LRB-4256/1
GMM:cmh&wlj:km
1999 - 2000 LEGISLATURE
January 27, 2000 - Introduced by Senator Robson, cosponsored by Representative
Ladwig. Referred to Committee on Judiciary and Consumer Affairs.
SB345,2,3
1An Act to repeal 48.27 (3) (a) 1m., 48.42 (2g) (am) and 938.27 (3) (a) 1m.;
to
2renumber 48.43 (5) (b);
to renumber and amend 48.355 (2b) and 938.355
3(2b);
to amend 20.435 (3) (pm), 48.27 (3) (a) 2., 48.27 (6), 48.355 (2d) (a) 1.,
448.355 (2d) (a) 2., 48.355 (2d) (b) (intro.), 48.355 (2d) (b) 2., 48.355 (2d) (b) 3.,
548.355 (2d) (b) 4., 48.38 (5) (b), 48.42 (2g) (b), 48.427 (1m), 938.27 (3) (a) 2.,
6938.27 (6), 938.355 (2d) (a) 1., 938.355 (2d) (a) 2., 938.355 (2d) (b) (intro.),
7938.355 (2d) (b) 2., 938.355 (2d) (b) 3., 938.355 (2d) (b) 4., 938.365 (1) and 938.38
8(5) (b); and
to create 48.355 (2d) (a) 1d., 48.355 (2d) (a) 1j., 48.355 (2d) (a) 3.,
948.355 (2d) (d), 48.38 (4) (am), 48.43 (5) (b) 2., 938.355 (2d) (a) 1d., 938.355 (2d)
10(a) 1j., 938.355 (2d) (a) 3., 938.355 (2d) (d) and 938.38 (4) (am) of the statutes;
11relating to: the efforts that are required to prevent the removal of a child or
12juvenile from the home or to make it possible for a child or juvenile to return
13safely to his or her home when a juvenile court order places the child or juvenile
14outside of the home and notice and an opportunity to be heard at certain
1proceedings under the children's code and the juvenile justice code by a foster
2parent, treatment foster parent or other substitute care provider of a child or
3juvenile.
Analysis by the Legislative Reference Bureau
Under current law, an order of the court assigned to exercise jurisdiction under
the children's code and the juvenile justice code (juvenile court) that places a child
or juvenile in need of protection or services or a juvenile who has been adjudged
delinquent outside of his or her home must include a finding as to whether the county
department of human services or social services (county department), the
department of health and family services (DHFS), in a county having a population
of 500,000 or more, or the agency primarily responsible for providing services under
a juvenile court order (collectively "agency"), has made reasonable efforts to prevent
the removal of the child or juvenile from the home while assuring that the health and
safety of the child or juvenile are the paramount concerns or, if applicable, has made
reasonable efforts to make it possible for the child or juvenile to return safely to his
or her home, except that a juvenile court is not required to find that those reasonable
efforts have been made with respect to a parent if the juvenile court finds that the
parent has committed certain crimes of homicide against a child of the parent; has
committed battery, sexual assault or physical or sexual abuse resulting in great
bodily harm or substantial bodily harm to the child or juvenile or to another child of
the parent; has had his or her parental rights terminated with respect to another
child; or has subjected the child or juvenile to aggravated circumstances, which are
defined under current law as including criminal abandonment, torture, chronic
abuse and sexual abuse. Current law, in turn, defines sexual abuse as a violation of
certain sex crimes. Current law, however, does not, in turn, define abandonment,
torture or chronic abuse.
This bill defines those terms for purposes of determining when a parent has
subjected a child to aggravated circumstances. Specifically, the bill defines
abandonment as a violation of the criminal law against abandonment or an action
or inaction that results in a finding that a child is in need of protection or services
on the grounds of abandonment. The bill defines chronic abuse as two or more
violations of the criminal laws against battery or physical abuse of a child that result
in bodily harm (as opposed to great bodily harm or substantial bodily harm). The bill
defines torture as a violation of the criminal laws against mayhem or causing mental
harm to a child.
Current law permits an agency, at the same time as the agency is making
reasonable efforts to prevent the removal of a child or juvenile from the home or to
make it possible for a child or juvenile to return to his or her home, to work with
DHFS, or a county department or child welfare agency that is authorized to place
children for adoption, in making reasonable efforts to place the child or juvenile for
adoption, with a guardian or in some other alternative permanent placement
(concurrent reasonable efforts). This bill permits an agency to work with any county
department or child welfare agency, not just one that is authorized to place children
for adoption, in making reasonable efforts to place the child with a guardian or in
some alternative permanent placement. The bill also requires an agency to describe
any concurrent reasonable efforts that were made in the permanency plan of the
child or juvenile or, if no concurrent reasonable efforts were made, the basis for the
decision not to make any concurrent reasonable efforts.
Under current law, a foster parent, treatment foster parent or other physical
custodian (substitute care provider) of a child or juvenile who is the subject of a child
or juvenile in need of protection or services proceeding or of a juvenile who is the
subject of a delinquency proceeding is entitled to receive an opportunity to be heard
at all hearings involving the child or juvenile, except hearings on motions for which
notice need only be provided to the child or juvenile and his or her counsel. A
substitute care provider is also entitled to receive an opportunity to be heard at all
hearings on a terminating parental rights (TPR) proceeding and at all hearings on
certain other matters over which the juvenile court has jurisdiction, such as the
appointment and removal of a guardian of a child, the adoption of a child and
proceedings under the Mental Health Act concerning a child or juvenile.
This bill eliminates the requirement that a substitute care provider receive an
opportunity to be heard at all hearings involving a child or juvenile in need of
protection or services or involving a juvenile who is the subject of a delinquency
proceeding, such as a plea hearing, a fact-finding hearing or a dispositional hearing,
but leaves intact the requirement that a substitute care provider receive an
opportunity to be heard at a change in placement hearing or hearing on a revision
or extension of a dispositional order. Similarly, the bill eliminates the requirement
that a substitute care provider receive an opportunity to be heard at all TPR
hearings, such as a plea hearing or a fact-finding hearing, but leaves intact the
requirement that a substitute care provider receive an opportunity to be heard at a
TPR dispositional hearing. In addition, the bill eliminates the requirement that a
substitute care provider receive an opportunity to be heard at hearings on
proceedings under the children's code or the juvenile justice code other than TPR,
child or juvenile in need of protection or services proceedings and delinquency
proceedings.
The bill, however, requires a substitute care provider to receive an opportunity
to be heard at a hearing to determine the permanency plan for a child or juvenile
when the juvenile court has determined that a parent has subjected the child or
juvenile to aggravated circumstances; has committed certain crimes of homicide,
battery, sexual assault or sexual or physical abuse against a child of the parent; or
has had his or her parental rights terminated with respect to another child of the
parent. In addition, the bill requires a substitute care provider to receive an
opportunity to be heard at the annual permanency plan review for a child whose
parents' parental rights have been terminated, but who has not been adopted.
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:
SB345, s. 1
1Section
1. 20.435 (3) (pm) of the statutes is amended to read:
SB345,4,42
20.435
(3) (pm)
Federal aid; adoption incentive payments. All federal moneys
3received as adoption incentive payments under
42 USC 473A 673b, as authorized by
4the governor under s. 16.54, to be expended for the purposes for which received.
SB345, s. 2
5Section
2. 48.27 (3) (a) 1m. of the statutes is repealed.
SB345, s. 3
6Section
3. 48.27 (3) (a) 2. of the statutes is amended to read:
SB345,4,167
48.27
(3) (a) 2. Failure to give notice under subd. 1. to a foster parent, treatment
8foster parent or other physical custodian described in s. 48.62 (2) does not deprive the
9court of jurisdiction in the action or proceeding. If a foster parent, treatment foster
10parent or other physical custodian described in s. 48.62 (2) is not given notice of a
11hearing under subd. 1.
and if the court is required under this chapter to permit that
12person to make a written or oral statement during the hearing or to submit a written 13statement prior to the hearing and that person does not make or submit such a
14statement, that person may request a rehearing on the matter during the pendency
15of an order resulting from the hearing. If the request is made, the court shall order
16a rehearing.
SB345, s. 4
17Section
4. 48.27 (6) of the statutes is amended to read:
SB345,5,318
48.27
(6) When a proceeding is initiated under s. 48.14, all interested parties
19shall receive notice and appropriate summons shall be issued in a manner specified
20by the court, consistent with applicable governing statutes.
In addition, if the child
21who is the subject of the proceeding is in the care of a foster parent, treatment foster
1parent or other physical custodian described in s. 48.62 (2), the court shall give the
2foster parent, treatment foster parent or other physical custodian notice and an
3opportunity to be heard as provided in sub. (3) (a).
SB345, s. 5
4Section
5. 48.355 (2b) of the statutes is renumbered 48.355 (2b) (intro.) and
5amended to read:
SB345,5,116
48.355
(2b) Concurrent reasonable efforts permitted. (intro.) A county
7department, the department, in a county having a population of 500,000 or more, or
8the agency primarily responsible for providing services to a child under a court order
9may, at the same time as the county department, department or agency is making
10the reasonable efforts required under sub. (2) (b) 6.,
work do one or both of the
11following:
SB345,5,14
12(a) Work with the department, a county department under s. 48.57 (1) (e) or
13(hm) or a child welfare agency licensed under s. 48.61 (5) in making reasonable
14efforts to place the child for adoption
,.
SB345,5,17
15(b) Work with the department, a county department or a child welfare agency
16in making reasonable efforts to place the child with a guardian or in some other
17alternative permanent placement.
SB345, s. 6
18Section
6. 48.355 (2d) (a) 1. of the statutes is amended to read:
SB345,5,2519
48.355
(2d) (a) 1.
"Aggravated circumstances" include abandonment in 20"Abandonment" means a violation of s. 948.20 or
in a violation of the law of any other
21state or federal law if that violation would be a violation of s. 948.20 if committed in
22this state,
torture, chronic abuse and sexual abuse
as evidenced by a final judgment
23of conviction, or an action or inaction that results in a finding of abandonment under
24s. 48.13 (2) or under a law of any other state or a federal law that is comparable to
25s. 48.13 (2), as evidenced by a final order of a court of competent jurisdiction.
SB345, s. 7
1Section
7. 48.355 (2d) (a) 1d. of the statutes is created to read:
SB345,6,32
48.355
(2d) (a) 1d. "Aggravated circumstances" include abandonment, chronic
3abuse, sexual abuse and torture.
SB345, s. 8
4Section
8. 48.355 (2d) (a) 1j. of the statutes is created to read:
SB345,6,105
48.355
(2d) (a) 1j. "Chronic abuse" means 2 or more violations of s. 940.19 (1)
6or (6) or 948.03 (2) (b) or (c) or (3) (b) or (c) or of a law of any other state or federal law,
7if that violation would be a violation of s. 940.19 (1) or (6) or 948.03 (2) (b) or (c) or
8(3) (b) or (c) if committed in this state, that result in bodily harm, as defined in s.
9939.22 (4), as evidenced by final judgments of conviction on 2 or more separate
10occasions.
SB345, s. 9
11Section
9. 48.355 (2d) (a) 2. of the statutes is amended to read:
SB345,6,1612
48.355
(2d) (a) 2. "Sexual abuse" means a violation of s. 940.225, 944.30,
13948.02, 948.025, 948.05, 948.055, 948.06, 948.09 or 948.10 or a violation of the law
14of any other state or federal law if that violation would be a violation of s. 940.225,
15944.30, 948.02, 948.025, 948.05, 948.055, 948.06, 948.09 or 948.10 if committed in
16this state
, as evidenced by a final judgment of conviction.
SB345, s. 10
17Section
10. 48.355 (2d) (a) 3. of the statutes is created to read:
SB345,6,2118
48.355
(2d) (a) 3. "Torture" means a violation of s. 940.21 or 948.04 (1) or a
19violation of the law of any other state or federal law if that violation would be a
20violation of s. 940.21 or 948.04 (1) if committed in this state, as evidenced by a final
21judgment of conviction.
SB345, s. 11
22Section
11. 48.355 (2d) (b) (intro.) of the statutes is amended to read:
SB345,7,723
48.355
(2d) (b) (intro.) Notwithstanding sub. (2) (b) 6., the court need not
24include in a dispositional order a finding as to whether the county department, the
25department, in a county having a population of 500,000 or more, or the agency
1primarily responsible for providing services under a court order has made reasonable
2efforts with respect to a parent of a child to prevent the removal of the child from the
3home, while assuring that the child's health and safety are the paramount concerns,
4or, if applicable, a finding as to whether the agency primarily responsible for
5providing services under a court order has made reasonable efforts with respect to
6a parent of a child to make it possible for the child to return safely to his or her home,
7if the court finds
, as evidenced by a final judgment of conviction, any of the following:
SB345, s. 12
8Section
12. 48.355 (2d) (b) 2. of the statutes is amended to read:
SB345,7,149
48.355
(2d) (b) 2. That the parent has committed, has aided or abetted the
10commission of, or has solicited, conspired or attempted to commit, a violation of s.
11940.01, 940.02, 940.03 or 940.05 or a violation of the law of any other state or federal
12law, if that violation would be a violation of s. 940.01, 940.02, 940.03 or 940.05 if
13committed in this state,
as evidenced by a final judgment of conviction, and that the
14victim of that violation is a child of the parent.
SB345, s. 13
15Section
13. 48.355 (2d) (b) 3. of the statutes is amended to read:
SB345,7,2316
48.355
(2d) (b) 3. That the parent has committed a violation of s. 940.19 (2), (3),
17(4) or (5), 940.225 (1) or (2), 948.02 (1) or (2), 948.025 or 948.03 (2) (a) or (3) (a) or a
18violation of the law of any other state or federal law, if that violation would be a
19violation of s. 940.19 (2), (3), (4) or (5), 940.225 (1) or (2), 948.02 (1) or (2), 948.025 or
20948.03 (2) (a) or (3) (a) if committed in this state,
as evidenced by a final judgment
21of conviction, and that the violation resulted in great bodily harm, as defined in s.
22939.22 (14), or in substantial bodily harm, as defined in s. 939.22 (38), to the child
23or another child of the parent.
SB345, s. 14
24Section
14. 48.355 (2d) (b) 4. of the statutes is amended to read:
SB345,8,3
148.355
(2d) (b) 4. That the parental rights of the parent to another child have
2been involuntarily terminated
, as evidenced by a final order of a court of competent
3jurisdiction terminating those parental rights.
SB345, s. 15
4Section
15. 48.355 (2d) (d) of the statutes is created to read:
SB345,8,95
48.355
(2d) (d) 1. If a hearing is held under par. (c), at least 10 days before the
6date of the hearing the court shall notify the child, if 12 years of age or over, any
7parent, guardian and legal custodian of the child and any foster parent, treatment
8foster parent or other physical custodian described in s. 48.62 (2) of the child of the
9time, place and purpose of the hearing.
SB345,8,2010
2. The court shall give a foster parent, treatment foster parent or other physical
11custodian described in s. 48.62 (2) who is notified of a hearing under subd. 1. an
12opportunity to be heard at the hearing by permitting the foster parent, treatment
13foster parent or other physical custodian to make a written or oral statement during
14the hearing, or to submit a written statement prior to the hearing, relevant to the
15issues to be determined at the hearing. Any written or oral statement made under
16this subdivision shall be made upon oath or affirmation. A foster parent, treatment
17foster parent or other physical custodian described in s. 48.62 (2) who receives a
18notice of a hearing under subd. 1. and an opportunity to be heard under this
19subdivision does not become a party to the proceeding on which the hearing is held
20solely on the basis of receiving that notice and opportunity to be heard.
SB345, s. 16
21Section
16. 48.38 (4) (am) of the statutes is created to read:
SB345,8,2522
48.38
(4) (am) Any efforts to place the child for adoption, with a guardian or
23in some other alternative permanent placement that were made under s. 48.355 (2b)
24at the same time as the services described in par. (a) were offered or provided or, if
25those efforts were not made, the basis for the decision not to make those efforts.
SB345, s. 17
1Section
17. 48.38 (5) (b) of the statutes is amended to read:
SB345,9,162
48.38
(5) (b) The court or the agency shall notify the parents of the child, the
3child if he or she is 12 years of age or older and the child's foster parent, the child's
4treatment foster parent or the operator of the facility in which the child is living of
5the date, time and place of the review, of the issues to be determined as part of the
6review, of the fact that they may have an opportunity to be heard at the review by
7submitting written comments not less than 10 working days before the review or by
8participating at the review. The court or agency shall notify the person representing
9the interests of the public, the child's counsel and the child's guardian ad litem of the
10date of the review, of the issues to be determined as part of the review and of the fact
11that they may submit written comments not less than 10 working days before the
12review.
Any written or oral statement made to the court under this paragraph by a
13foster parent, treatment foster parent or operator of a facility in which a child is
14living shall be made under oath or affirmation. The notices under this paragraph
15shall be provided in writing not less than 30 days before the review and copies of the
16notices shall be filed in the child's case record.
SB345, s. 18
17Section
18. 48.42 (2g) (am) of the statutes is repealed.
SB345, s. 19
18Section
19. 48.42 (2g) (b) of the statutes is amended to read:
SB345,9,2519
48.42
(2g) (b) Failure to give notice under par. (a) to a foster parent, treatment
20foster parent or other physical custodian described in s. 48.62 (2) does not deprive the
21court of jurisdiction in the proceeding. If a foster parent, treatment foster parent or
22other physical custodian described in s. 48.62 (2) is not given notice of a hearing
23under par. (a)
and if the court is required under s. 48.427 (1m) to permit that person
24to make a written or oral statement during the hearing or to submit a written 25statement prior to the hearing and that person does not make or submit such a
1statement, that person may request a rehearing on the matter at any time prior to
2the entry of an order under s. 48.427 (2) or (3). If the request is made, the court shall
3order a rehearing.
SB345, s. 20
4Section
20. 48.427 (1m) of the statutes is amended to read:
SB345,10,165
48.427
(1m) In addition to any evidence presented under sub. (1), the court
6shall give the foster parent, treatment foster parent or other physical custodian
7described in s. 48.62 (2) of the child an opportunity to be heard at the dispositional
8hearing by permitting the foster parent, treatment foster parent or other physical
9custodian to make a written or oral statement during the dispositional hearing, or
10to submit a written statement prior to disposition, relevant to the issue of disposition.
11Any written or oral statement made under this subsection shall be made under oath
12or affirmation. A foster parent, treatment foster parent or other physical custodian
13described in s. 48.62 (2) who receives notice of a hearing under s. 48.42 (2g) (a) and
14an opportunity to be heard under this subsection does not become a party to the
15proceeding on which the hearing is held solely on the basis of receiving that notice
16and opportunity to be heard.
SB345, s. 21
17Section
21. 48.43 (5) (b) of the statutes is renumbered 48.43 (5) (b) 1.
SB345, s. 22
18Section
22. 48.43 (5) (b) 2. of the statutes is created to read: