b. Requires the family court to give priority to a paternity proceeding if the
paternity proceeding petition filed by the IV-D attorney states that the
matter was referred by the juvenile court under the required referral
provision.
c. Provides that a GAL appointed for a child under ch. 48 may bring a
paternity action under ch. 767, stats.
d. Provides that, in cases in which a man who has been given notice of a
CHIPS hearing appears, alleges that he is the child's father and states that he
wishes to have the paternity of the child established: (1) the juvenile court
must, at the hearing, orally inform the man that he may be required to pay
for any genetic testing ordered by the juvenile court; (2) if it would be in the
best interests of the child to do so, the juvenile court may order the man to
submit to genetic testing to determine the probability that the man is the
child's biological father; (3) if the testing indicates that the statistical
probability that the man is the child's biological father is 99.0% or higher,
the juvenile court may determine that for purposes of a proceeding under ch.
48, other than a proceeding under subch. VIII of ch. 48 (TPR), the man is
the child's biological parent under s. 48.02 (13), stats., (defining "parent" in
ch. 48); and (4) provides that such a determination by the juvenile court is
not a judgment of paternity under ch. 767, stats., or an adjudication of
paternity under subch. VIII of ch. 48.
e. Provides that, in cases in which a notice of a hearing in a CHIPS
proceeding was given to a putative father who does not appear at a CHIPS
hearing or in cases in which a man to whom notice was given appears but
does not allege that he is the child's father and state that he wishes to have
paternity established, the juvenile court may refer the matter to the state or
the IV-D attorney who then may bring a paternity action in family court.
Q. Disclosure of Court Records Relating to Paternity
1. Current Law
Under current law, subject to certain exceptions, records of a juvenile court
are not open to inspection and their contents may not be disclosed.
Similarly, under current law, subject to certain exceptions, a family court's
record of a paternity proceeding under ch. 767, stats., may not be disclosed.
2. The Bill
The bill does the following:
a. Adds an exception to require a juvenile court, upon request, to open for
inspection or disclose juvenile court records relating to the paternity of a
child to: (1) a family court; (2) a IV-D attorney; (3) the parties to a
paternity proceeding under ch. 767, stats., or their attorneys; and (4) the
child's GAL.
b. Adds the following to the list of individuals and entities to whom a
family court's record of a paternity proceeding under ch. 767, stats., may be
disclosed if the child is the subject of a ch. 48 proceeding: (1) the juvenile
court in which the ch. 48 proceeding is pending; (2) the parties to the ch. 48
proceeding and their attorneys; (3) the person under s. 48.09, stats., who
represents the interests of the public in the ch. 48 proceeding; (4) the child's
GAL and the GAL for the child's parent; and (5) any governmental or social
agency involved in the ch. 48 proceeding.
R. appointment of a guardian for a child adjudged
chips under certain circumstances
1. Current Law
Under current law, a juvenile court has exclusive jurisdiction over the
appointment and removal of a guardian of the person for a child under the
following circumstances: (a) when a guardianship petition is filed under ch.
880, stats., (relating to guardianship in general); (b) as part of a TPR
disposition; (c) for a child in sustaining care; (d) as part of a TPR order; (e)
for a child without a living parent if an adoptability finding is sought; (f) for
the transfer of guardianship upon the revocation of a guardian's license; (g)
for the transfer of guardianship if the guardian of a foreign child does not
file an adoption or TPR petition; and (h) for a child adjudged CHIPS
because the child is without a parent or guardian.
When a child is adjudged CHIPS and placed in foster care, the foster parent
does not have the authority to do things such as signing permission slips
allowing the child to participate in school or extracurricular activities,
allowing out-of-state travel or consenting to routine medical services unless
a parent has signed a form authorizing the foster parent to do so.
2. The Bill
a. In general
The bill provides that for certain children who have been adjudged CHIPS, a
juvenile court has exclusive jurisdiction: (1) to appoint a child's relative as
the guardian (or limited guardian) of the person for the child under certain
circumstances; (2) to revise the guardianship order; and (3) to terminate the
guardianship.
b. Criteria for appointment of a guardian
The bill specifies that a "relative", as defined in s. 48.02 (15), stats., or
specified in s. 49.19 (1) (a) 2. a., stats., may be appointed as a guardian of
the person of a child if the juvenile court finds all of the following by clear
and convincing evidence:
(1) The child has been adjudged CHIPS.
(2) The child has been placed or continued in a placement outside the home
under a CHIPS order or orders for a cumulative period of one year or longer.
(3) The child has been placed with the relative, and it is likely that the child
will continue to be placed with the relative for an extended period of time or
until the child attains the age of 18 years.
(4) The relative is willing and able to serve as the child's guardian for an
extended period of time or until the child attains the age of 18 years.
(5) It is not in the child's best interests that a TPR petition be filed.
(6) The child's parent or parents are neglecting, refusing or unable to carry
out the duties of a guardian.
(7) The agency primarily responsible for providing services to the child
under a juvenile court order has made reasonable efforts to make it possible
for the child to return to his or her home but reunification is unlikely or
contrary to the child's best interests and further reunification efforts are
unlikely to be made or are contrary to the child's best interests.
c. Procedural and miscellaneous aspects
The bill does the following:
(1) Specifies the procedure for appointment of a guardian under the
provisions created by the bill.
(2) Prohibits a juvenile court commissioner from conducting hearings,
making findings or issuing orders in such guardianship proceedings.
(3) Provides that the district attorney or, if designated by the county board,
the corporation counsel, must represent the interests of the public in such
guardianship proceedings, but retains the provision in current law which
allows a county board to designate any other appropriate person to do so.
(4) Specifies venue for such guardianship proceedings.
(5) Requires a juvenile court to appoint a GAL for a child who is the subject
of such a guardianship proceeding.
(6) Provides that a GAL may petition for the appointment of a guardian
under the provisions of the bill, revision of the guardianship order or
removal of such a guardian.
(7) Provides that the general rules of evidence in chs. 901 to 911, stats.,
apply to a fact-finding hearing in such a guardianship proceeding.
(8) Provides that the more relaxed rules of evidence in s. 48.299 (4) (b),
stats., apply to hearings other than fact-finding hearings in such a
guardianship proceeding.
(9) Provides that if a juvenile court designates a child's placement with a
guardian under this bill as a permanent foster home or treatment foster home
placement, then a CHIPS dispositional order, revision order or extension
order remains in effect until the earliest of the following occurs: (a) the
guardianship is terminated; (b) the juvenile court enters a change in
placement order; (c) a juvenile court order terminates the dispositional order,
revision order or extension order; or (d) the child attains the age of 18 years.
(10) Requires that in the 6-month permanency plan review, a determination
must also be made as to the extent of compliance with the plan by the child's
guardian.
(11) Specifies that if an agency designated by the juvenile court in certain
TPR dispositions determines that it is unlikely that a child will be adopted or
that adoption is not in the best interests of the child, the plan for placing the
child in a permanent setting (which is a required part of a required court
report when a TPR petition is filed) must include either a recommendation
as to the agency to be named as the guardian of the child or a
recommendation that the person appointed as a guardian under this bill
continue to be the child's guardian.
(12) With respect to cases in which a juvenile court enters an order
terminating parental rights and the child is left without a parent, provides
that if a guardian under the bill has been appointed, the juvenile court may
transfer guardianship and custody of the child as set forth in current statutes
but is not required to do so.
(13) Creates an exception to the mandatory transfer of legal custody when a
sustaining care order is entered to provide that, if a guardian under the bill
has been appointed, such a transfer of legal custody and guardianship is
permissive.
(14) Requires that a juvenile court provide to a guardian under the bill a
certified copy of a TPR order.
(15) Provides that a guardian under the bill may be licensed as a foster
parent or treatment foster parent.
(16) Provides that a juvenile court may enter an order revising or
terminating a guardianship as created under the bill despite the pendency of
an appeal.
d. Duties and authority of a guardian
The bill does the following:
(1) Provides that a person appointed to be a guardian of the child under the
bill has the duty and authority of a guardian as set forth in s. 48.023, stats.
(2) Explicitly provides that a juvenile court order may limit the authority of
a guardian appointed under the provisions of this bill.
e. Revision of guardianship order
The bill does the following:
(1) Provides a procedure for revision of the guardianship order, including
notice requirements, waiver provisions and hearing requirements.
(2) Provides that the juvenile court may order a revision of the guardianship
order if the juvenile 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 guardianship was entered and if
the juvenile court determines that a revision would be in the child's best
interests.
f. Termination of guardianship
The bill does the following:
(1) Provides that, unless the juvenile court orders that it be for a shorter
period of time, a guardianship under the bill continues until the child attains
the age of 18 years or until terminated by the juvenile court, whichever
occurs first.
(2) Provides that a guardian under the bill may resign at any time if the
resignation is accepted by the juvenile court.
(3) Provides a procedure and standards for removing the guardian for cause.
(4) Provides a procedure and standards for terminating the guardianship
upon a parent's petition.
S. Grounds for Involuntary TPR--In General
1. Current Law
Current law provides 9 grounds for involuntary TPR: abandonment,
continuing need of protection or services, continuing parental disability,
continuing denial of periods of physical placement, child abuse, failure to
assume parental responsibility, incestuous parenthood, intentional homicide
of the child's other parent and being conceived as a result of sexual assault
(created by
1995 Wisconsin Act 108).
2. The Bill
The bill modifies the grounds for involuntary TPR set out above to make
clear that the ground must be established by proving the elements specified,
rather than stating that the ground may be established by a showing of the
elements specified.
T. Involuntary TPR Based on Abandonment
1. Current Law
Under current law, abandonment may be established by a showing of one of
3 bases:
a. 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.
b. 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., (warning regarding the applicable grounds for involuntary
TPR and the conditions necessary for the child to be returned home), and the
parent has failed to visit or communicate with the child for a period of 6
months or longer.
c. 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.
Under current law, a parent may rebut the 2nd and 3rd of these bases by
proving that he or she has not disassociated himself or herself from the child
or relinquished responsibility for the child's care and well-being.
2. The Bill
The bill does the following:
a. Provides an additional basis for establishing abandonment if a child has
been left without provision for its care or support in a place or manner that
exposes the child to substantial risk of death or great bodily harm, as defined
in s. 939.22 (14), stats.
b. Provides 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.
c. Provides that, with respect to a child who has been left by the parent, the
child must have been left 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 provides that the parent then must have failed to visit or
communicate with the child for a period of 6 months or longer, rather than
one year or longer.
d. 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 and instead provides that abandonment is
not established under items b or c, above, if the parent proves all of the
following by a preponderance of the evidence:
(1) That he or she had good cause for having failed to visit with the child
throughout the time period specified in items b or c, above, whichever is
applicable.
(2) That he or she had good cause for having failed to communicate with
the child throughout the time period specified in items b or c, above,
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 items b or c,
above, whichever is applicable, or, if item b, above, is applicable, with the
agency responsible for the care of the child during the time period specified
in item b, above; or
(b) Had good cause for having failed to communicate about the child with
such person or persons or agency during the applicable time period.
U. Involuntary TPR Based on Continuing Need of
Protection or Services
1. Current Law
Currently, continuing need of protection or services as a ground for
involuntary TPR may be established by a showing that: (a) the child has
been adjudged CHIPS and placed, or continued in a placement, outside the
child's home by the juvenile court under a CHIPS dispositional order,
change of placement order, extension of dispositional order or revision of
dispositional order; (b) the agency responsible for the care of the child and
the family has made a diligent effort to provide the services ordered by the
juvenile court; (c) the child has been outside the home under such an order
for a cumulative total period of one year or longer or, if the child had not
attained the age of 3 years at the time of the initial order placing the child
outside the home, for a cumulative total period of 6 months or longer; and
(d) 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 those conditions within
the next 12 months.
2. The Bill
The bill does the following:
a. Amends this ground for a child who is 3 years of age or older 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.
b. Defines "diligent effort" to provide court-ordered services.
