SB501: Bill Text

Note: Reflects the creation of a definition of "abuse" in the general definitions section of ch. 48, stats., (s. 48.02 (1), stats., as created by this bill).

SB501, s. 68 Section 68. 48.38 (5) (c) 2. of the statutes is amended to read:

SB501,65,6 48.38 (5) (c) 2. The extent of compliance with the permanency plan by the agency and any other service providers, the child's parents and, the child and the child's guardian, if any.

Note: Currently, in a 6-month permanency plan review, the juvenile court (or juvenile court-appointed panel if the juvenile court elects not to review the plan) must, in addition to other listed determinations, make a determination relating to the extent of compliance with the permanency plan by the child's parents and the child. This Section requires that there also be a determination of the extent of compliance with the plan by the child's guardian, if any.

SB501, s. 69 Section 69. 48.396 (2) (dm) of the statutes is created to read:

SB501,65,18 48.396 (2) (dm) Upon request of a court having jurisdiction over actions affecting the family, an attorney responsible for support enforcement under s. 59.458 (1) or a party to a paternity proceeding under ss. 767.45 to 767.60, the party's attorney or the guardian ad litem for the child who is the subject of that proceeding to review or be provided with information from the records of the court assigned to exercise jurisdiction under this chapter and ch. 938 relating to the paternity of a child for the purpose of determining the paternity of the child or for the purpose of rebutting the presumption of paternity under s. 891.405 or 891.41, the court assigned to exercise jurisdiction under this chapter and ch. 938 shall open for inspection by the requester its records relating to the paternity of the child or disclose to the requester those records.

Note: Section 48.396, stats., provides that records of the juvenile court are not open to inspection or their contents disclosed except by order of the juvenile court or as permitted under s. 48.396 or 48.375 (7) (e), stats. This Section adds another exception by requiring a juvenile court, upon request of a family court, a IV-D attorney or the parties to a paternity proceeding under ch. 767, stats., their attorneys or the child's GAL, to open for inspection by the requester its records relating to the paternity of a child or to disclose to the requester those records.

SB501, s. 70 Section 70. 48.415 (1) (a) (intro.) of the statutes is amended to read:

SB501,66,3 48.415 (1) (a) (intro.) Abandonment may, which, subject to par. (c), shall be established by a showing proving that:

Note: Amends current law with respect to abandonment as a ground for involuntary TPR to require that abandonment be established by proving the elements specified in s. 48.415 (1) (a), stats. Similar changes were made in all other subsections of s. 48.415, stats., for all other grounds for involuntary TPR.

SB501, s. 71 Section 71. 48.415 (1) (a) 1m. of the statutes is created to read:

SB501,66,7 48.415 (1) (a) 1m. The child has been left by the parent without provision for the child's care or support in a place or manner that exposes the child to substantial risk of great bodily harm, as defined in s. 939.22 (14), or death;

Note: Under current law, s. 48.415 (1) (a), stats., provides that abandonment may be established by a showing of one of the 3 bases specified in s. 48.415 (1) (a) 1. to 3., stats., namely that:

1. The child has been left without provision for its care or support, the petitioner has investigated the circumstances surrounding the matter and for 60 days the petitioner has been unable to find either parent.

2. The child has been placed, or continued in a placement, outside the parent's home by a juvenile court order containing the notice required by s. 48.356 (2), stats., and the parent has failed to visit or communicate with the child for a period of 6 months or longer.

3. The child has been left by the parent with a relative or other person, the parent knows or could discover the whereabouts of the child and the parent has failed to visit or communicate with the child for a period of one year or longer.

The creation of s. 48.415 (1) (a) 1m., stats., provides an additional basis for establishing abandonment for a child who has been left without provision for its care or support in a place or manner that exposes the child to substantial risk of great bodily harm, as defined in s. 939.22 (14), stats., (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), or death.

SB501, s. 72 Section 72. 48.415 (1) (a) 2. of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

SB501,67,2 48.415 (1) (a) 2. The child has been placed, or continued in a placement, outside the parent's home by a court order containing the notice required by s. 48.356 (2) or 938.356 (2) and the parent has failed to visit or communicate with the child for a period of 6 3 months or longer; or

Note: Provides that an element of this basis for establishing abandonment as a ground for involuntary TPR is that, with respect to a child who has been placed, or continued in a placement, outside the parent's home by a juvenile court order, the parent has failed to visit or communicate with the child for a period of 3 months or longer, rather than 6 months or longer.

SB501, s. 73 Section 73. 48.415 (1) (a) 3. of the statutes is amended to read:

SB501,67,7 48.415 (1) (a) 3. The child has been left by the parent with a relative or other any person other than the child's other parent, the parent knows or could discover the whereabouts of the child and the parent has failed to visit or communicate with the child for a period of one year 6 months or longer.

Note: Provides that an element of this basis for establishing abandonment as a ground for involuntary TPR is that the child has been left by the parent with any person other than the child's other parent, rather than with a relative or other person (which may include the child's other parent), and has failed to visit or communicate with the child for a period of 6 months or longer, rather than one year or longer.

SB501, s. 74 Section 74. 48.415 (1) (c) of the statutes is repealed and recreated to read:

SB501,67,10 48.415 (1) (c) Abandonment is not established under par. (a) 2. or 3. if the parent proves all of the following by a preponderance of the evidence:

SB501,67,12 1. That the parent had good cause for having failed to visit with the child throughout the time period specified in par. (a) 2. or 3., whichever is applicable.

SB501,67,14 2. That the parent had good cause for having failed to communicate with the child throughout the time period specified in par. (a) 2. or 3., whichever is applicable.

SB501,67,17 3. If the parent proves good cause under subd. 2., including good cause based on evidence that the child's age or condition would have rendered any communication with the child meaningless, that one of the following occurred:

SB501,68,2 a. The parent communicated about the child with the person or persons who had physical custody of the child during the time period specified in par. (a) 2. or 3., whichever is applicable, or, if par. (a) 2. is applicable, with the agency responsible for the care of the child during the time period specified in par. (a) 2.

SB501,68,6 b. The parent had good cause for having failed to communicate about the child with the person or persons who had physical custody of the child or the agency responsible for the care of the child throughout the time period specified in par. (a) 2. or 3., whichever is applicable.

Note: Deletes the provision allowing rebuttal of the presumption that abandonment has occurred based on evidence that the parent has not disassociated himself or herself from the child or relinquished responsibility for the child's care and well-being.

Provides that abandonment is not established under s. 48.415 (1) (a) 2. or 3., stats., if the parent proves by a preponderance of the evidence that he or she:

1. Had good cause for having failed to visit with the child throughout the time period specified in s. 48.415 (1) (a) 2. or 3., stats., whichever is applicable.

2. Had good cause for having failed to communicate with the child throughout the time period specified in s. 48.415 (1) (a) 2. or 3., stats., whichever is applicable.

3. If the parent proves good cause for having failed to communicate with the child, including good cause based on evidence that the child's age or condition would have rendered any communication with the child meaningless, that the parent either:

(a) Communicated about the child with the person or persons who had physical custody of the child during the time period specified in s. 48.415 (1) (a) 2. or 3., stats., whichever is applicable, or, if s. 48.415 (1) (a) 2., stats., is applicable, with the agency responsible for the care of the child during the time period specified in s. 48.415 (1) (a) 2., stats.

(b) Had good cause for having failed to communicate about the child with such person or persons or agency.

SB501, s. 75 Section 75. 48.415 (2) (intro.) of the statutes is amended to read:

SB501,68,10 48.415 (2) Continuing need of protection or services. (intro.) Continuing need of protection or services may, which shall be established by a showing of proving all of the following:

Note: Amends current law with respect to continuing need of protection or services as a ground for involuntary TPR to require that continuing need of protection or services be established by proving the elements specified in s. 48.415 (2), stats.

SB501, s. 76 Section 76. 48.415 (2) (b) of the statutes is renumbered 48.415 (2) (b) 2.

SB501, s. 77 Section 77. 48.415 (2) (b) 1. of the statutes is created to read:

SB501,69,2 48.415 (2) (b) 1. In this paragraph, "diligent effort" means an earnest and conscientious effort to take good faith steps to provide the services ordered by the court which takes into consideration the characteristics of the parent or child, the level of cooperation of the parent and other relevant circumstances of the case.

Note: Defines "diligent effort" for purposes of the requirement that there be proof that the agency responsible for the care of the child and the family has made a "diligent effort" to provide court-ordered services in order to establish continuing need of protection or services as a ground for involuntary TPR.

SB501, s. 78 Section 78. 48.415 (2) (c) of the statutes is amended to read:

SB501,69,12 48.415 (2) (c) That the child has been outside the home for a cumulative total period of one year or longer pursuant to such orders or, if the child had not attained the age of 3 years at the time of the initial order placing the child outside of the home, that the child has been outside the home for a cumulative total period of 6 months or longer pursuant to such orders; and that the parent has failed to demonstrate substantial progress toward meeting the conditions established for the return of the child to the home and there is a substantial likelihood that the parent will not meet these conditions within the 12-month period following the fact-finding hearing under s. 48.424.

Note: Amends the ground for involuntary TPR based on continuing need of protection or services for a child who is 3 years of age or over at the time of the initial juvenile court order placing the child outside the home by reducing the period of time that such a child must spend in a court-ordered out-of-home placement from one year to 6 months, thus providing for uniform application of the 6-month provision to all children.

SB501, s. 79 Section 79. 48.415 (3) (intro.) of the statutes is amended to read:

SB501,69,15 48.415 (3) Continuing parental disability. (intro.) Continuing parental disability may, which shall be established by a showing proving that:

Note: Amends current law with respect to continuing parental disability as a ground for involuntary TPR to require that continuing parental disability be established by proving the elements specified in s. 48.415 (3), stats.

SB501, s. 80 Section 80. 48.415 (4) of the statutes is amended to read:

SB501,70,3 48.415 (4) (title) Continuing denial of periods of physical placement or visitation. Continuing denial of periods of physical placement may or visitation, which shall be established by a showing that proving all of the following:

SB501,70,7 (a) The That the parent has been denied periods of physical placement by court order in an action affecting the family; and or has been denied visitation under an order under s. 48.345, 48.357, 48.363, 48.365, 938.345, 938.357, 938.363 or 938.365 containing the notice required by s. 48.356 (2) or 938.356 (2).

SB501,70,10 (b) At That at least 1 one year has elapsed since the order denying periods of physical placement or visitation was issued and the court has not subsequently modified its order so as to permit periods of physical placement or visitation.

Note: Amends current law with respect to continuing denial of periods of physical placement as a ground for involuntary TPR to require that continuing denial of periods of physical placement be established by proving the elements specified in s. 48.415 (4), stats.

Expands the ground for involuntary TPR based on continuing denial of periods of physical placement to also provide for periods in which a juvenile court has denied visitation under an order under s. 48.345 or 938.345, stats. (CHIPS dispositional order), 48.357 or 938.357, stats. (change in placement order), 48.363 or 938.363, stats. (revision of dispositional order), or 48.365 or 938.365, stats. (extension of dispositional order), if the order contained the notice required by s. 48.356 (2), stats., that is, a warning about continuing denial of visitation as a ground for involuntary TPR and the conditions necessary for the parent to be granted visitation.

SB501, s. 81 Section 81. 48.415 (5) (intro.) and (b) of the statutes are amended to read:

SB501,70,15 48.415 (5) Child abuse. (intro.) Child abuse may, which shall be established by a showing proving that the parent has exhibited a pattern of physically or sexually abusive behavior which is a substantial threat to the health of the child who is the subject of the petition and a showing of proving either of the following:

SB501,71,2 (b) That, on more than one occasion, a child has previously been removed from the parent's home by the pursuant to a court order under s. 48.345 after an adjudication that the child is in need of protection or services and a finding by the court that sexual or physical abuse was inflicted by the parent under s. 48.13 (3) or (3m).

Note: Provides that child abuse is established as a ground for involuntary TPR by proving that the parent has exhibited a pattern of physically or sexually abusive behavior which poses a substantial threat to the health of the child and that either: (1) the parent has been convicted of a felony for causing death or injury to any child; or (2) any child has previously been removed from the home pursuant to a juvenile court order under s. 48.345, stats., (CHIPS dispositional order) after the child was adjudicated CHIPS under s. 48.13 (3), stats., (victim of physical injury or specified sex crimes) or s. 48.13 (3m), stats., (substantial risk of becoming the victim of physical injury or specified sex crimes based on information that another child in the home has been the victim of such abuse).

SB501, s. 82 Section 82. 48.415 (6) (a) (intro.) and 1. of the statutes are consolidated, renumbered 48.415 (6) (a) and amended to read:

SB501,71,13 48.415 (6) (a) Failure to assume parental responsibility may, which shall be established by a showing proving that a child is a nonmarital child who has not been adopted or whose parents have not subsequently intermarried under s. 767.60, that paternity was not adjudicated prior to the filing of the petition for termination of parental rights and:1. The the parent or the person or persons who may be the father parent of the child have been given notice under s. 48.42 but have failed to appear or otherwise submit to the jurisdiction of the court and that such parent or person or persons who may be the parent of the child have never had a substantial parental relationship with the child; or.

SB501, s. 83 Section 83. 48.415 (6) (a) 2. of the statutes is repealed.

Note: Under current law, the parental rights of the father of a nonmarital child, that is, a child who is neither conceived nor born while his or her parents are intermarried, who has not been adopted or whose parents have not subsequently intermarried and for whom paternity has not been adjudicated prior to the filing of the TPR petition may be terminated if: (1) the person or persons who may be the father of the child have been given notice about the TPR petition but have failed to appear or otherwise submit to the jurisdiction of the court and have never had a substantial parental relationship with the child; or (2) that although paternity has been adjudicated, the father did not establish a substantial parental relationship with the child prior to the filing of the TPR petition although the father had reason to believe he was the father of the child and has not assumed parental responsibility for the child.

This bill expands this ground for involuntary TPR to include: (1) mothers as well as fathers; (2) marital children as well as nonmarital children; and (3) fathers for whom paternity was adjudicated prior to the filing of the TPR petition.

SB501, s. 84 Section 84. 48.415 (6) (b) of the statutes is amended to read:

SB501,72,11 48.415 (6) (b) In this subsection, "substantial parental relationship" means the acceptance and exercise of significant responsibility for the daily supervision, education, protection and care of the child. In evaluating whether the person has had a substantial parental relationship with the child, the court may consider such factors, including, but not limited to, whether the person has ever expressed concern for or interest in the support, care or well-being of the child or the mother during her pregnancy and, whether the person has neglected or refused to provide care or support for the child and whether, with respect to a person who is or may be the father of the child, the person has ever expressed concern for or interest in the support, care or well-being of the mother during her pregnancy.

Note: Reflects the amendment of s. 48.415 (6) (a), stats., adding provision for mothers.

SB501, s. 85 Section 85. 48.415 (7) of the statutes is amended to read:

SB501,72,16 48.415 (7) Incestuous parenthood. Incestuous parenthood may, which shall be established by a showing proving that the person whose parental rights are sought to be terminated is also related, either by blood or adoption, to the child's other parent in a degree of kinship closer than 2nd cousin.

Note: Amends current law with respect to incestuous parenthood as a ground for involuntary TPR to require that incestuous parenthood be established by proving the elements specified in s. 48.415 (7), stats.

SB501, s. 86 Section 86. 48.415 (8) of the statutes is amended to read:

SB501,73,4 48.415 (8) (title) Intentional or reckless homicide of parent. Intentional or reckless homicide of a parent may, which shall be established by a showing proving that a parent of the child has been a victim of first-degree intentional homicide in violation of s. 940.01 or of, first-degree reckless homicide in violation of s. 940.02 or 2nd-degree intentional homicide in violation of s. 940.05 and that the person whose parental rights are sought to be terminated has been convicted of that intentional or reckless homicide.

Note: Adds first-degree reckless homicide by the parent of the child's other parent as a ground for involuntary TPR. Also amends current law to provide that intentional or reckless homicide of a parent as a ground for involuntary TPR be established by proving the elements specified in s. 48.415 (8), stats.

SB501, s. 87 Section 87. 48.415 (9) (a) of the statutes, as created by 1995 Wisconsin Act 108, is amended to read:

SB501,73,14 48.415 (9) (a) Parenthood as a result of sexual assault may, which shall be established by a showing proving that the child was conceived as a result of a sexual assault in violation of s. 940.225 (1), (2) or (3), 948.02 (1) or (2) or 948.025. Conception as a result of sexual assault as specified in this paragraph may be proved by a judgment of conviction or other evidence produced at a fact-finding hearing under s. 48.424 indicating that the person who may be the father of the child committed, during a possible time of conception, a sexual assault as specified in this paragraph against the mother of the child.

Note: Amends current law with respect to parenthood as a result of sexual assault as a grounds for involuntary TPR to require that parenthood as a result of sexual assault be established by proving the elements specified in s. 48.415 (9), stats.

SB501, s. 88 Section 88. 48.415 (9m) of the statutes is created to read:

SB501,73,21 48.415 (9m) Commission of a serious felony against one of the person's children. (a) Commission of a serious felony against one of the person's children, which shall be established by proving that a child of the person whose parental rights are sought to be terminated was the victim of a serious felony and that the person whose parental rights are sought to be terminated has been convicted of that serious felony.

SB501,74,5 (b) In this subsection, "serious felony" means any felony under s. 940.01, 940.02, 940.03, 940.05, 940.225 (1) or (2), 948.02 (1) or (2), 948.025, 948.03 (2) (a) or (3) (a), 948.05, 948.06 or 948.08 or under s. 948.21 if death is a consequence or a crime under federal law or the law of any other state that is comparable to a crime specified in this paragraph.

Note: Adds a ground for involuntary TPR based on commission of a serious felony against one of the person's children which must be established by proving that the person whose parental rights are sought to be terminated has been convicted of a serious felony and that one of the person's children was the victim of that serious felony. These serious felonies are as follows: s. 940.01, stats., (first-degree intentional homicide), 940.02, stats., (first-degree reckless homicide), 940.03, stats., (felony murder), 940.05, stats., (2nd-degree intentional homicide), 940.225 (1), stats., (first-degree sexual assault), 940.225 (2), stats., (2nd-degree sexual assault), 948.02 (1), stats., (first-degree sexual assault of a child--child under age 13), 948.02 (2), stats., (2nd-degree sexual assault of a child--child under age 16), 948.025, stats., (engaging in repeated sexual assault of the same child), 948.03 (2) (a), stats., (intentionally causing great bodily harm to a child) or (3) (a), stats., (recklessly causing great bodily harm to a child), 948.05, stats., (sexual exploitation of a child, including a person responsible for the child's welfare knowingly permitting, allowing or encouraging a child to engage in sexually exploitative conduct), 948.06, stats., (incest with a child, including, under certain circumstances, a person responsible for the child's welfare failing to take action to prevent incest) or 948.08, stats., (soliciting a child for prostitution) or s. 948.21, stats., if death is the consequence (intentionally neglecting a child), or a similar crime under federal law or the laws of any other state. In addition to applying when the person commits a serious felony against one of the person's children other than the child who is the subject of the petition, this ground also applies in those cases in which the child who is the subject of the petition was the victim of such a crime and survives.

SB501, s. 89 Section 89. 48.415 (10) of the statutes is created to read:

SB501,74,9 48.415 (10) Prior involuntary termination of parental rights to another child. Prior involuntary termination of parental rights to another child, which shall be established by proving all of the following:

SB501,74,11 (a) That the child who is the subject of the petition has been adjudged to be in need of protection or services under s. 48.13 (2), (3) or (10).

SB501,75,2 (b) That, within 3 years prior to the date the court adjudged the child who is the subject of the petition to be in need of protection or services as specified in par. (a), a court has ordered the termination of parental rights with respect to another child of the person whose parental rights are sought to be terminated on one or more of the grounds specified in this section.

Note: Adds a ground for involuntary TPR based on the involuntary TPR of another child when the following conditions are met:

1. The child who is the subject of the petition has been adjudicated CHIPS under s. 48.13 (2), stats., (abandonment), (3), stats., (sexual or physical abuse) or (10), stats., (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); and

2. Within the 3 years prior to the date the child was adjudicated CHIPS, a juvenile court has ordered the involuntary TPR of another of the person's children.

SB501, s. 90 Section 90. 48.42 (1m) (title) and (a) of the statutes are created to read: