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:
AB837,31,62
48.01
(1) (br) To encourage innovative and effective prevention, intervention
3and treatment approaches, including collaborative community efforts and the use of
4community-based programs, as significant strategies in planning and
5implementing legislative, executive and local government policies and programs
6relating 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.
AB837, s. 6
7Section
6. 48.01 (1) (dm) of the statutes is created to read:
AB837,31,98
48.01
(1) (dm) To divert children from formal proceedings under this chapter
9to 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.
AB837, s. 7
10Section
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.
AB837, s. 8
11Section
8. 48.01 (1) (g) of the statutes is amended to read:
AB837,32,912
48.01
(1) (g)
To provide children in the state with permanent and stable family
13relationships While recognizing that the paramount goal of this chapter is to protect
14children, to preserve the unity of the family, whenever appropriate, by strengthening
15family life through assisting parents in fulfilling their parental responsibilities. The
1courts and agencies responsible for child welfare should assist parents in changing
2any circumstances in the home which might harm the child or which may require the
3child to be placed outside the home.
The courts should recognize that they have the
4authority, in appropriate cases, not to reunite a child with his or her family. The
5courts and agencies responsible for child welfare should also recognize that
6instability and impermanence in family relationships are contrary to the welfare of
7children and should therefore recognize the importance of eliminating the need for
8children to wait unreasonable periods of time for their parents to correct the
9conditions that prevent their return to the family.
Note: This Section amends s. 48.01 (1) (g), stats., to do all of the following:
1. Specify that one of the legislative purposes of ch. 48 is to preserve the unity of
the family, whenever appropriate, by strengthening family life through assisting parents
in fulfilling their parental responsibilities.
2. Stress to the juvenile court judges that they have the authority, in appropriate
cases, not to reunite a child with his or her family. The committee determined that, in
some cases, parents comply in a minimal way with court-ordered requirements for the
return of their child [or children] and that the child [or children] are, in fact, returned to
the parents based on this minimal compliance [which often occurs just prior to the court
hearing to review the out-of-home placement]. Because reunification in such cases is
often contrary to the best interests of the child, the committee hopes that this new
provision reemphasizes to juvenile courts that such minimal compliance may not be
sufficient, considering the best interests of the child, to reunite the parent and that child.
The best interests of the child must always be the paramount consideration.
AB837, s. 9
10Section
9. 48.01 (1) (gr) of the statutes is amended to read:
AB837,32,1411
48.01
(1) (gr) To allow for the termination of parental rights at the earliest
12possible time after rehabilitation and reunification efforts are discontinued
in
13accordance with this chapter and termination of parental rights is in the best interest
14of 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.
AB837, s. 10
15Section
10. 48.01 (1) (gt) of the statutes is created to read:
AB837,33,3
148.01
(1) (gt) To reaffirm that the duty of a parent to support and maintain his
2or her child continues during any period in which the child may be removed from the
3custody 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.
AB837, s. 11
4Section
11
. 48.01 (2) of the statutes is renumbered 48.01 (2) (intro.) and
5amended to read:
AB837,33,146
48.01
(2) (intro.) This chapter shall be liberally construed to effect the
7objectives contained in this section. The best interests of the child shall always be
8of paramount consideration
, but the court shall also consider the interest of the
9parents or guardian of the child, the interest of the person or persons with whom the
10child has been placed for adoption and the interests of the public.
In proceedings
11involving an American Indian child, the best interests of the child must be
12determined consistent with the Indian child welfare act, 25 USC 1901 to 1963. In
13this subsection, "American Indian child" means any unmarried person who is under
1418 years of age and is one of the following:
Note: This S
ection deletes certain language in current s. 48.01 (2), stats., to more
strongly emphasize that the best interests of the child must always be of the paramount
consideration under ch. 48, stats. Deleted is language specifying that the juvenile court
must "also consider the interest of the parents or guardian of the child, the interest of the
person or persons with whom the child has been placed for adoption and the interests of
the public". This
Section adds language to current s. 48.01 (2), stats., to clarify that, in
proceedings involving a child who is an American Indian, the best interests of the child
must be determined consistent with the federal Indian child welfare act,
25 USC 1901 to
1963.
The definition of "American Indian child" in this
Section and in
Section 12 (which
completes the definition) is based on the definition of "Indian child" in
25 USC 1903 (4).
AB837, s. 12
15Section
12
. 48.01 (2) (a) and (b) of the statutes are created to read:
AB837,33,1616
48.01
(2) (a) A member of an Indian tribe, as defined in
25 USC 1903 (8).
AB837,34,2
1(b) Eligible for membership in an Indian tribe and is the biological child of a
2member of an Indian tribe.
Note: See the Note following Section 11 of this bill.
Note: Renumbers the definition of "adult" in order to insert the definition of
"abuse" in the general definitions section of ch. 48.
AB837, s. 14
5Section
14. 48.02 (1) of the statutes is created to read: