SB501: Bill Text

SB501, s. 25 Section 25. 48.13 (11) of the statutes is amended to read:

SB501,38,13 48.13 (11) Who is suffering emotional damage for which the parent or, guardian is unwilling or legal custodian is neglecting, refusing or unable 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;

Note: Makes the following changes:

1. Deletes from this ground for CHIPS jurisdiction the requirements that "emotional damage" be evidenced by anxiety, depression, withdrawal or outward aggressive behavior exhibited to a severe degree. The definition of "emotional damage" in s. 48.02 (5j), stats., as created by this bill, includes a provision that these characteristics must be exhibited to a substantial degree but also defines as "emotional damage" 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. Adds grounds for 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.

3. Adds grounds for jurisdiction over a child who is suffering emotional damage if a legal custodian is neglecting, refusing or unable to provide treatment.

SB501, s. 26 Section 26. 48.13 (11m) of the statutes is amended to read:

SB501,39,4 48.13 (11m) Who is suffering from an alcohol and other drug abuse impairment, exhibited to a severe degree, for which the parent or, guardian or legal custodian is unwilling neglecting, refusing or unable to provide treatment;

Note: 1. 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 being unwilling to do so.

2. Adds grounds for jurisdiction for alcohol or other drug abuse impairment if a legal custodian is neglecting, refusing or unable to provide treatment.

SB501, s. 27 Section 27. 48.14 (2) (b) of the statutes is amended to read:

SB501,39,9 48.14 (2) (b) The appointment and removal of a guardian of the person for a child under ss. 48.427, 48.428, 48.43, 48.831, 48.832 and , 48.839 (4) (a) and 48.977 and ch. 880 and for a child found to be in need of protection or services under s. 48.13 because the child is without parent or guardian.

Note: Section 48.14 (2) (b), stats., sets forth a list of matters over which the juvenile court has exclusive jurisdiction (no other court, for example, a regular branch of the circuit court, can deal with these matters). Currently the juvenile court has exclusive jurisdiction over the appointment and removal of a guardian of the person for a child under all of the following provisions:

1. Section 48.427, stats., relating to dispositions in TPR proceedings.

2. Section 48.428, stats., relating to sustaining care.

3. Section 48.43, stats., relating to court orders in TPR cases.

4. Section 48.831, stats., relating to appointment of a guardian for a child without a living parent for an adoptability finding.

5. Section 48.832, stats., relating to transfer of guardianship upon revocation of a guardian's license.

6. Section 48.839 (4) (a), stats., relating to transfer of guardianship of a child from a foreign jurisdiction if the guardian does not file a TPR or adoption petition.

7. Chapter 880, stats., the general guardianship chapter.

8. For a child adjudged CHIPS under 48.13 (1), stats., because the child is without a parent or guardian.

This Section adds a reference to s. 48.977, stats., as created in this bill, relating to the appointment of relatives as guardians for certain children in need of protection or services under certain circumstances.

SB501, s. 28 Section 28. 48.185 (1) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

SB501,40,9 48.185 (1) Venue Subject to sub. (2), venue for any proceeding under ss. 48.13, 48.135 and 48.14 (1) to (9) may be in any of the following: the county where the child resides, the county where the child is present or, in the case of a violation of a state law or a county, town or municipal ordinance, the county where the violation occurred. Venue for proceedings brought under subch. VIII is as provided in this subsection except where the child has been placed and is living outside the home of the child's parent pursuant to a dispositional order, in which case venue is as provided in sub. (2). Venue for a proceeding under s. 48.14 (10) is as provided in s. 801.50 (5s).

SB501, s. 29 Section 29. 48.185 (2) of the statutes is amended to read:

SB501,40,19 48.185 (2) In an action under s. 48.41, venue shall be in the county where the birth parent or child resides at the time that the petition is filed. Venue for any proceeding under s. 48.363 or, 48.365 or 48.977, or any other proceeding under subch. VIII when the child has been placed outside the home pursuant to a dispositional order under s. 48.345, shall be in the county where the dispositional order was issued, unless the child's county of residence has changed, or the parent of the child has resided in a different county of this state for 6 months. In either case, the court may, upon a motion and for good cause shown, transfer the case, along with all appropriate records, to the county of residence of the child or parent.

Note: Amends s. 48.185 (1) and (2), stats., to provide that venue for a guardianship proceeding as created by this bill is in the county where the CHIPS dispositional order was issued, unless the child's county of residence has changed or the child's parent has resided in a different county of this state for 6 months.

SB501, s. 30 Section 30. 48.205 (1) (b) of the statutes is amended to read:

SB501,41,2 48.205 (1) (b) Probable cause exists to believe that the parent, guardian or legal custodian of the child or other responsible adult is neglecting, refusing, unable or unavailable, unwilling or unable to provide adequate supervision and care and that services to ensure the child's safety and well-being are not available or would be inadequate; or

Note: Provides that, with respect to one of the possible criteria for holding a child in physical custody, 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 being unavailable, unwilling or unable to do so.

SB501, s. 31 Section 31. 48.21 (1) (a) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

SB501,41,17 48.21 (1) (a) If a child who has been taken into custody is not released under s. 48.20, a hearing to determine whether the child shall continue to be held in custody under the criteria of ss. 48.205 to 48.209 shall be conducted by the judge or juvenile court commissioner within 24 48 hours of the time the decision to hold the child was made, excluding Saturdays, Sundays and legal holidays. By the time of the hearing a petition under s. 48.25 shall be filed, except that no petition need be filed where a child is taken into custody under s. 48.19 (1) (b) or (d) 2. or 7. or where the child is a runaway from another state, in which case a written statement of the reasons for holding a child in custody shall be substituted if the petition is not filed. If no hearing has been held within 24 48 hours , excluding Saturdays, Sundays and legal holidays, or if no petition or statement has been filed at the time of the hearing, the child shall be released except as provided in par. (b). A parent not present at the hearing shall be granted a rehearing upon request.

Note: Provides that a detention hearing must be held within 48 hours, excluding Saturdays, Sundays and legal holidays, after the decision was made to hold the child, rather than 24 hours, excluding Saturdays, Sundays and legal holidays.

SB501, s. 32 Section 32. 48.21 (1) (b) of the statutes is amended to read:

SB501,42,10 48.21 (1) (b) If no petition has been filed by the time of the hearing, a child may be held in custody with approval of the judge or juvenile court commissioner for an additional 48 72 hours from the time of the hearing, excluding Saturdays, Sundays and legal holidays, only if, as a result of the facts brought forth at the hearing, the judge or juvenile court commissioner determines that probable cause exists to believe that the child is an imminent danger to himself or herself or to others, or that probable cause exists to believe that the parent, guardian or legal custodian of the child or other responsible adult is unwilling neglecting, refusing, unable or unavailable to provide adequate supervision and care. The extension may be granted only once for any petition. In the event of failure to file a petition within the 48-hour extension period provided for in this paragraph, the judge or juvenile court commissioner shall order the child's immediate release from custody.

Note: Expands the 48-hour extension period to a 72-hour extension period, excluding Saturdays, Sundays and legal holidays.

SB501, s. 33 Section 33. 48.235 (1) (c) of the statutes is amended to read:

SB501,42,15 48.235 (1) (c) The court shall appoint a guardian ad litem for any child who is the subject of a proceeding to terminate parental rights, whether voluntary or involuntary, and for a child who is the subject of a contested adoption proceeding and for a child who is the subject of a proceeding under s. 48.977.

Note: Requires a juvenile court to appoint a guardian ad litem (GAL) for a child who is the subject of a guardianship proceeding under s. 48.977, stats., as created by this bill.

SB501, s. 34 Section 34. 48.235 (3) (title) of the statutes is amended to read:

SB501,42,17 48.235 (3) (title) Responsibilities Duties and responsibilities.

SB501, s. 35 Section 35. 48.235 (3) of the statutes is renumbered 48.235 (3) (a).

SB501, s. 36 Section 36. 48.235 (3) (b) of the statutes is created to read:

SB501,42,22 48.235 (3) (b) In addition to any other duties and responsibilities required of a guardian ad litem, a guardian ad litem appointed for a child who is the subject of a proceeding under s. 48.13 shall do all of the following:

SB501,43,4 1. 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.

SB501,43,11 2. 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 and, 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.

SB501,43,15 3. 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.

SB501,43,18 4. 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.

SB501,43,23 5. Make clear and specific recommendations to the court concerning the best interest 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.

Note: This Section sets forth specific duties and responsibilities applicable to a guardian ad litem (GAL) appointed in a CHIPS case. Current s. 48.235 (3), stats., provides that a 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. For example, the special committee received substantial testimony that some GALs in CHIPS cases do not meet with the child they are appointed to represent, arguing that current law does not require, or is not clear as to requiring, such a meeting with the child. The list of duties and responsibilities specified in this Section is not intended to be an exhaustive list of the duties and responsibilities of GALs appointed in CHIPS cases.

SB501, s. 37 Section 37. 48.235 (4) (a) 7g. of the statutes is created to read:

SB501,44,4 48.235 (4) (a) 7g. Petition for the appointment of a guardian under s. 48.977 (2), the revision of a guardianship order under s. 48.977 (6) or the removal of a guardian under s. 48.977 (7).

Note: Permits the GAL of a child found to be in need of protection or services to petition for the appointment of a guardian for the child under s. 48.977 (2), stats., as created by this bill; to petition for the revision of a guardianship order under s. 48.977 (6), stats., as created by this bill; and to petition for the removal of a guardian under s. 48.977 (7), stats., as created by this bill.

SB501, s. 38 Section 38. 48.235 (4) (a) 7m. of the statutes is created to read:

SB501,44,7 48.235 (4) (a) 7m. Bring an action or motion for the determination of the child's paternity under s. 767.45.

Note: Permits the GAL of a child found to be in need of protection or services to bring an action or motion for the determination of the child's paternity.

SB501, s. 39 Section 39. 48.245 (2) (b) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

SB501,44,11 48.245 (2) (b) Informal disposition may not include any form of residential placement and may not exceed 6 months, except as provided under sub. (2r).

SB501, s. 40 Section 40. 48.245 (2r) of the statutes is created to read:

SB501,45,4 48.245 (2r) If an informal disposition is based on allegations that a child is in need of protection or services, the intake worker may, after giving written notice to the child and the child's parent, guardian and legal custodian and their counsel, if any, extend the informal disposition for up to an additional 6 months unless the child or the child's parent, guardian or legal custodian objects to the extension. If the child or the child's parent, guardian or legal custodian objects to the extension, the intake worker may recommend to the district attorney or corporation counsel that a petition be filed under s. 48.13. An extension under this subsection may be granted only once for any informal disposition.

note: This Section relates to extension of an informal disposition for a child when the informal disposition is based on allegations that the child is in need of protection or services (CHIPS).

Under current law, a juvenile court intake worker may enter into a written agreement which imposes an informal disposition if: (1) the intake worker determines that the best interests of neither the child nor the public require the filing of a petition for circumstances relating to s. 48.12 (delinquency), 48.125 (violation of a civil law or ordinance), 48.13 (CHIPS), 48.135 (proceedings under ch. 51 (mental health act) or ch. 55 (protective services) or 48.14, stats., (other matters relating to children); (2) the facts persuade the intake worker that jurisdiction of the juvenile court would exist if sought; and (3) the child and the child's parent, guardian and legal custodian consent to the informal disposition.

Under current law, an informal disposition may not exceed 6 months unless the informal disposition is based on allegations that a child is CHIPS based on habitual truancy. In that case, the informal disposition may not exceed one year. This bill permits an intake worker to extend for up to an additional 6 months an informal disposition that is based on allegations that a child is CHIPS, other than allegations that the child is CHIPS based on habitual truancy. [The bill does not affect the provision for a one-year informal disposition when a child is alleged to be CHIPS based on habitual truancy.]

The bill requires that the intake worker give written notice to the child and the child's parent, guardian and legal custodian prior to extending an informal disposition. The bill provides that the intake worker may not extend an informal disposition if the child or the child's parent, guardian or legal custodian objects to the extension. The bill also provides that if there is an objection to the extension, the intake worker may recommend that a CHIPS petition be filed.

SB501, s. 41 Section 41. 48.27 (3) (a) of the statutes is renumbered 48.27 (3) (a) 1. and amended to read:

SB501,46,5 48.27 (3) (a) 1. The court shall also notify, under s. 48.273, the child, any parent, guardian and legal custodian of the child, any foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) of the child and any person specified in par. (b), if applicable, of all hearings involving the child except hearings on motions for which notice need only be provided to the child and his or her counsel. Where parents entitled to notice have the same place of residence, notice to one shall constitute notice to the other. The first notice to any interested party, foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) shall be written and may have a copy of the petition attached to it. Thereafter, notice of hearings may be given by telephone at least 72 hours before the time of the hearing. The person giving telephone notice shall place in the case file a signed statement of the time notice was given and the person to whom he or she spoke.

SB501, s. 42 Section 42. 48.27 (3) (a) 2. of the statutes is created to read:

SB501,46,13 48.27 (3) (a) 2. Failure to give notice under subd. 1. to a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) does not deprive the court of jurisdiction in the action or proceeding. If a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) is not given notice under subd. 1., that person may request a rehearing on the matter during the pendency of an order resulting from the hearing. If the request is made, the court shall order a rehearing.

Note: Expands current s. 48.27 (3) (a), stats., which requires, in general, notice of all hearings under the children's code involving a child to be given to specified persons (i.e., 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 that notice to be given to the child's foster parent, treatment foster parent or other physical custodian described in 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 "kinship" care). The bill also specifies that: (1) failure to give notice to a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2), stats., does not deprive the juvenile court of jurisdiction in the action or proceeding; and (2) if a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2), stats., is not given the required notice of a hearing and that person requests a rehearing on the matter during the pendency of an order resulting from the hearing, the juvenile court must order that a rehearing on the matter be held. Under current law, failure to give notice (or adequate notice) may result in dismissal of an action or proceeding for lack of juvenile court jurisdiction and the necessity of recommencing the action or proceeding, with the accompanying delays.

SB501, s. 43 Section 43. 48.293 (4) of the statutes is created to read:

SB501,46,17 48.293 (4) In addition to the discovery procedures permitted under subs. (1) to (3), the discovery procedures permitted under ch. 804 shall apply in all proceedings under this chapter.

Note: Provides that the discovery procedures which are applicable to civil proceedings in general also apply to proceedings under ch. 48.

SB501, s. 44 Section 44. 48.299 (1) (a) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

SB501,47,9 48.299 (1) (a) The general public shall be excluded from hearings under this chapter and from hearings by courts exercising jurisdiction under s. 48.16 unless a public fact-finding hearing is demanded by a child through his or her counsel. However, the court shall refuse to grant the public hearing in a proceeding other than a proceeding under s. 48.375 (7), if a parent or guardian objects. All hearings under s. 48.375 (7) shall be held in chambers, unless a public fact-finding hearing is demanded by the child through her counsel. If

SB501,47,21 (ag) In a proceeding other than a proceeding under s. 48.375 (7), if a public hearing is not held, only the parties, and their counsel, if any, the child's foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2), witnesses and other persons requested by a party and approved by the court may be present, except that the court may exclude a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) 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 court determines that excluding the foster parent, treatment foster parent or other physical custodian would be in the best interests of the child. Except in a proceeding under s. 48.375 (7), any other person the court finds to have a proper interest in the case or in the work of the court, including a member of the bar, may be admitted by the court.

SB501, s. 45 Section 45. 48.299 (1) (ar) of the statutes is created to read:

SB501,48,5 48.299 (1) (ar) All hearings under s. 48.375 (7) shall be held in chambers, unless a public fact-finding hearing is demanded by the child through her counsel. In a proceeding under s. 48.375 (7), the child's foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) may be present if requested by a party and approved by the court.

Note: Expands, and further divides into new paragraphs, current s. 48.299 (1) (a), stats., to specify that, except in a proceeding under s. 48.375 (7), stats., [hearing on parental consent for abortion], if a public hearing is not held in a proceeding under the children's code, a child's foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2), stats., 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 described in s. 48.62 (2), stats., may not be present unless requested by a party and approved by the juvenile court. Current law permits to be present only the parties to the proceeding, their counsel, witnesses, other persons requested by a party and approved by the juvenile court and, in cases not involving a proceeding under s. 48.375, stats., other persons whom the juvenile court finds to have a proper interest in the case or the work of the juvenile court.

The change in renumbered and amended s. 48.299 (1) (ag), stats., relating to "only the parties and their counsel" is to clarify that the phrase "their counsel" applies only to the parties and not to the child's foster or treatment foster parent or other physical custodian described in s. 48.62 (2), stats.

SB501, s. 46 Section 46. 48.299 (4) (a) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

SB501,48,9 48.299 (4) (a) Chapters 901 to 911 shall govern the presentation of evidence at the fact-finding hearings under ss. 48.31 and, 48.42 and 48.977 (4) (d).

Note: Provides that the general rules of evidence in chs. 901 to 911, stats., apply to a fact-finding hearing for a guardianship proceeding under s. 48.977, stats., as created by this bill.

SB501, s. 47 Section 47. 48.299 (4) (b) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

SB501,49,10 48.299 (4) (b) Except as provided in s. 901.05, neither common law nor statutory rules of evidence are binding at a hearing for a child held in custody under s. 48.21, a runaway home hearing under s. 48.227 (4), a dispositional hearing, or a hearing about changes in placement, revision of dispositional orders or, extension of dispositional orders or termination of guardianship orders entered under s. 48.977 (4) (h) 2. or (6). At those hearings, the court shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant or unduly repetitious testimony or evidence that is inadmissible under s. 901.05. Hearsay evidence may be admitted if it has demonstrable circumstantial guarantees of trustworthiness. The court shall give effect to the rules of privilege recognized by law. The court shall apply the basic principles of relevancy, materiality and probative value to proof of all questions of fact. Objections to evidentiary offers and offers of proof of evidence not admitted may be made and shall be noted in the record.

Note: Provides that the more relaxed rules of evidence in s. 48.299 (4) (b), stats., apply to hearings relating to termination of the guardianship orders created in this bill. Under the current provisions of s. 48.299 (4) (b), stats., the rules of evidence in s. 48.299 (4) (b), stats., also apply to dispositional hearings involving the guardianship proceedings created in this bill and to hearings related to revision of dispositional orders appointing a guardian under the provisions of this bill.

SB501, s. 48 Section 48. 48.299 (6) of the statutes is renumbered 48.299 (6) (intro.) and amended to read:

SB501,49,16 48.299 (6) (intro.) If a man who has been given notice under s. 48.27 (3) (b) 1. appears at any hearing for which he received the notice, alleges that he is the father of the child and states that he wishes to establish the paternity of the child, the all of the following apply:

SB501,49,20 (a) The court shall refer the matter to the state or to the attorney responsible for support enforcement under s. 59.458 (1) for a determination, under s. 767.45, of whether an action should be brought for the purpose of determining the paternity of the child.

SB501,50,7 (d) The court may stay the proceedings under this chapter pending the outcome of the paternity proceedings under ss. 767.45 to 767.60 if the court determines that the paternity proceedings will not unduly delay the proceedings under this chapter and the determination of paternity is necessary to the court's disposition of the child if the child is found to be in need of protection or services. As part of the proceedings under this chapter, the court may order that a record be made of any testimony of the child's mother relating to the child's paternity. A record made under this subsection is admissible in a proceeding to determine the child's paternity under ss. 767.45 to 767.60.