Current law also defines "emotional damage" in s. 813.122 (1) (e), stats., for
purposes of the child abuse restraining order and injunction statute and
provides that the harm must be exhibited by severe anxiety, depression,
withdrawal or outward aggressive behavior, or a combination of those
behaviors. However, this definition does not provide that the harm may be
demonstrated by 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.
2. The Bill
The bill repeals both definitions and defines "emotional damage" in the
general definitions section of ch. 48 as harm to a child's psychological or
intellectual functioning for which the child's parent, guardian or legal
custodian has neglected, refused or been unable either to obtain the
necessary treatment or to take necessary steps to ameliorate the symptoms.
The bill requires that emotional damage be evidenced by one or more of the
following characteristics exhibited to a substantial degree: (a) anxiety; (b)
depression; (c) withdrawal; (d) outward aggressive behavior; or (e)
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.
E. GROUNDS FOR CHIPS JURISDICTION
1. Current Law
1995 Wisconsin Act 77 repeals several grounds for children in need of
protection or services (CHIPS) jurisdiction under ch. 48 effective July 1,
1996. Unless amended by other enactments, as of that date, the grounds for
CHIPS jurisdiction, as set forth in s. 48.13, stats., will be as follows:
a. The child is without a parent or guardian.
b. The child has been abandoned.
c. The child has been the victim of sexual or physical abuse, including
injury which is self-inflicted or inflicted by another by other than accidental
means.
d. The child is at substantial risk of becoming the victim of sexual or
physical abuse, including injury that is self-inflicted or inflicted by another
by other than accidental means, based on reliable and credible information
that another child in the home has been the victim of sexual or physical
abuse.
e. The child's parent or guardian signs the petition requesting jurisdiction
and states that he or she is unable to care for or provide necessary special
treatment or care for the child.
f. The child has been placed for care or adoption in violation of the law.
g. The child is receiving inadequate care during the period of time a parent
is missing, incarcerated, hospitalized or institutionalized.
h. The child is at least age 12, signs the petition requesting jurisdiction and
attests in court that he or she is in need of special care or treatment which the
parent, guardian or legal custodian is unwilling to provide.
i. The child's 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.
j. The child's parent, guardian or legal custodian is at substantial risk of
neglecting, refusing or being unable for reasons other than poverty to
provide necessary care, food, clothing, medical or dental care or shelter so as
to endanger seriously the physical health of the child, based on reliable and
credible information that the child's parent, guardian or legal custodian has
neglected, refused or been unable for reasons other than poverty to provide
necessary care, food, clothing, medical or dental care or shelter so as to
endanger seriously the physical health of another child in the home.
k. The child is suffering emotional damage for which the parent or guardian
is unwilling to provide treatment, which is evidenced by one or more of the
following characteristics, exhibited to a severe degree: anxiety, depression,
withdrawal or outward aggressive behavior.
L. The child is suffering from an alcohol and other drug abuse impairment,
exhibited to a severe degree, for which the parent or guardian is unwilling to
provide treatment.
m. The child has not been immunized as required by s. 252.04, stats., and
not exempted under s. 252.04 (3), stats.
2. The Bill
The bill makes the following changes in the grounds for CHIPS jurisdiction:
a. With respect to items 1, c and d, above, cross-references certain
paragraphs in the definition of "abuse" created in the general definitions
section of ch. 48 by the bill, thus including them as grounds for CHIPS
jurisdiction. Current law does not define sexual or physical abuse for
purposes of CHIPS jurisdiction.
b. With respect to item 1, e, above, modifies the ground for CHIPS
jurisdiction if a parent or guardian is unable to care for or provide necessary
special treatment or care for a child to also provide a ground for CHIPS
jurisdiction if the parent or guardian needs assistance in doing so. Also
provides that CHIPS jurisdiction is not established simply by the parent's or
guardian's statement that he or she is unable to care for or provide necessary
special treatment or care for a child but, rather, is established only if the
parent or guardian proves that he or she is unable or needs assistance to do
so.
c. With respect to item 1, h, above, provides a ground for CHIPS
jurisdiction if the child 12 years of age or over signs the petition and proves
that the parent, guardian or legal custodian is unwilling, neglecting, unable
or needs assistance to provide needed special treatment or care rather than
the child's merely attesting that the parent, guardian or legal custodian is
unwilling to do so.
d. With respect to item 1, k, above, deletes from the requirement that
"emotional damage" be evidenced by anxiety, depression, withdrawal or
outward aggressive behavior exhibited to a severe degree and refers to the
definition of "emotional damage" as created in the bill. Further, adds
grounds for CHIPS jurisdiction over a child who is suffering emotional
damage if a parent or guardian is neglecting, refusing or unable to provide
treatment rather than merely being unwilling to do so and adds grounds for
CHIPS jurisdiction over a child who is suffering emotional damage if a legal
custodian is neglecting, refusing or unable to provide treatment.
e. With respect to item 1, L, above, adds grounds for CHIPS jurisdiction if
a child is suffering from an alcohol or other drug abuse impairment if a
parent or guardian is neglecting, refusing or unable to provide treatment
rather than merely being unwilling to do so and adds grounds for CHIPS
jurisdiction for alcohol or other drug abuse impairment if a legal custodian
is neglecting, refusing or unable to provide treatment.
F. Use of the Term "Neglects, Refuses or is Unable"
1. Current Law
Several provisions in ch. 48 relate to whether a parent, guardian or legal
custodian is neglecting, refusing, failing, unable or in need of assistance to
take certain actions.
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
