LRB-3642/1
GMM:mfd:jf
1997 - 1998 LEGISLATURE
July 31, 1997 - Introduced by Representatives Ladwig, Plale, Jensen, Huebsch,
Albers, Dobyns, Duff, Freese, Gard, Goetsch, Gunderson, Handrick, Kelso,
F. Lasee, Lazich, Nass, Olsen, Ott, Owens, Porter, Schafer, Staskunas,
Sykora, Ward and
Ziegelbauer, cosponsored by Senators Huelsman, Darling,
Grobschmidt, Fitzgerald, Farrow, Cowles, Drzewiecki and Roessler.
Referred to Committee on Children and Families.
AB463,3,17
1An Act to renumber and amend 48.207 (2), 48.243 (2), 48.27 (1), 48.27 (4)
2(intro.) and 48.985 (2) (a);
to amend 15.195 (4) (g), 38.24 (1s), 46.001, 46.03 (7)
3(a), 46.40 (7m), 46.51 (title), 46.51 (1), 46.51 (3), 46.51 (4), 46.51 (5), 46.95 (2)
4(a), 48.01 (1) (intro.), 48.01 (1) (a), 48.01 (1) (br), 48.01 (1) (dm), 48.02 (1e), 48.02
5(17m), 48.06 (1) (a) 1., 48.06 (1) (a) 3., 48.06 (1) (am) 3., 48.06 (2) (c), 48.065 (1),
648.065 (2) (gm), 48.065 (3) (c), 48.065 (3) (e), 48.067 (1), 48.067 (2), 48.067 (3),
748.067 (4), 48.067 (8), 48.069 (1) (a), 48.069 (1) (c), 48.07 (4), 48.08 (1), 48.08 (2),
848.09 (5), 48.135 (title), 48.135 (1), 48.135 (2), 48.14 (5), 48.15, 48.185 (1), 48.185
9(2), 48.19 (1) (c), 48.20 (title), 48.20 (7) (b), 48.205 (title), 48.205 (1) (intro.),
1048.205 (2), 48.207 (title), 48.207 (1) (intro.), 48.208 (4), 48.23 (4), 48.235 (3),
1148.235 (6), 48.24 (1), 48.24 (1m), 48.24 (2) (a), 48.24 (3), 48.24 (5), 48.243 (1)
12(intro.), (a), (b), (c), (d), (e), (f) and (g), 48.243 (3), 48.245 (1), 48.245 (2) (a) 1.,
1348.245 (2) (a) 2., 48.245 (2) (a) 3., 48.245 (2) (a) 4., 48.245 (2) (c), 48.245 (2r),
1448.245 (3), 48.245 (4), 48.245 (5), 48.245 (8), 48.25 (1), 48.25 (2), 48.255 (1)
1(intro.), 48.255 (2), 48.255 (3), 48.255 (4), 48.263 (1), 48.263 (2), 48.27 (3) (a) 1.,
248.275 (1), 48.275 (2) (a), 48.275 (2) (b), 48.275 (2) (c), 48.275 (2) (cg) (intro.),
348.29 (1), 48.293 (2), 48.293 (3), 48.295 (1), 48.295 (1c), 48.295 (1g), 48.295 (2),
448.295 (3), 48.297 (4), 48.297 (5), 48.297 (6), 48.299 (1) (a), 48.299 (1) (ag), 48.299
5(1) (b), 48.299 (4) (b), 48.299 (5), 48.30 (1), 48.30 (2), 48.30 (3), 48.30 (6), 48.30
6(7), 48.30 (8) (a), 48.30 (8) (c), 48.30 (9), 48.305, 48.31 (1), 48.31 (2), 48.31 (4),
748.31 (7), 48.315 (1) (a), 48.315 (1) (b), 48.315 (1) (f), 48.32 (1), 48.32 (2) (a), 48.32
8(2) (c), 48.32 (3), 48.32 (5) (intro.), 48.32 (5) (a), 48.32 (5) (b), 48.32 (6), 48.33 (1)
9(intro.), 48.33 (1) (a), 48.33 (1) (b), 48.33 (1) (c), 48.33 (1) (d), 48.33 (1) (f), 48.33
10(2), 48.33 (4) (intro.), 48.335 (1), 48.35 (1) (b) (intro.), 48.35 (1) (b) 1., 48.35 (1)
11(b) 2., 48.35 (2), 48.355 (1), 48.355 (2) (a), 48.355 (2) (b) 1., 48.355 (2) (b) 1m.,
1248.355 (2) (b) 7., 48.355 (2) (d), 48.355 (2m), 48.355 (4), 48.355 (5), 48.355 (7),
1348.357 (1), 48.357 (2), 48.357 (2m), 48.36 (2), 48.361 (1) (b), 48.361 (1) (c), 48.361
14(2) (am) 2., 48.361 (2) (c), 48.362 (2), 48.362 (4) (a), 48.362 (4) (c), 48.363 (1),
1548.365 (1m), 48.365 (2), 48.365 (2g) (a), 48.365 (2m) (a), 48.365 (2m) (b), 48.396
16(1), 48.396 (1b), 48.396 (1d), 48.396 (5) (b), 48.396 (5) (c), 48.396 (5) (e), 48.44
17(1), 48.45 (1) (b), 48.45 (2), 48.46 (1), 48.48 (1), 48.48 (16), 48.52 (2) (a), 48.547
18(1), 48.547 (3) (intro.), (b) and (d), 48.57 (1) (a), 48.57 (1) (b), 48.57 (1) (c), 48.57
19(1) (g), 48.57 (2), 48.59 (1), 48.59 (2), 48.981 (title), 48.981 (1) (h) (intro.), 48.981
20(1) (h) 2., 48.981 (2), 48.981 (3) (a), 48.981 (3) (b) 1., 48.981 (3) (bm) (intro.),
2148.981 (3) (bm) 1., 48.981 (3) (bm) 2., 48.981 (3) (c) 1., 48.981 (3) (c) 3., 48.981
22(3) (c) 5., 48.981 (3) (c) 6., 48.981 (3) (c) 6m., 48.981 (3) (c) 7., 48.981 (3) (c) 8.,
2348.981 (3) (d) 1., 48.981 (3) (d) 2., 48.981 (4), 48.981 (7) (a) 1m., 48.981 (7) (a) 3m.,
2448.981 (7) (a) 4., 48.981 (7) (a) 5., 48.981 (7) (a) 6., 48.981 (7) (a) 6m., 48.981 (7)
25(a) 10., 48.981 (7) (a) 10m., 48.981 (7) (a) 11., 48.981 (7) (a) 11m., 48.981 (7) (a)
111r., 48.981 (7) (a) 17., 48.981 (8) (a), 48.981 (8) (b), 48.981 (8) (c), 48.981 (8) (d)
21., 48.981 (9), 48.982 (1) (d), 48.982 (2) (a), 48.982 (2) (g) 1., 48.982 (2) (g) 2.,
348.982 (2) (g) 3., 48.982 (2) (g) 4., 48.982 (2) (g) 5., 48.982 (2) (gm), 48.982 (4) (d)
4(intro.), 48.982 (4) (d) 1., 48.982 (4) (d) 3., 48.982 (4) (e), 48.985 (1), 146.82 (2)
5(a) 11., 757.69 (1) (g), 808.075 (4) (a) 4., 813.122 (1) (a), 904.085 (4) (d), 905.04
6(4) (e) (title) and 938.245 (8); and
to create 48.01 (1) (am), 48.01 (1) (bm), 48.02
7(1) (am), 48.02 (19), 48.065 (2) (bm), 48.133, 48.193, 48.203, 48.205 (1m), 48.207
8(1m), 48.207 (2) (b), 48.213, 48.23 (2m), 48.235 (1) (f), 48.235 (4m), 48.24 (2m)
9(a) 6., 48.255 (1m), 48.27 (1) (b), 48.27 (3) (c), 48.27 (4) (b), 48.347, 48.355 (2) (b)
102m., 48.361 (2) (a) 1m., 48.361 (2) (b) 1m., 48.362 (3m), 48.396 (2) (aj), 48.396
11(2) (ap), 48.45 (1) (am), 48.45 (1r), 48.78 (2) (aj), 48.78 (2) (ap), 48.981 (1) (ct),
1248.981 (1) (h) 1m., 48.981 (3) (b) 2m., 48.981 (3) (c) 2m., 301.01 (2) (cm) and
13905.04 (4) (e) 3. of the statutes;
relating to: unborn children who are at
14substantial risk of serious physical injury due to the habitual lack of
15self-control of their expectant mothers in the use of alcohol beverages,
16controlled substances or controlled substance analogs, exhibited to a severe
17degree.
Analysis by the Legislative Reference Bureau
Under current law, the children's code grants to the court assigned to exercise
jurisdiction under the children's code (juvenile court) jurisdiction over children
alleged to be in need of protection or services and authorizes the juvenile court to
impose certain dispositions on a child found to be in need of protection or services.
The children's code also requires certain individuals to report to the sheriff, local
police department or county department of human services or social services (county
department) any suspected or threatened abuse or neglect of a child seen in the
course of the individual's professional duties and requires the sheriff or police
department, and the county department, to investigate those reports. Finally, the
children's code permits children to be taken into and held in custody under certain
circumstances.
This bill extends, as explained in this analysis, the coverage of the children's
code to unborn children, which are defined in the bill as unborn humans who are at
that stage of fetal development when there is a reasonable likelihood of sustained
survival outside the womb, with or without artificial support.
Jurisdiction
Under current law, the juvenile court has exclusive original jurisdiction over a
child who is alleged to be in need of protection or services which can be ordered by
the juvenile court and who meets certain jurisdictional grounds, including the
ground that the child has been the victim of abuse, which is defined under current
law, in part, as physical injury inflicted on a child by other than accidental means.
This bill grants to the juvenile court exclusive original jurisdiction over an
unborn child who is alleged to be in need of protection or services which can be
ordered by the court and whose expectant mother habitually lacks self-control in the
use of alcohol beverages, controlled substances or controlled substance analogs,
exhibited to a severe degree, to the extent that there is a substantial risk that the
physical health of the unborn child, and of the child when born, will be seriously
affected or endangered unless the expectant mother receives prompt and adequate
treatment for that habitual lack of self-control. The bill also grants to the juvenile
court exclusive original jurisdiction over the expectant mother of such an unborn
child.
Dispositions
Under current law, if the juvenile court finds that a child is in need of protection
or services, the juvenile court must enter a dispositional order imposing one or more
of the dispositions authorized under current law. Those dispositions include all of
the following:
1. Counseling the child or the child's parent, guardian or legal custodian.
2. Placing the child under the supervision of the county department, a licensed
child welfare agency, the department of health and family services (DHFS) or a
suitable adult under conditions prescribed by the juvenile court, including
reasonable rules for the child's conduct, designed for the well-being of the child.
3. Ordering the child's parents to provide the child with special treatment and
care, which is defined under current law as professional services, including medical,
psychological or psychiatric treatment, alcohol or other drug abuse treatment or
other services, which need to be provided to a child and his or her family to protect
the well-being of the child, prevent placement of the child outside of the child's home
or meet the special needs of the child.
4. Ordering the child to enter an outpatient alcohol or other drug abuse
treatment program or to participate in an alcohol or other drug abuse eduction
program.
In addition, under current law, the juvenile court may order the parent,
guardian or legal custodian of a child who has been found to be in need of protection
or services to comply with any conditions determined by the juvenile court to be
necessary for the child's welfare. Such an order may include an order to participate
in mental health treatment, anger management, individual or family counseling or
parent training and education. Such an order, however, may not include inpatient
treatment. Currently, a parent, guardian or legal custodian of a child who is found
to be in need of protection or services may be ordered into inpatient treatment only
under the mental health act.
This bill authorizes the juvenile court to impose one or more of the following
dispositions on the expectant mother of an unborn child who is found to be in need
of protection or services:
1. Counsel the expectant mother.
2. Place the expectant mother under the supervision of the county department,
DHFS or a suitable adult under conditions prescribed by the juvenile court, including
reasonable rules for the expectant mother's conduct, designed for the physical
well-being of the unborn child. Such an order may include an order to participate
in mental health treatment, anger management, individual or family counseling or
parent or prenatal development training and education.
3. Order the expectant mother to obtain special treatment or care, which is
defined in the bill as professional services, including medical, psychological or
psychiatric treatment, alcohol or other drug abuse treatment or other services, which
need to be provided to the expectant mother to protect the physical health of the
unborn child and of the child when born.
4. Order the expectant mother to enter an outpatient alcohol or other drug
abuse treatment program or to participate in an alcohol or other drug abuse
education program.
5. Order the expectant mother to enter an inpatient alcohol or other drug abuse
treatment program, but only if the juvenile court finds that the expectant mother is
in need of inpatient treatment, that inpatient treatment is appropriate for the
expectant mother's needs and that inpatient treatment is the least restrictive
treatment consistent with the expectant mother's needs.
Abuse investigations
Under current law, certain individuals, such as physicians, nurses, social
workers, teachers, day care providers and law enforcement officers (mandated
reporters) having reasonable cause to suspect that a child seen in the course of
professional duties has been abused or neglected or having reason to believe that a
child seen in the course of professional duties has been threatened with abuse or
neglect and that abuse or neglect will occur must, and any person (discretionary
reporter) having reason to suspect that a child has been abused or neglected or
reason to believe that a child has been threatened with abuse or neglect and that
abuse or neglect will occur may, report that suspected or threatened abuse or neglect
to the sheriff, local police department or county department. If the reporter requests
an immediate investigation, the sheriff or local police department must immediately
investigate to determine if there is reason to believe that the child's health or safety
is in immediate danger and take necessary action, including taking the child into
custody, to protect the child. The county department must initiate a diligent
investigation within 24 hours after receiving a report to determine if the child is in
need of protection or services and, if the county department determines that the child
is in need of services, the county department must offer to provide those services.
If those services are refused, the county department may request the district
attorney to file a petition alleging that the child is in need of protection or services.
This bill extends the child abuse and neglect reporting law to unborn children
who are suspected of having been abused or who are at substantial risk of abuse,
which is defined in the bill as serious physical injury inflicted on an unborn child, and
on the child when born, by the habitual lack of self-control of the expectant mother
of the unborn child in the use of alcohol beverages, controlled substances or
controlled substance analogs, exhibited to a severe degree.
Specifically, under the bill, a mandatory reporter having reasonable cause to
suspect that an unborn child seen in the course of professional duties has been
abused or having reason to believe that an unborn child seen in the course of
professional duties is at substantial risk of abuse must, and a discretionary reporter
having reason to suspect that an unborn child has been abused or reason to believe
that an unborn child is at substantial risk of abuse may, report that suspected or
threatened abuse to the sheriff, local police department or county department. The
sheriff or local police department, and county department, then must investigate and
take action in the same manner as they investigate and take action with respect to
a child abuse or neglect report under current law.
Taking and holding expectant mother in custody
Under current law, a child may be taken into custody under a warrant, a capias
or an order of the juvenile court if made on a showing that the welfare of the child
demands that the child be immediately removed from his or her present custody.
Current law also permits a child to be taken into custody under circumstances in
which a law enforcement officer believes on reasonable grounds that the child is
suffering from illness or injury or is in immediate danger from his or her
surroundings and that removal from those surroundings is necessary or that the
child has violated the conditions of the temporary physical custody order. The person
taking the child into custody must make every effort to release the child immediately
to the child's parent, guardian or legal custodian, but, if the child is not released, that
person must deliver the child to the juvenile court intake worker (intake worker).
The intake worker must also make every effort to release the child, but may decide
to hold the child in custody if the intake worker determines that there is probable
cause to believe that the child is within the jurisdiction of the juvenile court and that
certain criteria are met, including the criterion that if the child is not held he or she
will be subject to injury by others. A child who is held in custody may be held in
custody in various places, including the home of a relative; a hospital or a physician's
office, if the child is suffering from a serious physical condition that requires prompt
diagnosis or treatment; or a treatment facility, if the child is believed to be mentally
ill, drug dependent or intoxicated and to be dangerous to himself or herself or others.
A child who is held in custody and who is not released must have a hearing within
48 hours, excluding Saturdays, Sundays and holidays, after the decision to hold the
child was made to determine whether the child should continue to be held in custody.
This bill permits an expectant mother of an unborn child to be taken into
custody under a warrant, a capias or an order of the juvenile court if made on a
showing that due to the expectant mother's habitual lack of self-control in the use
of alcohol beverages, controlled substances or controlled substance analogs,
exhibited to a severe degree, there is a substantial risk that the physical health of
the unborn child, and of the child when born, will be seriously affected or endangered
unless the expectant mother is taken into custody. The bill also permits an expectant
mother of an unborn child to be taken into custody under circumstances in which a
law enforcement officer believes on reasonable grounds that there is a substantial
risk that the physical health of the unborn child, and of the child when born, will be
seriously affected or endangered due to the expectant mother's habitual lack of
self-control in the use of alcohol beverages, controlled substances or controlled
substance analogs, exhibited to a severe degree, unless the expectant mother is
taken into custody, or that the expectant mother has violated the terms of a
temporary physical custody order.
The person taking the expectant mother into custody must make every effort
to release the expectant mother to an adult relative or friend of the expectant mother
or under her own supervision, but, if the expectant mother is not released, that
person must deliver the expectant mother to the intake worker. The intake worker
must also make every effort to release the expectant mother, but may decide to hold
the expectant mother in custody if the intake worker determines that there is
probable cause to believe that the expectant mother is within the jurisdiction of the
juvenile court and that, if the expectant mother is not held, there is a substantial risk
that the physical health of the unborn child, and of the child when born, will be
seriously affected or endangered by the expectant mother's habitual lack of
self-control in the use of alcohol beverages, controlled substances or controlled
substance analogs, exhibited to a severe degree.
Under the bill, an expectant mother of an unborn child may be held in custody
in the home of an adult relative or friend of the expectant mother; a hospital or a
physician's office, if the unborn child or expectant mother is suffering from a serious
physical condition that requires prompt diagnosis or treatment; or a treatment
facility, if the expectant mother is believed to be mentally ill, drug dependent or
intoxicated and dangerous to herself, others, the unborn child or the child when born.
An expectant mother who is held in custody and who is not released must have a
hearing within 48 hours, excluding Saturdays, Sundays and holidays, after the
decision to held the expectant mother in custody was made to determine whether she
should continue to be held in custody.
Procedures
Under current law, the children's code specifies the procedures governing a
child who is referred to the juvenile court as in need of protection or services. Those
procedures govern the intake inquiry by the intake worker, which may include
administering a multidisciplinary screen for alcohol or other drug abuse or entering
into an informal disposition rather than referring the case to the district attorney for
the filing of a petition; the authority to file, and the form and content of, a petition
alleging the child to be in need of protection or services; the issuing of summonses
and notices of hearings on such a petition; prehearing procedures such as
substitution of a judge, discovery, motions and physical, psychological, mental or
developmental examinations; procedures at hearings on the petition, that is, the plea
hearing, the fact-finding hearing and the dispositional hearing; delays,
continuances and extensions; and the entering into of a consent decree rather than
proceeding to disposition. This bill applies the procedures under current law
governing a child alleged to be in need of protection or services to the expectant
mother of an unborn child alleged to be in need of protection or services.
Duties and authority
Under current law, DHFS is required to promote the enforcement of laws for the
protection of children in need of protection or services. This bill extends that duty
to unborn children in need of protection or services.
Under current law, county departments have authority to investigate the
conditions surrounding children in need of protection or services and to take every
reasonable action within their powers to secure for them the full benefit of all laws
enacted for their benefit. This bill extends that authority to include unborn children
in need of protection or services.
Under current law, the child abuse and neglect prevention board awards grants
and performs other duties to promote the prevention of child abuse and neglect. This
bill extends the duties of the board to include the prevention of unborn child abuse.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB463, s. 1
1Section
1. 15.195 (4) (g) of the statutes is amended to read:
AB463,8,122
15.195
(4) (g) Eight public members appointed by the governor for staggered
33-year terms. Six of the public members shall be appointed on the basis of expertise,
4experience and interest in the prevention of child abuse and neglect or
in the
5prevention of unborn child abuse or on the basis of expertise and experience in
6intervention in cases of child abuse and neglect
or unborn child abuse. One public
7member shall be an adult who was a victim of abuse or neglect as a child
or of abuse
8as an unborn child. One public member shall be a parent who formerly abused or
9neglected one or more of his or her children
, or who formerly abused one or more of
10her unborn children, and who has received treatment or advice from an organization
11that provides child abuse and neglect
or unborn child abuse prevention and
12intervention services.
AB463, s. 2
1Section
2. 38.24 (1s) of the statutes is amended to read:
AB463,9,62
38.24
(1s) Additional fees. A district board may establish and charge a fee in
3addition to the fees under sub. (1m) for a court-approved alcohol or other drug abuse
4education program offered to individuals under s. 48.245 (2) (a) 4., 48.345 (13) (b),
548.347 (4) (b), 938.245 (2) (a) 4., 938.32 (1g) (b), 938.34 (6r) (b) or (14s) (b) 3., 938.343
6(10) (c) or 938.344 (2g) (a).
AB463, s. 3
7Section
3. 46.001 of the statutes is amended to read:
AB463,9,17
846.001 Purposes of chapter. The purposes of this chapter are to conserve
9human resources in Wisconsin; to provide a just and humane program of services to
10children
and unborn children in need of protection or services
and, nonmarital
11children
and the expectant mothers of those unborn children; to prevent dependency,
12mental illness, developmental disability, mental infirmity and other forms of social
13maladjustment by a continuous attack on causes; to provide effective aid and services
14to all persons in need thereof and to assist those persons to achieve or regain
15self-dependence at the earliest possible date; to avoid duplication and waste of effort
16and money on the part of public and private agencies; and to coordinate and integrate
17a social welfare program.
AB463, s. 4
18Section
4. 46.03 (7) (a) of the statutes is amended to read:
AB463,9,2519
46.03
(7) (a) Promote the enforcement of laws for the protection of
20developmentally disabled children, children
and unborn children in need of
21protection or services and nonmarital children; and to this end cooperate with courts
22assigned to exercise jurisdiction under chs. 48 and 938
and
, licensed child welfare
23agencies and
public and private institutions
(public and private) and take the
24initiative in all matters involving the interests of
such those children
where and
25unborn children when adequate provision
therefor
for those interests has not
1already been made, including the establishment and enforcement of standards for
2services provided under
s. ss. 48.345
and 48.347.
AB463, s. 5
3Section
5. 46.40 (7m) of the statutes is amended to read:
AB463,10,174
46.40
(7m) Use by county of community aids funds to pay private attorneys
5for certain proceedings under the children's code. Upon application by a county
6department under s. 46.215, 46.22 or 46.23 to the department for permission to use
7funds allocated to that county department under sub. (2) to employ private counsel
8for the purposes specified in this subsection and a determination by the department
9that use of funds for those purposes does not affect any federal grants or federal
10funding allocated under this section, the department and the county department
11shall execute a contract authorizing the county department to expend, as agreed
12upon in the contract, funds allocated to that county department under sub. (2) to
13permit the county department to employ private counsel to represent the interests
14of the state or county in proceedings under ch. 48 relating to child abuse or neglect
15cases
, unborn child abuse cases, proceedings to terminate parental rights and any
16ch. 48 cases or proceedings involving the Indian child welfare act,
25 USC 1901 to
171963.
AB463, s. 6
18Section
6. 46.51 (title) of the statutes is amended to read:
AB463,10,19
1946.51 (title)
Child abuse and neglect
and unborn child abuse services.