1995 WISCONSIN ACT 275
An Act to repeal 48.01 (1) (b), . 48.01 (1) (e), 48.371 (intro.) (except 48.371 (title)), 48.415 (6) (a) 2., 48.981 (1) (a), 48.981 (1) (b), 48.981 (1) (cm), 48.981 (1) (e), 48.982 (1) (a), 813.122 (1) (e), 813.122 (1) (f), 813.122 (8) and 938.371 (intro.) (except 938.371 (title)); to renumber 48.01 (1) (a), 48.02 (1), 48.235 (3), 48.368, 48.415 (2) (b) and 938.235 (3); to renumber and amend 48.01 (1) (g), 48.27 (3) (a), 48.299 (6), 48.371 (1) and (2), 48.427 (3) (intro.), 48.428 (2), 767.53 (1), 938.27 (3) (a), 938.299 (6) and 938.371 (1) and (2); to consolidate, renumber and amend 48.415 (6) (a) (intro.) and 1.; to amend 48.01 (1) (intro.), 48.01 (1) (gr), 48.023 (intro.), 48.09 (5), 48.13 (3), 48.13 (3m), 48.13 (4), 48.13 (9), 48.13 (11), 48.13 (11m), 48.14 (2) (b), 48.185 (1), 48.185 (2), 48.205 (1) (b), 48.21 (1) (a), 48.21 (1) (b), 48.235 (1) (c), 48.235 (3) (title), 48.24 (5), 48.245 (2) (b), 48.299 (1) (a), 48.299 (4) (a), 48.299 (4) (b), 48.31 (2), 48.31 (4), 48.355 (1), 48.356 (1) and (2), 48.357 (1) and (2m), 48.361 (2) (a) 1., 48.362 (3), 48.363 (1), 48.365 (2), 48.371 (3), 48.375 (4) (b) 3., 48.38 (1) (b), 48.38 (5) (c) 2., 48.415 (1) (a) (intro.), 48.415 (1) (a) 2., 48.415 (1) (a) 3., 48.415 (2) (intro.), 48.415 (2) (c), 48.415 (3) (intro.), 48.415 (4), 48.415 (5) (intro.) and (b), 48.415 (6) (b), 48.415 (7), 48.415 (8), 48.415 (9) (a), 48.42 (3) (d), 48.42 (4) (c) 3., 48.425 (1) (f), 48.425 (1) (g), 48.427 (4), 48.427 (6) (intro.), 48.43 (1) (intro.), 48.43 (1) (a), 48.43 (4), 48.43 (5) (b), 48.43 (5) (c), 48.46 (2), 48.62 (2), 48.831 (title), 48.831 (1), 48.833, 48.981 (2m) (c) (intro.), 48.981 (3) (c) 4., 48.981 (3) (cm), 48.982 (1) (c), 252.15 (5) (a) 19., 767.075 (1) (a), 767.11 (8) (b) 1., 767.11 (10) (e) 1., 767.24 (2) (b) 2. c., 767.24 (5) (h), 767.45 (1) (i), 767.47 (10), 808.04 (7m), 809.107 (5), 809.107 (6) (e), 809.107 (6) (f), 905.04 (4) (e) 1. a., 938.13 (4), 938.205 (1) (b), 938.21 (1) (b), 938.235 (3) (title), 938.24 (5), 938.356 (1) and (2), 938.357 (1) and (2m), 938.361 (2) (a) 1., 938.362 (3), 938.363 (1), 938.365 (2), 938.371 (3), 938.38 (1) (b) and 938.38 (5) (c) 2.; to repeal and recreate 48.01 (2), 48.415 (1) (c) and 813.122 (1) (a); and to create 46.40 (7m), 48.01 (1) (ag), 48.01 (1) (bg), 48.01 (1) (br), 48.01 (1) (dm), 48.01 (1) (gt), 48.02 (1), 48.02 (5j), 48.02 (14g), 48.065 (3) (g), 48.235 (3) (b), 48.235 (4) (a) 7g., 48.235 (4) (a) 7m., 48.245 (2r), 48.245 (5m), 48.27 (3) (a) 2., 48.293 (4), 48.299 (1) (ar), 48.299 (6) (b), (c) and (e), 48.299 (7), 48.299 (8), 48.363 (1m), 48.365 (2m) (ag), 48.368 (2), 48.371 (1) (intro.), 48.38 (4) (bm), 48.38 (5) (c) 6. am., 48.396 (2) (dm), 48.415 (1) (a) 1m., 48.415 (2) (b) 1., 48.415 (9m), 48.415 (10), 48.42 (1m) (title) and (a), 48.42 (1m) (b), 48.42 (1m) (c), 48.427 (1m), 48.427 (3p), 48.427 (7), 48.428 (2) (b), 48.977, 48.981 (3) (c) 6m., 48.981 (7) (a) 1m., 756.096 (3) (e), 767.45 (5) (c), 767.45 (6r), 767.47 (1) (cm), 767.475 (7m), 767.53 (1) (c), 808.075 (4) (a) 10., 808.075 (4) (a) 11., 938.235 (3) (b), 938.235 (4) (a) 7g., 938.235 (4) (a) 7m., 938.27 (3) (a) 2., 938.299 (1) (ag), 938.299 (6) (b), (c) and (e), 938.299 (7), 938.299 (8), 938.363 (1m), 938.365 (2m) (ag), 938.371 (1) (intro.), 938.38 (4) (bm) and 938.38 (5) (c) 6. am. of the statutes; relating to: the grounds for involuntary termination of parental rights over a child, appeals of and motions for relief from orders terminating parental rights and denial of visitation by a parent of a child adjudicated to be in need of protection or services; the statement of legislative purpose in the children's code; abuse and neglect of a child; grounds for jurisdiction over a child alleged to be in need of protection or services; criteria for holding a child in physical custody; payment by a parent for alcohol and other drug abuse services or special treatment or care for a child; duties of a county department of human services or social services with respect to child abuse and neglect investigations; grounds for a child abuse restraining order and injunction; the defense in criminal prosecutions based on the privilege of reasonable discipline of a child; determining whether a child alleged to be in need of protection or services needs protection or services that can be ordered by a juvenile court; extension of an informal disposition for a child when the informal disposition is based on allegations that the child is in need of protection or services; the duties of a guardian ad litem appointed in proceedings involving a child alleged to be in need of protection or services; the right to a jury trial in proceedings involving children alleged to be in need of protection or services; the release of certain information, including the results of tests for the human immunodeficiency virus or viral hepatitis, type B, regarding a child to the child's foster parent or treatment foster parent or the operator of a group home or child caring institution in which the child is placed; a county's authority to use certain community aids funds to employ private attorneys for proceedings under the children's code; disclosure of certain information to certain voluntary reporters of suspected or threatened child abuse or neglect; the time by which a detention hearing must be held and the time by which a petition must be filed under the children's code if a child is held in custody; petitioning a court, at the time a petition is filed for involuntary termination of parental rights to a child, for an order prohibiting visitation or contact with that child; the role of foster parents, treatment foster parents and certain other physical custodians in hearings under the children's code; permitting genetic testing for paternity determinations under the children's code, paternity determination proceedings for a child alleged to be in need of protection or services and disclosure of records relating to paternity determination proceedings; guardianship for certain children adjudged to be in need of protection or services; requesting the joint legislative council to study the use, effectiveness and funding of systems and programs directed at the prevention of child abuse and neglect; transferring custody of a child to a relative when there is no less drastic alternative than transferring custody from the parent; adoption of a child by a relative; and discovery in proceedings under the children's code.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
[Enrolling note by the legislative reference bureau: This act is 1995 Senate Bill 501, as amended. The bill was prepared for the joint legislative council's special committee on children in need of protection or services. 1995 Senate Bill 501, as initially introduced, contained a Prefatory note and other Notes, which were provided by the joint legislative council. The Prefatory note and some of the other Notes were deleted from the act because amendments affected those parts of the bill.]
275,1
Section 1
. 46.40 (7m) of the statutes is created to read:
46.40 (7m) Use by county of community aids funds to pay private attorneys for certain proceedings under the children's code. Upon application by a county department under s. 46.215, 46.22 or 46.23 to the department for permission to use funds allocated to that county department under sub. (2) to employ private counsel for the purposes specified in this subsection and a determination by the department that use of funds for those purposes does not affect any federal grants or federal funding allocated under this section, the department and the county department shall execute a contract authorizing the county department to expend, as agreed upon in the contract, funds allocated to that county department under sub. (2) to permit the county department to employ private counsel to represent the interests of the state or county in proceedings under ch. 48 relating to child abuse or neglect cases, proceedings to terminate parental rights and any ch. 48 cases or proceedings involving the Indian child welfare act, 25 USC 1901 to 1963.
Note: This Section authorizes counties to use certain community aids funds to employ private practice attorneys for ch. 48 proceedings relating to child abuse and neglect, TPR or any ch. 48 proceedings involving the Indian child welfare act (ICWA).
Under current law “community aids" are state and federal funds which are distributed by DHSS to counties for the provision of human services. Section 46.40, stats., sets forth the basic community aids funding allocations.
This bill specifies that DHSS and a county may, after application by the county and a determination by DHSS that use of community aids funds for the purpose of employing private counsel for certain ch. 48 proceedings does not affect any federal grants or federal funding relating to community aids, enter into a contract relating to the use of a certain amount of community aids funds to employ private counsel (i.e., private practice attorneys) to represent the interests of the state or county in proceedings under ch. 48 relating to child abuse and neglect, TPR or any ch. 48 proceedings involving the ICWA. The intent of this new authorization is to permit counties which do not have any or enough government attorneys with sufficient expertise in TPR, the ICWA or other child abuse or neglect-related cases to use certain community aids funds to employ experienced private practice attorneys to handle these proceedings.
275,1m
Section 1m. 48.01 (1) (intro.) of the statutes is amended to read:
48.01 (1) (intro.) This chapter may be cited as “The Children's Code". In construing this chapter, the best interests of the child shall always be of paramount consideration. This chapter shall be interpreted
liberally construed to effectuate the following express legislative purposes:
275,1p
Section 1p. 48.01 (1) (a) of the statutes is renumbered 48.01 (1) (ad).
275,2
Section 2
. 48.01 (1) (ag) of the statutes is created to read:
48.01 (1) (ag) To recognize that children have certain basic needs which must be provided for, including the need for adequate food, clothing and shelter; the need to be free from physical, sexual or emotional injury or exploitation; the need to develop physically, mentally and emotionally to their potential; and the need for a safe and permanent family. It is further recognized that, under certain circumstances, in order to ensure that the needs of a child, as described in this paragraph, are provided for, the court may determine that it is in the best interests of the child for the child to be removed from his or her parents, consistent with any applicable law relating to the rights of parents.
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Section 3
. 48.01 (1) (b) of the statutes is repealed.
Note: This Section repeals current s. 48.01 (1) (b), stats., relating to providing for the “wholesome mental, and physical development of children", because the content of that paragraph is incorporated into new sub. (1) (ag), as created in this bill.
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Section 4
. 48.01 (1) (bg) of the statutes is created to read:
48.01 (1) (bg) 1. To ensure that children are protected against the harmful effects resulting from the absence of parents or parent substitutes, from the inability, other than financial inability, of parents or parent substitutes to provide care and protection for their children and from the destructive behavior of parents or parent substitutes in providing care and protection for their children.
2. To ensure that children are provided good substitute parental care in the event of the absence, temporary or permanent inability, other than financial inability, or unfitness of parents to provide care and protection for their children.
Note: This Section creates new provisions in s. 48.01, stats., recognizing that children must be ensured of all of the following:
1. Protection against the harmful effects resulting from: (a) the absence of parents or parent substitutes; (b) the inability [other than “financial inability" — i.e., poverty] of parents or parent substitutes to provide care and protection for their children; and (c) the destructive behavior of parents or parent substitutes in providing care and protection for their children.
2. Good substitute parental care in the event of the absence, temporary or permanent inability [other than financial inability] or unfitness of parents to provide care and protection for their children.
As with the other new or modified legislative purpose provisions in the bill, this new language is intended to focus attention on: (1) the best interests of the child in any formal or informal proceedings or determinations under ch. 48; and (2) the need for juvenile courts in proceedings and determinations under ch. 48, to take a closer look at, and make more timely decisions regarding, the fitness or unfitness of parents to care for and protect their children.
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Section 5
. 48.01 (1) (br) of the statutes is created to read:
48.01 (1) (br) To encourage innovative and effective prevention, intervention and treatment approaches, including collaborative community efforts and the use of community-based programs, as significant strategies in planning and implementing legislative, executive and local government policies and programs relating to children and their families and substitute families.
Note: This Section creates a new provision in s. 48.01 (1), stats., emphasizing the significance of prevention and intervention approaches in legislative, executive and local government programs, policies and planning strategies for dealing with children under the children's code.
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Section 6
. 48.01 (1) (dm) of the statutes is created to read:
48.01 (1) (dm) To divert children from formal proceedings under this chapter to the extent that this is consistent with protection of children and the public safety.
Note: This Section creates a new provision in s. 48.01, stats., to emphasize the diversion of children from formal proceedings under the children's code to the extent that this is consistent with protection of children and the public safety.
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Section 7
. 48.01 (1) (e) of the statutes is repealed.
Note: This Section repeals current s. 48.01 (1) (e), stats., relating to responding to children's needs for care and treatment through community-based programs because the content of that paragraph is incorporated into new sub. (1) (ag), as created in this bill.
275,8m
Section 8m. 48.01 (1) (g) of the statutes is renumbered 48.01 (1) (a) and amended to read:
48.01 (1) (a) To provide children in the state with permanent and stable family relationships While recognizing that the paramount goal of this chapter is to protect children, to preserve the unity of the family, whenever appropriate, by strengthening family life through assisting parents, whenever appropriate, in fulfilling their parental responsibilities. The courts and agencies responsible for child welfare should assist parents in changing any circumstances in the home which might harm the child or which may require the child to be placed outside the home. The courts should recognize that they have the authority, in appropriate cases, not to reunite a child with his or her family. The courts and agencies responsible for child welfare should also recognize that instability and impermanence in family relationships are contrary to the welfare of children and should therefore recognize the importance of eliminating the need for children to wait unreasonable periods of time for their parents to correct the conditions that prevent their return to the family.
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Section 9
. 48.01 (1) (gr) of the statutes is amended to read:
48.01 (1) (gr) To allow for the termination of parental rights at the earliest possible time after rehabilitation and reunification efforts are discontinued in accordance with this chapter and termination of parental rights is in the best interest of the child.
Note: This Section adds the phrase “in accordance with this chapter" to s. 48.01 (1) (gr), stats., to clarify that the rehabilitation and reunification efforts prior to termination of parental rights (TPR) should at least be at a level in accordance with ch. 48, stats., before they can be discontinued and TPR proceedings commenced. Committee members expressed concern that the current language in that paragraph could be interpreted to permit lesser efforts prior to TPR.
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Section 10
. 48.01 (1) (gt) of the statutes is created to read:
48.01 (1) (gt) To reaffirm that the duty of a parent to support and maintain his or her child continues during any period in which the child may be removed from the custody of the parent.
Note: This Section creates a new provision in s. 48.01, stats., which emphasizes that a parent's duty to support and maintain his or her minor child continues during any period in which the minor child may be removed from the custody of the parent under ch. 48, stats.
275,11m
Section 11m. 48.01 (2) of the statutes is repealed and recreated to read:
48.01 (2) In proceedings involving an American Indian child, the best interests of the child shall be determined consistent with the Indian child welfare act, 25 USC 1901 to 1963. In this subsection, “American Indian child" means any unmarried person who is under 18 years of age and who is one of the following:
(a) A member of an Indian tribe, as defined in 25 USC 1903 (8).
(b) Eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.
275,13
Section 13
. 48.02 (1) of the statutes, as affected by 1995 Wisconsin Act 77, is renumbered 48.02 (1d).
Note: Renumbers the definition of “adult" in order to insert the definition of “abuse" in the general definitions section of ch. 48.
275,14
Section 14
. 48.02 (1) of the statutes is created to read:
48.02 (1) “Abuse", other than when used in referring to abuse of alcohol beverages or other drugs, means any of the following:
(a) Physical injury inflicted on a child by other than accidental means.
(b) Sexual intercourse or sexual contact under s. 940.225, 948.02 or 948.025.
(c) A violation of s. 948.05.
(d) Permitting, allowing or encouraging a child to violate s. 944.30.
(e) A violation of s. 948.055.
(f) A violation of s. 948.10.
(gm) Emotional damage for which the child's parent, guardian or legal custodian has neglected, refused or been unable for reasons other than poverty to obtain the necessary treatment or to take steps to ameliorate the symptoms.
275,15
Section 15
. 48.02 (5j) of the statutes is created to read:
48.02 (5j) “Emotional damage" means harm to a child's psychological or intellectual functioning. “Emotional damage" shall be evidenced by one or more of the following characteristics exhibited to a severe degree: anxiety; depression; withdrawal; outward aggressive behavior; or a substantial and observable change in behavior, emotional response or cognition that is not within the normal range for the child's age and stage of development.
275,15m
Section 15m. 48.02 (14g) of the statutes is created to read:
