AB784: Bill Text

LRB-1702/3

GMM:wlj:pg

2003 - 2004 LEGISLATURE

2003 Assembly BILL 784

February 2, 2004 - Introduced by Representatives Wasserman, Jeskewitz, Berceau and Gielow, cosponsored by Senator Roessler. Referred to Committee on Family Law.

AB784,1,3 An Act to amend 48.243 (1) (g), 48.30 (2), 48.31 (2) and 48.31 (4) of the statutes; relating to: the right to a trial by jury in a child in need of protection or services proceeding under the Children's Code.

Analysis by the Legislative Reference Bureau

Under current law, a party to a child in need of protection or services (CHIPS) proceeding under the Children's Code may request a trial by jury. This bill eliminates jury trials in CHIPS proceedings.

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:

AB784, s. 1 Section 1. 48.243 (1) (g) of the statutes is amended to read:

AB784,1,6 48.243 (1) (g) The right to a jury trial, if the inquiry is in regard to the need of an unborn child for protection or services.

AB784, s. 2 Section 2. 48.30 (2) of the statutes is amended to read:

AB784,2,15 48.30 (2) At the commencement of the hearing under this section the child and the parent, guardian, or legal custodian, the child expectant mother, her parent, guardian, or legal custodian, and the unborn child through the unborn child's guardian ad litem, or the adult expectant mother and the unborn child through the unborn child's guardian ad litem, shall be advised of their rights as specified in s. 48.243 and shall be informed that a request for a jury trial or for a substitution of judge under s. 48.29 must be made before the end of the plea hearing or be waived. If the petition alleges that an unborn child is in need of protection or services, the child expectant mother, her parent, guardian, or legal custodian, and the unborn child through the unborn child's guardian ad litem, or the adult expectant mother and the unborn child through the unborn child's guardian ad litem, shall also be informed that a request for a jury trail must be made before the end of the plea hearing or be waived. Nonpetitioning parties, including the child, shall be granted a continuance of the plea hearing if they wish to consult with an attorney on the request for a jury trial or substitution of a judge.

AB784, s. 3 Section 3. 48.31 (2) of the statutes is amended to read:

AB784,3,16 48.31 (2) The hearing in a proceeding under s. 48.13 shall be to the court. The hearing in a proceeding under s. 48.133 or 48.42 shall be to the court unless the child, the child's parent, guardian, or legal custodian, the unborn child by the unborn child's guardian ad litem, or the expectant mother of the unborn child exercises the right to a jury trial by demanding a jury trial at any time before or during the plea hearing. If a jury trial is demanded in a proceeding under s. 48.13 or 48.133, the jury shall consist of 6 persons. If a jury trial is demanded in a proceeding under s. 48.42, the jury shall consist of 12 persons unless the parties agree to a lesser number. Chapters 756 and 805 shall govern the selection of jurors. If the hearing involves a child victim or witness, as defined in s. 950.02, the court may order the taking and allow the use of a videotaped deposition under s. 967.04 (7) to (10) and, with the district attorney, shall comply with s. 971.105. At the conclusion of the hearing in a proceeding under s. 48.13, the court shall make a determination of the facts. At the conclusion of the hearing in a proceeding under s. 48.133 or 48.42, the court or jury shall make a determination of the facts, except that in a case alleging a child or an unborn child to be in need of protection or services proceeding under s. 48.13 or 48.133, the court shall make the determination under s. 48.13 (intro.) or 48.133 relating to whether the child or unborn child is in need of protection or services that can be ordered by the court. If the court finds that the child or unborn child is not within the jurisdiction of the court or, in a case alleging a child or an unborn child to be in need of protection or services proceeding under s. 48.13 or 48.133, that the child or unborn child is not in need of protection or services that can be ordered by the court, or if the court or jury, in a proceeding under s. 48.133 the court or jury, finds that the facts alleged in the petition have not been proved, the court shall dismiss the petition with prejudice.

AB784, s. 4 Section 4. 48.31 (4) of the statutes is amended to read:

AB784,4,14 48.31 (4) The court shall make findings of fact and conclusions of law relating to the allegations of a petition filed under s. 48.13. The court or jury shall make findings of fact and the court shall make conclusions of law relating to the allegations of a petition filed under s. 48.13, 48.133 or 48.42, except that in a proceeding under s. 48.133 the court shall make findings of fact relating to whether the child or unborn child is in need of protection or services which can be ordered by the court. In cases alleging a child to be in need of protection or services under s. 48.13 (11), the court may not find that the child is suffering emotional damage unless a licensed physician specializing in psychiatry or a licensed psychologist appointed by the court to examine the child has testified at the hearing that in his or her opinion the condition exists, and adequate opportunity for the cross-examination of the physician or psychologist has been afforded. The judge may use the written reports if the right to have testimony presented is voluntarily, knowingly, and intelligently waived by the guardian ad litem or legal counsel for the child and the parent or guardian. In cases alleging a child to be in need of protection or services under s. 48.13 (11m) or an unborn child to be in need of protection or services under s. 48.133, the court may not find that the child or the expectant mother of the unborn child is in need of treatment and education for needs and problems related to the use or abuse of alcohol beverages, controlled substances, or controlled substance analogs and its medical, personal, family, or social effects unless an assessment for alcohol and other drug abuse that conforms to the criteria specified under s. 48.547 (4) has been conducted by an approved treatment facility.

AB784, s. 5 Section 5. Initial applicability.

AB784,4,17 (1) This act first applies to a child in need of protection or services proceeding in which the petition is filed on the effective date of this subsection.

AB784,4,18 (End)