1999 WISCONSIN ACT 149
An Act to amend 46.481 (4), 48.23 (3m), 48.23 (6), 48.235 (2), 48.27 (3) (a) 1., 48.293 (1), 48.293 (2), 48.295 (2), 48.299 (1) (ag), 48.32 (1), 48.32 (2) (c), 48.355 (2) (d), 48.355 (2e) (c), 48.357 (1), 48.357 (2m), 48.363 (1), 48.365 (2), 48.38 (5) (b), 48.38 (5) (d), 48.38 (5) (e), 48.981 (2), 48.981 (7) (a) 11r. and 118.125 (2) (L); and to create 48.07 (5), 48.236, 48.27 (3) (e), 48.32 (1b) and 48.345 (2r) of the statutes; relating to: court-appointed special advocates for children in need of protection or services.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
46.481 (4) Grants for court-appointed special advocates. The department shall distribute $50,000 in each fiscal year as grants to court-appointed special advocate programs that are recognized by a county board, by a county department under s. 46.22 or 46.23 or, in a county having a population of 500,000 or more, by the department or a licensed child welfare agency under contract with the department chief judge of a judicial administrative district under s. 48.07 (5) to perform advocacy services in proceedings under s. 48.13.
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2. 48.07 (5) of the statutes is created to read:
48.07 (5) Court-appointed special advocate program. (a) Memorandum of understanding. The court may obtain the services of a court-appointed special advocate program that has been recognized by the chief judge of the judicial administrative district. A chief judge of a judicial administrative district may recognize a court-appointed special advocate program by entering into a memorandum of understanding with the court-appointed special advocate program that specifies the responsibilities of the court-appointed special advocate program and of a court-appointed special advocate designated under s. 48.236 (1). The memorandum of understanding shall specify that the court-appointed special advocate program is responsible for selecting, training, supervising and evaluating the volunteers and employes of the program who are authorized to provide court-appointed special advocate services as provided in pars. (b) to (d), that, in addition to any other activities specified in the memorandum of understanding, a volunteer or employe of the program who is authorized to provide court-appointed special advocate services may be designated to perform any of the activities specified in s. 48.236 (3) (a) to (c) and that, in addition to any other authority specified in the memorandum of understanding, a volunteer or employe of the program who is authorized to provide court-appointed special advocate services may be authorized to exercise any of the authority specified in s. 48.236 (4) (a) and (b), unless the parties to the memorandum of understanding determine that a variance from the requirements of pars. (b) to (d), the activities specified in s. 48.236 (3) (a) to (c) or the authority specified in s. 48.236 (4) (a) and (b) is necessary for the efficient administration of the program.
(b) Selection. 1. A court-appointed special advocate program may select a person to provide court-appointed special advocate services if the person is 21 years of age or older, demonstrates an interest in the welfare of children, undergoes a satisfactory background investigation as provided under subd. 2., completes the training required under par. (c) and meets any other qualifications required by the court-appointed special advocate program. A court-appointed special advocate program may refuse to permit to provide court-appointed special advocate services any person whose provision of those services might pose a risk, as determined by the court-appointed special advocate program, to the safety of any child.
2. On receipt of an application from a prospective court-appointed special advocate, the court-appointed special advocate program, with the assistance of the department of justice, shall conduct a background investigation of the applicant. If the court-appointed special advocate program determines that any information obtained as a result of the background investigation provides a reasonable basis for further investigation, the court-appointed special advocate program may require the applicant to be fingerprinted on 2 fingerprint cards, each bearing a complete set of the applicant's fingerprints. The department of justice may provide for the submission of the fingerprint cards to the federal bureau of investigation for the purposes of verifying the identification of the applicant and obtaining the applicant's criminal arrest and conviction record. The court-appointed special advocate program shall keep confidential all information received from the department of justice and the federal bureau of investigation under this subdivision.
(c) Training. A court-appointed special advocate program shall require a volunteer or employe of the program selected under par. (b) to complete a training program before the volunteer or employe may be designated as a court-appointed special advocate under s. 48.236 (1). The training program shall include instruction on recognizing child abuse and neglect, cultural competency, as defined in s. 48.982 (1) (bm), child development, the procedures of the court, permanency planning, the activities of a court-appointed special advocate under s. 48.236 (3) and information gathering and documentation, and shall include observation of a proceeding under s. 48.13. A court-appointed special advocate program shall also require each volunteer and employe of the program selected under par. (b) to complete continuing training annually.
(d) Supervision and evaluation. The supervisory support staff of a court-appointed special advocate program shall be easily accessible to the volunteers and employes of the program who are authorized to provide court-appointed special advocate services, shall hold regular case conferences with those volunteers and employes to review case progress and shall conduct annual performance evaluations of those volunteers and employes. A court-appointed special advocate program shall provide its staff and volunteers with written guidelines describing the policies, practices and procedures of the program and the responsibilities of a volunteer or employe of the program who is authorized to provide court-appointed special advocate services.
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3. 48.23 (3m) of the statutes is amended to read:
48.23 (3m) Guardians ad litem or counsel for abused or neglected children. The court shall appoint counsel for any child alleged to be in need of protection or services under s. 48.13 (3), (3m), (10), (10m) and (11), except that if the child is less than 12 years of age the court may appoint a guardian ad litem instead of counsel. The guardian ad litem or counsel for the child shall
may not be the same act as counsel for any other party or any governmental or social agency involved in the proceeding and may not act as court-appointed special advocate for the child in the proceeding.
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4. 48.23 (6) of the statutes is amended to read:
48.23 (6) Definition. For the purposes of this section, "counsel" means an attorney acting as adversary counsel who shall advance and protect the legal rights of the party represented, and who may not act as guardian ad litem or court-appointed special advocate for any party in the same proceeding.
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5. 48.235 (2) of the statutes is amended to read:
48.235 (2) Qualifications. The guardian ad litem shall be an attorney admitted to practice in this state. No person who is an interested party in a proceeding, who appears as counsel or court-appointed special advocate in a proceeding on behalf of any party or who is a relative or representative of an interested party in a proceeding may be appointed guardian ad litem in that proceeding.
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6. 48.236 of the statutes is created to read:
48.236 Court-appointed special advocate. (1) Designation. In any proceeding under s. 48.13 in which the court finds that providing the services of a court-appointed special advocate would be in the best interests of the child, the court may request a court-appointed special advocate program to designate a person who meets the qualifications specified in sub. (2) as a court-appointed special advocate to undertake the activities specified in sub. (3). A court-appointed special advocate does not become a party to the proceeding and, as a nonparty, may not make motions or call or cross-examine witnesses. A designation under this subsection terminates when the jurisdiction of the court over the child under s. 48.13 terminates, unless the court discharges the court-appointed special advocate sooner.
(2) Qualifications. A court-appointed special advocate shall be a volunteer or employe of a court-appointed special advocate program who has been selected and trained as provided in the memorandum of understanding entered into under s. 48.07 (5) (a). No person who is a party in a proceeding, who appears as counsel or guardian ad litem in a proceeding on behalf of any party or who is a relative or representative of a party in a proceeding may be designated as a court-appointed special advocate in that proceeding.
(3) Activities. A court-appointed special advocate may be designated under sub. (1) to perform any of the following activities:
(a) Gather information and make observations about the child for whom the designation is made, the child's family and any other person residing in the same home as the child and provide that information and those observations to the court in the form of written reports or, if requested by the court, oral testimony.
(b) Maintain regular contact with the child for whom the designation is made; monitor the appropriateness and safety of the environment of the child, the extent to which the child and the child's family are complying with any consent decree or dispositional order of the court and with any permanency plan under s. 48.38, and the extent to which any agency that is required to provide services for the child and the child's family under a consent decree, dispositional order or permanency plan is providing those services; and, based on that regular contact and monitoring, provide information to the court in the form of written reports or, if requested by the court, oral testimony.
(c) Promote the best interests of the child.
(d) Undertake any other activities that are consistent with the memorandum of understanding entered into under s. 48.07 (5) (a).
(4) Authority. A court that requests a court-appointed special advocate program to designate a court-appointed special advocate to undertake the activities specified in sub. (3) may include in the order requesting that designation an order authorizing the court-appointed special advocate to do any of the following:
(a) Inspect any reports and records relating to the child who is the subject of the proceeding, the child's family and any other person residing in the same home as the child that are relevant to the subject matter of the proceeding, including records discoverable under s. 48.293, examination reports under s. 48.295 (2), law enforcement reports and records under ss. 48.396 (1) and 938.396 (1), court records under ss. 48.396 (2) (a) and 938.396 (2) (a), social welfare agency records under ss. 48.78 (2) (a) and 938.78 (2) (a), abuse and neglect reports and records under s. 48.981 (7) (a) 11r. and pupil records under s. 118.125 (2) (L). The order shall also require the custodian of any report or record specified in this paragraph to permit the court-appointed special advocate to inspect the report or record on presentation by the court-appointed special advocate of a copy of the order. A court-appointed special advocate that obtains access to a report or record described in this paragraph shall keep the information contained in the report or record confidential and may disclose that information only to the court. If a court-appointed special advocate discloses any information to the court under this paragraph, the court-appointed special advocate shall also disclose that information to all parties to the proceeding. If a court-appointed special advocate discloses information in violation of the confidentiality requirement specified in this paragraph, the court-appointed special advocate is liable to any person damaged as a result of that disclosure for such damages as may be proved and, notwithstanding s. 814.04 (1), for such costs and reasonable actual attorney fees as may be incurred by the person damaged.
(b) Observe the child who is the subject of the proceeding and the child's living environment and, if the child is old enough to communicate, interview the child; interview the parent, guardian, legal custodian or other caregiver of the child who is the subject of the proceeding and observe that person's living environment; and interview any other person who might possess any information relating to the child and the child's family that is relevant to the subject of the proceeding. A court-appointed special advocate may observe or interview the child at any location without the permission of the child's parent, guardian, legal custodian or other caregiver if necessary to obtain any information that is relevant to the subject of the proceeding, except that a court-appointed special advocate may enter a child's home only with the permission of the child's parent, guardian, legal custodian or other caregiver or after obtaining a court order permitting the court-appointed special advocate to do so. A court-appointed special advocate who obtains any information under this paragraph shall keep the information confidential and may disclose that information only to the court. If a court-appointed special advocate discloses any information to the court under this paragraph, the court-appointed special advocate shall also disclose that information to all parties to the proceeding. If a court-appointed special advocate discloses information in violation of the confidentiality requirement specified in this paragraph, the court-appointed special advocate is liable to any person damaged as a result of that disclosure for such damages as may be proved and, notwithstanding s. 814.04 (1), for such costs and reasonable actual attorney fees as may be incurred by the person damaged.
(c) Exercise any other authority that is consistent with the memorandum of understanding entered into under s. 48.07 (5) (a).
(5) Immunity from liability. A volunteer court-appointed special advocate designated under sub. (1) or an employe of a court-appointed special advocate program recognized under s. 48.07 (5) is immune from civil liability for any act or omission of the volunteer or employe occurring while acting within the scope of his or her activities and authority as a volunteer court-appointed special advocate or employe of a court-appointed special advocate program.
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7. 48.27 (3) (a) 1. of the statutes is amended to read:
48.27 (3) (a) 1. If the petition that was filed relates to facts concerning a situation under s. 48.13 or a situation under s. 48.133 involving an expectant mother who is a child, the court shall also notify, under s. 48.273, the child, any 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, the unborn child by the unborn child's guardian ad litem, if applicable, and any person specified in par. (b) or
, (d) or (e), if applicable, of all hearings involving the child except hearings on motions for which notice need only be provided to the child and his or her counsel. When parents who are entitled to notice have the same place of residence, notice to one shall constitute notice to the other. The first notice to any interested party, foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) shall be written and may have a copy of the petition attached to it. Thereafter, notice of hearings may be given by telephone at least 72 hours before the time of the hearing. The person giving telephone notice shall place in the case file a signed statement of the time notice was given and the person to whom he or she spoke.
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8. 48.27 (3) (e) of the statutes is created to read:
48.27 (3) (e) If the petition that was filed relates to facts concerning a situation under s. 48.13, the court shall also notify, under s. 48.273, the court-appointed special advocate for the child of all hearings involving the child. The first notice to a court-appointed special advocate shall be written and shall have a copy of the petition attached to it. Thereafter, notice of hearings may be given by telephone at least 72 hours before the time of the hearing. The person giving telephone notice shall place in the case file a signed statement of the time that notice was given and the person to whom he or she spoke.
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9. 48.293 (1) of the statutes is amended to read:
48.293 (1) Copies of all law enforcement officer reports, including but not limited to the officer's memorandum and witnesses' statements, shall be made available upon request to counsel or guardian ad litem for any party and to the court-appointed special advocate for the child prior to a plea hearing. The reports shall be available through the representative of the public designated under s. 48.09. The identity of a confidential informant may be withheld pursuant to s. 905.10.
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10. 48.293 (2) of the statutes is amended to read:
48.293 (2) All records relating to a child, or to an unborn child and the unborn child's expectant mother, which are relevant to the subject matter of a proceeding under this chapter shall be open to inspection by a guardian ad litem or counsel for any party and to inspection by the court-appointed special advocate for the child, upon demand and upon presentation of releases when necessary, at least 48 hours before the proceeding. Persons and unborn children, by their guardians ad litem, entitled to inspect the records may obtain copies of the records with the permission of the custodian of the records or with permission of the court. The court may instruct counsel, a guardian ad litem or a court-appointed special advocate not to disclose specified items in the materials to the child or the parent, or to the expectant mother, if the court reasonably believes that the disclosure would be harmful to the interests of the child or the unborn child.
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11. 48.295 (2) of the statutes is amended to read:
48.295 (2) The examiner shall file a report of the examination with the court by the date specified in the order. The court shall cause copies to be transmitted to the district attorney or corporation counsel, to counsel or guardian ad litem for the child and, if to the court-appointed special advocate for the child. If applicable, the court shall also cause copies to be transmitted to counsel or guardian ad litem for the unborn child and the unborn child's expectant mother. The report shall describe the nature of the examination and identify the persons interviewed, the particular records reviewed and any tests administered to the child or expectant mother. The report shall also state in reasonable detail the facts and reasoning upon which the examiner's opinions are based.
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12. 48.299 (1) (ag) of the statutes is amended to read:
48.299 (1) (ag) In a proceeding other than a proceeding under s. 48.375 (7), if a public hearing is not held, only the parties and their counsel or guardian ad litem, if any the court-appointed special advocate for the child, the child's foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2), witnesses and other persons requested by a party and approved by the court may be present, except that the court may exclude a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) from any portion of the hearing if that portion of the hearing deals with sensitive personal information of the child or the child's family or if the court determines that excluding the foster parent, treatment foster parent or other physical custodian would be in the best interests of the child. Except in a proceeding under s. 48.375 (7), any other person the court finds to have a proper interest in the case or in the work of the court, including a member of the bar, may be admitted by the court.
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13. 48.32 (1) of the statutes is amended to read:
48.32 (1) At any time after the filing of a petition for a proceeding relating to s. 48.13 or 48.133 and before the entry of judgment, the judge or juvenile court commissioner may suspend the proceedings and place the child or expectant mother under supervision in the home or present placement of the child or expectant mother. The court may establish terms and conditions applicable to the child and the child's parent, guardian or legal custodian, to the child expectant mother and her parent, guardian or legal custodian or to the adult expectant mother, including the condition specified in sub. (1b). The order under this section shall be known as a consent decree and must be agreed to by the child if 12 years of age or older, the parent, guardian or legal custodian, and the person filing the petition under s. 48.25; by the child expectant mother, her parent, guardian or legal custodian, the unborn child by the unborn child's guardian ad litem and the person filing the petition under s. 48.25; or by the adult expectant mother, the unborn child by the unborn child's guardian ad litem and the person filing the petition under s. 48.25. The consent decree shall be reduced to writing and given to the parties.
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14. 48.32 (1b) of the statutes is created to read:
48.32 (1b) The judge or juvenile court commissioner may, as a condition under sub. (1), request a court-appointed special advocate program to designate a court-appointed special advocate for the child to perform the activities specified in s. 48.236 (3) that are authorized in the memorandum of understanding under s. 48.07 (5) (a). A court-appointed special advocate designated under this subsection shall have the authority specified in s. 48.236 (4) that is authorized in the memorandum of understanding under s. 48.07 (5) (a).
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15. 48.32 (2) (c) of the statutes is amended to read:
48.32 (2) (c) Upon the motion of the court or the application of the child, parent, guardian, legal custodian, expectant mother, unborn child by the unborn child's guardian ad litem, intake worker or any agency supervising the child or expectant mother under the consent decree, the court may, after giving notice to the parties to the consent decree and, their counsel or guardian ad litem and the court-appointed special advocate for the child, if any, extend the decree for up to an additional 6 months in the absence of objection to extension by the parties to the initial consent decree. If the child, parent, guardian, legal custodian, expectant mother or unborn child by the unborn child's guardian ad litem objects to the extension, the judge shall schedule a hearing and make a determination on the issue of extension. An extension under this paragraph of a consent decree relating to an unborn child who is alleged to be in need of protection or services may be granted after the child is born.
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16. 48.345 (2r) of the statutes is created to read:
48.345 (2r) Place the child as provided in sub. (2) or (2m) and, in addition, request a court-appointed special advocate program to designate a court-appointed special advocate for the child to perform the activities specified in s. 48.236 (3) that are authorized in the memorandum of understanding under s. 48.07 (5) (a). A court-appointed special advocate designated under this subsection shall have the authority specified in s. 48.236 (4) that is authorized in the memorandum of understanding under s. 48.07 (5) (a).
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17. 48.355 (2) (d) of the statutes is amended to read:
48.355 (2) (d) The court shall provide a copy of a dispositional order relating to a child in need of protection or services to the child's parent, guardian or trustee, to the child through the child's counsel or guardian ad litem and to the child's court-appointed special advocate. The court shall provide a copy of a dispositional order relating to an unborn child in need of protection or services to the expectant mother, to the unborn child through the unborn child's guardian ad litem and, if the expectant mother is a child, to her parent, guardian or trustee.
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18. 48.355 (2e) (c) of the statutes is amended to read:
48.355 (2e) (c) Either the court or the agency that prepared the permanency plan shall furnish a copy of the original plan and each revised plan to the child's parent or guardian, to the child or the child's counsel or guardian ad litem, to the child's court-appointed special advocate and to the person representing the interests of the public.
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19. 48.357 (1) of the statutes is amended to read:
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 or expectant mother, whether or not the change requested is authorized in the dispositional order and shall cause written notice to be sent to 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, the child's court-appointed special advocate and, if the child is the expectant mother of an unborn child under s. 48.133, the unborn child by the unborn child's guardian ad litem. If the expectant mother is an adult, written notice shall be sent to the adult expectant mother and the unborn child by the unborn child's guardian ad litem. 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 a specific placement under s. 48.355 (2) (b) 2., other than a court-appointed special advocate, may obtain a hearing on the matter by filing an objection with the court within 10 days after receipt of the notice. Placements may not be changed until 10 days after that notice is sent to the court unless the parent, guardian or legal custodian and the child, if 12 years of age or over, or the child expectant mother, if 12 years of age or over, her parent, guardian or legal custodian and the unborn child by the unborn child's guardian ad litem, or the adult expectant mother and the unborn child by the unborn child's guardian ad litem, 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 when 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.
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20. 48.357 (2m) of the statutes is amended to read:
48.357 (2m) The child, the parent, guardian or legal custodian of the child, the expectant mother, the unborn child by the unborn child's guardian at litem 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 persons entitled to receive notice under sub. (1), other than a court-appointed special advocate, 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, the child's court-appointed special advocate, all parties who are bound by the dispositional order and, if the child is the expectant mother of an unborn child under s. 48.133, the unborn child by the unborn child's guardian ad litem, or shall notify the adult expectant mother, the unborn child by the unborn child's guardian ad litem 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.
