SB501: Bill Text

SB501,92,15 (c) Resignation. A guardian appointed under sub. (2) may resign at any time if the resignation is accepted by the court.

SB501,92,22 (d) Termination on request of parent. 1. A parent of the child may request that a guardianship order entered under sub. (4) (h) 2. or a revised order entered under sub. (6) be terminated. The request shall allege facts sufficient to show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered, that the parent is willing and able to carry out the duties of a guardian and that the proposed termination of guardianship would be in the best interests of the child.

SB501,92,25 2. The court shall hold a hearing on the matter unless written waivers of objections to the termination are signed by all parties entitled to receive notice under sub. (4) (c) and the court approves the waivers.

SB501,93,9 3. If a hearing is to be held, the court shall notify the persons entitled to receive notice under sub. (4) (c) at least 7 days prior to the hearing of the date, place and purpose of the hearing. A copy of the request shall be attached to the notice. The court shall terminate the guardianship if, at the hearing, the court finds that it has been proved by clear and convincing evidence that there has been a substantial change in circumstances since the last order affecting the guardianship was entered and the parent is willing and able to carry out the duties of a guardian and if the court determines that termination of the guardianship would be in the best interests of the child.

Note: Creates a new provision relating to termination of a guardianship ordered by the juvenile court under s. 48.977 (2), stats., as created by this bill, specifying all of the following:

1. That unless the juvenile court orders the guardianship to be for a lesser period of time, the guardianship must continue until the child reaches 18 years of age or until terminated by the juvenile court, whichever occurs earlier.

2. The guardian may be removed for cause on the request of a party entitled to file a petition for guardianship. The request (or the juvenile court's proposal if the juvenile court seeks removal on its own motion) must allege facts sufficient to show that the guardian is or has been neglecting, is or has been refusing or is or has been unable to discharge the guardian's trust. After a hearing on the matter (unless one is not necessary because written waivers of objections to the removal are signed by all parties entitled to receive notice), the juvenile court must remove the guardian for cause if, at the hearing, the juvenile court: (a) finds that the guardian is or has been neglecting, is or has been refusing or is or has been unable to discharge the guardian's trust; and (b) determines that removal of the guardian would be in the best interests of the child.

3. The guardian may resign at any time if the resignation is accepted by the juvenile court.

4. The guardianship may be terminated on the request of the child's parent. The request must allege facts sufficient to show that: (a) there has been a substantial change in circumstances since the last order affecting the guardianship was entered; (b) the parent is willing and able to carry out the duties of a guardian; and (c) the proposed termination of guardianship would be in the best interests of the child. After a hearing on the matter (unless one is not necessary because written waivers of objection to the termination are signed by all parties entitled to receive notice), the juvenile court must terminate the guardianship if, at the hearing, the juvenile court: (a) finds that there has been a substantial change in circumstances since the last order affecting the guardianship was entered and that the parent is willing and able to carry out the duties of a guardian; and (b) determines that termination of the guardianship would be in the best interests of the child.

SB501,93,11 (8) Relationship to ch. 880. (a) This section does not abridge the duties or authority of a guardian appointed under ch. 880.

SB501,94,2 (b) Nothing in this section prohibits an individual from petitioning a court under ch. 880 for appointment of a guardian.

SB501, s. 111 Section 111. 48.981 (1) (a) of the statutes is repealed.

Note: Repeals the definition of "abuse" under s. 48.981, stats. (the child abuse and neglect reporting and investigation statute), to reflect the creation of the definition of "abuse" in the general definitions section of ch. 48 (s. 48.02 (1), stats., as created by this bill).

Under current s. 48.981 (1) (a), stats., "abuse" means any of the following:

1. "Physical injury", as defined in current s. 48.981 (1) (e), stats., inflicted on a child by other than accidental means.

2. Sexual intercourse or sexual contact under s. 940.225, stats. (the general sexual assault statute), 948.02, stats. (sexual assault of a child), or 948.025, stats. (repeated acts of sexual assault against the same child).

3. A violation of s. 948.05, stats. (sexual exploitation of a child).

4. Permitting, allowing or encouraging a child to violate s. 944.30, stats. (prostitution).

5. Emotional damage, as defined in current s. 48.981 (1) (cm), stats.

6. A violation of s. 948.055, stats. (causing a child to view or listen to sexual activity).

The definition of "abuse" in s. 48.02 (1), as created by this bill, is identical to the definition in current s. 48.981 (1) (a), stats., with the following exceptions:

1. The definition of "physical injury", which is a component of the definition of "abuse", is changed by this bill. This bill repeals the definition of "physical injury" in current s. 48.981 (1) (e), stats., and creates a new definition of "physical injury" in s. 48.02 (14m), stats., as created by this bill.

2. The underlying definition of "emotional damage", which is a component of the definition of "abuse", is changed by this bill. The bill repeals the definition of "emotional damage" in current s. 48.981 (1) (cm), stats., and creates a new definition of "emotional damage" in s. 48.02 (5j), stats., as created by this bill.

3. A violation of s. 948.10, stats., (for purposes of sexual arousal or gratification, either causing a child to expose genitals or pubic area or exposing genitals or pubic area to a child) has been added.

SB501, s. 112 Section 112. 48.981 (1) (b) of the statutes is repealed.

Note: Repeals the definition of "child" under s. 48.981, stats., as the term is defined in the same way in the current general definitions section of ch. 48 (s. 48.02 (2), stats.).

SB501, s. 113 Section 113. 48.981 (1) (cm) of the statutes is repealed.

Note: Repeals the definition of "emotional damage" under s. 48.981, stats., to reflect creation of the definition of "emotional damage" in the general definitions section of ch. 48 (s. 48.02 (5j), stats., as created by this bill).

Under current s. 48.981 (1) (cm), stats., "emotional damage" means "...harm to a child's psychological or intellectual functioning which is exhibited by severe anxiety, depression, withdrawal or outward aggressive behavior, or a combination of those behaviors, and for which the child's parent, guardian or legal custodian has failed to obtain the treatment necessary to remedy the harm. "Emotional damage" 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.".

Under s. 48.02 (5j), stats., as created by this bill, "emotional damage" means 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 to obtain the necessary treatment or to take necessary steps to ameliorate the symptoms. Section 48.02 (5j), stats., as created by this bill, further requires that the emotional damage be evidenced by one or more of the following characteristics exhibited to a substantial degree:

1. Anxiety.

2. Depression.

3. Withdrawal.

4. Outward aggressive behavior.

5. 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.

SB501, s. 114 Section 114. 48.981 (1) (e) of the statutes is repealed.

Note: Repeals the definition of "physical injury" under s. 48.981, stats., to reflect creation of the definition of "physical injury" in the general definitions section of ch. 48 (s. 48.02 (14m), as created by this bill).

Under current s. 48.981 (1) (e), stats., "physical injury", which is one of the components of the definition of "abuse" in current s. 48.981 (1) (a), stats., "...includes but is not limited to lacerations, fractured bones, burns, internal injuries, severe or frequent bruising or great bodily harm as defined under s. 939.22 (14).". ["Great bodily harm" is defined in s. 939.22 (14), stats., as "bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury".]

In contrast, the definition of "physical injury" in s. 48.02 (14m), stats., as created by this bill, provides that "physical injury" means "bodily harm", as defined in s. 939.22 (4), stats., ("physical pain or injury, illness or any impairment of physical condition") but includes an exception for reasonable discipline by a "person responsible for the child's welfare", as defined in s. 939.45 (5) (a) 3., stats.

SB501, s. 115 Section 115. 48.981 (2m) (c) (intro.) of the statutes is amended to read:

SB501,95,5 48.981 (2m) (c) (intro.) Except as provided under pars. (d) and (e), the following persons are not required to report as suspected or threatened abuse, as defined under sub. in s. 48.02 (1) (a) 2. (b), sexual intercourse or sexual contact involving a child:

Note: Reflects the repeal of the definition of "abuse" in s. 48.981 (1) (a), stats., and the creation of a definition of "abuse" in s. 48.02 (1), stats., as created by this bill, including provision for sexual intercourse and sexual contact in s. 48.02 (1) (b), stats., as created by this bill.

SB501, s. 116 Section 116. 48.981 (3) (c) 4. of the statutes is amended to read:

SB501,96,9 48.981 (3) (c) 4. The county department shall determine, within 60 days after receipt of a report, whether abuse or neglect has occurred or is likely to occur. The determination shall be based on a preponderance of the evidence produced by the investigation. A determination that abuse or neglect has occurred may not be based solely on the fact that the child's parent, guardian or legal custodian in good faith selects and relies on prayer or other religious means for treatment of disease or for remedial care of the child. In making a determination that emotional damage has occurred, the county department shall give due regard to the culture of the subjects and shall establish that the person alleged to be responsible for the emotional damage is unwilling neglecting, refusing or unable to remedy the harm. This subdivision does not prohibit a court from ordering medical services for the child if the child's health requires it.

Note: Provides that, with respect to the duty of a county department conducting a child abuse or neglect investigation and making a determination as to whether emotional damage has occurred, 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 merely being unwilling to do so.

SB501, s. 117 Section 117. 48.981 (3) (c) 6m. of the statutes is created to read:

SB501,97,6 48.981 (3) (c) 6m. If a person who is not required under sub. (2) to report makes a report and is a relative of the child, other than the child's parent, that person may make a written request to the county department or licensed child welfare agency under contract with the county department for information regarding what action, if any, was taken to protect the health and welfare of the child who is the subject of the report. A county department or licensed child welfare agency that receives a written request under this subdivision shall, within 60 days after it receives the report or 20 days after it receives the written request, whichever is later, inform the reporter in writing of what action, if any, was taken to protect the health and welfare of the child, unless a court order prohibits that disclosure, and of the duty to keep the information confidential under sub. (7) (e) and the penalties for failing to do so under sub. (7) (f). The county department or licensed child welfare agency may petition the court ex parte for an order prohibiting that disclosure and, if the county department or licensed child welfare agency does so, the time period within which the information must be disclosed is tolled on the date the petition is filed and remains tolled until the court issues a decision. The court may hold an ex parte hearing in camera and shall issue an order granting the petition if the court determines that disclosure of the information would not be in the best interests of the child.

Note: Does the following:

1. Provides that 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, if any, was taken to protect the health and welfare of the child. The voluntary reporters who may request this information are the following: the child's grandparent, stepparent, brother, sister, first cousin, 2nd cousin, nephew, niece, uncle, aunt, stepgrandparent, stepbrother, stepsister, half brother, half sister, brother-in-law, sister-in-law, stepuncle or stepaunt.

2. Provides that a county department or a licensed child welfare agency that receives such a request must, within 60 days after it receives the report or 20 days after it receives the written request, whichever is later, inform such a voluntary reporter in writing of: (a) 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 (b) the duty to keep the information confidential and the penalties for failing to do so.

The special committee intends that the information provided to a voluntary reporter be the same information that is typically provided to mandatory reporters, that is, whether the report was substantiated or unsubstantiated and whether services were offered to the child.

3. Permits the county department or licensed child welfare agency to petition the juvenile court ex parte for an order prohibiting such disclosure and, if the county department or licensed child welfare agency does so, provides that the deadline for disclosure is suspended until the juvenile court issues its decision. This Section also provides that the juvenile court may hold an ex parte hearing in camera and must issue an order granting the petition if the juvenile court determines that such disclosure would not be in the best interests of the child.

SB501, s. 118 Section 118. 48.981 (3) (cm) of the statutes is amended to read:

SB501,97,12 48.981 (3) (cm) Contract with licensed child welfare agencies. A county department may contract with a licensed child welfare agency to fulfill its duties specified under par. (c) 1., 2. b., 5., 6., 6m. and 8. The confidentiality provisions specified in sub. (7) shall apply to any licensed child welfare agency with which a county department contracts.

SB501, s. 119 Section 119. 48.981 (7) (a) 1m. of the statutes is created to read:

SB501,98,9 48.981 (7) (a) 1m. A reporter described in sub. (3) (c) 6m. who makes a written request to the county department or licensed child welfare agency under contract with the county department for information regarding what action, if any, was taken to protect the health and welfare of the child who is the subject of the report, unless a court order under sub. (3) (c) 6m. prohibits disclosure of that information to that reporter, except that the only information that may be disclosed is information in the record regarding what action, if any, was taken to protect the health and welfare of the child who is the subject of the report.

Note: Includes a voluntary reporter who is a relative, other than a parent, and who makes a written request for information regarding what action, if any, was taken to protect the health and welfare of the child who is the subject of the report in the list of persons to whom information in child abuse or neglect records may be disclosed, unless a juvenile court order prohibits disclosure of that information to that reporter, but limits the information that may be disclosed to such a voluntary reporter to information regarding what action, if any, was taken to protect the health and welfare of the child. By virtue of inclusion in this list, a voluntary reporter who receives such information is subject to the duty to keep the information confidential in s. 48.981 (7) (e), stats., and the penalties for failing to do so in s. 48.981 (7) (f), stats.

SB501, s. 120 Section 120. 48.982 (1) (a) of the statutes is repealed.

Note: Repeals the definition of "abuse" in s. 48.982 (1) (a), stats., to reflect the creation of a definition of "abuse" in s. 48.02 (1), as created by this bill.

SB501, s. 121 Section 121. 48.982 (1) (c) of the statutes is amended to read:

SB501,98,16 48.982 (1) (c) "Neglect" means neglect, refusal or inability, for reasons other than poverty, by a parent, guardian, legal custodian or other person exercising temporary or permanent control over a child to provide necessary care, food, clothing, medical or dental care or shelter so as to seriously endanger the physical health of the child has the meaning given in s. 48.981 (1) (d).

Note: Amends the definition of "neglect" in the child abuse and neglect prevention board statute to duplicate the definition of "neglect" in s. 48.981 (1) (d), stats., for the child abuse and neglect reporting and investigation statute.

SB501, s. 122 Section 122. 252.15 (5) (a) 19. of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

SB501,99,18 252.15 (5) (a) 19. If the test was administered to a child who has been placed in a foster home, treatment foster home, group home or child caring institution, including a placement under s. 48.205, 48.21, 938.205 or 938.21 or for whom placement in a foster home, treatment foster home, group home or child caring institution is recommended under s. 48.33 (4), 48.425 (1) (g), 48.837 (4) (c) or 938.33 (3) or (4), to an agency directed by a court to prepare a court report under s. 48.33 (1), 48.424 (4) (b), 48.425 (3), 48.831 (2), 48.837 (4) (c) or 938.33 (1) or, to an agency responsible for preparing a court report under s. 48.365 (2g), 48.425 (1), 48.831 (2), 48.837 (4) (c) or 938.365 (2g), to an agency responsible for preparing a permanency plan under s. 48.355 (2e), 48.38, 48.43 (1) (c) or (5) (c), 48.63 (4), 48.831 (4) (e), 938.355 (2e) or 938.38 regarding the child or to an agency that placed the child or arranged for the placement of the child in any of those placements and, by that agency, any of those agencies, to any other of those agencies and, by the agency that placed the child or arranged for the placement of the child in any of those placements, to the child's foster parent or treatment foster parent or the operator of the group home or child caring institution in which the child is placed, as provided in s. 48.371 or 938.371.

Note: Amends current law regarding confidentiality of HIV test results to permit disclosure of those test results as follows:

1. By additionally permitting disclosure if a child has been placed in a treatment foster home.

2. By additionally permitting disclosure regarding a child placed in a foster home, treatment foster home, group home or CCI or recommended for such a placement under s. 48.425 (1) (g), stats. [following TPR if it is unlikely a child will be adopted or adoption is not in the best interests of a child], or s. 48.837 (4) (c), stats. [child placed with nonrelative for adoption], rather than restricting disclosure to cases in which a child has been recommended for placement under s. 48.33 (4) or 938.33 (4), stats. [out-of-home placement recommended in predispositional report for a child adjudged to be CHIPS or delinquent].

3. By additionally providing that the disclosure may be made to all of the following: (a) the agency directed by a juvenile 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) or 938.33 (1), stats. [predispositional report for a child adjudged to be CHIPS or delinquent]; (b) to an agency responsible for preparing a court report under various provisions in ch. 48; (c) 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 or 938.38, stats.; (d) to an agency that placed the child or arranged for the placement of the child in substitute care; and (e) by any of those agencies to any other of those agencies.

4. By providing that the agency that placed the child or arranged for the placement of the child in substitute care may disclose the HIV test results to the substitute care provider as provided in s. 48.371, stats., as affected by this bill, rather than the agency directed by the juvenile court to prepare a court report under s. 48.33 (1), stats., or the agency directed by a juvenile court to prepare a child's permanency plan under s. 48.38, stats., as provided in s. 48.371, 1993 stats.

SB501, s. 123 Section 123. 756.096 (3) (e) of the statutes is created to read:

SB501,100,4 756.096 (3) (e) Notwithstanding par. (b), a jury in a proceeding under s. 48.13 shall consist of 6 persons and a jury in a proceeding under s. 48.42 shall consist of 12 persons unless the parties agree to a lesser number.

SB501, s. 124 Section 124. 767.075 (1) (a) of the statutes is amended to read:

SB501,100,8 767.075 (1) (a) An action to establish paternity whenever there is a completed application for legal services filed with the child support program under s. 46.25 or whenever s. 767.45 (6m) or (6r) applies.

Note: Specifies that the state is a real party in interest in an action to establish paternity whenever a IV-D attorney receives a required referral from a juvenile court under s. 48.299 (6) (a), stats., as affected by this bill.

SB501, s. 125 Section 125. 767.11 (8) (b) 1. of the statutes is amended to read:

SB501,100,11 767.11 (8) (b) 1. That a party engaged in abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 48.981 (1) (a) and (b) or 813.122 (1) (a) 48.02 (2).

Note: With respect to the evidence a court considers in determining whether an initial mediation session should not be held in certain actions affecting the family, the amendment reflects the renumbering resulting from:

1. The repeal of the definition of "abuse" in s. 48.981 (1) (a), stats., the creation of a definition of "abuse" in s. 48.02 (1), stats., as created by this bill, and the incorporation of the definition of "abuse" in s. 48.02 (1), stats., as created by this bill, in the definition of "abuse" in s. 813.122 (1) (a), stats., as repealed and recreated by this bill.

2. The repeal of the definition of "child" in s. 48.981 (1) (b), stats., as that term is defined in the same way in current s. 48.02 (2), stats.

SB501, s. 126 Section 126. 767.11 (10) (e) 1. of the statutes is amended to read:

SB501,101,3 767.11 (10) (e) 1. There is evidence that a party engaged in abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 48.981 (1) (a) and (b) or 813.122 (1) (a) 48.02 (2).

Note: With respect to the authority of a mediator to terminate mediation in certain actions affecting the family, the amendment reflects:

1. The repeal of the definition of "abuse" in s. 48.981 (1) (a), stats., the creation of a definition of "abuse" in s. 48.02 (1), stats., as created by this bill, and the incorporation of the definition of "abuse" in s. 48.02 (1), stats., as created by this bill, in the definition of "abuse" in s. 813.122 (1) (a), stats., as repealed and recreated by this bill.

2. The repeal of the definition of "child" in s. 48.981 (1) (b), stats., as that term is defined in the same way in current s. 48.02 (2), stats.

SB501, s. 127 Section 127. 767.24 (2) (b) 2. c. of the statutes is amended to read:

SB501,101,15 767.24 (2) (b) 2. c. The parties will be able to cooperate in the future decision making required under an award of joint legal custody. In making this finding the court shall consider, along with any other pertinent items, any reasons offered by a party objecting to joint legal custody. Evidence that either party engaged in abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 48.981 (1) (a) and (b) or 813.122 (1) (a) 48.02 (2), or evidence of interspousal battery, as described under s. 940.19, or domestic abuse, as defined in s. 813.12 (1) (a), creates a rebuttable presumption that the parties will not be able to cooperate in the future decision making required. This presumption may be rebutted by clear and convincing evidence that the abuse will not interfere with the parties' ability to cooperate in the future decision making required.

Note: With respect to one of the findings a court must make under certain circumstances in determining whether to award joint legal custody, the amendment reflects the renumbering resulting from:

1. The repeal of the definition of "abuse" in s. 48.981 (1) (a), stats., the creation of a definition of "abuse" in s. 48.02 (1), stats., as created by this bill, and the incorporation of the definition of "abuse" in s. 48.02 (1), stats., as created by this bill, in the definition of "abuse" in s. 813.122 (1) (a), stats., as repealed and recreated by this bill.

2. The repeal of the definition of "child" in s. 48.981 (1) (b), stats., as that term is defined in the same way in current s. 48.02 (2), stats.