AB152: Bill Text

This bill also requires a parent's signature, in addition to counsel's signature, on a notice of intent to appeal or notice of appeal from a TPR judgment, petition for rehearing from a CHIPS adjudication or TPR judgment, or motion for postdisposition relief from a CHIPS adjudication or TPR judgment.

TPR Participation by Alleged Father

Under current law, an alleged father must be served with a TPR summons and petition. If paternity is then established during the TPR proceedings, the father may further participate in the proceedings.

In order for an alleged father to participate in the TPR proceedings after paternity has been established, at least one of the following must have occurred:

• The alleged father has filed a declaration of paternal interest upon the child's birth or upon receipt of the TPR petition, and the declaration has not been revoked.

• The mother (or other source) alleges the man to be the father.

• The man has lived in a familial relationship with the child and may be the father of the child.

This bill removes the right of an alleged father who is determined in the TPR proceedings to be the father, but who has not otherwise declared or established a relationship with the child, to further participate in the proceedings. Specifically, under the bill, a man determined to be the father may further participate in a TPR proceeding only if the man: 1) filed a declaration of paternal interest upon the child's birth or upon receipt of the TPR petition and the declaration has not been revoked; 2) established and maintained a familial relationship with the child; or 3) establishes that he has been deprived of the opportunity to assume parental responsibility for the child.

The bill retains the requirement that an alleged father be served with a TPR summons and petition, regardless of whether the alleged father has declared or established and maintained a familial relationship with the child.

AB152,1 Section 1 . 48.13 (14) of the statutes is created to read:

AB152,6,8 48.13 (14) Who is less than 3 years of age and whose parent, within 3 years prior to the date of birth of the child, had his or her parental rights to another child involuntarily terminated by a court, if a judge or circuit court commissioner has found that the child should be continued in custody under s. 48.21 (4) and if that parent has the right to counsel under s. 48.23 and had that right during the proceeding under s. 48.21, unless this right has been knowingly and voluntarily waived.

Note: This Section creates a new ground on which the juvenile court has jurisdiction over a child in need of protection or services. The ground grants the juvenile court jurisdiction over a child who is under three years of age and whose parent has had his or her parental rights to another child involuntarily terminated within three years prior to the child's birth, if the juvenile court found at a TPC hearing that the child should be continued in custody and if the parent has the right to counsel and had that right during the TPC hearing, unless that right has been knowingly and voluntarily waived.

AB152,2 Section 2. 48.21 (5) (b) 3. of the statutes is amended to read:

AB152,7,8 48.21 (5) (b) 3. 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, a determination that the county department, department, in a county having a population of 500,000 or more, or agency primarily responsible for providing services under the custody order is not required to make reasonable efforts with respect to the parent to make it possible for the child to return safely to his or her home, unless the judge or circuit court commissioner determines or has determined under a prior order that such efforts would be in the best interests of the child.

Note: This Section specifies that at a TPC hearing for a child alleged to be in need of protection or services, the juvenile court must determine that an agency is not required to make reasonable efforts to return a child safely home when the statutorily defined egregious circumstances are found to exist, unless the court determines that such efforts would be in the best interests of the child.

AB152,3 Section 3. 48.23 (2) of the statutes is renumbered 48.23 (2) (a) and amended to read:

AB152,7,16 48.23 (2) Right of parents parent to counsel. (a) Whenever a child is the subject of a proceeding involving a contested adoption or the an involuntary termination of parental rights, any parent under 18 years of age who appears before the court shall be represented by counsel; but and no such parent may waive counsel. 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

AB152,7,21 (b) In a proceeding involves involving a contested adoption or the an involuntary termination of parental rights, any parent 18 years old of age 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, except as provided in par. (c).

Note: This Section separates the current language governing the right to counsel between a minor parent and a parent 18 years of age or over, and makes the right to counsel for an adult parent subject to a waiver by an egregious and unjustifiable failure to appear.

AB152,4 Section 4. 48.23 (2) (c) and (d) of the statutes are created to read:

AB152,8,2 48.23 (2) (c) Counsel under this subsection may be waived as follows:

AB152,8,4 1. A parent 18 years of age or over may waive counsel if the court is satisfied that the waiver is knowingly and voluntarily made.

AB152,8,11 2. A parent 18 years of age or over is presumed to have waived his or her right to counsel and to appear by counsel if the court has ordered the parent to appear in person at any or all subsequent hearings in the proceeding, the parent fails to appear in person as ordered, and the court finds that the parent's conduct in failing to appear was egregious and without clear and justifiable excuse. Failure by a parent 18 years of age or over to appear in person at consecutive hearings as ordered by the court is presumed to be egregious and without clear and justifiable excuse.

AB152,8,13 3. If a parent 18 years of age or over waives counsel under subd. 1. or 2., the court may discharge counsel.

AB152,8,16 (d) In a proceeding to vacate a default judgment or for reconsideration of a default judgment terminating parental rights, a parent who had waived counsel shall be represented by counsel, except as provided in par. (c) 1. or 2.

Note: This Section provides that a parent 18 years of age or over who was ordered to appear in person at hearings for an involuntary TPR or contested adoption proceeding, but who has failed to appear, is considered to have waived the right to counsel, if the juvenile court finds that the parent's conduct in failing to appear was egregious and without clear and justifiable excuse. The bill provides that consecutive failures by an adult parent to appear are presumed to be egregious and without clear and justifiable excuse. The bill also provides that a right to counsel is reinstated for a motion to vacate or reconsider a default TPR judgment, if counsel was waived during the TPR proceeding in which the default judgement was entered.

AB152,5 Section 5. 48.27 (3) (b) 2. of the statutes is amended to read:

AB152,9,10 48.27 (3) (b) 2. A court is not required to provide notice, under subd. 1., to any person who may be the father of a child conceived as a result of a sexual assault if a physician attests to his or her belief that there was if a sexual assault of the child's mother that may have resulted in the child's conception is proved by a final judgment of conviction or other evidence. A person who is not given notice under this subdivision does not have standing to appear and contest a petition under s. 48.13 or 48.133, present evidence relevant to the issue of disposition, or make alternative dispositional recommendations. This subdivision does not apply to a person who may be the father of a child conceived as a result of a sexual assault under s. 948.02 (1) (b) or (e) or (2) or 948.09, if that person was under 18 years of age at the time of the sexual assault and was not more than 4 years older or not more than 4 years younger than the victim and if the assault did not involve the use or threat of force or violence.

Note: This Section removes the requirement that a physician attest to a belief that there was a sexual assault from the exception from providing notice of a CHIPS proceeding to a person who may be the father of the child, and instead requires proof of a sexual assault by a final judgment of conviction or other evidence. This Section, however, requires notice of a CHIPS proceeding to be given to a father who was under age 18 at the time of a nonviolent sexual assault of a minor, if the age difference between the father and the victim is four years or less.

AB152,6 Section 6. 48.32 (1) (b) 2. of the statutes is amended to read:

AB152,9,20 48.32 (1) (b) 2. 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 consent decree shall include a determination that the county department, department, in a county having a population of 500,000 or more, or agency primarily responsible for providing services under the consent decree is not required to make reasonable efforts with respect to the parent to make it possible for the child to return safely to his or her home, unless the judge or circuit court commissioner determines or has determined under a prior order that such efforts would be in the best interests of the child.

Note: This Section specifies that in a CHIPS consent decree the juvenile court must determine that an agency is not required to make reasonable efforts to return a child safely home when the statutorily defined egregious circumstances are found to exist, unless the court determines that such efforts would be in the best interests of the child.

AB152,7 Section 7. 48.355 (2) (b) 6r. of the statutes is amended to read:

AB152,10,9 48.355 (2) (b) 6r. If the court finds that any of the circumstances specified in sub. (2d) (b) 1. to 5. applies with respect to a parent, a determination that the county department, department, in a county having a population of 500,000 or more, or agency primarily responsible for providing services under the court order is not required to make reasonable efforts with respect to the parent to make it possible for the child to return safely to his or her home, unless the court determines or has determined under a prior order that such efforts would be in the best interests of the child.

Note: This Section requires the juvenile court to include in a CHIPS dispositional order a determination that an agency is not required to make reasonable efforts to return a child safely home when the statutorily defined egregious circumstances are found to exist, unless the court determines that such efforts would be in the best interests of the child.

AB152,8 Section 8. 48.355 (2d) (b) (intro.) of the statutes is amended to read:

AB152,11,2 48.355 (2d) (b) (intro.) Notwithstanding sub. (2) (b) 6., the The court is not required to shall include in a dispositional order a finding as to whether determination that the county department, the department, in a county having a population of 500,000 or more, or the agency primarily responsible for providing services under a court order has made is not required to make reasonable efforts with respect to a parent of a child to prevent the removal of the child from the home, while assuring that the child's health and safety are the paramount concerns, or a finding as to whether the county department, department, or agency has made reasonable efforts with respect to a parent of a child or to achieve the permanency goal of returning the child safely to his or her home, unless the court determines or has determined under a prior order that such efforts would be in the best interests of the child, if the court finds any of the following:

Note: This Section requires the juvenile court to include in a CHIPS dispositional order a determination that an agency is not required to make reasonable efforts to prevent a child's removal or return a child safely home when the statutorily defined egregious circumstances are found to exist, unless the court determines that such efforts would be in the best interests of the child.

AB152,9 Section 9 . 48.355 (2d) (c) of the statutes is renumbered 48.355 (2d) (c) (intro.) and amended to read:

AB152,11,6 48.355 (2d) (c) If the court finds that any of the circumstances specified in par. (b) 1. to 5. applies with respect to a parent, the court shall hold do all of the following:

AB152,11,9 2. Hold a hearing under s. 48.38 (4m) within 30 days after the date of that finding to determine the permanency goal and, if applicable, any concurrent permanency goals for the child.

AB152,10 Section 10 . 48.355 (2d) (c) 1. of the statutes is created to read:

AB152,11,15 48.355 (2d) (c) 1. Include in the order a determination that the person or agency primarily responsible for providing services to the child is not required to make reasonable efforts with respect to the parent to make it possible for the child to return safely to his or her home, unless the court determines that such efforts would be in the best interests of the child.

Note: Sections 9 and 10 require the juvenile court to include in a CHIPS dispositional order a determination that an agency is not required to make reasonable efforts to return a child safely home when the statutorily defined egregious circumstances are found to exist, unless the court determines that such efforts would be in the best interests of the child.

AB152,11 Section 11. 48.357 (2v) (a) 3. of the statutes is amended to read:

AB152,12,3 48.357 (2v) (a) 3. If the court finds that any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies with respect to a parent, a determination that the agency primarily responsible for providing services under the change in placement order is not required to make reasonable efforts with respect to the parent to make it possible for the child to return safely to his or her home , unless the court determines or has determined under a prior order that such efforts would be in the best interests of the child.

Note: This Section specifies that in a CHIPS change-in-placement order the juvenile court must determine that an agency is not required to make reasonable efforts to return a child safely home when the statutorily defined egregious circumstances are found to exist, unless the court determines that such efforts would be in the best interests of the child.

AB152,12 Section 12. 48.365 (2m) (a) 2. of the statutes is amended to read:

AB152,12,11 48.365 (2m) (a) 2. If the judge finds that any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies with respect to a parent, the order shall include a determination that the person or agency primarily responsible for providing services to the child is not required to make reasonable efforts with respect to the parent to make it possible for the child to return safely to his or her home , unless the judge determines or has determined under a prior order that such efforts would be in the best interests of the child.

Note: This Section specifies that in a CHIPS extension order, the juvenile court must determine that an agency is not required to make reasonable efforts to return a child safely home when the statutorily defined egregious circumstances are found to exist, unless the court determines that such efforts would be in the best interests of the child.

AB152,13 Section 13. 48.415 (2) (a) 2. b. of the statutes is amended to read:

AB152,12,19 48.415 (2) (a) 2. b. That the agency responsible for the care of the child and the family or of the unborn child and expectant mother has made a reasonable effort to provide the services ordered by the court, excluding any period during which the responsible agency was not required under s. 48.355 (2) (b) 6r., 48.357 (2v) (a) 3., 48.365 (2m) (a) 2., 938.355 (2) (b) 6r., 938.357 (2v) (a) 3., or 938.365 (2m) (a) 2. to make reasonable efforts with respect to a parent to make it possible for the child to return safely to his or her home.

Note: This Section specifies that, for the TPR ground of continuing CHIPS, the requirement that reasonable efforts have been made to provide the services ordered by the juvenile court does not apply to any period when reasonable efforts for reunification were not required by the juvenile court.

AB152,14 Section 14. 48.415 (2) (a) 3. of the statutes is amended to read:

AB152,13,13 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 9-month period following the fact-finding hearing under s. 48.424; and, if the child has been placed outside of his or her home for less than 15 of the last 22 months, that there is a substantial likelihood that the parent will not meet these conditions as of the date on which the child will have been placed outside of his or her home pursuant to such orders for 15 of the most recent 22 months, not including any period during which the child was a runaway from the out-of-home placement or was residing in a trial reunification home.

Note: This Section revises the continuing CHIPS ground for involuntary TPR to eliminate the requirement to show that a parent is substantially likely to not meet the conditions for the safe return of the child within the next nine months following the fact-finding hearing. If, however, the child has been placed outside the home for less than 15 of the last 22 months, the petitioner must show that there is a substantial likelihood that the parent will not meet the conditions at the time the child will reach the 15th of the last 22 months of placement outside the home.

AB152,15 Section 15. 48.415 (3) (a) of the statutes is amended to read:

AB152,14,2 48.415 (3) (a) The parent is presently, and for a cumulative total period of at least 2 years 15 months within the 5 years 22 months immediately prior to the filing of the petition has been, an inpatient at one or more hospitals, as defined in s. 50.33 (2) (a), (b) or (c), licensed approved treatment facilities as defined in s. 51.01 (2), or state treatment facilities, as defined in s. 51.01 (15), on account of mental illness, as defined in s. 51.01 (13) (a) or (b), developmental disability , as defined in s. 55.01 (2), or other like incapacities, as defined in s. 55.01 (5);

Note: This Section revises the TPR ground of a continuing parental disability to require a parent to have had inpatient treatment history for at least 15 of the last 22 months prior to the filing of the TPR petition, rather than an inpatient treatment history for at least two of the last five years. This Section also corrects the terminology for an "approved treatment facility," as defined in the statutes.

AB152,16 Section 16. 48.415 (5) (a) of the statutes is amended to read:

AB152,14,7 48.415 (5) (a) That the parent has caused death or injury to a child or children resulting in a, which may be proved by a final judgment of felony conviction or other evidence produced at a fact-finding hearing under s. 48.424 indicating that the person caused the death or injury.

Note: This Section revises the TPR ground of a pattern of child abuse to allow evidence of the criminal conduct itself to be proven, as an alternative to allowing proof by a final judgment of conviction.

AB152,17 Section 17. 48.415 (8) of the statutes is amended to read:

AB152,15,2 48.415 (8) Homicide or solicitation to commit homicide of parent. Homicide or solicitation to commit homicide of a parent, which shall be established by proving that a parent of the child has been a victim of first-degree intentional homicide in violation of s. 940.01, first-degree reckless homicide in violation of s. 940.02, or 2nd-degree intentional homicide in violation of s. 940.05 or a crime under federal law or the law of any other state that is comparable to any of those crimes, or has been the intended victim of a solicitation to commit first-degree intentional homicide in violation of s. 939.30 or a crime under federal law or the law of any other state that is comparable to that crime, and that the person whose parental rights are sought to be terminated has been convicted of committed that intentional or reckless homicide, or solicitation or comparable crime under federal law or the law of any other state as evidenced by a final judgment of conviction or other evidence produced at a fact-finding hearing under s. 48.424 indicating that the person committed or solicited homicide of a parent as described in this subsection.

Note: This Section revises the TPR ground of homicide, or a solicitation to commit homicide, of the child's other parent to allow evidence of the criminal conduct itself to be proven, as an alternative to allowing proof by a final judgment of conviction.

AB152,18 Section 18. 48.415 (9) (a) of the statutes is amended to read:

AB152,15,12 48.415 (9) (a) Parenthood Except as provided in par. (c), parenthood as a result of sexual assault, which shall be established by proving that the child was conceived as a result of a sexual assault in violation of s. 940.225 (1), (2) , or (3), 948.02 (1) or (2), 948.025, or 948.085. Conception as a result of sexual assault as specified in this paragraph may be proved by a final judgment of conviction or other evidence produced at a fact-finding hearing under s. 48.424 indicating that the person who may be the father parent of the child committed, during a possible time of conception, a sexual assault as specified in this paragraph against the mother other parent of the child.

Note: This Section revises the TPR ground of conception as a result of sexual assault to apply that ground equally to a mother, as well as a father, who commits a sexual assault leading to the conception of a child, rather than referring only to the father as the person who committed the sexual assault.

AB152,19 Section 19. 48.415 (9) (b) of the statutes is amended to read:

AB152,15,18 48.415 (9) (b) If the conviction or other evidence specified in par. (a) indicates that the child was conceived as a result of a sexual assault in violation of s. 948.02 (1) or (2) or 948.085, the mother of the child parent who was the victim of the sexual assault may be heard on his or her desire for the termination of the father's other person's parental rights.

Note: This Section specifies that a juvenile court must allow either a mother or father who was a victim of sexual assault of a minor, or a victim of sexual assault of a minor by an out-of-home care provider, to be heard on his or her desires regarding the TPR of the other parent, rather than allowing only a mother, as a victim, to be heard.

AB152,20 Section 20. 48.415 (9) (c) of the statutes is created to read:

AB152,16,5 48.415 (9) (c) This subsection does not apply to a parent who committed sexual assault under s. 948.02 (1) (b) or (e) or (2) or 948.09, if that person was under 18 years of age at the time of the sexual assault and was not more than 4 years older or not more than 4 years younger than the victim and if the assault did not involve the use or threat of force or violence.

Note: This Section specifies that the TPR ground of conception as a result of sexual assault is inapplicable to a person who committed a nonviolent sexual assault of a minor, if the person was also a minor at the time of the assault and the age difference between the person and the victim is four years or less.

AB152,21 Section 21. 48.415 (9m) (a) of the statutes is amended to read:

AB152,16,13 48.415 (9m) (a) Commission of a serious felony against one of the person's children, which shall be established by proving that a child of the person whose parental rights are sought to be terminated was the victim of a serious felony and that the person whose parental rights are sought to be terminated has been convicted of committed that serious felony as evidenced by a final judgment of conviction or other evidence produced at a fact-finding hearing under s. 48.424 indicating that the person committed a serious felony against one of the person's children.

Note: This Section revises the TPR ground of felony against a child to allow evidence of the criminal conduct itself to be proven, as an alternative to allowing proof by a final judgment of conviction.

AB152,22 Section 22. 48.415 (10) (a) of the statutes is amended to read:

AB152,16,18 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, (10), or (14); or that the child who is the subject of the petition was born after the filing of a petition under this subsection whose subject is a sibling of the child.

Note: This Section allows a TPR petition to be filed if the parent's child was found to be in need of protection or services based on the new CHIPS ground created under Section 1.

AB152,23 Section 23. 48.42 (2) (b) 3. of the statutes is amended to read:

AB152,17,2 48.42 (2) (b) 3. A person who has lived in established and maintained a familial relationship with the child and who may be the father of the child.

Note: This Section specifies that in order for an alleged father to be summoned for a TPR proceeding, one method of protecting that right is by having established and maintained a familial relationship with the child, even if the alleged father has not lived with the child.

AB152,24 Section 24. 48.42 (2m) (a) of the statutes is amended to read:

AB152,17,20 48.42 (2m) (a) Parent as a result of sexual assault. Except as provided in this paragraph, notice is not required to be given to a person who may be the father of a child conceived as a result of if a sexual assault of the child's mother in violation of s. 940.225 (1), (2), or (3), 948.02 (1) or (2), 948.025, or 948.085 if a physician attests to his or her belief that a sexual assault as specified in this 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 paragraph for conduct which may have led to the child's conception that may have resulted in the child's conception is proved by a final judgment of conviction or other evidence. A person who under this 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 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 under s. 948.02 (1) (b) or (e) or (2) or 948.09, if that person was under 18 years of age at the time of the sexual assault and was not more than 4 years older or not more than 4 years younger than the victim and if the assault did not involve the use or threat of force or violence.

Note: This Section removes the requirement that a physician attest to a belief that there was a sexual assault from the exception from providing notice of a TPR proceeding to a person who may be the father of the child, and instead requires proof by a final judgment of conviction or other evidence. This Section, however, requires notice of a TPR proceeding to be given to a father who was under 18 years of age at the time of a nonviolent sexual assault of a minor, if the age difference between the father and the victim is four years or less.

AB152,25 Section 25. 48.423 (1) of the statutes is amended to read:

AB152,18,12 48.423 (1) Rights to paternity determination. If a person appears at the hearing and claims that he is the father of the child, the court shall set a date for a hearing on the issue of paternity or, if all parties agree, the court may immediately commence hearing testimony concerning the issue of paternity. The court shall inform the person claiming to be the father of the child of any right to counsel under s. 48.23. The person claiming to be the father of the child must prove paternity by clear and convincing evidence. A person who establishes his paternity of the child under this section may further participate in the termination of parental rights proceeding only if the person meets the conditions specified in sub. (2) or, meets a condition specified in s. 48.42 (2) (b) 1. or 3. or (bm), or establishes that he has been deprived of the opportunity to assume parental responsibility for the child.

Note: This Section removes the right of a man alleged to be the father of a child, who has not filed a declaration of parental interest or established and maintained a familial relationship with the child, to further participate in a TPR proceeding after his paternity has been determined, unless he establishes that he has been deprived of the opportunity to assume parental responsibility for the child.