SB460: Bill Text

LRB-0568/2

GMM&PJK:jld&kjf:rs

2011 - 2012 LEGISLATURE

2011 Senate BILL 460

February 10, 2012 - Introduced by Law Revision Committee. Referred to Committee on Judiciary, Utilities, Commerce, and Government Operations.

SB460,2,5 An Act to repeal 48.675; and to amend 20.437 (2) (r), 48.20 (8) (b), 48.203 (7), 48.21 (3) (b), 48.213 (2) (c), 48.213 (2) (d), 48.245 (3), 48.245 (8), 48.255 (4), 48.27 (3) (a) 1., 48.27 (3) (c), 48.29 (1), 48.293 (2), 48.293 (3), 48.297 (6), 48.299 (1) (a), 48.30 (2), 48.31 (2), 48.315 (1) (b), 48.32 (1) (a), 48.32 (2) (c), 48.355 (2) (b) 1m., 48.355 (2) (d), 48.357 (1) (am) 1., 48.357 (1) (am) 2. b., 48.357 (1) (am) 2. c., 48.357 (2m) (a), 48.357 (2m) (b), 48.363 (1) (a), 48.363 (1) (b), 48.365 (1m), 48.365 (2), 48.396 (1b), 48.396 (1d), 48.396 (2) (aj), 48.396 (2) (ap), 48.396 (5) (b), 48.46 (1), 48.78 (2) (aj), 48.78 (2) (ap), 48.981 (3) (c) 1. a., 49.854 (5) (f), 69.15 (3) (b) 3., 767.813 (5) (a) 4. and 767.865 (1) (a) of the statutes; relating to: the provision of notices to, and the exercise of rights by, an unborn child's guardian ad litem in unborn child in need of protection or services proceedings investigations when the individual who is suspected of the abuse or neglect cannot be identified; eliminating a voluntary foster care education program developed by the Department of Children and Families; releasing a frozen bank account of a support obligor; deleting a reference to minors acknowledging paternity; parties on whom the summons and petition must be served in a paternity action when the respondent is deceased; and the maximum prison term length stated in the form for a paternity action summons (suggested as remedial legislation by the Department of Children and Families).

Analysis by the Legislative Reference Bureau

Under current law, the court assigned to exercise jurisdiction under the Children's Code (juvenile court) has exclusive original jurisdiction over an unborn child who is alleged to be in need of protection or services on the grounds that the unborn child's expectant mother habitually lacks self-control in the use of alcohol beverages, controlled substances, or controlled substance analogs, exhibited to a severe degree, to the extent that there is a substantial risk that the physical health of the unborn child will be seriously affected or endangered unless the expectant mother receives prompt and adequate treatment for that habitual lack of self-control (commonly referred to as a "UCHIPS proceeding").

In a UCHIPS proceeding, the unborn child, by or through the unborn child's guardian ad litem (GAL), is entitled to receive notice of all hearings involving the unborn child, including specifically hearings involving the temporary physical custody and changes in placement of the expectant mother and revisions to or extensions of the dispositional order. The unborn child, by or through the unborn child's GAL, is also entitled to exercise certain rights as a party to the proceeding, including the right to request a substitution of judge, to inspect records relevant to the proceeding, to demand a public fact-finding hearing or a jury trial, or to request a change in placement or revision or extension of the dispositional order. In addition, an unborn child, by or through the unborn child's GAL, may request or authorize the disclosure of law enforcement, juvenile court, or social services records relating to the expectant mother of the unborn child.

This bill eliminates the provision of those notices to, and the exercise of those rights by, an unborn child, by or through the unborn child's GAL. Rather, the bill requires those notices to be provided to, and permits those rights to be exercised by, the unborn child's GAL.

Under current law, if a county department of human services or social services (county department), the Department of Children and Families in a county having a population of 500,000 or more (DCF), or a licensed child welfare agency under contract with a county department or DCF to perform child abuse and neglect investigations (collectively "agency"), after evaluating a report of suspected or threatened child abuse or neglect, cannot determine who abused or neglected the child, the agency must initiate a diligent investigation to determine if the child is in need of protection or services. This bill instead requires an agency to initiate such an investigation if the agency cannot identify an individual who is suspected of abuse or neglect or of threatened abuse or neglect of the child.

Current law requires DCF to promulgate rules establishing minimum requirements for the issuance of foster home licenses, including rules requiring all foster parents to successfully complete training in the care and support needs of children who have been placed in foster care. That training must be completed before the first child is placed with the foster parent and on an ongoing basis. Current law also requires DCF to develop a voluntary foster care education program to provide specialized training for foster parents who provide care for children with special treatment needs. This bill eliminates that voluntary foster care education program.

Under current law, if a person who has been ordered by a court to pay child support (obligor) is delinquent in the payments, the amount of the delinquency becomes a lien in favor of DCF. To enforce the lien, DCF may levy against one or more accounts that the obligor has at a financial institution by sending a notice of levy to the financial institution instructing the financial institution to prohibit the closing of or withdrawals from the account, up to the amount that is sufficient to pay the amount of the delinquency. If the obligor requests a hearing and at the hearing the court orders an alternative payment arrangement or determines that the obligor does not owe the support, or owes less than the amount claimed by DCF, the court must, under current law, order DCF to return the seized funds or the excess of the seized funds over the delinquent amount. Since DCF has not actually seized the funds, this bill requires the court to order DCF to instruct the financial institution to release the account, or funds in the account that exceed the delinquent amount, to the obligor.

Under current law, a court may order child support, legal custody, and periods of physical placement on the basis of a statement acknowledging paternity that is signed by both parents and filed with the state registrar. The state registrar may insert the name of the father on a child's birth certificate on the basis of a statement acknowledging paternity. Since January 1, 2007, a minor has been prohibited from signing a statement acknowledging paternity. Current law, however, authorizes the state registrar to insert the father's name on a child's birth certificate on the basis of a statement acknowledging paternity that is signed by a minor parent as long as the minor parent's parent or legal guardian signs, too. This bill harmonizes the prohibition against a minor parent signing a statement acknowledging paternity with the statutes related to requirements for when the state registrar may change facts on birth certificates.

Under current law, a personal representative for a deceased respondent in a paternity action may appear for the respondent whenever an appearance is required. If the deceased respondent does not have a personal representative, the court may appoint a guardian ad litem, and the guardian ad litem may appear for the deceased respondent. Current law requires that the summons and petition in the paternity action be served on the personal representative and the guardian ad litem of a deceased respondent. This bill changes the "and" to an "or." Since the court appoints a guardian ad litem only if there is no personal representative, a deceased respondent in a paternity action would not have both a personal representative and a guardian ad litem.

Under current law, the form for a summons in a paternity action provides notice that interfering with the custody of a child, which is a Class I felony, is punishable by imprisonment for up to five years. A Class I felony actually is punishable under current law by imprisonment for up to three years and six months. This bill corrects the maximum length of time for imprisonment for interfering with the custody of a child that is stated in the form for a paternity action summons.

For further information, see the Notes provided by the Law Revision Committee of the Joint Legislative Council.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

Law Revision Committee prefatory note: This bill is a remedial legislation proposal, requested by the Department of Children and Families and introduced by the Law Revision Committee under s. 13.83 (1) (c) 4. and 5., stats. After careful consideration of the various provisions of the bill, the Law Revision Committee has determined that this bill makes minor substantive changes in the statutes, and that these changes are desirable as a matter of public policy.

SB460, s. 1 Section 1. 20.437 (2) (r) of the statutes is amended to read:

SB460,5,3 20.437 (2) (r) Support receipt and disbursement program; payments. From the support collections trust fund, except as provided in par. (qm), all moneys received under s. 49.854, except for moneys received under s. 49.854 (11) (b), all moneys received under ss. 767.57 and 767.75 for child or family support, maintenance, spousal support, health care expenses, or birth expenses, all other moneys received under judgments or orders in actions affecting the family, as defined in s. 767.001 (1), and all moneys received under s. 49.855 (4) from the department of revenue or the department of administration that were withheld by the department of revenue or the internal revenue service for delinquent child support, family support, or maintenance or outstanding court-ordered amounts for past support, medical expenses, or birth expenses, for disbursement to the persons for whom the payments are awarded, for returning seized funds under s. 49.854 (5) (f), and, if assigned under s. 48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), 49.145 (2) (s), 49.19 (4) (h) 1. b., or 49.775 (2) (bm), for transfer to the appropriation account under par. (k). Estimated disbursements under this paragraph shall not be included in the schedule under s. 20.005.

Note: Removes as a purpose of the support collections trust fund returning funds seized from a financial institution. This reflects that a financial institution freezes accounts at the request of the Department of Children and Families upon notice of levy but the department does not seize the funds until an opportunity for a hearing is afforded.

SB460, s. 2 Section 2 . 48.20 (8) (b) of the statutes is amended to read:

SB460,5,12 48.20 (8) (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, legal custodian, or Indian custodian. The intake worker shall notify the child expectant mother, her parent, guardian, legal custodian, or Indian custodian, and the unborn child, by the unborn child's guardian ad litem.

SB460, s. 3 Section 3. 48.203 (7) of the statutes is amended to read:

SB460,5,19 48.203 (7) If an adult expectant mother is held in custody, the intake worker shall notify the adult expectant mother and the unborn child, through the unborn child's guardian ad litem, of the reasons for holding the adult expectant mother in custody, the time and place of the detention hearing required under s. 48.213, the nature and possible consequences of that hearing, and the right to present and cross-examine witnesses at the hearing.

SB460, s. 4 Section 4. 48.21 (3) (b) of the statutes is amended to read:

SB460,6,7 48.21 (3) (b) If present at the hearing, a copy of the petition or request shall be given to the parent, guardian, 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, 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, under s. 48.20 (8).

SB460, s. 5 Section 5. 48.213 (2) (c) of the statutes is amended to read:

SB460,6,12 48.213 (2) (c) A copy of the petition shall be given to the adult expectant mother, and 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 adult expectant mother and unborn child child's guardian ad litem in accordance with s. 48.203 (7).

SB460, s. 6 Section 6. 48.213 (2) (d) of the statutes is amended to read:

SB460,6,19 48.213 (2) (d) Prior to the commencement of the hearing, the adult expectant mother and the unborn child, through the unborn child's guardian ad litem, shall be informed by the court 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 confront and cross-examine witnesses, and the right to present witnesses.

SB460, s. 7 Section 7. 48.245 (3) of the statutes is amended to read:

SB460,7,2 48.245 (3) The obligations imposed under an informal disposition and its effective date shall be set forth in writing. The child and a parent, guardian, and legal custodian,; the child expectant mother, her parent, guardian, and legal custodian, and the unborn child by the unborn child's guardian ad litem,; or the adult expectant mother and the unborn child by the unborn child's guardian ad litem, shall receive a copy, as shall any agency providing services under the agreement.

SB460, s. 8 Section 8. 48.245 (8) of the statutes is amended to read:

SB460,7,10 48.245 (8) If the obligations imposed under the informal disposition are met, the intake worker shall so inform the child and a parent, guardian , and legal custodian,; the child expectant mother, her parent, guardian, and legal custodian, and the unborn child by the unborn child's guardian ad litem,; or the adult expectant mother and the unborn child by the unborn child's guardian ad litem, in writing, and no petition may be filed on the charges that brought about the informal disposition nor may the charges be the sole basis for a petition under ss. 48.13 to 48.14.

SB460, s. 9 Section 9. 48.255 (4) of the statutes is amended to read:

SB460,7,23 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. 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 Indian child's Indian custodian and tribe or the Indian tribe with which the unborn child may be eligible for affiliation when born.

SB460, s. 10 Section 10. 48.27 (3) (a) 1. of the statutes is amended to read:

SB460,8,15 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 and, if applicable, to the unborn child's guardian ad litem. 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.

SB460, s. 11 Section 11. 48.27 (3) (c) of the statutes is amended to read:

SB460,9,3 48.27 (3) (c) If the petition that was filed relates to facts concerning a situation under s. 48.133 involving an expectant mother who is an adult, the court shall notify, under s. 48.273, the unborn child by the unborn child's guardian ad litem, the expectant mother, the physical custodian of the expectant mother, if any, and any person specified in par. (d), if applicable, of all hearings involving the unborn child and expectant mother except hearings on motions for which notice need only be provided to the expectant mother and her counsel and the unborn child through the unborn child's guardian ad litem. The first notice to any interested party shall be written and may have a copy of the petition attached to it. Thereafter, notice of 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.

SB460, s. 12 Section 12. 48.29 (1) of the statutes is amended to read:

SB460,9,14 48.29 (1) The child, the child's parent, guardian or legal custodian, the expectant mother, or the unborn child by the unborn child's guardian ad litem, either before or during the plea hearing, may file a written request with the clerk of the court or other person acting as the clerk for a substitution of the judge assigned to the proceeding. Upon filing the written request, the filing party shall immediately mail or deliver a copy of the request to the judge named in the request. When any person has the right to request a substitution of judge, that person's counsel or guardian ad litem may file the request. Not more than one such written request may be filed in any one proceeding, nor may any single request name more than one judge. This section does not apply to proceedings under s. 48.21 or 48.213.

SB460, s. 13 Section 13. 48.293 (2) of the statutes is amended to read:

SB460,9,25 48.293 (2) All records relating to a child, or to an unborn child and the unborn child's expectant mother, which that are relevant to the subject matter of a proceeding under this chapter shall be open to inspection by a guardian ad litem or counsel for any party and to inspection by the court-appointed special advocate for the child, upon demand and upon presentation of releases when necessary, at least 48 hours before the proceeding. Persons and unborn children, by their guardians ad litem, entitled to inspect the records may obtain copies of the records with the permission of the custodian of the records or with permission of the court. The court may instruct counsel, a guardian ad litem, or a court-appointed special advocate not to disclose specified items in the materials to the child or the parent, or to the expectant mother, if the court reasonably believes that the disclosure would be harmful to the interests of the child or the unborn child.

SB460, s. 14 Section 14. 48.293 (3) of the statutes is amended to read:

SB460,10,13 48.293 (3) Upon request prior to the fact-finding hearing, counsel for the interests of the public shall disclose to the child, through his or her counsel or guardian ad litem, or to the unborn child, through the unborn child's guardian ad litem, the existence of any audiovisual recording of an oral statement of a child under s. 908.08 which that is within the possession, custody, or control of the state and shall make reasonable arrangements for the requesting person to view the statement. If, after compliance with this subsection, the state obtains possession, custody, or control of such a statement, counsel for the interests of the public shall promptly notify the requesting person of that fact and make reasonable arrangements for the requesting person to view the statement.

SB460, s. 15 Section 15. 48.297 (6) of the statutes is amended to read:

SB460,10,17 48.297 (6) A motion required to be served on a child may be served on his or her attorney of record. A motion required to be served on an unborn child may be served on the unborn child's guardian ad litem.

SB460, s. 16 Section 16. 48.299 (1) (a) of the statutes is amended to read:

SB460,11,2 48.299 (1) (a) The general public shall be excluded from hearings under this chapter and from hearings by courts exercising jurisdiction under s. 48.16 unless a public fact-finding hearing is demanded by a child through his or her counsel, by an expectant mother through her counsel, or by an unborn child through the unborn child's guardian ad litem. However, the court shall refuse to grant the public hearing in a proceeding other than a proceeding under s. 48.375 (7), if a parent, guardian, expectant mother, or unborn child through the unborn child's guardian ad litem objects.

SB460, s. 17 Section 17. 48.30 (2) of the statutes is amended to read:

SB460,11,13 48.30 (2) At the commencement of the hearing under this section the child and the parent, guardian, legal custodian, or Indian custodian; the child expectant mother, her parent, guardian, legal custodian, or Indian 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 the 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 is 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.

SB460, s. 18 Section 18. 48.31 (2) of the statutes is amended to read:

SB460,12,10 48.31 (2) The hearing 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 that a deposition be taken by audiovisual means and allow the use of a recorded 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, 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 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 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 finds that the facts alleged in the petition have not been proved, the court shall dismiss the petition with prejudice.

SB460, s. 19 Section 19. 48.315 (1) (b) of the statutes is amended to read:

SB460,12,14 48.315 (1) (b) Any period of delay resulting from a continuance granted at the request of or with the consent of the child and his or her counsel or of the unborn child by the unborn child's guardian ad litem.

SB460, s. 20 Section 20. 48.32 (1) (a) of the statutes is amended to read:

SB460,13,5 48.32 (1) (a) At any time after the filing of a petition for a proceeding relating to s. 48.13 or 48.133 and before the entry of judgment, the judge or a circuit court commissioner may suspend the proceedings and place the child or expectant mother under supervision in the home or present placement of the child or expectant mother. The court may establish terms and conditions applicable to the child and the child's parent, guardian, or legal custodian, to the child expectant mother and her parent, guardian or legal custodian, or to the adult expectant mother, including the condition specified in sub. (1b). The order under this section shall be known as a consent decree and must be agreed to by the child if 12 years of age or older, the parent, guardian, or legal custodian, and the person filing the petition under s. 48.25; by the child expectant mother, her parent, guardian, or legal custodian, the unborn child by the unborn child's guardian ad litem, and the person filing the petition under s. 48.25; or by the adult expectant mother, the unborn child by the unborn child's guardian ad litem, and the person filing the petition under s. 48.25. The consent decree shall be reduced to writing and given to the parties.

SB460, s. 21 Section 21. 48.32 (2) (c) of the statutes is amended to read:

SB460,13,18 48.32 (2) (c) Upon the motion of the court or the application of the child, parent, guardian, legal custodian, expectant mother, unborn child by the unborn child's guardian ad litem, intake worker, or any agency supervising the child or expectant mother under the consent decree, the court may, after giving notice to the parties to the consent decree, their counsel or guardian ad litem, and the court-appointed special advocate for the child, if any, extend the decree for up to an additional 6 months in the absence of objection to extension by the parties to the initial consent decree. If the child, parent, guardian, legal custodian, expectant mother or unborn child by the unborn child's guardian ad litem objects to the extension, the judge shall schedule a hearing and make a determination on the issue of extension. An extension under this paragraph of a consent decree relating to an unborn child who is alleged to be in need of protection or services may be granted after the child is born.

SB460, s. 22 Section 22. 48.355 (2) (b) 1m. of the statutes is amended to read:

SB460,14,3 48.355 (2) (b) 1m. A notice that the child's parent, guardian, or legal custodian, the child, if 14 years of age or over, the expectant mother, if 14 years of age or over, or the unborn child by the unborn child's guardian ad litem may request an agency that is providing care or services for the child or expectant mother or that has legal custody of the child to disclose to, or make available for inspection by, the parent, guardian, legal custodian, child, expectant mother, or unborn child by the unborn child's guardian ad litem the contents of any record kept or information received by the agency about the child or expectant mother as provided in s. 48.78 (2) (ag) and (aj).

SB460, s. 23 Section 23. 48.355 (2) (d) of the statutes is amended to read:

SB460,14,15 48.355 (2) (d) The court shall provide a copy of a dispositional order relating to a child in need of protection or services to the child's parent, guardian, legal custodian, or trustee, to the child through the child's counsel or guardian ad litem, to the child's court-appointed special advocate, and, if the child is an Indian child who has been removed from the home of his or her parent or Indian custodian and placed outside that home, to the Indian child's Indian custodian and tribe. The court shall provide a copy of a dispositional order relating to an unborn child in need of protection or services to the expectant mother, to the unborn child through the unborn child's guardian ad litem, to the parent, guardian, legal custodian, or trustee of a child expectant mother, and, if the expectant mother is an Indian child, to the expectant mother's Indian custodian and tribe.

SB460, s. 24 Section 24. 48.357 (1) (am) 1. of the statutes is amended to read: