AB521: Bill Text

This bill specifies that statements made by a parent and the results of any tests conducted and any diagnosis made in the course of an examination or assessment are not privileged. The bill requires the juvenile court to inform a party of this provision at the time the juvenile court orders the party to undergo the examination or assessment.

• Services Under Dispositional Order for Incarcerated Parent

The committee heard testimony regarding difficulty of providing services to an incarcerated parent who is the subject of a dispositional order in a CHIPS case. In most of these cases, the only involuntary ground for TPR of these individuals is continuing CHIPS, under s. 48.415 (2), stats. This ground allows for a finding that grounds exist for a TPR if the child is adjudged CHIPS and placed outside the home by a juvenile court; the agency responsible for the care of the child and the family has made a reasonable effort to provide the services ordered by the juvenile court; the child has been outside the home for six months or longer; and the parent has failed to meet the conditions established in the juvenile court order for the safe return of the child to the home and there is a substantial likelihood that the parent will not meet those conditions within the 12-month period following the TPR fact-finding hearing. Any parent who would be incarcerated for more than 12 months after the TPR fact-finding hearing would be unable to complete the condition.

The committee discussed the difficulty of determining what efforts are considered "reasonable" when the parent may be incarcerated for many years and would never be able to provide a home for their child. The committee also discussed the resources expended by agencies in working with parents who will never be able to be a placement option for their child and whom the agency may not have access to while incarcerated.

The bill provides that services under a CHIPS 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 providing 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 mandated 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 court finds that visitation is in the best interests of the child.

Appeals in TPR Proceedings

This bill makes several changes relating to appeals in TPR proceedings:

• Time for Filing of Notice of Appeal

Current law provides that if the judgment or order that is being appealed was entered after the notice of appeal was filed, the notice of appeal is treated as if it were filed after the judgment or order was entered. An appeal of a TPR judgment, however, is initiated not by the filing of a notice of appeal but rather by the filing of a notice of intent to appeal. Currently, in a few cases each year, the notice of intent to appeal is filed before the TPR judgment is entered and is found to be filed too early in violation of current law.

This bill amends s. 808.04 (8), stats., to provide that if the record discloses that the judgment or order appealed from was entered after the notice of appeal or the notice of intent to appeal was filed, the notice shall be treated as filed after the entry and on the day of the entry.

• Notification That Appeal Will Not Be Filed

Under current law, in a TPR case, a person has 30 days from the date of the entry of judgment to file a notice of intent to appeal. Within 15 days after filing this notice, the person must request the transcript and juvenile court record. The clerk of circuit court must serve a copy of the case record on the person filing the notice of intent to appeal within 30 days after the juvenile court record is requested. Within 30 days after service of the transcript, the person filing a notice of intent to appeal must file a notice of appeal, and serve a copy of the notice on the required persons. Current law places no obligation on that appellate counsel to notify the parties that a notice of appeal will not be filed.

This bill requires a person who decides not to file a notice of appeal to notify the persons who would have been required to be served with the notice of appeal that the appeal will not be pursued.

• State Public Defender Indigency Determinations in TPR appeals

Under current law, a representative of the State Public Defender must determine indigency for all referrals made under ss. 809.30 [appeals in criminal cases and cases under chs. 48, 51, 55, and 938, stats.], 974.06 (3) (b) [postconviction proceedings], and 974.07 (11) [motions for deoxyribonucleic acid (DNA) testing of certain evidence], except for a referral of a child who is entitled to be represented by counsel under the Children's Code, ch. 48, stats., or Juvenile Justice Code, ch. 938, stats., without a determination of indigency. For these referrals, the representative of the State Public Defender may, unless a request for redetermination of indigency has been filed, or the defendant's request for representation states that his or her financial circumstances have materially improved, rely upon a determination of indigency made for purposes of trial representation.

This bill permits the State Public Defender representative to rely upon a determination of indigency made for purposes of trial representation for referrals made under s. 809.107, stats., relating to appeals in TPR proceedings, unless a request for a redetermination is filed or the person's request for representation states that his or her financial circumstances have materially improved.

• Continuing Representation in TPR Appeals

Currently, an attorney who represents a person in a TPR proceeding does not automatically continue to represent the person during the appeal process.

Under this bill, an attorney who represents a person in a TPR proceeding continues representation of that person during the appeal process by filing a notice of intent to appeal under s. 809.107 (2), unless the attorney has been previously discharged during the proceeding by the person or by the trial court.

• Written Notification of Time Limits for TPR Appeals

Current law provides that TPR judgments are final and appealable. However, current law does not require notice of the applicable appeal time limits be given to a person whose parental rights were terminated.

This bill requires the juvenile court that orders the termination of a person's parental rights to provide written notification to the person of the time limits for appeal of the judgment if the person is present in juvenile court when the order is granted. The person must sign the written notification, indicating that he or she has been notified of the time limits for filing an appeal under ss. 808.04 (7m) and 809.107, stats. The person's counsel must file a copy of the signed, written notification with the court on the date on which the judgment is granted.

• Enlargement of Time for Filing Notice of Appeal

Under current law relating to appellate procedure, the time for filing a notice of appeal or cross-appeal of a final judgment or order in a TPR proceeding may not be enlarged. In Gloria A. v. State, 195 Wis. 2d 268, 536 N.W.2d 396 (Ct. App. 1995), the court of appeals held that the certain rules of appellate procedure that permit an enlargement of time in which to file notice of appeal do not apply to TPR cases.

This bill provides that the time in which to file notice of appeal in a TPR case may be enlarged if the judgment or order was entered as a result of a petition for an involuntary TPR that was filed by a district attorney, corporation counsel, or other representative of the public.

• Time Limit for Collateral Attack of TPR Judgment

Under current law, a person whose parental rights have been terminated may petition for a rehearing on the grounds that new evidence has been discovered affecting the advisability of the juvenile court's adjudication no later than one year after the date on which the TPR judgment was entered. However, a parent who has consented to the TPR or who did not contest the TPR petition may move for relief from the judgment no later than 30 days after entry of the TPR judgment.

This bill prohibits any person, for any reason, from collaterally attacking a TPR judgment more than one year after the date on which the time limit for filing an appeal from the judgment has expired, or more than one year after the date on which all appeals from the judgment, if any were filed, have been decided, whichever is later.

Adoption Provisions

• Adoption Expenses

Under current law, the proposed adoptive parents of a child, or a person acting on behalf of the proposed adoptive parents, may pay the actual cost of any of the following:

• Preadoptive counseling for a birth parent of the child or an alleged or presumed father of the child.

• Post-adoptive counseling for a birth parent of the child or an alleged or presumed father of the child.

• Maternity clothes for the child's birth mother, not to exceed a reasonable amount.

• Local transportation expenses of a birth parent of the child that are related to the pregnancy or adoption.

• Services provided by a licensed child welfare agency in connection with the adoption.

• Medical and hospital care received by the child's birth mother in connection with the pregnancy or birth of the child, not including lost wages or living expenses.

• Medical and hospital care received by the child.

• Legal and other services received by a birth parent of the child, an alleged or presumed father of the child, or the child in connection with the adoption.

• Living expenses of the child's birth mother, in an amount not to exceed $1,000, if payment of the expenses by the proposed adoptive parents or a person acting on their behalf is necessary to protect the health and welfare of the birth mother or fetus.

• Any investigation of the proposed adoptive placement, according to a fee schedule established by DHFS based on ability to pay.

• If the adoption is completed, the cost of any care provided for the child in a placement preceding placement with the adoptive parents.

• Birthing classes.

• A gift to the child's birth mother from the proposed adoptive parents, of no greater than $50 in value.

This bill places a $300 cap on the amount that proposed adoptive parents may pay for the cost of maternity clothes for the birth mother and increases the amount that proposed adoptive parents may pay for living expenses for the birth mother from $1,000 to $5,000 and the amount they may pay for a gift to the birth mother from $50 to $100.

• Preadoptive Placement With Out-Of-State Petitioners

Current law provides that a parent having custody of a child and the proposed adoptive parent or parents of the child may petition the juvenile court for placement of the child for adoption in the home of a nonrelative of the child if the home is licensed as a foster home or treatment foster home. This is sometimes referred to as a "legal risk" placement, because at the point the child is placed in the preadoptive placement with the proposed adoptive parent, the TPR has not been finalized.

This bill provides that, notwithstanding the provisions of the Interstate Compact on the Placement of Children, when the proposed adoptive parent or parents of the child reside out-of-state, they may petition the juvenile court for the preadoptive placement of the child in their home, if their home meets the criteria established by the laws of their state of residence for a preadoptive placement of a child in the home of a nonrelative.

• Adoption Advertising

Under current law, no person may advertise for the purpose of finding a child to adopt or that the person will find an adoptive home for a child or arrange for or assist in the adoption of a child or will place a child for adoption. This prohibition does not apply to DHFS, a county department of human services or social services (county department), or a child welfare agency licensed by DHFS to place children for adoption.

The bill prohibits publishing by a public medium of adoption advertisements that violate current law relating to adoption advertising.

• Preadoption Preparation for First-Time Adoptive Parents

Under current law, preadoption preparation is not required.

This bill requires a juvenile court, in a proceeding for the adoption of a child by nonrelatives, to order the person or persons who are petitioning to adopt the child, if they have not adopted any prior children, to obtain preadoption preparation on issues that may confront adoptive parents. The preparation may be provided by a licensed child welfare agency, a licensed private adoption agency, or a state-funded post-adoption resource center. DHFS is required to promulgate rules on the number of hours of preadoption preparation that is required, as well as the topics to be covered in the training. The proposed adoptive parents must pay for the training.

Under the bill, the same provisions apply to persons who are petitioning to adopt a foreign child.

• Continuation of Dispositional Orders

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 an extension order is in effect, the dispositional or extension order remains in effect until all proceedings relating to the petition or appeal are concluded. However, in some TPR cases, especially with newborn infants, there may be an issue as to whether a parent may contest for placement or visitation while a TPR case is pending. In such cases, there may not be a CHIPS dispositional or extension order in effect, but there may be in effect an existing voluntary placement agreement with an adoption agency or a guardianship order with respect to the child.

This bill 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, as is allowed under current law with respect to CHIPS dispositional or extension orders.

Foster Parent Provisions

• Fair Hearings for Head of Home

Under current law, any decision or order issued by DHFS, the Department of Corrections, a county department, or a licensed child welfare agency authorized to place children in foster homes, treatment foster homes, or group homes that affects the head of a foster, treatment foster, or group home or the child involved may be appealed to DHFS under fair hearing procedures. DHFS must, upon receipt of a request for an appeal, give the head of home notice and the opportunity for a fair hearing. At all appeal hearings under this provision, the head of home, or his or her representative, must have adequate opportunity to examine all documents and records to be used at the hearing.

Also under current law, the circuit court for the county where the child is placed has jurisdiction upon the petition of any interested party over a child who is placed in a foster home, treatment foster home, or group home. The circuit court may call a hearing for the purpose of reviewing any decision or order of the agency that placed the child that involves the placement and care of the child. The court must determine the case so as to promote the best interests of the child.

This bill provides that the head of a foster, treatment foster, or group home who receives notice of intent to remove a child from the home and who appeals that determination under the DHFS fair hearing procedures is a party to the fair hearing proceeding and provides that the head of the home may examine documents and records that are relevant to the issue of the child's removal for purposes of such a proceeding.

The bill also provides that the circuit court for the county where the dispositional order placing a child in a foster, treatment foster, or group home was entered or a voluntary agreement so placing a child was made has jurisdiction to review an agency decision or order involving the placement of the child. Under the bill, the petitioner must show by clear and convincing evidence that the agency's decision or order is not in the best interests of the child.

• Appeals of Licensing Decisions

Under current law, s. 48.75, stats., governs the licensing of foster homes and treatment foster homes by public licensing agencies and child welfare agencies. A "public licensing agency" is defined as the county department or, in Milwaukee County, DHFS. Under s. 48.75 (2), any foster home or treatment foster home applicant or licensee of a public licensing agency or a child welfare agency may, if aggrieved by the failure to issue or renew its license or by revocation of its license, appeal as provided in s. 48.72, stats. The statute further provides that judicial review of the department's decision may be had as provided in ch. 227, stats.

Section 48.72, stats., sets forth the appeal procedure of licensing decisions. Under s. 48.72, stats., any person aggrieved by DHFS's refusal or failure to issue, renew, or continue a license has the right to an administrative hearing provided for contested cases in ch. 227, stats. Because this statute does not specify that the public licensing agency or child welfare agency also has a right to subsequent judicial review of the administrative law judge's decision on a licensing issue, the Bureau of Milwaukee Child Welfare (BMCW), which is the subunit of DHFS responsible for providing child welfare services in Milwaukee County, has taken the position that the BMCW does not have the right to challenge decisions of administrative law judges in circuit court.

This bill specifically grants the BMCW the right to judicial review of the administrative law judge's decision, in cases in which an administrative law judge has made a licensing decision that the BMCW disagrees with and wishes to appeal.

CHIPS Provisions

• Change in County of Residence of Child Welfare Services Clients

Current law does not require notice to a new county of residence when a person who is receiving child welfare services moves to another county.

This bill provides that as soon as practicable after learning that a person who is receiving child welfare services has changed his or her county of residence, the county department or, in Milwaukee County, DHFS must provide notice of that change to the county department of the person's new county of residence. Notice must be provided to DHFS if the person's new county of residence is Milwaukee County.

AB521, s. 1 Section 1 . 46.03 (7) (bm) of the statutes is amended to read:

AB521,12,5 46.03 (7) (bm) Maintain a file containing records of artificial inseminations under s. 891.40 and records of, declarations of paternal interest under s. 48.025, and of statements acknowledging paternity under s. 69.15 (3) (b). The department shall may release these those records, declarations, and statements only upon an order of the court except that the department may use nonidentifying information concerning artificial inseminations for the purpose of compiling statistics and except that records relating to, declarations of paternal interest shall be released as provided in s. 48.025 (3) (b) and (c), and statements acknowledging paternity shall be released without a court order to the department of workforce development or a county child support agency under s. 59.53 (5) without a court order upon the request of the that department of workforce development or a or county child support agency under s. 59.53 (5) pursuant to the program responsibilities under s. 49.22 or by to any other person with a direct and tangible interest in the record statement.

Note: Permits DHFS to release declarations of paternal interest filed under s. 48.025, stats., upon court order and as provided in s. 48.025 (3) (b) and (c), stats., as created by the bill. Current law requires DHFS to release a declaration of paternal interest to DWD or a county child support agency upon request or to any other person with a direct and tangible interest in the declaration and permits DHFS to release a declaration to any other person only upon court order. The bill does not allow declarations to be released to DWD or a county child support agency.

AB521, s. 2 Section 2 . 48.025 (1) of the statutes is amended to read:

AB521,12,12 48.025 (1) Any person claiming to 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 may, in accordance with procedures under this section, file with the department a declaration of his interest in matters affecting such the child. The department may not charge a fee for filing a declaration under this section.

Note: Provides that DHFS may not charge a fee for filing a declaration of paternal interest.

AB521, s. 3 Section 3 . 48.025 (2) of the statutes is renumbered 48.025 (2) (a) and amended to read:

AB521,12,18 48.025 (2) (a) The A declaration provided in under sub. (1) may be filed at any time except after before a termination of the father's parental rights under subch. VIII. This paragraph does not apply to a declaration that is filed on or after the effective date of this paragraph .... [revisor inserts date].

AB521,13,5 (c) The declaration shall be in writing, shall be signed and verified upon oath or affirmation by the person filing the declaration, and shall contain the person's name and address, the name and last-known address of the mother, the month and year of the birth or expected birth of the child, and a statement that he the person filing the declaration has reason to believe that he may be the father of the child. If the person filing the declaration is under 18 years of age, the declaration shall also be signed by a parent or guardian of the person.

Note: Requires that a declaration of paternal interest be signed and verified upon oath or affirmation. If the person filing the declaration is a minor, the declaration must also be signed by the person's parent or guardian.

AB521, s. 4 Section 4 . 48.025 (2) (b) of the statutes is created to read:

AB521,13,11 48.025 (2) (b) A declaration under sub. (1) may be filed at any time before the birth of the child or within 14 days after the birth of the child, except that a man who receives a notice under s. 48.42 (1g) (b) may file a declaration within 21 days after the date on which the notice was mailed. This paragraph does not apply to a declaration filed before the effective date of this paragraph .... [revisor inserts date].

Note: Provides that a declaration of paternal interest may be filed at any time before the birth of the child or within 14 days after the birth, unless the man receives a notice as provided in s. 48.42 (1g) (b), stats., as created by the bill. In that case, the man may file a declaration within 21 days after the mailing date after the notice.