SB501: Bill Text

The bill creates an additional ground for involuntary TPR, based on prior involuntary TPR to another child.

This new ground must be established by proving both of the following:

1. The child who is the subject of the TPR petition has been adjudged CHIPS because of abandonment or sexual or physical abuse or because a 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.

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

ZB. Appeals of Orders Terminating Parental Rights

1. Current Law

Currently, orders granting or denying involuntary TPR are final orders that are appealable like other circuit court final orders.

2. The Bill

The bill provides as follows:

a. A notice of intent to appeal an involuntary TPR judgment or order must be filed with the trial court within 30 days after the entry of the TPR judgment or order, rather than 15 days.

b. The appellant has 30 days from the date of service of the transcript to file the official notice of appeal and docketing statement, rather than 15 days.

c. The court of appeals must give TPR appeals preference and must decide a TPR appeal within 30 days after the filing of the appellant's reply brief or statement that a reply brief will not be filed, rather than 45 days after the filing of the record on appeal.

d. A petition for the supreme court to review the decision of the court of appeals in a TPR case must be filed within 30 days after the date of the decision of the court of appeals, rather than 15 days.

e. With respect to a parent who consented to TPR or did not contest an involuntary TPR and, unless an exception applies, a motion for relief from judgment on such grounds as fraud, mistake or newly discovered evidence must be filed within 30 days after the entry of the TPR judgment or order, rather than 40 days.

ZC. Petitioning a Court, When an Involuntary TPR Petition is Filed, for an Order Prohibiting Visitation or Contact with a Child

1. Current Law

Current law provides that a juvenile court may, in a dispositional order under s. 48.355, stats., set reasonable rules of parental visitation if a child is adjudged CHIPS [s. 48.355 (3), stats.] and may prohibit a parent from visiting a child if a child is placed in sustaining care after a TPR order [s. 48.428 (6), stats.]. In addition, current law provides that a child abuse restraining order and injunction ordering a person to avoid a child's residence and to avoid contacting the child may be granted if a person has engaged in or may engage in abuse of the child [s. 813.122, stats.]. If the respondent to a petition for a child abuse restraining order or injunction is the child's parent, current law specifies that the court may provide that the parent has reasonable visitation rights, unless the court finds that visitation would endanger the child's physical, mental or emotional health.

Current statutes do not explicitly provide that a juvenile court may enter an order denying visitation or contact with a child who is the subject of an involuntary TPR petition while the case is pending.

2. The Bill

The bill provides that:

a. If a petition for involuntary TPR is filed, the person filing the TPR petition may also petition the juvenile court for a temporary order and an injunction prohibiting the person whose parental rights are sought to be terminated from visiting or contacting the child.

b. The juvenile court may issue the temporary order ex parte or may refuse to issue the temporary order and hold a hearing on whether to issue an injunction. The bill specifies that the temporary order is in effect until a hearing is held on the issuance of an injunction and that the hearing on the issuance of an injunction must be held before or on the same day as the initial hearing on the TPR petition.

c. The juvenile court may grant an injunction prohibiting the respondent from visiting or contacting the child if the juvenile court determines that the prohibition would be in the best interests of the child.

d. Such an injunction may not remain in effect beyond the date the juvenile court either dismisses the TPR petition or issues an order terminating parental rights.

ZD. Disclosure of Information to Certain Voluntary Reporters of Child Abuse or Neglect

1. Current Law

Under current law, certain individuals, such as physicians, nurses, teachers and social workers (mandatory reporters), must report to the county department or to the sheriff or city, village or town police department cases of children seen in the course of professional duties whom they suspect have been abused or neglected or threatened with abuse or neglect. Any other individual may, but is not required to, report suspected or threatened child abuse or neglect and, if a report is made, is considered to be a voluntary reporter. Currently, the county department or licensed child welfare agency under contract with the county department investigating a report of suspected or threatened child abuse or neglect must, within 60 days after receipt of a report from a mandatory reporter, inform the mandatory reporter of what action was taken to protect the health and welfare of the child who is the subject of the report. Current law does not provide for disclosure of information to voluntary reporters.

2. The Bill

The bill provides that:

a. Those 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 was taken to protect the health and welfare of the child who is the subject of the report.

b. A county department or a licensed child welfare agency that receives such a request must, within 60 days after it receives the report or within 20 days after it receives the written request, whichever is later, inform such a voluntary reporter in writing of: (1) 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 (2) the duty to keep the information confidential and the penalties for failing to do so.

c. The county department or licensed child welfare agency may petition the juvenile court ex parte for an order prohibiting such disclosure.

d. If a county department or licensed child welfare agency files such a petition, the deadline for disclosure is suspended until the juvenile court issues its decision.

e. The juvenile court may hold an ex parte hearing in camera, that is, hearing from one side only in the judge's chambers, and must issue an order granting the petition if the juvenile court determines that disclosure would not be in the best interests of the child.

ZE. Release of Certain Information, Including HIV Test Results, to Substitute Care Providers

1. Current Law

Under current law, the results of HIV tests may not be disclosed without the consent of the person who was tested (or, if the person who was tested is under 14 years of age, without the consent of the person's parent), except under statutorily specified circumstances. One of these circumstances is that, if the test was administered to a child for whom placement in a foster home, group home or a child caring institution (CCI) is recommended under s. 48.33 (4), stats., (out-of-home placement recommended in a predispositional report for a child adjudged CHIPS), the results may be disclosed to an agency directed by a juvenile court to prepare either a court report under s. 48.33 (1), stats., (predispositional report for a child adjudged CHIPS) or a permanency plan under s. 48.38, stats. Under s. 252.15 (5) (a) 19., stats., that agency is then authorized to redisclose the HIV test results to the child's foster parent or the operator of the group home or CCI in which the child is placed, as provided in s. 48.371, stats.

Current s. 48.371, stats., requires that, at the time a child is placed in a foster home, group home or CCI under a CHIPS dispositional order or a change in placement order (or, if the information is not available at that time, within 30 days after the date of the placement), the agency that prepared the child's permanency plan must provide the foster parent or operator of the group home or CCI with information in the court report under s. 48.33, stats., or permanency plan submitted under s. 48.38, stats., relating to all of the following:

a. The results of HIV tests if: (1) the child's parent or guardian has consented to the test under s. 252.15 (2) (a) 4. b., stats., (in pertinent part, consent from the parent or guardian is required if the person tested is under 14 years of age, and consent of the guardian is required if the person tested has been adjudicated incompetent under ch. 880, stats.); (2) the child's parent or guardian has consented to the release of test results under s. 252.15 (5) (a) 19., stats.; and (3) the agency notifies the foster parent or operator of the group home or CCI about the confidentiality requirements under s. 252.15 (6), stats., (redisclosure prohibited except to a person on a list of persons specified in the statutes).

b. The results of tests for viral hepatitis, type B (hepatitis B).

c. Findings or opinions of the juvenile court or agency that prepared the court report or permanency plan relating to any mental, emotional, cognitive, developmental or behavioral disability of the child.

2. The Bill

The bill amends current law as follows:

a. By additionally providing for disclosure of all 3 types of information listed in items 1, a to c, above, concerning children placed in a treatment foster home (which, along with foster homes, group homes and CCI's, are commonly referred to as "substitute care").

b. By additionally providing for disclosure of HIV and hepatitis B test results regarding children placed in substitute care under other circumstances under ch. 48, rather than restricting disclosure to cases in which children have been placed in substitute care by a CHIPS dispositional order or a change in placement order.

c. By providing for disclosure of HIV test results to the substitute care provider without the consent of the child or the child's parent or guardian.

d. By also providing that the disclosure of HIV test results may be to the following: (1), stats., the agency directed by a 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), stats., (predispositional report for a child adjudged to be CHIPS); (2) to an agency responsible for preparing a court report under various provisions in ch. 48; (3) 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, stats.; (4) to an agency that placed the child or arranged for the placement of the child in substitute care; and (5) by any of those agencies to any other of those agencies.

e. By requiring the agency that placed the child or arranged for the placement of the child with the substitute care provider to provide HIV and hepatitis B test results to the substitute care provider, rather than requiring the agency that prepared the child's permanency plan to do so.

f. By requiring that, at the time the agency provides the HIV test results to the substitute care provider, the agency notify the substitute care provider about the confidentiality requirements under s. 252.15 (6), stats.

g. With respect to the disclosure of HIV and hepatitis B test results, by requiring disclosure not at the time a child is placed in substitute care, or within 30 days after the date of the placement if the information was not available at the time of placement, but rather at the time of placement and, if information is subsequently received, as soon as possible, but not later than 2 working days after the agency receives such information.

h. With respect to the disclosure of information in the court report or permanency plan relating to findings or opinions of the juvenile court or agency that prepared the court report or permanency plan relating to the mental, emotional, cognitive, developmental or behavioral disability of the child, by requiring disclosure not at the time a child is placed in such substitute care, or within 30 days after the date of the placement if the information was not available at the time of placement, but rather at the time of placement or, if the information is not available at that time, as soon as possible after the court report or permanency plan has been submitted , but not later than 7 days after such date.

ZF. REQUEST FOR A STUDY ON the USE, EFFECTIVENESS AND FUNDING OF SYSTEMS AND PROGRAMS DIRECTED AT Prevention of CHILD ABUSE AND NEGLECT

1. Background

Due to time constraints and the multiplicity of issues facing the joint legislative council's 1994-95 special committee on children in need of protection or services, the committee did not act on the prevention aspects of its charge, even though there was a consensus to do so.

2. The Bill

The bill requests the joint legislative council to study all of the following:

a. The use and effectiveness of systems and programs directed at, and resources allocated to, the prevention of child abuse and neglect to determine the effectiveness of those systems, programs and resources in preventing child abuse and neglect in the state.

b. The need for new or revised systems and programs and new mechanisms for providing and allocating funding for preventing child abuse and neglect.

SB501, s. 1 Section 1. 46.40 (7m) of the statutes is created to read:

SB501,29,10 46.40 (7m) Use by county of community aids funds to pay private attorneys for certain proceedings under the children's code. Upon application by a county department under s. 46.215, 46.22 or 46.23 to the department for permission to use funds allocated to that county department under sub. (2) to employ private counsel for the purposes specified in this subsection and a determination by the department that use of funds for those purposes does not affect any federal grants or federal funding allocated under this section, the department and the county department shall execute a contract authorizing the county department to expend, as agreed upon in the contract, funds allocated to that county department under sub. (2) to permit the county department to employ private counsel to represent the interests of the state or county in proceedings under ch. 48 relating to child abuse or neglect cases, proceedings to terminate parental rights and any ch. 48 cases or proceedings involving the Indian child welfare act, 25 USC 1901 to 1963.

Note: This Section authorizes counties to use certain community aids funds to employ private practice attorneys for ch. 48 proceedings relating to child abuse and neglect, TPR or any ch. 48 proceedings involving the Indian child welfare act (ICWA).

Under current law "community aids" are state and federal funds which are distributed by DHSS to counties for the provision of human services. Section 46.40, stats., sets forth the basic community aids funding allocations.

This bill specifies that DHSS and a county may, after application by the county and a determination by DHSS that use of community aids funds for the purpose of employing private counsel for certain ch. 48 proceedings does not affect any federal grants or federal funding relating to community aids, enter into a contract relating to the use of a certain amount of community aids funds to employ private counsel (i.e., private practice attorneys) to represent the interests of the state or county in proceedings under ch. 48 relating to child abuse and neglect, TPR or any ch. 48 proceedings involving the ICWA. The intent of this new authorization is to permit counties which do not have any or enough government attorneys with sufficient expertise in TPR, the ICWA or other child abuse or neglect-related cases to use certain community aids funds to employ experienced private practice attorneys to handle these proceedings.

SB501, s. 2 Section 2. 48.01 (1) (ag) of the statutes is created to read:

SB501,30,3 48.01 (1) (ag) To recognize that children have certain basic needs which must be provided for, including the need for adequate food, clothing and shelter; the need to be free from physical, sexual or emotional injury or exploitation; the need to develop physically, mentally and emotionally to their potential; and the need for a safe and permanent family. It is further recognized that, under certain circumstances, in order to ensure that the needs of a child are provided for, the court may determine that it is in the best interests of the child for the child to be removed from his or her parents, consistent with any applicable law relating to the rights of parents.

Note: This Section creates a new provision in the statement of legislative purpose section of the children's code [s. 48.01, stats.], recognizing that children have basic needs, including all of the following:

1. The need for adequate food, clothing and shelter.

2. The need to be free from physical, sexual or emotional injury or exploitation.

3. The need to develop physically, mentally and emotionally to their potential.

4. The need for a safe and permanent family.

In keeping with the increased focus of this new purpose section on the best interests of the child, this new provision recognizes that, under certain circumstances, in order to ensure that the needs of a child are provided for, it may be necessary for the juvenile court to remove a child from his or her parents, consistent with any applicable law relating to the rights of parents [i.e., there is a sufficient basis under law for the court assigned to exercise jurisdiction under the children's code (juvenile court) to intervene in the family].

SB501, s. 3 Section 3. 48.01 (1) (b) of the statutes is repealed.

Note: This Section repeals current s. 48.01 (1) (b), stats., relating to providing for the "wholesome mental, and physical development of children", because the content of that paragraph is incorporated into new sub. (1) (ag), as created in this bill.

SB501, s. 4 Section 4. 48.01 (1) (bg) of the statutes is created to read:

SB501,30,10 48.01 (1) (bg) 1. To ensure that children are protected against the harmful effects resulting from the absence of parents or parent substitutes, from the inability, other than financial inability, of parents or parent substitutes to provide care and protection for their children and from the destructive behavior of parents or parent substitutes in providing care and protection for their children.

SB501,30,13 2. To ensure that children are provided good substitute parental care in the event of the absence, temporary or permanent inability, other than financial inability, or unfitness of parents to provide care and protection for their children.

Note: This Section creates new provisions in s. 48.01, stats., recognizing that children must be ensured of all of the following:

1. Protection against the harmful effects resulting from: (a) the absence of parents or parent substitutes; (b) the inability [other than "financial inability" — i.e., poverty] of parents or parent substitutes to provide care and protection for their children; and (c) the destructive behavior of parents or parent substitutes in providing care and protection for their children.

2. Good substitute parental care in the event of the absence, temporary or permanent inability [other than financial inability] or unfitness of parents to provide care and protection for their children.

As with the other new or modified legislative purpose provisions in the bill, this new language is intended to focus attention on: (1) the best interests of the child in any formal or informal proceedings or determinations under ch. 48; and (2) the need for juvenile courts in proceedings and determinations under ch. 48, to take a closer look at, and make more timely decisions regarding, the fitness or unfitness of parents to care for and protect their children.

SB501, s. 5 Section 5. 48.01 (1) (br) of the statutes is created to read:

SB501,31,6 48.01 (1) (br) To encourage innovative and effective prevention, intervention and treatment approaches, including collaborative community efforts and the use of community-based programs, as significant strategies in planning and implementing legislative, executive and local government policies and programs relating to children and their families and substitute families.

Note: This Section creates a new provision in s. 48.01 (1), stats., emphasizing the significance of prevention and intervention approaches in legislative, executive and local government programs, policies and planning strategies for dealing with children under the children's code.

SB501, s. 6 Section 6. 48.01 (1) (dm) of the statutes is created to read:

SB501,31,9 48.01 (1) (dm) To divert children from formal proceedings under this chapter to the extent that this is consistent with protection of children and the public safety.

Note: This Section creates a new provision in s. 48.01, stats., to emphasize the diversion of children from formal proceedings under the children's code to the extent that this is consistent with protection of children and the public safety.

SB501, s. 7 Section 7. 48.01 (1) (e) of the statutes is repealed.

Note: This Section repeals current s. 48.01 (1) (e), stats., relating to responding to children's needs for care and treatment through community-based programs because the content of that paragraph is incorporated into new sub. (1) (ag), as created in this bill.

SB501, s. 8 Section 8. 48.01 (1) (g) of the statutes is amended to read: