spouse or domestic partner described in par. (a), an adult child, a parent, an adult sibling, or a grandparent, the adult relative of that parent in the next degree of kinship, as specified in s. 990.001 (16), whom the court determines is best able to represent the interests of the family of that parent in a proceeding under this chapter.

AB632, s. 2 Section 2. 48.19 (2) of the statutes is amended to read:

AB632,6,2 48.19 (2) When a child is taken into physical custody under this section, the person taking the child into custody shall immediately attempt to notify the parent, guardian, legal custodian, and Indian custodian of the child and the next of kin of a parental homicide victim by the most practical means. The person taking the child into custody shall continue such attempt until the parent, guardian, legal custodian, and Indian custodian of the child those individuals are notified, or the child is delivered to an intake worker under s. 48.20 (3), whichever occurs first. If the child is delivered to the intake worker before the parent, guardian, legal custodian, and Indian custodian those individuals are notified, the intake worker, or another person at his or her direction, shall continue the attempt to notify until the parent, guardian, legal custodian, and Indian custodian of the child those individuals are notified.

AB632, s. 3 Section 3. 48.20 (3) of the statutes is amended to read:

AB632,6,15 48.20 (3) If the child is released under sub. (2) (b) to (d), the person who took the child into custody shall immediately notify the child's parent, guardian, legal custodian, and Indian custodian and the next of kin of a parental homicide victim of the time and circumstances of the release and the person, if any, to whom the child was released. If the child is not released under sub. (2), the person who took the child into custody shall arrange in a manner determined by the court and law enforcement agencies for the child to be interviewed by the intake worker under s. 48.067 (2). The person who took the child into custody shall make a statement in writing with supporting facts of the reasons why the child was taken into physical custody and shall give a copy of the statement to the intake worker and to any child 12 years of age or older. If the intake interview is not done in person, the report may be read to the intake worker.

AB632, s. 4 Section 4. 48.20 (7) (d) of the statutes is amended to read:

AB632,6,20 48.20 (7) (d) If the child is released from custody, the intake worker shall immediately notify the child's parent, guardian, legal custodian, and Indian custodian and the next of kin of a parental homicide victim of the time and circumstances of the release and the person, if any, to whom the child was released.

AB632, s. 5 Section 5. 48.20 (8) (a) of the statutes is amended to read:

AB632,7,14 48.20 (8) (a) If a child is held in custody, the intake worker shall notify the child's parent, guardian, legal custodian, and Indian custodian and the next of kin of a parental homicide victim of the reasons for holding the child in custody and of the child's whereabouts unless there is reason to believe that notice would present imminent danger to the child. The parent, guardian, legal custodian, and Indian custodian An individual so notified shall also be notified of the time and place of the detention hearing required under s. 48.21, the nature and possible consequences of that hearing, the right to present and cross-examine witnesses at the hearing, and, in the case of a parent or Indian custodian of an Indian child who is the subject of an Indian child custody proceeding, as defined in s. 48.028 (2) (d) 2., the right to counsel under s. 48.028 (4) (b). If the parent, guardian, legal custodian, or Indian custodian, or next of kin of a parental homicide victim is not immediately available, the intake worker or another person designated by the court shall provide notice as soon as possible. When the child is 12 years of age or older, the child shall receive the same notice about the detention hearing as the parent, guardian, legal custodian, or Indian custodian, and the next of kin of a parental homicide victim. The intake worker shall notify both the child and , the child's parent, guardian, legal custodian, or and Indian custodian, and the next of kin of a parental homicide victim.

AB632, s. 6 Section 6. 48.21 (3) (am) of the statutes is amended to read:

AB632,7,20 48.21 (3) (am) The parent, guardian, legal custodian, or Indian custodian, or next of kin of a parental homicide victim may waive his or her right to participate in the hearing under this section. After any waiver, a rehearing shall be granted at the request of the parent, guardian, legal custodian, Indian custodian, next of kin of a parental homicide victim, or any other interested party for good cause shown.

AB632, s. 7 Section 7. 48.21 (3) (b) of the statutes is amended to read:

AB632,8,7 48.21 (3) (b) If present at the hearing, a copy of the petition or request shall be given to the parent, guardian, legal custodian, or Indian custodian, or next of kin of a parental homicide victim, and to the child if he or she is 12 years of age or older, before the hearing begins. If the child is an expectant mother who has been taken into custody under s. 48.19 (1) (cm) or (d) 8., a copy of the petition shall also be given to the unborn child, through the unborn child's guardian ad litem, before the hearing begins. Prior notice of the hearing shall be given to the child's parent, guardian, legal custodian, and Indian custodian, to the next of kin of a parental homicide victim, to the child if he or she is 12 years of age or older and, if the child is an expectant mother who has been taken into custody under s. 48.19 (1) (cm) or (d) 8., to the unborn child, through the unborn child's guardian ad litem, under s. 48.20 (8).

AB632, s. 8 Section 8. 48.21 (3) (d) of the statutes is amended to read:

AB632,8,16 48.21 (3) (d) Prior to the commencement of the hearing, the court shall inform the parent, guardian, legal custodian, or Indian custodian, or next of kin of a parental homicide victim of the allegations that have been made or may be made, the nature and possible consequences of this hearing as compared to possible future hearings, the right to present, confront, and cross-examine witnesses, and, in the case of a parent or Indian custodian of an Indian child who is the subject of an Indian child custody proceeding under s. 48.028 (2) (d) 2., the right to counsel under s. 48.028 (4) (b).

AB632, s. 9 Section 9. 48.21 (3) (e) of the statutes is amended to read:

AB632,8,25 48.21 (3) (e) If the parent, guardian, legal custodian, Indian custodian, next of kin of a parental homicide victim, or child is not represented by counsel at the hearing and the child is continued in custody as a result of the hearing, the parent, guardian, legal custodian, Indian custodian, or child that individual may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold the child in custody be reheard. If the request is made, a rehearing shall take place as soon as possible. An order to hold the child in custody shall be reheard for good cause, whether or not counsel was present.

AB632, s. 10 Section 10. 48.24 (1m) of the statutes is amended to read: