SB288: Bill Text

SB288, s. 12 Section 12. 48.028 (7) (b) 2. and 3. of the statutes, as affected by 2009 Wisconsin Act .... (this act), are amended to read:

SB288,34,7 48.028 (7) (b) 2. A foster home or treatment foster home licensed, approved, or specified by the Indian child's tribe.

SB288,34,9 3. An Indian foster home or treatment foster home licensed or approved by the department, a county department, or a child welfare agency.

SB288, s. 13 Section 13. 48.13 (intro.) of the statutes is amended to read:

SB288,34,14 48.13 Jurisdiction over children alleged to be in need of protection or services. (intro.) The Except as provided in s. 48.028 (3), the court has exclusive original jurisdiction over a child alleged to be in need of protection or services which can be ordered by the court, and:

SB288, s. 14 Section 14. 48.14 (intro.) of the statutes is amended to read:

SB288,34,17 48.14 Jurisdiction over other matters relating to children. (intro.) The Except as provided in s. 48.028 (3), the court has exclusive jurisdiction over:

SB288, s. 15 Section 15. 48.14 (12) of the statutes is created to read:

SB288,34,24 48.14 (12) Proceedings under s. 48.028 (8) for the return of custody of an Indian child to his or her former parent, as defined in s. 48.028 (2) (c), or former Indian custodian, as defined in s. 48.028 (2) (b), following a vacation or setting aside of an order granting adoption of the Indian child or following an order voluntarily terminating parental rights to an Indian child of all adoptive parents of the Indian child.

SB288, s. 16 Section 16. 48.15 of the statutes is amended to read:

SB288,35,11 48.15 Jurisdiction of other courts to determine legal custody. Nothing contained in ss. 48.13, 48.133 and 48.14 Except as provided in s. 48.028 (3), nothing in this chapter deprives other courts another court of the right to determine the legal custody of children a child by habeas corpus or to determine the legal custody or guardianship of children a child if the legal custody or guardianship is incidental to the determination of causes an action pending in the other courts. But that court. Except as provided in s. 48.028 (3), the jurisdiction of the court assigned to exercise jurisdiction under this chapter and ch. 938 is paramount in all cases involving children alleged to come within the provisions of ss. 48.13 and 48.14 and unborn children and their expectant mothers alleged to come within the provisions of ss. 48.133 and 48.14 (5).

SB288, s. 17 Section 17. 48.19 (2) of the statutes is amended to read:

SB288,35,23 48.19 (2) When a child is taken into physical custody as provided in under this section, the person taking the child into custody shall immediately attempt to notify the parent, guardian and, legal custodian , and Indian custodian of the child by the most practical means. The person taking the child into custody shall continue such attempt until the parent, guardian and, legal custodian, and Indian custodian of the child are notified, or the child is delivered to an intake worker under s. 48.20 (3), whichever occurs first. If the child is delivered to the intake worker before the parent, guardian and, legal custodian , and Indian custodian are notified, the intake worker, or another person at his or her direction, shall continue the attempt to notify until the parent, guardian and, legal custodian, and Indian custodian of the child are notified.

SB288, s. 18 Section 18. 48.195 (2) (d) 7. of the statutes is amended to read:

SB288,36,5 48.195 (2) (d) 7. A tribal court, or other adjudicative body authorized by an American Indian tribe or band to perform child welfare functions, that is exercising jurisdiction over proceedings relating to the child, an attorney representing the interests of the American Indian tribe or band in those proceedings, or an attorney representing the interests of the child in those proceedings.

SB288, s. 19 Section 19. 48.20 (2) (ag) of the statutes is amended to read:

SB288,36,9 48.20 (2) (ag) Except as provided in pars. (b) to (d), a person taking a child into custody shall make every effort to release the child immediately to the child's parent, guardian or, legal custodian, or Indian custodian.

SB288, s. 20 Section 20. 48.20 (2) (b) of the statutes is amended to read:

SB288,36,14 48.20 (2) (b) If the child's parent, guardian or, legal custodian, or Indian custodian is unavailable, unwilling, or unable to provide supervision for the child, the person who took the child into custody may release the child to a responsible adult after counseling or warning the child as may be appropriate.

SB288, s. 21 Section 21. 48.20 (3) of the statutes is amended to read:

SB288,37,2 48.20 (3) If the child is released under sub. (2) (b) to (d), the person who took the child into custody shall immediately notify the child's parent, guardian and, legal custodian, and Indian custodian of the time and circumstances of the release and the person, if any, to whom the child was released. If the child is not released under sub. (2), the person who took the child into custody shall arrange in a manner determined by the court and law enforcement agencies for the child to be interviewed by the intake worker under s. 48.067 (2), and. The person who took the child into custody shall make a statement in writing with supporting facts of the reasons why the child was taken into physical custody and shall give any child 12 years of age or older a copy of the statement in addition to giving a copy to the intake worker. When and to any child 12 years of age or older. If the intake interview is not done in person, the report may be read to the intake worker.

SB288, s. 22 Section 22. 48.20 (7) (c) (intro.) of the statutes is amended to read:

SB288,37,4 48.20 (7) (c) (intro.) The intake worker may release the child as follows:

SB288, s. 23 Section 23. 48.20 (7) (c) 1. of the statutes is amended to read:

SB288,37,12 48.20 (7) (c) 1. To a parent, guardian or , legal custodian, or Indian custodian, or, to a responsible adult if the parent, guardian or, legal custodian , or Indian custodian is unavailable, unwilling, or unable to provide supervision for the child, release the child to a responsible adult, counseling or warning the child as may be appropriate,; or, if a the child is 15 years of age or older, release the child without immediate adult supervision, counseling or warning the child as may be appropriate; or.

SB288, s. 24 Section 24. 48.20 (7) (d) of the statutes is amended to read:

SB288,37,17 48.20 (7) (d) If the child is released from custody, the intake worker shall immediately notify the child's parent, guardian and, legal custodian, and Indian custodian of the time and circumstances of the release and the person, if any, to whom the child was released.

SB288, s. 25 Section 25. 48.20 (8) of the statutes is renumbered 48.20 (8) (a) and amended to read:

SB288,38,10 48.20 (8) (a) If a child is held in custody, the intake worker shall notify the child's parent, guardian and, legal custodian, and Indian custodian of the reasons for holding the child in custody and of the child's whereabouts unless there is reason to believe that notice would present imminent danger to the child. The parent, guardian and, legal custodian, and Indian custodian shall also be notified of the time and place of the detention hearing required under s. 48.21, the nature and possible consequences of that hearing, and the right to present and cross-examine witnesses at the hearing, and, in the case of a parent or Indian custodian of an Indian child who is the subject of an Indian child custody proceeding, as defined in s. 48.028 (2) (d) 2., the right to counsel under s. 48.028 (4) (b). If the parent, guardian or, legal custodian, or Indian custodian is not immediately available, the intake worker or another person designated by the court shall provide notice as soon as possible. When the child is 12 years of age or older, the child shall receive the same notice about the detention hearing as the parent, guardian or, legal custodian, or Indian custodian. The intake worker shall notify both the child and the child's parent, guardian or, legal custodian. When, or Indian custodian.

SB288,38,18 (b) If the child is an expectant mother who has been taken into custody under s. 48.19 (1) (cm) or (d) 8., the unborn child, through the unborn child's guardian ad litem, shall receive the same notice about the whereabouts of the child expectant mother, about the reasons for holding the child expectant mother in custody and about the detention hearing as the child expectant mother and her parent, guardian or, legal custodian, or Indian custodian. The intake worker shall notify the child expectant mother, her parent, guardian or, legal custodian, or Indian custodian and the unborn child, by the unborn child's guardian ad litem.

SB288, s. 26 Section 26. 48.207 (1g) of the statutes is created to read:

SB288,39,2 48.207 (1g) An Indian child held in physical custody under s. 48.205 (1) shall be placed in compliance with s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless the person responsible for determining the placement finds good cause, as described in s. 48.028 (7) (e), for departing from the order of placement preference under s. 48.028 (7) (b) or finds that emergency conditions necessitate departing from that order. When the reason for departing from that order is resolved, the Indian child shall be placed in compliance with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c).

SB288, s. 27 Section 27. 48.21 (3) (am) of the statutes is amended to read:

SB288,39,7 48.21 (3) (am) The parent, guardian, or legal custodian, or Indian custodian may waive his or her right to participate in the hearing under this section. After any waiver, a rehearing shall be granted at the request of the parent, guardian, legal custodian, Indian custodian, or any other interested party for good cause shown.

SB288, s. 28 Section 28. 48.21 (3) (b) of the statutes is amended to read:

SB288,39,19 48.21 (3) (b) If present at the hearing, a copy of the petition or request shall be given to the parent, guardian or, legal custodian, or Indian custodian, and to the child if he or she is 12 years of age or older, before the hearing begins. If the child is an expectant mother who has been taken into custody under s. 48.19 (1) (cm) or (d) 8., a copy of the petition shall also be given to the unborn child, through the unborn child's guardian ad litem, before the hearing begins. Prior notice of the hearing shall be given to the child's parent, guardian and, legal custodian, and Indian custodian, to the child if he or she is 12 years of age or older and, if the child is an expectant mother who has been taken into custody under s. 48.19 (1) (cm) or (d) 8., to the unborn child, through the unborn child's guardian ad litem, in accordance with under s. 48.20 (8).

SB288, s. 29 Section 29. 48.21 (3) (d) of the statutes is amended to read:

SB288,40,3 48.21 (3) (d) Prior to the commencement of the hearing, the court shall inform the parent, guardian or, legal custodian shall be informed by the court, or Indian custodian of the allegations that have been made or may be made, the nature and possible consequences of this hearing as compared to possible future hearings, the right to present, confront, and cross-examine witnesses and the right to present witnesses, and, in the case of a parent or Indian custodian of an Indian child who is the subject of an Indian child custody proceeding under s. 48.028 (2) (d) 2., the right to counsel under s. 48.028 (4) (b).

SB288, s. 30 Section 30. 48.21 (3) (e) of the statutes is amended to read:

SB288,40,12 48.21 (3) (e) If the parent, guardian or , legal custodian, Indian custodian, or the child is not represented by counsel at the hearing and the child is continued in custody as a result of the hearing, the parent, guardian, legal custodian, Indian custodian, or child may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold the child in custody be reheard. If the request is made, a rehearing shall take place as soon as possible. Any An order to hold the child in custody shall be subject to rehearing reheard for good cause, whether or not counsel was present.

SB288, s. 31 Section 31. 48.21 (5) (d) 1. of the statutes is renumbered 48.21 (5) (d) and amended to read:

SB288,40,21 48.21 (5) (d) If the judge or circuit court commissioner finds that any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies with respect to a parent, the judge or circuit court commissioner shall hold a hearing under s. 48.38 (4m) within 30 days after the date of that finding to determine the permanency plan for the child. If a hearing is held under this subdivision, the agency responsible for preparing the permanency plan shall file the permanency plan with the court not less than 5 days before the date of the hearing.

SB288, s. 32 Section 32. 48.21 (5) (d) 2. of the statutes, as affected by 2009 Wisconsin Act 28, is repealed.

SB288, s. 33 Section 33. 48.21 (5) (d) 3. of the statutes, as affected by 2009 Wisconsin Act 28, is repealed.

SB288, s. 34 Section 34. 48.23 (2) of the statutes is amended to read:

SB288,41,10 48.23 (2) Whenever a child is the subject of a proceeding involving a contested adoption or the involuntary termination of parental rights, any parent under 18 years of age who appears before the court shall be represented by counsel; but no such parent may waive counsel. A Except as provided in sub. (2g), a minor parent petitioning for the voluntary termination of parental rights shall be represented by a guardian ad litem. If a proceeding involves a contested adoption or the involuntary termination of parental rights, any parent 18 years old or older who appears before the court shall be represented by counsel; but the parent may waive counsel provided the court is satisfied such waiver is knowingly and voluntarily made.

SB288, s. 35 Section 35. 48.23 (2g) of the statutes is created to read:

SB288,41,17 48.23 (2g) Right of Indian child's parent or Indian custodian to counsel. Whenever an Indian child is the subject of a proceeding involving the removal of the Indian child from the home of his or her parent or Indian custodian, placement of the Indian child in an out-of-home care placement, or termination of parental rights to the Indian child, the Indian child's parent or Indian custodian shall have the right to be represented by counsel as provided in subs. (2) and (4).

SB288, s. 36 Section 36. 48.23 (3) of the statutes is amended to read:

SB288,41,23 48.23 (3) Power of the court to appoint counsel. Except in proceedings under s. 48.13, at any time, upon request or on its own motion, the court may appoint counsel for the child or any party, unless the child or the party has or wishes to retain counsel of his or her own choosing. The Except as provided in sub. (2g), the court may not appoint counsel for any party other than the child in a proceeding under s. 48.13.

SB288, s. 37 Section 37. 48.23 (4) of the statutes is amended to read:

SB288,42,22 48.23 (4) Providing counsel. In any situation under this section in which If a child has a right to be represented by counsel or is provided counsel at the discretion of the court under this section and counsel is not knowingly and voluntarily waived, the court shall refer the child to the state public defender and counsel shall be appointed by the state public defender under s. 977.08 without a determination of indigency. If the referral is of a child who has filed a petition under s. 48.375 (7), the state public defender shall appoint counsel within 24 hours after that referral. Any counsel appointed in a petition filed under s. 48.375 (7) shall continue to represent the child in any appeal brought under s. 809.105 unless the child requests substitution of counsel or extenuating circumstances make it impossible for counsel to continue to represent the child. In any situation under sub. (2) , (2g), or (2m) in which a parent 18 years of age or over or an adult expectant mother is entitled to representation by counsel; counsel is not knowingly and voluntarily waived; and it appears that the parent or adult expectant mother is unable to afford counsel in full, or the parent or adult expectant mother so indicates; the court shall refer the parent or adult expectant mother to the authority for indigency determinations specified under s. 977.07 (1). In any other situation under this section in which a person has a right to be represented by counsel or is provided counsel at the discretion of the court, competent and independent counsel shall be provided and reimbursed in any manner suitable to the court regardless of the person's ability to pay, except that the court may not order a person who files a petition under s. 813.122 or 813.125 to reimburse counsel for the child who is named as the respondent in that petition.

SB288, s. 38 Section 38. 48.235 (4) (a) 7. of the statutes is amended to read:

SB288,42,25 48.235 (4) (a) 7. Petition for relief from a judgment terminating parental rights under s. 48.028 or 48.46.

SB288, s. 39 Section 39. 48.235 (4m) (a) 7. of the statutes is amended to read:

SB288,43,3 48.235 (4m) (a) 7. Petition for relief from a judgment terminating parental rights under s. 48.028 or 48.46 after the child is born.

SB288, s. 40 Section 40. 48.255 (1) (cm) of the statutes is amended to read:

SB288,43,8 48.255 (1) (cm) Whether the child may be subject to the federal Indian child welfare act Child Welfare Act, 25 USC 1911 1901 to 1963, and, if the child may be subject to that act, the names and addresses of the child's Indian custodian, if any, and Indian tribe, if known.

SB288, s. 41 Section 41. 48.255 (1) (g) of the statutes is created to read:

SB288,43,19 48.255 (1) (g) If the petitioner knows or has reason to know that the child is an Indian child, and if the child has been removed from the home of his or her parent or Indian custodian, reliable and credible information showing that continued custody of the child by the child's parent or Indian custodian is likely to result in serious emotional or physical damage to the child under s. 48.028 (4) (d) 1. and reliable and credible information showing that active efforts under s. 48.028 (4) (d) 2. have been made to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful. The petition shall set forth with specificity both the information required under this paragraph and the information required under par. (f).

SB288, s. 42 Section 42. 48.255 (1m) (d) of the statutes is amended to read:

SB288,43,24 48.255 (1m) (d) Whether the unborn child, when born, may be subject to the federal Indian Child Welfare Act, 25 USC 1911 1901 to 1963, and, if the unborn child may be subject to that act, the name and address of the Indian tribe in which the unborn child may be eligible for affiliation when born, if known.

SB288, s. 43 Section 43. 48.255 (1m) (g) of the statutes is created to read:

SB288,44,10 48.255 (1m) (g) If the petitioner knows or has reason to know that the expectant mother is an Indian child, and if the child expectant mother has been removed from the home of her parent or Indian custodian, reliable and credible information showing that continued custody of the child expectant mother by her parent or Indian custodian is likely to result in serious emotional or physical damage to the child expectant mother under s. 48.028 (4) (d) 1. and reliable and credible information showing that active efforts under s. 48.028 (4) (d) 2. have been made to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful. The petition shall set forth with specificity both the information required under this paragraph and the information required under par. (f).

SB288, s. 44 Section 44. 48.255 (2) of the statutes is amended to read:

SB288,44,14 48.255 (2) If any of the facts required under sub. (1) (a) to (cm) and, (f), and (g) or (1m) (a) to (d) and, (f), and (g) are not known or cannot be ascertained by the petitioner, the petition shall so state.

SB288, s. 45 Section 45. 48.255 (4) of the statutes is amended to read:

SB288,45,3 48.255 (4) A copy of a petition under sub. (1) shall be given to the child if the child is 12 years of age or over and to the parents, guardian, legal custodian and physical custodian. A copy of a petition under sub. (1m) shall be given to the child expectant mother, if 12 years of age or over, her parents, guardian, legal custodian and physical custodian and the unborn child by the unborn child's guardian ad litem or to the adult expectant mother, the unborn child through the unborn child's guardian ad litem and the physical custodian of the expectant mother, if any. A If the child is an Indian child who has been removed from the home of his or her parent or Indian custodian or the unborn child will be an Indian child when born, a copy of a petition under sub. (1) or (1m) shall also be given to the tribe or band with which the child is affiliated or Indian child's Indian custodian and tribe or the Indian tribe with which the unborn child may be eligible for affiliation when born , if the child is an Indian child or the unborn child may be an Indian child when born.

SB288, s. 46 Section 46. 48.27 (3) (a) 1. of the statutes is amended to read:

SB288,45,20 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), (d), or (e), if applicable, of all hearings involving the child except hearings on motions for which notice need only must be provided only to the child and his or her counsel. When If parents who are entitled to notice have the same place of residence, notice to one shall constitute constitutes 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 in writing and may have a copy of the petition attached to it. Thereafter, notice of Notices of subsequent 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.

SB288, s. 47 Section 47. 48.27 (3) (a) 1. of the statutes, as affected by 2009 Wisconsin Acts 28 and .... (this act), is repealed and recreated to read:

SB288,46,12 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 notify, under s. 48.273, the child, any parent, guardian, and legal custodian of the child, any 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), (d), or (e), if applicable, of all hearings involving the child except hearings on motions for which notice must be provided only to the child and his or her counsel. If parents who are entitled to notice have the same place of residence, notice to one constitutes notice to the other. The first notice to any interested party, foster parent, or other physical custodian described in s. 48.62 (2) shall be in writing and may have a copy of the petition attached to it. Notices of subsequent 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.

SB288, s. 48 Section 48. 48.27 (3) (d) of the statutes is amended to read:

SB288,46,21 48.27 (3) (d) If the petition that was filed relates to facts concerning a situation under s. 48.13 or 48.133 involving an Indian child who has been removed from the home of his or her parent or Indian custodian or a situation under s. 48.133 concerning involving an unborn child who, when born, will be an Indian child, the court shall notify, under s. 48.273, the Indian child's Indian custodian and tribe or the Indian tribe or band with which the unborn child will be affiliated may be eligible for affiliation when born and that Indian custodian or tribe or band may, at the court's discretion, intervene at any point in the proceeding before the unborn child is born.

SB288, s. 49 Section 49. 48.27 (4) (a) 2. of the statutes is amended to read:

SB288,46,24 48.27 (4) (a) 2. Advise the child and any party, if applicable, of his or her right to legal counsel regardless of ability to pay.

SB288, s. 50 Section 50. 48.273 (1) of the statutes is renumbered 48.273 (1) (a) and amended to read:

SB288,47,5 48.273 (1) (a) Service Except as provided in pars. (ag), (ar), and (b), service of summons or notice required by s. 48.27 may be made by mailing a copy thereof of the summons or notice to the persons person summoned or notified. If

SB288,47,13 (ar) Except as provided in par. (b), if the persons fail person fails to appear at the hearing or otherwise to acknowledge service, a continuance shall be granted, except where the court determines otherwise because the child is in secure custody, and service shall be made personally by delivering to the persons person a copy of the summons or notice; except that if the court is satisfied determines that it is impracticable to serve the summons or notice personally, it the court may make an order providing for the service of the summons or notice by certified mail addressed to the last-known addresses address of the persons. person.

SB288,47,17 (b) The court may refuse to grant a continuance when the child is being held in secure custody, but in such a case the court if the court so refuses, the court shall order that service of notice of the next hearing be made personally or by certified mail to the last-known address of the person who failed to appear at the hearing.

SB288,47,20 (c) Personal service shall be made at least 72 hours before the time of the hearing. Mail shall be sent at least 7 days before the time of the hearing, except where as follows:

SB288,47,23 1. When the petition is filed under s. 48.13 and the person to be notified lives outside the state, in which case the mail shall be sent at least 14 days before the time of the hearing.

SB288, s. 51 Section 51. 48.273 (1) (ag) of the statutes is created to read:

SB288,48,3 48.273 (1) (ag) In a situation described in s. 48.27 (3) (d) involving an Indian child, service of summons or notice required by s. 48.27 to the Indian child's parent, Indian custodian, or tribe shall be made as provided in s. 48.028 (4) (a).

SB288, s. 52 Section 52. 48.273 (1) (c) 2. of the statutes is created to read:

SB288,48,10 48.273 (1) (c) 2. When a petition under s. 48.13 or 48.133 involves an Indian child who has been removed from the home of his or her parent or Indian custodian and the person to be notified is the Indian child's parent, Indian custodian, or tribe, the mail shall be sent so that it is received by the person to be notified at least 10 days before the hearing or, if the identity or location of the person to be notified cannot be determined, by the U.S. secretary of the interior at least 10 days before the hearing.

SB288, s. 53 Section 53. 48.299 (6) (d) of the statutes is amended to read:

SB288,48,20 48.299 (6) (d) The court may stay the proceedings under this chapter pending the outcome of the paternity proceedings under subch. IX of ch. 767 if the court determines that the paternity proceedings will not unduly delay the proceedings under this chapter and the determination of paternity is necessary to the court's disposition of the child if the child is found to be in need of protection or services or if the court determines or has reason to know that the paternity proceedings may result in a finding that the child is an Indian child and in a petition by the child's parent, Indian custodian, or tribe for transfer of the proceeding to the jurisdiction of the tribe.

SB288, s. 54 Section 54. 48.299 (9) of the statutes is created to read: