2. The Bill
The bill makes the following changes:
a. With respect to one of the possible criteria for holding a child in physical
custody, provides that there must be probable cause to believe that the
child's parent, guardian or legal custodian or other responsible adult is
neglecting, refusing, unable or unavailable to provide adequate supervision
and care, rather than merely being unavailable, unwilling or unable to do
so.
b. With respect to the criteria to determine whether to continue to hold a
child in physical custody, provides that there must be probable cause to
believe that the child's parent, guardian or legal custodian is neglecting,
refusing, unable or unavailable to provide adequate supervision and care,
rather than merely being unwilling or unavailable to do so.
c. With respect to court-ordered alcohol and other drug abuse services or
court-ordered special treatment or care for a child, provides that a judge
may order the parent to pay for such services if the child's parent
neglects,
refuses or is unable to provide such services through his or her health
insurance or other 3rd-party payments, rather than if the child's parent
merely refuses or is unable to do so.
d. With respect to the duty of a county department of human services or
social services (county department) conducting a child abuse or neglect
investigation and making a determination as to whether emotional damage
has occurred, provides that the county department must establish that the
person alleged to be responsible for the emotional damage is neglecting,
refusing or unable to remedy the harm, rather than being merely
unwilling
to do so.
G. Right to, and size of, jury trial in proceedings
involving A child alleged to be CHIPS
1. Current Law
Under current law, a child and a parent, guardian or legal custodian of a
child have the right under ch. 48 to a trial by jury at a fact-finding hearing in
juvenile court. A trial by jury may be demanded on a petition alleging that
a child is CHIPS and on a petition for termination of parental rights (TPR).
Under current s. 756.096 (3) (b), stats., a jury in civil cases [e.g.,
proceedings under ch. 48] must consist of 6 persons
unless a party requests
a greater number not to exceed 12. The court, on its own motion, may
require a greater number, not to exceed 12.
2. The Bill
The bill retains the right to a jury trial under ch. 48 but requires a trial by a
jury of 6 persons (i.e., does not permit a jury of a larger size as is permitted
under current law) in a juvenile court proceeding involving a child who is
alleged to be CHIPS. The 12-person jury is retained for TPR cases unless
the parties agree to a lesser number.
H. Elements to be Determined by the Court Versus
Elements to be Determined by the Jury when a Child
is Alleged to be CHIPS
1. Current Law
Under current law, a child who is the subject of a CHIPS petition or the
child's parent, guardian or legal custodian may demand a jury trial to
determine whether the allegations of the CHIPS petition are proved. In In
the Interest of Courtney E., 184 Wis. 2d 592 (1994), the Wisconsin supreme
court held that in order for a juvenile court to exercise jurisdiction over a
child alleged to be CHIPS, 2 things must be proved: (a) that one of the
grounds for CHIPS jurisdiction exists; and (b) that the child is in need of
protection or services that can be ordered by the court.
2. The Bill
The bill provides that the juvenile court, not the jury, determines whether the
child needs protection or services which the juvenile court can order, thus
leaving to the jury (or to the court, if a jury trial is not requested) the task of
determining whether one of the underlying grounds for CHIPS jurisdiction,
such as abandonment, abuse or neglect, has been proved.
I. Discovery in Proceedings under the Children's
Code
1. Current Law
Current s. 48.293, stats., sets forth the various discovery procedures
applicable in a proceeding under ch. 48. In general, current chs. 801 to 847,
stats., including ch. 804, stats., regarding discovery in civil proceedings,
govern procedure and practice in civil actions. However, s. 801.01 (2),
stats., specifies that: "Chapters 801 to 847 govern procedure and practice in
circuit courts of this state in all civil actions...except where different
procedure is prescribed by statute or rule.". In In the Interest of Zachary F.
[No. 95-1455, 1995 Wisc. App. LEXIS 1170, September 20, 1995 (ordered
published) (petition for review pending)], the Wisconsin court of appeals
held that the discovery procedure set forth in s. 48.293, stats., is "different"
from that provided under ch. 804, stats., and that, therefore, s. 48.293, stats.,
is the "exclusive source of discovery rights to parties involved in ch. 48,
stats., actions".
2. The Bill
The bill provides that, in addition to the discovery procedures permitted
under s. 48.293, stats., the discovery procedures permitted under ch. 804,
stats., apply to proceedings under ch. 48.
J. SPECIFIED DUTIES OF A Guardian ad litem APPOINTED
IN PROCEEDINGS INVOLVING A CHILD ALLEGED TO BE CHIPS
1. Current Law
Current s. 48.235 (3), stats., provides that a guardian ad litem (GAL) must
be an advocate for the best interests of "the person for whom the
appointment is made" (e.g., the child in a CHIPS case), but does not set forth
in detail any of the duties or responsibilities of the GAL in advocating for
the best interests of the child.
2. The Bill
The bill specifies that, in addition to any other duties and responsibilities
imposed on a GAL, the GAL in a CHIPS case is required to do all of the
following:
a. Personally meet with the child, personally interview the child if the child
is old enough to communicate, determine the child's goals and concerns
regarding his or her placement and assess the appropriateness and safety of
the child's environment in each placement.
b. Personally, or through a trained designee, conduct, when applicable,
interviews with the child's parents, general guardian, legal custodian, foster
parents, caseworkers, therapists, counselors, school personnel and mental
health professionals.
c. If any injuries or abuse have occurred or are alleged, review photographs
and available videotapes or audiotapes of interviews with the child and
contact appropriate health care facilities and health care providers for more
information relating to those injuries or that abuse.
d. Personally, or through a trained designee, determine whether there are
alternatives to initial or continued out-of-home placement of the child,
including in-home services or removal of the perpetrator of any abuse or
alleged abuse from the child's home.
e. Personally, or through a trained designee, identify appropriate community
resources and advocate for those resources, when appropriate, to protect the
best interests of the child.
f. Make clear and specific recommendations to the juvenile court
concerning the best interests of the child at every stage of the proceeding,
including all placement decisions; and ask that clear and specific orders be
entered for the provision of treatment and services for the child and his or
her family and for the evaluation, assessment and protection of the child and
his or her family.
K. ROLE OF FOSTER AND TREATMENT FOSTER PARENTS AND
CERTAIN OTHER PHYSICAL CUSTODIANS IN HEARINGS Under
the Children's Code
1. Current Law
Current law provides for a very limited role for foster parents, treatment
foster parents and certain other physical custodians (e.g., relatives who
provide care for a child) in CHIPS proceedings under ch. 48.
2. The Bill
The bill expands the role, or creates new provisions relating to the role, of
foster parents, treatment foster parents and certain other physical custodians
in hearings under ch. 48. The bill does the following:
a. Expands current law which requires, in general, notice of all ch. 48
hearings involving a child to be given to specified persons (e.g., the child
and any parent, guardian and legal custodian of the child as well as certain
persons who may be the father of the child) to require such notice to be
given to the child's foster parent, treatment foster parent or other physical
custodian under s. 48.62 (2), stats. Section 48.62 (2), stats., sets forth those
persons who provide care and maintenance for children but who are not
required to obtain a foster care or treatment foster care license (e.g., a
relative of the child providing care). These persons are hereafter referred to
as "other physical custodians".
b. Specifies that: (1) failure to give notice to a foster parent, treatment
foster parent or other physical custodian does not deprive the juvenile court
of jurisdiction in the action or proceeding; and (2) if such a person is not
given the required notice of a hearing and the person requests a rehearing on
the matter during the pendency of an order resulting from such hearing, the
juvenile court must order that a rehearing on the matter be held.
c. Specifies that, except in a hearing on parental consent for abortion, if a
public hearing is not held in a proceeding under ch. 48, a child's foster
parent, treatment foster parent or other physical custodian may be present at
the hearing, except that the juvenile court may exclude a foster parent,
treatment foster parent or other physical custodian from any portion of the
hearing if that portion of the hearing deals with sensitive personal
information of the child or the child's family or if the juvenile court
determines that the exclusion would be in the best interests of the child. In
a proceeding under s. 48.375, stats., the bill provides that the foster parent,
treatment foster parent or other physical custodian may not be present unless
requested by a party and approved by the juvenile court.
d. Requires notification of foster or treatment foster parents or certain other
physical custodians of a child when certain parties request a change in
placement of the child.
e. Permits a foster parent, treatment foster parent or certain other physical
custodians to make a written or oral statement during the change in
placement hearing.
f. Revises current law, relating to revision and extension of dispositional
orders, to require the juvenile court to notify the child's foster parent,
treatment foster parent or other physical custodian of the time and place of
the hearing.
g. Creates s. 48.365 (2m) (ag), stats., to permit a foster parent, treatment
foster parent or other physical custodian of the child to make a written or
oral statement during an extension hearing, or to submit a written statement
prior to an extension hearing, relevant to the issue of extension of a
dispositional order.
h. Revises s. 48.427 (1m), stats., relating to dispositions in TPR
proceedings, to require the juvenile court to permit the foster parent,
treatment foster parent or other physical custodian of the child to make a
written or oral statement to the juvenile court during the fact-finding or
dispositional hearing, or to submit a written statement prior to disposition,
relevant to the issue of disposition.
i. Revises s. 48.43 (5) (b), stats., relating to the hearing to review a child's
permanency plan subsequent to a TPR, to require that notice of the time,
date and purpose of the hearing be given to any other physical custodian of
the child.
L. COUNTY AUTHORITY TO USE CERTAIN COMMUNITY AIDS
FUNDS TO EMPLOY PRIVATE ATTORNEYS FOR PROCEEDINGS
Under the children's code
1. Current Law
Under current law, "community aids" are state and federal funds which are
distributed by the department of health and social services (DHSS) to
counties for the provision of human services.
2. The Bill
The bill 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 federal Indian child
welfare act (ICWA) if a county applies to DHSS and DHSS determines that
use of community aids funds for this purpose does not affect any federal
grants or federal funding. This specific authority is not set forth in current
law.
M. Time by Which a Detention Hearing Must be Held
Under the children's code
1. Current Law
Under current law, if a child who has been taken into custody is not released,
a detention hearing must be held to determine whether the child should
continue to be held in custody. This hearing must be held within 24 hours
after the time the decision was made to hold the child, excluding Saturdays,
Sundays and legal holidays. If the hearing is not held within this time
period, the child must be released.
2. The Bill
Under the bill, a detention hearing under ch. 48 must be held within
48
hours after the decision was made to hold the child, excluding Saturdays,
Sundays and legal holidays.
N. Time by Which a CHIPS Petition Must be Filed for a
Child Held in Custody
1. Current Law
Under current law, a petition under ch. 48 must be filed by the time of the
detention hearing unless the child was taken into custody under certain
specified circumstances. [In the case of these exceptions, a written
statement of the reasons for holding the child in custody must be substituted
if a petition is not filed.] Under current law, if no petition or statement has
been filed at the time of the detention hearing, the child must be released
except in the following circumstance: the child may be held in custody with
the approval of the judge or juvenile court commissioner for an additional 48
hours from the time of the detention hearing only if, as a result of facts
brought forth at the hearing, the judge or juvenile court commissioner
determines that: (a) the child is in imminent danger to himself or herself or
to others; or (b) probable cause exists to believe that the parent, guardian or
legal custodian of the child or other responsible adult is unwilling or
unavailable to provide adequate supervision and care. If a petition is not
filed within the 48-hour extension period, the judge or juvenile court
commissioner must order the child's immediate release from custody.
2. The Bill
Under the bill, the 48-hour extension period is changed to an extension
period of 72 hours, excluding Saturdays, Sundays and legal holidays, after
the detention hearing is held.
The bill also amends one of the 2 bases for approving the extension by
providing that there be a determination that probable cause exists to believe
that the child's parent, guardian or legal custodian or other responsible adult
is neglecting, refusing, unable or unavailable to provide adequate
supervision and care, rather than is unwilling or unavailable to do so.
O. Extension of an Informal Disposition for a Child
Alleged to Be CHIPS
1. Current Law
Under current law, if a child is alleged to be CHIPS, a juvenile court intake
worker may enter into a written agreement which imposes an informal
disposition if: (a) the intake worker determines that the best interests of
neither the child nor the public require the filing of a CHIPS petition; (b) the
facts persuade the intake worker that jurisdiction of the juvenile court would
exist if sought; and (c) the child and the child's parent, guardian and legal
custodian consent to the informal disposition. An informal disposition may
not exceed 6 months unless the informal disposition is based on allegations
that a child is CHIPS based on habitual truancy, in which case, the informal
disposition may not exceed one year.
2. The Bill
The bill does all of the following: (a) permits an intake worker to extend for
up to an additional 6 months an informal disposition that is based on
allegations that a child is CHIPS under ch. 48; (b) requires that the intake
worker give written notice to the child and the child's parent, guardian and
legal custodian prior to extending an informal disposition; (c) provides that
the intake worker may not extend the informal disposition if the child or the
child's parent, guardian or legal custodian objects to the extension; and (d)
provides that if there is an objection to the extension, the intake worker may
recommend that a CHIPS petition be filed.
P. Paternity Determination Proceedings for a Child
Alleged to be CHIPS
1. Current Law
Under current law, if a putative father who has been given notice of a
hearing in a CHIPS proceeding appears at the hearing, alleges that he is the
father of the child and states that he wishes to have the paternity of the child
established, the juvenile court is required to refer the matter to the state or to
the attorney responsible for support enforcement (commonly known as the
IV-D attorney) to determine whether an action should be brought in family
court under ch. 767, stats., to determine the paternity of the child. Under
current law, the juvenile court may stay the CHIPS proceedings pending the
outcome of the paternity proceedings under ch. 767, stats.
2. The Bill
The bill does all of the following:
a. Provides that, in addition to these provisions in current law, if a matter is
referred by the juvenile court under the required referral provision, the IV-D
attorney receiving the referral must: (1) give priority to such cases; (2) as
soon as possible, but no later than 30 days after the referral, notify the
juvenile court: (a) of the date a paternity action has been or will be brought
in family court, (b) that a determination has been made that such an action
should not be brought or, if a determination has not been made as to whether
a paternity action should be brought, the approximate date by which the
determination will be made or (c) that the man has been excluded as the
father of the child; (3) if a paternity action is brought, notify the family court
in the paternity proceeding petition that the matter was referred by the
juvenile court under the required referral provision; and (4) notify the
juvenile court as soon as possible of the family court's decision on the
paternity action.
b. Requires the family court to give priority to a paternity proceeding if the
paternity proceeding petition filed by the IV-D attorney states that the
matter was referred by the juvenile court under the required referral
provision.
c. Provides that a GAL appointed for a child under ch. 48 may bring a
paternity action under ch. 767, stats.
d. Provides that, in cases in which a man who has been given notice of a
CHIPS hearing appears, alleges that he is the child's father and states that he
wishes to have the paternity of the child established: (1) the juvenile court
must, at the hearing, orally inform the man that he may be required to pay
for any genetic testing ordered by the juvenile court; (2) if it would be in the
best interests of the child to do so, the juvenile court may order the man to
submit to genetic testing to determine the probability that the man is the
child's biological father; (3) if the testing indicates that the statistical
probability that the man is the child's biological father is 99.0% or higher,
the juvenile court may determine that for purposes of a proceeding under ch.
48, other than a proceeding under subch. VIII of ch. 48 (TPR), the man is
the child's biological parent under s. 48.02 (13), stats., (defining "parent" in
ch. 48); and (4) provides that such a determination by the juvenile court is
not a judgment of paternity under ch. 767, stats., or an adjudication of
paternity under subch. VIII of ch. 48.
e. Provides that, in cases in which a notice of a hearing in a CHIPS
proceeding was given to a putative father who does not appear at a CHIPS
hearing or in cases in which a man to whom notice was given appears but
does not allege that he is the child's father and state that he wishes to have
paternity established, the juvenile court may refer the matter to the state or
the IV-D attorney who then may bring a paternity action in family court.
Q. Disclosure of Court Records Relating to Paternity
1. Current Law
Under current law, subject to certain exceptions, records of a juvenile court
are not open to inspection and their contents may not be disclosed.
Similarly, under current law, subject to certain exceptions, a family court's
record of a paternity proceeding under ch. 767, stats., may not be disclosed.
2. The Bill
The bill does the following:
a. Adds an exception to require a juvenile court, upon request, to open for
inspection or disclose juvenile court records relating to the paternity of a
child to: (1) a family court; (2) a IV-D attorney; (3) the parties to a
paternity proceeding under ch. 767, stats., or their attorneys; and (4) the
child's GAL.
b. Adds the following to the list of individuals and entities to whom a
family court's record of a paternity proceeding under ch. 767, stats., may be
disclosed if the child is the subject of a ch. 48 proceeding: (1) the juvenile
court in which the ch. 48 proceeding is pending; (2) the parties to the ch. 48
proceeding and their attorneys; (3) the person under s. 48.09, stats., who
represents the interests of the public in the ch. 48 proceeding; (4) the child's
GAL and the GAL for the child's parent; and (5) any governmental or social
agency involved in the ch. 48 proceeding.
R. appointment of a guardian for a child adjudged
chips under certain circumstances
1. Current Law
Under current law, a juvenile court has exclusive jurisdiction over the
appointment and removal of a guardian of the person for a child under the
following circumstances: (a) when a guardianship petition is filed under ch.
880, stats., (relating to guardianship in general); (b) as part of a TPR
disposition; (c) for a child in sustaining care; (d) as part of a TPR order; (e)
for a child without a living parent if an adoptability finding is sought; (f) for
the transfer of guardianship upon the revocation of a guardian's license; (g)
for the transfer of guardianship if the guardian of a foreign child does not
file an adoption or TPR petition; and (h) for a child adjudged CHIPS
because the child is without a parent or guardian.
When a child is adjudged CHIPS and placed in foster care, the foster parent
does not have the authority to do things such as signing permission slips
allowing the child to participate in school or extracurricular activities,
allowing out-of-state travel or consenting to routine medical services unless
a parent has signed a form authorizing the foster parent to do so.
2. The Bill
