AB521: Bill Text

Note: Under current law, the juvenile court must make every reasonable effort to identify any person who has filed a declaration of paternal interest and any person who has been adjudged to be the father of the child, if his parental rights have not been terminated, of a CHIPS proceeding.

This Section also requires the juvenile court to make every reasonable effort to identify and notify a person who has acknowledged paternity of the child.

AB521, s. 15 Section 15. 48.295 (1) of the statutes is amended to read:

AB521,18,24 48.295 (1) After the filing of a petition and upon a finding by the court that reasonable cause exists to warrant an a physical, psychological, mental, or developmental examination or an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 48.547 (4), the court may order any child coming within its jurisdiction to be examined as an outpatient by personnel in an approved treatment facility for alcohol and other drug abuse, by a physician, psychiatrist or licensed psychologist, or by another expert appointed by the court holding at least a master's degree in social work or another related field of child development, in order that the child's physical, psychological, alcohol or other drug dependency, mental, or developmental condition may be considered. The court may also order an a physical, psychological, mental, or developmental examination or an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 48.547 (4) of a parent, guardian, or legal custodian whose ability to care for a child is at issue before the court or of an expectant mother whose ability to control her use of alcohol beverages, controlled substances, or controlled substance analogs is at issue before the court. The court shall hear any objections by the child, or the child's parents, guardian, or legal custodian to the request for such an examination or assessment before ordering the examination or assessment. At the time an examination of a parent, guardian, or legal custodian is ordered, the court shall advise the subject of the examination of the provisions of sub. (2c). The expenses of an examination, if approved by the court, shall be paid by the county of the court ordering the examination in a county having a population of less than 500,000 or by the department in a county having a population of 500,000 or more. The payment for an alcohol and other drug abuse assessment shall be in accordance with s. 48.361.

Note: Adds language to clarify that the "examination" referred to in s. 48.295 (1), stats., is a physical, psychological, mental, or developmental examination, as is specified in the title to this statutory section. Requires the court to inform a parent, guardian, or legal custodian of the provisions of s. 48.295 (2c), stats., when an examination is ordered.

AB521, s. 16 Section 16. 48.295 (2c) of the statutes is created to read:

AB521,19,6 48.295 (2c) Statements made by a parent, guardian, or legal custodian, and the results of any tests conducted and any diagnosis made, in the course of an assessment or examination performed under sub. (1), are not privileged in any proceeding under ch. 48 or ch. 938, except in a delinquency proceeding under s. 938.12.

Note: Provides that statements made by a parent and the results of any tests conducted and any diagnosis made in the course of an alcohol or drug abuse assessment or physical, psychological, mental or developmental examination under 48.295 (1), are not privileged in any proceeding under ch. 48 or ch. 938, stats., except in a delinquency proceeding under s. 938.12, stats.

AB521, s. 17 Section 17. 48.355 (2) (b) 1. of the statutes is renumbered 48.355 (2) (b) 1. (intro.) and amended to read:

AB521,19,19 48.355 (2) (b) 1. (intro.) The specific services or continuum of services to be provided to the child and family, to the child expectant mother and family, or to the adult expectant mother, the identity of the agencies which are to be primarily responsible for the provision of the services ordered by the judge, the identity of the person or agency who will provide case management or coordination of services, if any, and, if custody of the child is to be transferred to effect the treatment plan, the identity of the legal custodian. Regardless of any other provision of an order under this section, during any period of incarceration of a parent serving a prison sentence, services for the parent shall be limited to services that are available within the correctional institution, and the agency primarily responsible for the provision of services ordered by the judge shall do all of the following:

AB521, s. 18 Section 18. 48.355 (2) (b) 1. a. to d. of the statutes are created to read:

AB521,20,2 48.355 (2) (b) 1. a. Advise the parent of the services that may be available within the correctional institution.

AB521,20,5 b. Advise the correctional institution of the services to be provided under the court order and, if the child is placed outside the home, of the conditions contained in the court order for the safe return of the child to the home.

AB521,20,7 c. Monitor the parent's participation and progress in relevant services made available to the parent within the correctional institution.

AB521,20,9 d. Arrange for visitation between the parent and child if the court finds that visitation is in the best interests of the child.

Note: Provides that services under a dispositional order for a parent who is serving a prison sentence must be limited during any period of incarceration to services that are available within the correctional institution and requires the agency primarily responsible for the provision of services to do all of the following:

• Advise the parent of services that may be available within the correctional institution.

• Advise the correctional institution of the services to be provided under the juvenile court order and, if the child is placed outside the home, of the conditions contained in the juvenile court order for the safe return of the child to the home.

• Monitor the parent's participation and progress in relevant services made available to the parent within the correctional institution.

• Arrange for visitation between the parent and child if the juvenile court finds that visitation is in the best interests of the child.

AB521, s. 19 Section 19. 48.368 (1) of the statutes is amended to read:

AB521,20,18 48.368 Continuation of dispositional orders. (1) If a petition for termination of parental rights is filed under s. 48.41 or 48.415 or an appeal from a judgment terminating or denying termination of parental rights is filed during the year in which a dispositional order under s. 48.355 or , an extension order under s. 48.365, a voluntary agreement for placement of the child under s. 48.63, or a guardianship order under s. 48.977 or ch. 880 is in effect, the dispositional or extension order, voluntary agreement, or guardianship order shall remain in effect until all proceedings related to the filing of the petition or an appeal are concluded.

Note: Current law provides that if a petition for TPR is filed or an appeal from a judgment terminating or denying TPR is filed during the year in which a CHIPS dispositional order or extension order is in effect, the dispositional or extension order remains in effect until all proceedings relating to the petition or appeal are concluded. This Section provides that a voluntary agreement for the placement of the child, or a guardianship order for the child, shall also remain in effect until all proceedings relating to a TPR petition or appeal are concluded.

AB521, s. 20 Section 20. 48.40 (1r) of the statutes is created to read:

AB521,21,9 48.40 (1r) "Parent" has the meaning given in s. 48.02 (13), except that for purposes of filing a petition seeking the involuntary termination of parental rights under s. 48.415 to a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60 and whose paternity has not been established, of finding grounds under s. 48.415 for the involuntary termination of parental rights to such a child, and of terminating the parental rights to such a child on a ground specified in s. 48.415, "parent" includes a person who may be the parent of such a child.

AB521, s. 21 Section 21. 48.41 (2) (b) of the statutes is renumbered 48.41 (2) (b) (intro.) and amended to read:

AB521,21,13 48.41 (2) (b) (intro.) If the court finds that it would be difficult or impossible for the parent to appear in person at the hearing, the court may do any of the following:

AB521,21,21 1. Accept accept the written consent of the parent given before an embassy or consul official, a military judge, or a judge of any court of record in another county or state or a foreign jurisdiction. This written consent shall be accompanied by the signed findings of the embassy or consul official or judge who accepted the parent's consent. These findings shall recite that the embassy or consul official or judge or an attorney who represents any of the parties questioned the parent and found that the consent was informed and voluntary before the embassy or consul official or judge accepted the consent of the parent.

AB521, s. 22 Section 22. 48.41 (2) (b) 2. of the statutes is created to read:

AB521,22,4 48.41 (2) (b) 2. On request of the parent, unless good cause to the contrary is shown, admit testimony on the record by telephone or live audiovisual means as prescribed in s. 807.13 (2).

Note: Permits a juvenile court to admit testimony on the record in a voluntary TPR proceeding via telephone or live audiovisual means, in addition to the methods provided for under current law.

AB521, s. 23 Section 23. 48.415 (2) (a) 3. of the statutes is amended to read:

AB521,22,11 48.415 (2) (a) 3. That the child has been outside the home for a cumulative total period of 6 months or longer pursuant to such orders not including time spent outside the home as an unborn child; and that the parent has failed to meet the conditions established for the safe return of the child to the home and there is a substantial likelihood that the parent will not meet these conditions within the 12-month 9-month period following the fact-finding hearing under s. 48.424.

Note: Requires proof that there is a substantial likelihood that the parent will not meet the conditions for the child's safe return to the home in the 9-month, instead of 12-month, period following the TPR fact-finding hearing in order to terminate parental rights on the ground that the child is in continuing need of protection and services.

AB521, s. 24 Section 24. 48.415 (6) (a) and (b) of the statutes are amended to read:

AB521,22,16 48.415 (6) (a) Failure to assume parental responsibility, which shall be established by proving that the parent or the person or persons who may be the parent of the child have never not had a substantial parental relationship with the child.

AB521,23,5 (b) In this subsection, "substantial parental relationship" means the acceptance and exercise of significant responsibility for the daily supervision, education, protection and care of the child. In evaluating whether the person has had a substantial parental relationship with the child, the court may consider such factors, including, but not limited to, whether the person has ever expressed concern for or interest in the support, care or well-being of the child, whether the person has neglected or refused to provide care or support for the child and whether, with respect to a person who is or may be the father of the child, the person has ever expressed concern for or interest in the support, care or well-being of the mother during her pregnancy.

Note: Modifies the involuntary TPR ground of failure to assume parental responsibility to provide that the state must show that the person has not had a substantial parental relationship with the child instead of requiring a showing that the person has never had a substantial parental relationship with the child.

AB521, s. 25 Section 25. 48.415 (10) (a) of the statutes is amended to read:

AB521,23,9 48.415 (10) (a) That the child who is the subject of the petition has been adjudged to be in need of protection or services under s. 48.13 (2), (3) or, (3m), (10), or (10m).

Note: Under current law, parental rights may be involuntarily terminated on the grounds of prior involuntary TPR to another child by proving both of the following:

1. That the child who is the subject of the petition has been adjudged to be CHIPS because he or she has been abandoned or has been the victim of abuse or because his or her parent has neglected, refused, or been unable for reasons other than poverty to provide necessary care, clothing, medical or dental care, or shelter so as to seriously endanger the physical health of the child.

2. Within 3 years of the CHIPS adjudication, a juvenile court has ordered an involuntary TPR with respect to another child of the person.

This Section modifies the first criterion so that the ground also applies to a child who has been adjudged to be CHIPS because he or she is at substantial risk of becoming the victim of abuse or because his or her parent is at substantial risk of neglecting, refusing, or being unable for reasons other than poverty to provide necessary care, food, clothing, medical or dental care, or shelter so as to seriously endanger the physical health of the child, based on reliable and credible information that the child's parent has neglected, refused, or been unable for reasons other than poverty to provide necessary care, food, clothing medical or dental care, or shelter so as to endanger seriously the physical health of another child in the home.

AB521, s. 26 Section 26. 48.42 (1) (a) of the statutes is amended to read:

AB521,23,12 48.42 (1) (a) The name, birth date or anticipated birth date, and address of the child.

AB521, s. 27 Section 27 . 48.42 (1g) of the statutes is created to read:

AB521,24,10 48.42 (1g) Affidavit. (a) Except as provided in par. (c), if the petition is filed by a person or agency other than the district attorney, corporation counsel, or other appropriate official under s. 48.09; if the petition seeks to terminate the parental rights of a person who may be the father of a nonmarital child who is under one year of age at the time the petition is filed, who is not adopted or whose parents do not subsequently intermarry under s. 767.60, and whose paternity has not been established; and if the mother of the child has voluntarily consented to or seeks to voluntarily consent to the termination of her parental rights to the child, the petitioner shall file with the petition an affidavit signed by the mother that includes all of the following:

AB521,24,12 1. A statement that the mother has voluntarily consented to or seeks to voluntarily consent to the termination of her parental rights to the child.

AB521,24,14 2. A statement acknowledging that the mother has been asked to identify the father of the child.

AB521,24,16 3. A statement that the mother knows and is identifying the father or that she does not know the identity of the father.

AB521,24,18 4. A statement identifying any man who has lived in a familial relationship with the child and who may be the father of the child.

AB521,24,21 5. If the mother states that she knows and is identifying the father under subd. 3. or 4., the father's name, age, and last-known mailing address, and the last-known mailing address of the father's employer.

AB521,24,24 6. If the mother states that she does not know the identity of the father, an explanation of why she is unable to identify him and a physical description of the father.

AB521,25,4 7. A statement that the mother has been informed and understands that if she misidentifies the father, she is permanently barred from attacking the termination of the father's or her parental rights on the basis that the father was not correctly identified.

AB521,25,7 8. A statement that the mother understands that she may be prosecuted under s. 946.32 (2) for false swearing if she makes a false statement that she does not believe is true in the affidavit under this paragraph.

AB521,25,11 9. A statement that the mother has reviewed and understands the affidavit, the name of the person who explained the affidavit and the consequences of signing the affidavit to her, and a statement that the mother is signing the affidavit voluntarily.

AB521,25,20 (b) The petitioner shall notify any man identified in the affidavit under par. (a) as an alleged father of his right to file a declaration of paternal interest under s. 48.025 before the birth of the child, within 14 days after the birth of the child, or within 21 days after the date on which the notice is mailed, whichever is later; of the birth date or anticipated birth date of the child; and of the consequences of filing or not filing a declaration of paternal interest. The petitioner shall include with the notice a copy of the form required to file a declaration of paternal interest under s. 48.025. The notice shall be sent by certified mail to the last-known address of the alleged father.

AB521,26,2 (c) If the mother relinquished custody of the child under s. 48.195 and has not subsequently identified herself as the child's mother or if the petitioner cannot locate the mother with reasonable diligence, the petitioner shall attach to the petition a statement that the mother relinquished custody of the child under s. 48.195 and has not subsequently identified herself as the child's mother or of the efforts the petitioner made to locate the mother instead of filing the affidavit under sub. (1).

Note: Requires a petitioner, other than a district attorney, corporation counsel, or other appropriate official, for the involuntary TPR of an alleged father of a nonmarital child who is under one year of age to file with the petition an affidavit signed by the birth mother if the mother has voluntarily consented to or seeks to voluntarily consent to the termination of her parental rights to the child. The affidavit must include all of the following:

1. A statement that the mother has voluntarily consented to or seeks to voluntarily consent to the termination of her parental rights to the child.

2. A statement acknowledging that the mother has been asked to identify the father of the child.

3. A statement that the mother knows and is identifying the father or that she does not know the identity of the father.

4. A statement identifying any man who has lived in a familial relationship with the child and who may be the father of the child.

5. If the mother states that she knows the identity of the father and is identifying the father, the father's name, age, and last-known mailing address and the last-known mailing address of the father's employer.

6. If the mother states that she does not know the identity of the father, an explanation of why she is unable to identify him and a physical description of the father.

7. A statement that the mother has been informed and understands that if she misidentifies the father, she is permanently barred from attacking the TPR on the basis that the father was not correctly identified.

8. A statement that the mother understands that she may be prosecuted for false swearing if she makes a false statement that she does not believe is true.

9. A statement that the mother has reviewed and understands the affidavit, the name of the person who explained the affidavit and the consequences of signing it, and a statement that she is signing the affidavit voluntarily.

The petitioner must notify any man who is identified in the affidavit of his right to file a declaration of paternal interest before the birth of the child, within 14 days after the birth of the child, or within 21 days after the notice is mailed, whichever is later; of the birth date or anticipated birth date of the child; and of the consequences of filing or not filing a declaration. The mailing must include a form to file a declaration. The notice must be sent by certified mail to the man's last-known address.

AB521, s. 28 Section 28. 48.42 (2) (b) (intro.) of the statutes is amended to read:

AB521,26,6 48.42 (2) (b) (intro.) If Except as provided in par. (bm), if the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60 and whose paternity has not been established:

AB521, s. 29 Section 29. 48.42 (2) (b) 1. of the statutes is amended to read:

AB521,26,10 48.42 (2) (b) 1. A person who has filed a an unrevoked declaration of paternal interest under s. 48.025 before the birth of the child or within 14 days after the birth of the child.

Note: Amends the current notice requirements for alleged fathers to reflect the creation of s. 48.42 (2) (bm) and the new time limit for filing a declaration of paternal interest under s. 48.025 (2) (b) as created by the bill.

AB521, s. 30 Section 30 . 48.42 (2) (bm) of the statutes is created to read:

AB521,27,6 48.42 (2) (bm) If the child is a nonmarital child who is under one year of age at the time the petition is filed and who is not adopted or whose parents do not subsequently intermarry under s. 767.60 and whose paternity has not been established and if an affidavit under sub. (1g) (a) or a statement under sub. (1g) (c) is filed with the petition:

AB521,27,9 1. A person who has filed an unrevoked declaration of paternal interest under s. 48.025 before the birth of the child, within 14 days after the birth of the child, or within 21 days after a notice under sub. (1g) (b) is mailed, whichever is later.

AB521,27,11 2. A person who has lived in a familial relationship with the child and who may be the father of the child.

Note: Under current law, certain persons who may be the father of a nonmarital child whose paternity has not been established must be served with a summons and petition notifying the person of a TPR proceeding involving the child. Those persons include, in addition to a person who files a declaration of paternal interest, a person who is alleged to be the father of the child or who, based on statements made by the mother or other information, may be the father of the child, and a person who has lived in a familial relationship with the child and who may be the father of the child. A person who receives a summons and petition in a TPR proceeding has standing to appear and contest the TPR petition and, if grounds for TPR are found, may present evidence relevant to the disposition of the case and make alternative dispositional recommendations.

This Section creates a separate notice requirement for an alleged father in a TPR proceeding concerning a nonmarital child who is under one year of age at the time the petition is filed if an affidavit or a statement that an affidavit cannot be filed, as provided under s. 48.42 (1g), as created by the bill, is filed with the TPR petition. Under this circumstance, an alleged father must receive notice if one of the following conditions is met:

1. He has filed an unrevoked declaration of paternal interest before the birth of the child, within 14 days after the birth of the child, or within 21 days after the date a notice under s. 48.42 (1g) (c) was mailed, whichever is later.

2. He has lived in a familial relationship with the child and may be the father of the child.

AB521, s. 31 Section 31. 48.42 (2m) of the statutes is renumbered 48.42 (2m) (a) and amended to read:

AB521,28,14 48.42 (2m) (a) Parent as a result of sexual assault. Except as provided in this subsection paragraph, notice is not required to be given to a person who may be the father of a child conceived as a result of a sexual assault in violation of s. 940.225 (1), (2) or (3), 948.02 (1) or (2), or 948.025 if a physician attests to his or her belief that a sexual assault as specified in this subsection paragraph has occurred or if the person who may be the father of the child has been convicted of sexual assault as specified in this subsection paragraph for conduct which may have led to the child's conception. A person who under this subsection paragraph is not given notice does not have standing to appear and contest a petition for the termination of his parental rights, present evidence relevant to the issue of disposition, or make alternative dispositional recommendations. This subsection paragraph does not apply to a person who may be the father of a child conceived as a result of a sexual assault in violation of s. 948.02 (1) or (2) if that person was under 18 years of age at the time of the sexual assault.

AB521, s. 32 Section 32 . 48.42 (2m) (b) of the statutes is created to read:

AB521,29,2 48.42 (2m) (b) Parent of nonmarital child. A person who may be the father of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60 and whose paternity has not been established, by virtue of the fact that he has engaged in sexual intercourse with the mother of the child, is considered to be on notice that a pregnancy and a termination of parental rights proceeding concerning the child may occur, and has the duty to protect his own rights and interests. He is therefore entitled to actual notice of such a proceeding only as provided in sub. (2) (b) or (bm). A person who is not entitled to notice under sub. (2) (b) or (bm) does not have standing to appear and contest a petition for the termination of his parental rights, present evidence relevant to the issue of disposition, or make alternative dispositional recommendations.