SB168: Bill Text

LRB-2158/2

GMM:kaf:km

1997 - 1998 LEGISLATURE

1997 Senate BILL 168

April 16, 1997 - Introduced by Senators Huelsman, C. Potter, Panzer, Buettner, Rosenzweig, Farrow and Weeden, cosponsored by Representatives Krug, Huebsch, Plouff, Freese, Ryba, Goetsch, Hanson, Ladwig, Ziegelbauer, M. Lehman, Boyle, Musser, Seratti and Sykora. Referred to Committee on Judiciary, Campaign Finance Reform and Consumer Affairs.

SB168,2,2 An Act to repeal 48.345 (11) and 48.357 (4m); to renumber 938.368; to amend 48.06 (4), 48.067 (6), 48.10, 48.13 (11m), 48.13 (13), 48.185 (1), 48.245 (4), 48.245 (7), 48.357 (1), 48.357 (2m), 48.363 (1m), 48.365 (2g) (a), 48.365 (2m) (ag), 48.365 (7), 48.368 (2) (intro.), 48.396 (1), 48.415 (4) (a), 48.415 (8), 48.42 (2) (d), 48.427 (1m), 48.48 (title) and (intro.), 48.977 (1), 48.977 (3), 252.15 (5) (a) 19., 767.53 (1) (c) (intro.), 767.53 (1) (c) 2., 767.53 (1) (c) 3., 767.53 (1) (c) 5., 938.067 (6), 938.10, 938.245 (4), 938.245 (7) (a), 938.245 (7) (b), 938.27 (5), 938.357 (1), 938.357 (2m), 938.363 (1m), 938.365 (2m) (ag) and 938.396 (1); to create 48.42 (1m) (d), 48.42 (2g), 938.368 (2) and 938.396 (2) (g) of the statutes; and to affect 1995 Wisconsin Act 275, section 9310 (5) (e) and (f); relating to: substitute care providers of children, termination of parental rights, the appointment of a relative of a child as the guardian of the child, paternity determinations and the duties of juvenile court intake workers.

Analysis by the Legislative Reference Bureau

This bill makes various changes relating to a foster parent or treatment foster parent of a child or a relative or guardian of a child who is providing care and maintenance for the child (substitute care provider), termination of parental rights (TPR), the appointment of a relative of a child as the guardian of the child, paternity determinations and the duties of an intake worker of the court assigned to exercise jurisdiction under the children's code and the juvenile justice code (juvenile court).

Substitute care providers

Under current law, a substitute care provider may, subject to certain exceptions, be present at any hearing under the children's code or the juvenile justice code involving the child and may make a written or oral statement during a change in placement, revision of dispositional order, extension of dispositional order or TPR fact-finding or dispositional hearing or submit a statement prior to such a hearing relevant to the issue of the hearing. Current law requires the juvenile court to notify a child's substitute care provider of all hearings involving the child in a proceeding on a petition alleging that the child is delinquent, has violated a civil law or ordinance or is in need of protection or services. Currently, failure to give that notice to a substitute care provider does not deprive the juvenile court of jurisdiction, but if the hearing is a hearing at which the substitute care provider may make a statement, the substitute care provider may request a rehearing.

This bill requires the juvenile court to notify a child's substitute care provider of all hearings on a TPR petition involving the child and permits a substitute care provider who is not provided notice of a TPR dispositional hearing to request a rehearing at any time prior to the entry of an order either dismissing the petition or granting the TPR. The bill also eliminates the requirement that the juvenile court permit a substitute care provider to make a statement at, or submit a statement prior to, a TPR fact-finding hearing. In addition, the bill requires any statement made by a substitute care provider at or prior to a hearing under the children's code or the juvenile justice code to be made under oath or affirmation.

Under current law, subject to certain exceptions, the results of a test for the presence of the human immunodeficiency virus (HIV) are confidential and may not be disclosed unless specifically authorized by the individual who is the subject of the test. Current law, however, permits the disclosure of those test results to a child's substitute care provider. This bill permits a juvenile's HIV test results to be disclosed to a secured correctional facility in which the juvenile is placed.

Termination of parental rights

Under current law, a person filing a petition for involuntary TPR may also petition the juvenile court for a temporary order and injunction prohibiting the person whose parental rights are sought to be terminated from visiting or contacting the child who is the subject of the TPR petition. Under current law, a dispositional order for a child in need of protection or services under the children's code (CHIPS), a juvenile in need of protection or services under the juvenile justice code (JIPS) or a juvenile who has been adjudged delinquent may also contain reasonable rules of parental visitation. This bill provides that a temporary order or injunction prohibiting a parent from visiting or contacting a child who is the subject of a TPR proceeding suspends the portion of any CHIPS, JIPS or delinquency order setting rules of parental visitation until the termination of the temporary order or injunction.

Under current law, intentional or reckless homicide by a parent of a child's other parent is a ground for involuntary TPR. That ground must be established by proving that a parent of the child has been a victim of first-degree intentional or reckless homicide or 2nd-degree intentional homicide under the law of this state and that the person whose parental rights are sought to be terminated has been convicted of that homicide. This bill expands that ground for involuntary TPR by including under that ground not only first-degree intentional or reckless homicide or 2nd-degree intentional homicide of a parent under the law of this state, but also homicide under federal law or the law of another state that is comparable to such intentional or reckless homicide under the law of this state.

Under current law, continuing denial of visitation under a CHIPS or a JIPS dispositional order, change in placement order, revision of dispositional order or extension of dispositional order is a ground for involuntary TPR. This bill eliminates continuing denial of visitation under a CHIPS or JIPS change in placement order as a grounds for involuntary TPR.

Relative guardianship

Current law permits the juvenile court to appoint a relative of a child as the guardian of the child if the juvenile court makes certain findings, including a finding that the child has been found to be in need of protection or services and has been placed, or continued in a placement, outside of his or her home for a cumulative total of one year or longer. Currently, if the juvenile court appoints a relative of such a child as the guardian of the child, the juvenile court may designate the child's placement with the relative as the child's permanent foster home placement. Current law also provides that if a child's placement with a relative is designated as the child's permanent foster or treatment foster home placement while a CHIPS dispositional order, revision order or extension order is in effect with respect to the child, the dispositional, revision or extension order remains in effect until 30 days after the guardianship terminates, a change in placement order is entered, the dispositional order, revision order or extension order is terminated or the child attains 18 years of age.

This bill eliminates the reference to a permanent treatment foster home placement in the provision relating to the length of a dispositional, revision or extension order when a child's placement with a relative is designated as the child's permanent placement. The bill also extends the provision relating to the length of a CHIPS dispositional, revision or extension order when a child's placement with a relative is designated as the child's permanent placement to a JIPS dispositional, revision or extension order. In addition, the bill changes the definition of "relative" for purposes of the law permitting a juvenile court to appoint a relative of a child in need of protection or services as the guardian of the child so that, for purposes of that law, "relative" is defined by reference to the relatives who are eligible to receive kinship care payments under the Wisconsin works (W-2) program rather than by reference to the relatives who are eligible to receive payments as nonlegally responsible relatives under the aid to families with dependent children (AFDC) program.

Paternity determinations

Under current law, subject to certain exceptions, records of the proceedings of the court assigned to exercise jurisdiction in actions affecting the family (family court) relating to a paternity determination must be placed in a closed file. Current law, however, permits those records to be disclosed to certain persons if the child is the subject of a proceeding under the children's code. This bill permits records of the family court relating to a paternity determination to be disclosed to certain persons if the juvenile is the subject of a proceeding under the juvenile justice code.

Under current law, subject to certain exceptions, the records of the juvenile court are not open to inspection and their contents may not be disclosed. Current law, however, permits the juvenile court to open to certain requesters its records from a proceeding under the children's code relating to the paternity of a child who is the subject of a paternity determination proceeding in family court. This bill permits the juvenile court to open to certain requesters its records from a proceeding under the juvenile justice code relating to the paternity of a juvenile who is the subject of a paternity determination proceeding in family court.

Duties of intake workers

Finally, under current law, information indicating that a child should be referred to the juvenile court as delinquent, in need of protection or services or in violation of a civil law or ordinance must be referred to the juvenile court intake worker who must conduct an intake inquiry to determine whether the available facts establish jurisdiction and to determine the best interests of the child and the public with regard to any action to be taken. Currently, if the intake worker determines that the child should be referred to the juvenile court, the intake worker must request that the district attorney, corporation counsel or other representative of the public interest file a petition. Current law, however, when describing the general powers and duties of an intake worker, the powers of a judge to act as an intake worker, the duty of an intake worker when a parent or child objects to the terms of an informal disposition or deferred prosecution agreement and the duty of an intake worker when an informal disposition or deferred prosecution agreement is cancelled, requires an intake worker or judge acting as an intake worker to recommend, rather than request, that a petition be filed. This bill requires an intake worker or judge acting as an intake worker to request, not recommend, that a petition be filed in those cases.

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:

SB168, s. 1 Section 1. 48.06 (4) of the statutes is amended to read:

SB168,5,9 48.06 (4) State aid. State aid to any county for court services under this section shall be at the same net effective rate that each county is reimbursed for county administration under s. 46.495, except as provided in s. 301.26. Counties having a population of less than 500,000 may use funds received under ss. s. 46.495 (1) (d) and 301.26, including county or federal revenue sharing funds allocated to match funds received under s. 46.495 (1) (d), for the cost of providing court attached intake services in amounts not to exceed 50% of the cost of providing court attached intake services or $30,000 per county per calendar year, whichever is less.

SB168, s. 2 Section 2. 48.067 (6) of the statutes is amended to read:

SB168,5,13 48.067 (6) Receive referral information, conduct intake inquiries, make recommendations as to whether request that a petition should be filed, and enter into informal dispositions under policies promulgated under s. 48.06 (1) or (2);

SB168, s. 3 Section 3. 48.10 of the statutes is amended to read:

SB168,5,19 48.10 Power of the judge to act as intake worker. The duties of the intake worker may be carried out from time to time by the judge at his or her discretion, but if a recommendation request to file a petition is made or an informal disposition is entered into, the judge shall be disqualified from participating further in the proceedings.

SB168, s. 4 Section 4. 48.13 (11m) of the statutes is amended to read:

SB168,6,3 48.13 (11m) Who is suffering from an alcohol and other drug abuse impairment, exhibited to a severe degree, for which the parent, guardian or legal custodian is neglecting, refusing or unable to provide treatment; or

SB168, s. 5 Section 5. 48.13 (13) of the statutes is amended to read:

SB168,6,6 48.13 (13) Who has not been immunized as required by s. 252.04 and not exempted under s. 252.04 (3); or.

SB168, s. 6 Section 6. 48.185 (1) of the statutes is amended to read:

SB168,6,15 48.185 (1) 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, or 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).

SB168, s. 7 Section 7. 48.245 (4) of the statutes is amended to read:

SB168,6,24 48.245 (4) The intake worker shall inform the child and the child's parent, guardian and legal custodian in writing of their right to terminate the informal disposition at any time or object at any time to the fact or terms of the informal disposition. If an objection arises the intake worker may alter the terms of the agreement or recommend to request the district attorney or corporation counsel that to file a petition be filed. If the informal disposition is terminated the intake worker may recommend to request the district attorney or corporation counsel that to file a petition be filed.

SB168, s. 8 Section 8. 48.245 (7) of the statutes is amended to read:

SB168,7,8 48.245 (7) If at any time during the period of informal disposition the intake worker determines that the obligations imposed under it are not being met, the intake worker may cancel the informal disposition. Within 10 days after the cancellation of the informal disposition, the intake worker shall notify the district attorney, corporation counsel or other official under s. 48.09 of the cancellation and recommend whether or not request that a petition should be filed. The judge shall dismiss with prejudice any petition which is not filed within the time limit specified in this subsection.

SB168, s. 9 Section 9. 48.345 (11) of the statutes is repealed.

SB168, s. 10 Section 10. 48.357 (1) of the statutes is amended to read:

SB168,8,6 48.357 (1) The person or agency primarily responsible for implementing the dispositional order, the district attorney or the corporation counsel may request a change in the placement of the child, whether or not the change requested is authorized in the dispositional order and shall cause written notice to be sent to the child or the child's counsel or guardian ad litem, parent, foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2), guardian and legal custodian. The notice shall contain the name and address of the new placement, the reasons for the change in placement, a statement describing why the new placement is preferable to the present placement and a statement of how the new placement satisfies objectives of the treatment plan ordered by the court. Any person receiving the notice under this subsection or notice of the specific foster or treatment foster placement under s. 48.355 (2) (b) 2. may obtain a hearing on the matter by filing an objection with the court within 10 days of receipt of the notice. Placements shall not be changed until 10 days after such notice is sent to the court unless the parent, guardian or legal custodian and the child, if 12 or more years of age, sign written waivers of objection, except that placement changes which were authorized in the dispositional order may be made immediately if notice is given as required in this subsection. In addition, a hearing is not required for placement changes authorized in the dispositional order except where an objection filed by a person who received notice alleges that new information is available which affects the advisability of the court's dispositional order.

SB168,8,14 (2r) If a hearing is held under this subsection sub. (1) or (2m) and the change in placement would remove a child from a foster home, treatment foster home or other placement with a physical custodian described in s. 48.62 (2), the court shall permit the foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) to make a written or oral statement during the hearing or to submit a written statement prior to the hearing, relating to the child and the requested change in placement. Any written or oral statement made under this subsection shall be made under oath or affirmation.

SB168, s. 11 Section 11. 48.357 (2m) of the statutes is amended to read:

SB168,9,14 48.357 (2m) The child, the parent, guardian or legal custodian of the child or any person or agency primarily bound by the dispositional order, other than the person or agency responsible for implementing the order, may request a change in placement under this subsection. The request shall contain the name and address of the place of the new placement requested and shall state what new information is available which affects the advisability of the current placement. This request shall be submitted to the court. In addition, the court may propose a change in placement on its own motion. The court shall hold a hearing on the matter prior to ordering any change in placement under this subsection if the request states that new information is available which affects the advisability of the current placement, unless written waivers of objection to the proposed change in placement are signed by all parties entitled to receive notice under sub. (1) and the court approves. If a hearing is scheduled, the court shall notify the child, the 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 all parties who are bound by the dispositional order at least 3 days prior to the hearing. A copy of the request or proposal for the change in placement shall be attached to the notice. If all the parties consent, the court may proceed immediately with the hearing. If a hearing is held under this subsection and the change in placement would remove a child from a foster home, treatment foster home or other placement with a physical custodian described in s. 48.62 (2), the court shall permit the foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) to make a written or oral statement during the hearing or to submit a written statement prior to the hearing, relating to the child and the requested change in placement.

SB168, s. 12 Section 12. 48.357 (4m) of the statutes is repealed.

SB168, s. 13 Section 13. 48.363 (1m) of the statutes is amended to read:

SB168,9,23 48.363 (1m) If a hearing is held under sub. (1), any party may present evidence relevant to the issue of revision of the dispositional order. In addition, the court shall permit a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) of the child to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, relevant to the issue of revision. Any written or oral statement made under this subsection shall be made under oath or affirmation.

SB168, s. 14 Section 14. 48.365 (2g) (a) of the statutes is amended to read:

SB168,10,5 48.365 (2g) (a) At the hearing the person or agency primarily responsible for providing services to the child shall file with the court a written report stating to what extent the dispositional order has been meeting the objectives of the plan for the child's rehabilitation or care and treatment. The juvenile offender review program may file a written report regarding any child examined by the program.

SB168, s. 15 Section 15. 48.365 (2m) (ag) of the statutes is amended to read:

SB168,10,12 48.365 (2m) (ag) In addition to any evidence presented under par. (a), the court shall permit a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) of the child to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, relevant to the issue of extension. Any written or oral statement made under this paragraph shall be made under oath or affirmation.

SB168, s. 16 Section 16. 48.365 (7) of the statutes is amended to read:

SB168,10,16 48.365 (7) Nothing in this section may be construed to allow any changes in placement. Revocation and other changes Changes in placement may take place only under s. 48.357.

SB168, s. 17 Section 17. 48.368 (2) (intro.) of the statutes is amended to read:

SB168,10,23 48.368 (2) (intro.)  If a child's placement with a guardian appointed under s. 48.977 (2) is designated by the court under s. 48.977 (3) as a permanent foster home or treatment foster home placement for the child while a dispositional order under s. 48.345, a revision order under s. 48.363 or an extension order under s. 48.365 is in effect with respect to the child, such dispositional order, revision order or extension order shall remain in effect until the earliest of the following:

SB168, s. 18 Section 18. 48.396 (1) of the statutes is amended to read:

SB168,11,10 48.396 (1) Law enforcement officers' records of children shall be kept separate from records of adults. Law enforcement officers' records of children shall not be open to inspection or their contents disclosed except under sub. (1b) or, (1d) or (5) or s. 48.293 or by order of the court. This subsection does not apply to the representatives of newspapers or other reporters of news who wish to obtain information for the purpose of reporting news without revealing the identity of the child involved, to the confidential exchange of information between the police and officials of the school attended by the child or other law enforcement or social welfare agencies or to children 10 years of age or older who are subject to the jurisdiction of the court of criminal jurisdiction.

SB168, s. 19 Section 19. 48.415 (4) (a) of the statutes is amended to read: