LRB-2158/2
GMM:kaf:km
1997 - 1998 LEGISLATURE
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
1An Act to repeal 48.345 (11) and 48.357 (4m);
to renumber 938.368;
to amend
248.06 (4), 48.067 (6), 48.10, 48.13 (11m), 48.13 (13), 48.185 (1), 48.245 (4), 48.245
3(7), 48.357 (1), 48.357 (2m), 48.363 (1m), 48.365 (2g) (a), 48.365 (2m) (ag), 48.365
4(7), 48.368 (2) (intro.), 48.396 (1), 48.415 (4) (a), 48.415 (8), 48.42 (2) (d), 48.427
5(1m), 48.48 (title) and (intro.), 48.977 (1), 48.977 (3), 252.15 (5) (a) 19., 767.53
6(1) (c) (intro.), 767.53 (1) (c) 2., 767.53 (1) (c) 3., 767.53 (1) (c) 5., 938.067 (6),
7938.10, 938.245 (4), 938.245 (7) (a), 938.245 (7) (b), 938.27 (5), 938.357 (1),
8938.357 (2m), 938.363 (1m), 938.365 (2m) (ag) and 938.396 (1);
to create 48.42
9(1m) (d), 48.42 (2g), 938.368 (2) and 938.396 (2) (g) of the statutes; and
to affect
101995 Wisconsin Act 275, section
9310 (5) (e) and (f);
relating to: substitute care
11providers of children, termination of parental rights, the appointment of a
1relative of a child as the guardian of the child, paternity determinations and the
2duties 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
1Section
1. 48.06 (4) of the statutes is amended to read:
SB168,5,92
48.06
(4) State aid. State aid to any county for court services under this section
3shall be at the same net effective rate that each county is reimbursed for county
4administration under s. 46.495
, except as provided in s. 301.26. Counties having a
5population of less than 500,000 may use funds received under
ss. s. 46.495 (1) (d)
and
6301.26, including county or federal revenue sharing funds allocated to match funds
7received under s. 46.495 (1) (d), for the cost of providing court attached intake
8services in amounts not to exceed 50% of the cost of providing court attached intake
9services or $30,000 per county per calendar year, whichever is less.
SB168, s. 2
10Section
2. 48.067 (6) of the statutes is amended to read:
SB168,5,1311
48.067
(6) Receive referral information, conduct intake inquiries,
make
12recommendations as to whether request that a petition
should be filed, and enter into
13informal dispositions under policies promulgated under s. 48.06 (1) or (2);
SB168, s. 3
14Section
3. 48.10 of the statutes is amended to read:
SB168,5,19
1548.10 Power of the judge to act as intake worker. The duties of the intake
16worker may be carried out from time to time by the judge at his or her discretion, but
17if a
recommendation request to file a petition is made or an informal disposition is
18entered into, the judge shall be disqualified from participating further in the
19proceedings.
SB168, s. 4
20Section
4. 48.13 (11m) of the statutes is amended to read:
SB168,6,3
148.13
(11m) Who is suffering from an alcohol and other drug abuse
2impairment, exhibited to a severe degree, for which the parent, guardian or legal
3custodian is neglecting, refusing or unable to provide treatment;
or
SB168, s. 5
4Section
5. 48.13 (13) of the statutes is amended to read:
SB168,6,65
48.13
(13) Who has not been immunized as required by s. 252.04 and not
6exempted under s. 252.04 (3)
; or.
SB168, s. 6
7Section
6. 48.185 (1) of the statutes is amended to read:
SB168,6,158
48.185
(1) Subject to sub. (2), venue for any proceeding under ss. 48.13, 48.135
9and 48.14 (1) to (9) may be in any of the following: the county where the child resides
, 10or the county where the child is present
or, in the case of a violation of a state law or
11a county, town or municipal ordinance, the county where the violation occurred.
12Venue for proceedings brought under subch. VIII is as provided in this subsection
13except where the child has been placed and is living outside the home of the child's
14parent pursuant to a dispositional order, in which case venue is as provided in sub.
15(2). Venue for a proceeding under s. 48.14 (10) is as provided in s. 801.50 (5s).
SB168, s. 7
16Section
7. 48.245 (4) of the statutes is amended to read:
SB168,6,2417
48.245
(4) The intake worker shall inform the child and the child's parent,
18guardian and legal custodian in writing of their right to terminate the informal
19disposition at any time or object at any time to the fact or terms of the informal
20disposition. If an objection arises the intake worker may alter the terms of the
21agreement or
recommend to request the district attorney or corporation counsel
that 22to file a petition
be filed. If the informal disposition is terminated the intake worker
23may
recommend to request the district attorney or corporation counsel
that to file a
24petition
be filed.
SB168, s. 8
25Section
8. 48.245 (7) of the statutes is amended to read:
SB168,7,8
148.245
(7) If at any time during the period of informal disposition the intake
2worker determines that the obligations imposed under it are not being met, the
3intake worker may cancel the informal disposition. Within 10 days after the
4cancellation of the informal disposition, the intake worker shall notify the district
5attorney, corporation counsel or other official under s. 48.09 of the cancellation and
6recommend whether or not request that a petition
should be filed. The judge shall
7dismiss with prejudice any petition which is not filed within the time limit specified
8in this subsection.
SB168, s. 9
9Section
9. 48.345 (11) of the statutes is repealed.
SB168, s. 10
10Section
10. 48.357 (1) of the statutes is amended to read:
SB168,8,611
48.357
(1) The person or agency primarily responsible for implementing the
12dispositional order, the district attorney or the corporation counsel may request a
13change in the placement of the child, whether or not the change requested is
14authorized in the dispositional order and shall cause written notice to be sent to the
15child or the child's counsel or guardian ad litem, parent, foster parent, treatment
16foster parent or other physical custodian described in s. 48.62 (2), guardian and legal
17custodian. The notice shall contain the name and address of the new placement, the
18reasons for the change in placement, a statement describing why the new placement
19is preferable to the present placement and a statement of how the new placement
20satisfies objectives of the treatment plan ordered by the court. Any person receiving
21the notice under this subsection or notice of the specific foster or treatment foster
22placement under s. 48.355 (2) (b) 2. may obtain a hearing on the matter by filing an
23objection with the court within 10 days of receipt of the notice. Placements shall not
24be changed until 10 days after such notice is sent to the court unless the parent,
25guardian or legal custodian and the child, if 12 or more years of age, sign written
1waivers of objection, except that placement changes which were authorized in the
2dispositional order may be made immediately if notice is given as required in this
3subsection. In addition, a hearing is not required for placement changes authorized
4in the dispositional order except where an objection filed by a person who received
5notice alleges that new information is available which affects the advisability of the
6court's dispositional order.
SB168,8,14
7(2r) If a hearing is held under
this subsection sub. (1) or (2m) and the change
8in placement would remove a child from a foster home, treatment foster home or
9other placement with a physical custodian described in s. 48.62 (2), the court shall
10permit the foster parent, treatment foster parent or other physical custodian
11described in s. 48.62 (2) to make a written or oral statement during the hearing or
12to submit a written statement prior to the hearing, relating to the child and the
13requested change in placement.
Any written or oral statement made under this
14subsection shall be made under oath or affirmation.
SB168, s. 11
15Section
11. 48.357 (2m) of the statutes is amended to read:
SB168,9,1416
48.357
(2m) The child, the parent, guardian or legal custodian of the child or
17any person or agency primarily bound by the dispositional order, other than the
18person or agency responsible for implementing the order, may request a change in
19placement under this subsection. The request shall contain the name and address
20of the place of the new placement requested and shall state what new information
21is available which affects the advisability of the current placement. This request
22shall be submitted to the court. In addition, the court may propose a change in
23placement on its own motion. The court shall hold a hearing on the matter prior to
24ordering any change in placement under this subsection if the request states that
25new information is available which affects the advisability of the current placement,
1unless written waivers of objection to the proposed change in placement are signed
2by all parties entitled to receive notice under sub. (1) and the court approves. If a
3hearing is scheduled, the court shall notify the child, the parent, guardian and legal
4custodian of the child, any foster parent, treatment foster parent or other physical
5custodian described in s. 48.62 (2) of the child and all parties who are bound by the
6dispositional order at least 3 days prior to the hearing. A copy of the request or
7proposal for the change in placement shall be attached to the notice. If all the parties
8consent, the court may proceed immediately with the hearing.
If a hearing is held
9under this subsection and the change in placement would remove a child from a
10foster home, treatment foster home or other placement with a physical custodian
11described in s. 48.62 (2), the court shall permit the foster parent, treatment foster
12parent or other physical custodian described in s. 48.62 (2) to make a written or oral
13statement during the hearing or to submit a written statement prior to the hearing,
14relating to the child and the requested change in placement.
SB168, s. 12
15Section
12. 48.357 (4m) of the statutes is repealed.
SB168, s. 13
16Section
13. 48.363 (1m) of the statutes is amended to read:
SB168,9,2317
48.363
(1m) If a hearing is held under sub. (1), any party may present evidence
18relevant to the issue of revision of the dispositional order. In addition, the court shall
19permit a foster parent, treatment foster parent or other physical custodian described
20in s. 48.62 (2) of the child to make a written or oral statement during the hearing, or
21to submit a written statement prior to the hearing, relevant to the issue of revision.
22Any written or oral statement made under this subsection shall be made under oath
23or affirmation.
SB168, s. 14
24Section
14. 48.365 (2g) (a) of the statutes is amended to read:
SB168,10,5
148.365
(2g) (a) At the hearing the person or agency primarily responsible for
2providing services to the child shall file with the court a written report stating to
3what extent the dispositional order has been meeting the objectives of the plan for
4the child's rehabilitation or care and treatment.
The juvenile offender review
5program may file a written report regarding any child examined by the program.
SB168, s. 15
6Section
15. 48.365 (2m) (ag) of the statutes is amended to read:
SB168,10,127
48.365
(2m) (ag) In addition to any evidence presented under par. (a), the court
8shall permit a foster parent, treatment foster parent or other physical custodian
9described in s. 48.62 (2) of the child to make a written or oral statement during the
10hearing, or to submit a written statement prior to the hearing, relevant to the issue
11of extension.
Any written or oral statement made under this paragraph shall be
12made under oath or affirmation.
SB168, s. 16
13Section
16. 48.365 (7) of the statutes is amended to read:
SB168,10,1614
48.365
(7) Nothing in this section may be construed to allow any changes in
15placement.
Revocation and other changes Changes in placement may take place only
16under s. 48.357.
SB168, s. 17
17Section
17. 48.368 (2) (intro.) of the statutes is amended to read:
SB168,10,2318
48.368
(2) (intro.) If a child's placement with a guardian appointed under s.
1948.977 (2) is designated by the court under s. 48.977 (3) as a permanent foster
home 20or treatment foster home placement for the child while a dispositional order under
21s. 48.345, a revision order under s. 48.363 or an extension order under s. 48.365 is
22in effect with respect to the child, such dispositional order, revision order or extension
23order shall remain in effect until the earliest of the following:
SB168, s. 18
24Section
18. 48.396 (1) of the statutes is amended to read:
SB168,11,10
148.396
(1) Law enforcement officers' records of children shall be kept separate
2from records of adults. Law enforcement officers' records of children shall not be
3open to inspection or their contents disclosed except under sub. (1b)
or, (1d)
or (5) or
4s. 48.293 or by order of the court. This subsection does not apply to the
5representatives of newspapers or other reporters of news who wish to obtain
6information for the purpose of reporting news without revealing the identity of the
7child involved, to the confidential exchange of information between the police and
8officials of the school attended by the child or other law enforcement or social welfare
9agencies or to children 10 years of age or older who are subject to the jurisdiction of
10the court of criminal jurisdiction.
SB168, s. 19
11Section
19. 48.415 (4) (a) of the statutes is amended to read:
SB168,11,1512
48.415
(4) (a) That the parent has been denied periods of physical placement
13by court order in an action affecting the family or has been denied visitation under
14an order under s. 48.345,
48.357, 48.363, 48.365, 938.345,
938.357, 938.363 or
15938.365 containing the notice required by s. 48.356 (2) or 938.356 (2).
SB168, s. 20
16Section
20. 48.415 (8) of the statutes is amended to read:
SB168,11,2517
48.415
(8) Intentional or reckless homicide of parent. Intentional or reckless
18homicide of a parent, which shall be established by proving that a parent of the child
19has been a victim of first-degree intentional homicide in violation of s. 940.01,
20first-degree reckless homicide in violation of s. 940.02 or 2nd-degree intentional
21homicide in violation of s. 940.05
or a crime under federal law or the law of any other
22state that is comparable to a crime specified in this subsection and that the person
23whose parental rights are sought to be terminated has been convicted of that
24intentional or reckless homicide
or crime under federal law or the law of any other
25state as evidenced by a final judgment of conviction.
SB168, s. 21
1Section
21. 48.42 (1m) (d) of the statutes is created to read:
SB168,12,52
48.42
(1m) (d) A temporary order under par. (b) or an injunction under par. (c)
3suspends the portion of any order under s. 48.345, 48.363, 48.365, 938.345, 938.363
4or 938.365 setting rules of parental visitation until the termination of the temporary
5order under par. (b) or injunction under par. (c).
SB168, s. 22
6Section
22. 48.42 (2) (d) of the statutes is amended to read:
SB168,12,97
48.42
(2) (d) Any other person to whom notice is required to be given by ch. 822,
8excluding foster parents and treatment foster parents
who shall be provided notice
9as required under sub. (2g).
SB168, s. 23
10Section
23. 48.42 (2g) of the statutes is created to read:
SB168,12,2211
48.42
(2g) Notice required. (a) In addition to causing the summons and
12petition to be served as required under sub. (2), the petitioner shall also notify any
13foster parent, treatment foster parent or other physical custodian described in s.
1448.62 (2) of the child of all hearings on the petition. The first notice to any foster
15parent, treatment foster parent or other physical custodian described in s. 48.62 (2)
16shall be written, shall have a copy of the petition attached to it, shall state the nature,
17location, date and time of the initial hearing and shall be mailed to the last-known
18address of the foster parent, treatment foster parent or other physical custodian
19described in s. 48.62 (2). Thereafter, notice of hearings may be given by telephone
20at least 72 hours before the time of the hearing. The person giving telephone notice
21shall place in the case file a signed statement of the time notice was given and the
22person to whom he or she spoke.
SB168,13,623
(b) Failure to give notice under par. (a) to a foster parent, treatment foster
24parent or other physical custodian described in s. 48.62 (2) does not deprive the court
25of jurisdiction in the proceeding. If a foster parent, treatment foster parent or other
1physical custodian described in s. 48.62 (2) is not given notice of a hearing under par.
2(a) and if the court is required under s. 48.427 (1m) to permit that person to make
3a written or oral statement during the hearing or to submit a written statement prior
4to the hearing and that person does not make or submit such statement, that person
5may request a rehearing on the matter at any time prior to the entry of an order
6under s. 48.427 (2) or (3). If the request is made, the court shall order a rehearing.
SB168, s. 24
7Section
24. 48.427 (1m) of the statutes is amended to read:
SB168,13,128
48.427
(1m) In addition to any evidence presented under sub. (1), the court
9shall permit the foster parent, treatment foster parent or other physical custodian
10described in s. 48.62 (2) of the child to make a written or oral statement during the
11fact-finding or dispositional hearing or to submit a written statement prior to
12disposition, relevant to the issue of disposition.
SB168, s. 25
13Section
25. 48.48 (title) and (intro.) of the statutes are amended to read:
SB168,13,15
1448.48 (title)
Authority of department
of health and family services.
15(intro.) The department
of health and family services shall have authority:
SB168, s. 26
16Section
26. 48.977 (1) of the statutes is amended to read:
SB168,13,1817
48.977
(1) Definition. In this section, "relative" means a relative as defined
18in s. 48.02 (15) or
as a person specified in s.
49.19 (1) (a) 2. a 48.57 (3m) (a).