Y. Involuntary TPR Based on Intentional or Reckless
Homicide of The Child's Other Parent
1. Current Law
Under current law, first-degree intentional homicide by the parent of the
child's other parent is a ground for involuntary TPR.
2. The Bill
The bill adds first-degree reckless homicide by the parent of the child's
other parent as a ground for involuntary TPR.
Z. Involuntary TPR Based on Commission of a Serious
Felony Against One of the Person's Children
The bill creates an additional ground for involuntary TPR based on
commission of a serious felony against one of the person's children. This
ground must be established by proving that the person whose parental rights
are sought to be terminated has been convicted of a "serious felony" (as
defined in the bill) and that one of the person's children was the victim of
that serious felony. In addition to applying when the person commits a
serious felony against one of the person's children other than the child who
is the subject of the TPR petition, this ground also applies in those cases in
which the child who is the subject of the TPR petition was the victim of such
a crime and survives.
ZA. Involuntary TPR Based on Prior Involuntary TPR to
Another Child
The bill creates an additional ground for involuntary TPR, based on prior
involuntary TPR to another child.
This new ground must be established by proving both of the following:
1. The child who is the subject of the TPR petition has been adjudged
CHIPS because of abandonment or sexual or physical abuse or because a
parent, guardian or legal custodian neglects, refuses or is unable, for reasons
other than poverty, to provide necessary care, food, clothing, medical or
dental care or shelter so as to seriously endanger the physical health of the
child.
2. Within the 3 years prior to the date the child who is the subject of the
TPR petition was adjudged CHIPS, a juvenile court has ordered the
involuntary TPR of another of the person's children.
ZB. Appeals of Orders Terminating Parental Rights
1. Current Law
Currently, orders granting or denying involuntary TPR are final orders that
are appealable like other circuit court final orders.
2. The Bill
The bill provides as follows:
a. A notice of intent to appeal an involuntary TPR judgment or order must
be filed with the trial court within 30 days after the entry of the TPR
judgment or order, rather than 15 days.
b. The appellant has 30 days from the date of service of the transcript to file
the official notice of appeal and docketing statement, rather than 15 days.
c. The court of appeals must give TPR appeals preference and must decide
a TPR appeal within 30 days after the filing of the appellant's reply brief or
statement that a reply brief will not be filed, rather than 45 days after the
filing of the record on appeal.
d. A petition for the supreme court to review the decision of the court of
appeals in a TPR case must be filed within 30 days after the date of the
decision of the court of appeals, rather than 15 days.
e. With respect to a parent who consented to TPR or did not contest an
involuntary TPR and, unless an exception applies, a motion for relief from
judgment on such grounds as fraud, mistake or newly discovered evidence
must be filed within 30 days after the entry of the TPR judgment or order,
rather than 40 days.
ZC. Petitioning a Court, When an Involuntary TPR
Petition is Filed, for an Order Prohibiting Visitation
or Contact with a Child
1. Current Law
Current law provides that a juvenile court may, in a dispositional order
under s. 48.355, stats., set reasonable rules of parental visitation if a child is
adjudged CHIPS [s. 48.355 (3), stats.] and may prohibit a parent from
visiting a child if a child is placed in sustaining care after a TPR order [s.
48.428 (6), stats.]. In addition, current law provides that a child abuse
restraining order and injunction ordering a person to avoid a child's
residence and to avoid contacting the child may be granted if a person has
engaged in or may engage in abuse of the child [s. 813.122, stats.]. If the
respondent to a petition for a child abuse restraining order or injunction is
the child's parent, current law specifies that the court may provide that the
parent has reasonable visitation rights, unless the court finds that visitation
would endanger the child's physical, mental or emotional health.
Current statutes do not explicitly provide that a juvenile court may enter an
order denying visitation or contact with a child who is the subject of an
involuntary TPR petition while the case is pending.
2. The Bill
The bill provides that:
a. If a petition for involuntary TPR is filed, the person filing the TPR
petition may also petition the juvenile court for a temporary order and an
injunction prohibiting the person whose parental rights are sought to be
terminated from visiting or contacting the child.
b. The juvenile court may issue the temporary order ex parte or may refuse
to issue the temporary order and hold a hearing on whether to issue an
injunction. The bill specifies that the temporary order is in effect until a
hearing is held on the issuance of an injunction and that the hearing on the
issuance of an injunction must be held before or on the same day as the
initial hearing on the TPR petition.
c. The juvenile court may grant an injunction prohibiting the respondent
from visiting or contacting the child if the juvenile court determines that the
prohibition would be in the best interests of the child.
d. Such an injunction may not remain in effect beyond the date the juvenile
court either dismisses the TPR petition or issues an order terminating
parental rights.
ZD. Disclosure of Information to Certain Voluntary
Reporters of Child Abuse or Neglect
1. Current Law
Under current law, certain individuals, such as physicians, nurses, teachers
and social workers (mandatory reporters), must report to the county
department or to the sheriff or city, village or town police department cases
of children seen in the course of professional duties whom they suspect have
been abused or neglected or threatened with abuse or neglect. Any other
individual may, but is not required to, report suspected or threatened child
abuse or neglect and, if a report is made, is considered to be a voluntary
reporter. Currently, the county department or licensed child welfare agency
under contract with the county department investigating a report of
suspected or threatened child abuse or neglect must, within 60 days after
receipt of a report from a mandatory reporter, inform the mandatory reporter
of what action was taken to protect the health and welfare of the child who is
the subject of the report. Current law does not provide for disclosure of
information to voluntary reporters.
2. The Bill
The bill provides that:
a. Those voluntary reporters who are relatives of a child, as defined in s.
48.981 (1) (fm), stats., other than the child's parent, may request in writing
that a county department or a licensed child welfare agency under contract
with the county department disclose information to them regarding what
action was taken to protect the health and welfare of the child who is the
subject of the report.
b. A county department or a licensed child welfare agency that receives
such a request must, within 60 days after it receives the report or within 20
days after it receives the written request, whichever is later, inform such a
voluntary reporter in writing of: (1) what action, if any, was taken to protect
the health and welfare of the child, unless the county department or child
welfare agency has obtained a juvenile court order prohibiting such
disclosure; and (2) the duty to keep the information confidential and the
penalties for failing to do so.
c. The county department or licensed child welfare agency may petition the
juvenile court ex parte for an order prohibiting such disclosure.
d. If a county department or licensed child welfare agency files such a
petition, the deadline for disclosure is suspended until the juvenile court
issues its decision.
e. The juvenile court may hold an ex parte hearing in camera, that is,
hearing from one side only in the judge's chambers, and must issue an order
granting the petition if the juvenile court determines that disclosure would
not be in the best interests of the child.
ZE. Release of Certain Information, Including HIV
Test Results, to Substitute Care Providers
1. Current Law
Under current law, the results of HIV tests may not be disclosed without the
consent of the person who was tested (or, if the person who was tested is
under 14 years of age, without the consent of the person's parent), except
under statutorily specified circumstances. One of these circumstances is
that, if the test was administered to a child for whom placement in a foster
home, group home or a child caring institution (CCI) is recommended under
s. 48.33 (4), stats., (out-of-home placement recommended in a
predispositional report for a child adjudged CHIPS), the results may be
disclosed to an agency directed by a juvenile court to prepare either a court
report under s. 48.33 (1), stats., (predispositional report for a child adjudged
CHIPS) or a permanency plan under s. 48.38, stats. Under s. 252.15 (5) (a)
19., stats., that agency is then authorized to redisclose the HIV test results to
the child's foster parent or the operator of the group home or CCI in which
the child is placed, as provided in s. 48.371, stats.
Current s. 48.371, stats., requires that, at the time a child is placed in a foster
home, group home or CCI under a CHIPS dispositional order or a change in
placement order (or, if the information is not available at that time, within 30
days after the date of the placement), the agency that prepared the child's
permanency plan must provide the foster parent or operator of the group
home or CCI with information in the court report under s. 48.33, stats., or
permanency plan submitted under s. 48.38, stats., relating to all of the
following:
a. The results of HIV tests if: (1) the child's parent or guardian has
consented to the test under s. 252.15 (2) (a) 4. b., stats., (in pertinent part,
consent from the parent or guardian is required if the person tested is under
14 years of age, and consent of the guardian is required if the person tested
has been adjudicated incompetent under ch. 880, stats.); (2) the child's
parent or guardian has consented to the release of test results under s. 252.15
(5) (a) 19., stats.; and (3) the agency notifies the foster parent or operator of
the group home or CCI about the confidentiality requirements under s.
252.15 (6), stats., (redisclosure prohibited except to a person on a list of
persons specified in the statutes).
b. The results of tests for viral hepatitis, type B (hepatitis B).
c. Findings or opinions of the juvenile court or agency that prepared the
court report or permanency plan relating to any mental, emotional,
cognitive, developmental or behavioral disability of the child.
2. The Bill
The bill amends current law as follows:
a. By additionally providing for disclosure of all 3 types of information
listed in items 1, a to c, above, concerning children placed in a treatment
foster home (which, along with foster homes, group homes and CCI's, are
commonly referred to as "substitute care").
b. By additionally providing for disclosure of HIV and hepatitis B test
results regarding children placed in substitute care under other circumstances
under ch. 48, rather than restricting disclosure to cases in which children
have been placed in substitute care by a CHIPS dispositional order or a
change in placement order.
c. By providing for disclosure of HIV test results to the substitute care
provider without the consent of the child or the child's parent or guardian.
d. By also providing that the disclosure of HIV test results may be to the
following: (1), stats., the agency directed by a court to prepare a court report
under various provisions in ch. 48, rather than restricting disclosure to the
agency directed to prepare a court report under s. 48.33 (1), stats.,
(predispositional report for a child adjudged to be CHIPS); (2) to an agency
responsible for preparing a court report under various provisions in ch. 48;
(3) to an agency responsible for preparing a permanency plan under various
provisions of ch. 48, rather than restricting disclosure to the agency directed
to prepare a permanency plan under s. 48.38, stats.; (4) to an agency that
placed the child or arranged for the placement of the child in substitute care;
and (5) by any of those agencies to any other of those agencies.
e. By requiring the agency that placed the child or arranged for the
placement of the child with the substitute care provider to provide HIV and
hepatitis B test results to the substitute care provider, rather than requiring
the agency that prepared the child's permanency plan to do so.
f. By requiring that, at the time the agency provides the HIV test results to
the substitute care provider, the agency notify the substitute care provider
about the confidentiality requirements under s. 252.15 (6), stats.
g. With respect to the disclosure of HIV and hepatitis B test results, by
requiring disclosure not at the time a child is placed in substitute care, or
within 30 days after the date of the placement if the information was not
available at the time of placement, but rather at the time of placement and, if
information is subsequently received, as soon as possible, but not later than
2 working days after the agency receives such information.
h. With respect to the disclosure of information in the court report or
permanency plan relating to findings or opinions of the juvenile court or
agency that prepared the court report or permanency plan relating to the
mental, emotional, cognitive, developmental or behavioral disability of the
child, by requiring disclosure not at the time a child is placed in such
substitute care, or within 30 days after the date of the placement if the
information was not available at the time of placement, but rather at the time
of placement or, if the information is not available at that time, as soon as
possible after the court report or permanency plan has been submitted
, but
not later than 7 days after such date.
ZF. REQUEST FOR A STUDY ON the USE, EFFECTIVENESS AND
FUNDING OF SYSTEMS AND PROGRAMS DIRECTED AT
Prevention of CHILD ABUSE AND NEGLECT
1. Background
Due to time constraints and the multiplicity of issues facing the joint
legislative council's 1994-95 special committee on children in need of
protection or services, the committee did not act on the prevention aspects of
its charge, even though there was a consensus to do so.
2. The Bill
The bill requests the joint legislative council to study all of the following:
a. The use and effectiveness of systems and programs directed at, and
resources allocated to, the prevention of child abuse and neglect to
determine the effectiveness of those systems, programs and resources in
preventing child abuse and neglect in the state.
b. The need for new or revised systems and programs and new mechanisms
for providing and allocating funding for preventing child abuse and neglect.
AB837, s. 1
1Section
1. 46.40 (7m) of the statutes is created to read:
AB837,29,102
46.40
(7m) Use by county of community aids funds to pay private attorneys
3for certain proceedings under the children's code.
Upon application by a county
4department under s. 46.215, 46.22 or 46.23 to the department for permission to use
1funds allocated to that county department under sub. (2) to employ private counsel
2for the purposes specified in this subsection and a determination by the department
3that use of funds for those purposes does not affect any federal grants or federal
4funding allocated under this section, the department and the county department
5shall execute a contract authorizing the county department to expend, as agreed
6upon in the contract, funds allocated to that county department under sub. (2) to
7permit the county department to employ private counsel to represent the interests
8of the state or county in proceedings under ch. 48 relating to child abuse or neglect
9cases, proceedings to terminate parental rights and any ch. 48 cases or proceedings
10involving 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.
AB837, s. 2
11Section
2. 48.01 (1) (ag) of the statutes is created to read:
AB837,30,312
48.01
(1) (ag) To recognize that children have certain basic needs which must
13be provided for, including the need for adequate food, clothing and shelter; the need
14to be free from physical, sexual or emotional injury or exploitation; the need to
15develop physically, mentally and emotionally to their potential; and the need for a
16safe and permanent family. It is further recognized that, under certain
17circumstances, in order to ensure that the needs of a child are provided for, the court
1may determine that it is in the best interests of the child for the child to be removed
2from his or her parents, consistent with any applicable law relating to the rights of
3parents.
Note: This Section creates a new provision in the statement of legislative purpose
section of the children's code [s. 48.01, stats.], recognizing that children have basic needs,
including all of the following:
1. The need for adequate food, clothing and shelter.
2. The need to be free from physical, sexual or emotional injury or exploitation.
3. The need to develop physically, mentally and emotionally to their potential.
4. The need for a safe and permanent family.
In keeping with the increased focus of this new purpose section on the best interests
of the child, this new provision recognizes that, under certain circumstances, in order to
ensure that the needs of a child are provided for, it may be necessary for the juvenile court
to remove a child from his or her parents, consistent with any applicable law relating to
the rights of parents [i.e., there is a sufficient basis under law for the court assigned to
exercise jurisdiction under the children's code (juvenile court) to intervene in the family].
AB837, s. 3
4Section
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.
AB837, s. 4
5Section
4. 48.01 (1) (bg) of the statutes is created to read:
AB837,30,106
48.01
(1) (bg) 1. To ensure that children are protected against the harmful
7effects resulting from the absence of parents or parent substitutes, from the inability,
8other than financial inability, of parents or parent substitutes to provide care and
9protection for their children and from the destructive behavior of parents or parent
10substitutes in providing care and protection for their children.
AB837,30,1311
2. To ensure that children are provided good substitute parental care in the
12event of the absence, temporary or permanent inability, other than financial
13inability, 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.
AB837, s. 5
1Section
5. 48.01 (1) (br) of the statutes is created to read: