Analysis by the Legislative Reference Bureau
This bill removes the prohibition on assigning counsel to a parent in a child in
need of protection or services (CHIPS) proceeding, and creates a five-county pilot
program that creates a right to counsel for such a parent.
Under current law, a parent is entitled to legal representation in a proceeding
under the Children's Code involving a contested adoption or an involuntary
termination of parental rights. In all other cases under the Children's Code, the
juvenile court may appoint counsel to any party to the proceeding except that the
juvenile court is prohibited from appointing counsel in a CHIPS proceeding for any
party other than a child, an Indian parent, or an Indian custodian. This prohibition
was ruled unconstitutional by the Wisconsin Supreme Court in Joni B. v. State, 202
Wis. 2d 1 (1996), on the grounds that the prohibition constitutes a violation of the
separation of powers doctrine of the Wisconsin Constitution.
This bill eliminates the statutory prohibition placed on a juvenile court
regarding appointment of counsel for parents other than Indian parents or Indian
custodians and creates a five-county pilot program that grants a nonpetitioning

parent in a CHIPS proceeding in which the child has been taken into custody a right
to counsel, including referral to the state public defender if appropriate.
Under the bill, the pilot program creating a right to counsel for a parent in a
CHIPS proceeding in a participating county sunsets on June 30, 2021. Also, the SPD
and the Department of Children and Families must each submit a report by January
1, 2021, to the Joint Committee on Finance and each house of the legislature
regarding the costs of and data from implementing the pilot program created under
the bill.
For further information see the state 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:
AB784,1 1Section 1. 48.20 (8) (a) of the statutes is amended to read:
AB784,2,172 48.20 (8) (a) If a child is held in custody, the intake worker shall notify the
3child's parent, guardian, legal custodian, and Indian custodian of the reasons for
4holding the child in custody and of the child's whereabouts unless there is reason to
5believe that notice would present imminent danger to the child. The parent,
6guardian, legal custodian, and Indian custodian shall also be notified of the time and
7place of the detention hearing required under s. 48.21, the nature and possible
8consequences of that hearing, the right to counsel under s. 48.23, the right to present
9and cross-examine witnesses at the hearing, and, in the case of a parent or Indian
10custodian of an Indian child who is the subject of an Indian child custody proceeding,
11as defined in s. 48.028 (2) (d) 2., the right to counsel under s. 48.028 (4) (b). If the
12parent, guardian, legal custodian, or Indian custodian is not immediately available,
13the intake worker or another person designated by the court shall provide notice as
14soon as possible. When the child is 12 years of age or older, the child shall receive
15the same notice about the detention hearing as the parent, guardian, legal custodian,
16or Indian custodian. The intake worker shall notify both the child and the child's
17parent, guardian, legal custodian, or Indian custodian.
AB784,2
1Section 2. 48.21 (3) (d) of the statutes is amended to read:
AB784,3,92 48.21 (3) (d) Prior to the commencement of the hearing, the court shall inform
3the parent, guardian, legal custodian, or Indian custodian of the allegations that
4have been made or may be made, the nature and possible consequences of this
5hearing as compared to possible future hearings, the right to counsel under s. 48.23,
6the right to present, confront, and cross-examine witnesses, and, in the case of a
7parent or Indian custodian of an Indian child who is the subject of an Indian child
8custody proceeding under s. 48.028 (2) (d) 2., the right to counsel under s. 48.028 (4)
9(b).
AB784,3 10Section 3. 48.213 (2) (d) of the statutes is amended to read:
AB784,3,1611 48.213 (2) (d) Prior to the commencement of the hearing, the court shall inform
12the adult expectant mother and the unborn child's guardian ad litem shall be
13informed by the court
of the allegations that have been made or may be made, the
14nature and possible consequences of this hearing as compared to possible future
15hearings, the right to counsel under s. 48.23, and the right to present, confront, and
16cross-examine witnesses, and the right to present witnesses.
AB784,4 17Section 4. 48.23 (2) (d) of the statutes is created to read:
AB784,3,2518 48.23 (2) (d) 1. If a proceeding in a county participating in the pilot program
19under subd. 2. involves a child alleged to be in need of protection or services under
20s. 48.13 any nonpetitioning parent who appears before the court shall be represented
21by counsel throughout the proceeding. The right to be represented by counsel under
22this paragraph begins anytime after the filing of a petition under s. 48.255. Once
23begun, the right to be represented by counsel continues throughout all stages of the
24proceedings. A parent may waive counsel if the court is satisfied that the waiver is
25knowingly and voluntarily made.
AB784,4,3
12. No later than July 1, 2018, the state public defender shall establish a pilot
2program in Brown, Outagamie, Racine, Kenosha, and Winnebago counties to provide
3counsel to parents under subd. 1.
AB784,4,54 3. This paragraph does not apply to a proceeding commenced under s. 48.13 or
548.21 after June 30, 2021.
AB784,4,146 4. The state public defender may promulgate rules necessary to implement the
7pilot program established under subd. 2. The state public defender may promulgate
8the rules under this subdivision as emergency rules under s. 227.24.
9Notwithstanding s. 227.24 (1) (a), and (3), the state public defender is not required
10to provide evidence that promulgating a rule under this subdivision as an emergency
11rule is necessary for the preservation of the public peace, health, safety, or welfare,
12and is not required to provide a finding of emergency for a rule promulgated under
13this subdivision. Notwithstanding s. 227.24 (1) (c) and (2), emergency rules
14promulgated under this subdivision remain in effect until June 30, 2021.
AB784,4,1915 5. By January 1, 2021, the department and the state public defender shall each
16submit a report to the joint committee on finance, and to the chief clerk of each house
17of the legislature for distribution to the appropriate standing committees under s.
1813.172 (3), regarding costs and data from implementing the pilot program under
19subd. 2.
AB784,5 20Section 5. 48.23 (3) of the statutes is amended to read:
AB784,4,2521 48.23 (3) Power of the court to appoint counsel. Except in proceedings under
22s. 48.13, at
At any time, upon request or on its own motion, the court may appoint
23counsel for the child or any party, unless the child or the party has or wishes to retain
24counsel of his or her own choosing. Except as provided in sub. (2g), the court may not
25appoint counsel for any party other than the child in a proceeding under s. 48.13.
AB784,6
1Section 6. 48.23 (4) of the statutes is renumbered 48.23 (4) (a) and amended
2to read:
AB784,5,133 48.23 (4) (a) If In any situation under sub. (2) (a), if a child or a parent under
418 years of age
has a right to be represented by counsel or is provided counsel at the
5discretion of the court under this section and counsel is not knowingly and
6voluntarily waived, the court shall refer the child or parent under 18 years of age to
7the state public defender and counsel shall be appointed by the state public defender
8under s. 977.08 without a determination of indigency. If the referral is of a child who
9has filed a petition under s. 48.375 (7), the state public defender shall appoint counsel
10within 24 hours after that referral. Any counsel appointed in a petition filed under
11s. 48.375 (7) shall continue to represent the child in any appeal brought under s.
12809.105 unless the child requests substitution of counsel or extenuating
13circumstances make it impossible for counsel to continue to represent the child.
AB784,5,20 14(b) In any situation under sub. (2) (a) or (d), (2g), or (2m) in which a parent 18
15years of age or over or an adult expectant mother is entitled to representation by
16counsel; counsel is not knowingly and voluntarily waived; and it appears that the
17parent or adult expectant mother is unable to afford counsel in full, or the parent or
18adult expectant mother so indicates; the court shall refer the parent or adult
19expectant mother to the authority for indigency determinations specified under s.
20977.07 (1).
AB784,6,2 21(c) In any other situation under this section in which a person has a right to be
22represented by counsel or is provided counsel at the discretion of the court,
23competent and independent counsel shall be provided and reimbursed in any
24manner suitable to the court regardless of the person's ability to pay, except that the

1court may not order a person who files a petition under s. 813.122 or 813.125 to
2reimburse counsel for the child who is named as the respondent in that petition.
AB784,7 3Section 7. Fiscal changes.
AB784,6,74 (1) Program operation. In the schedule under section 20.005 (3) of the statutes
5for the appropriation to the public defender board under section 20.550 (1) (a) of the
6statutes, the dollar amount for fiscal year 2018-19 is increased by $739,600 for
7implementation of the pilot program under section 48.23 (2) (d) 2. of the statutes.
AB784,8 8Section 8. Initial applicability.
AB784,6,149 (1) Representation in proceedings involving children in need of protection
10or services.
The treatment of sections 48.20 (8) (a), 48.21 (3) (d), 48.213 (2) (d), and
1148.23 (3) of the statutes, the renumbering and amendment of section 48.23 (4) of the
12statutes, and the creation of section 48.23 (2) (d) of the statutes first apply to
13proceedings commenced under section 48.13 or 48.21 of the statutes on the effective
14date of this subsection.
AB784,6,1515 (End)
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