AB152: Bill Text

LRB-1630/1

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2013 - 2014 LEGISLATURE

2013 Assembly BILL 152

April 15, 2013 - Introduced by Joint Legislative Council. Referred to Committee on Family Law.

AB152,2,9 An Act to renumber and amend 48.23 (2), 48.355 (2d) (c) and 938.355 (2d) (c); to amend 48.21 (5) (b) 3., 48.27 (3) (b) 2., 48.32 (1) (b) 2., 48.355 (2) (b) 6r., 48.355 (2d) (b) (intro.), 48.357 (2v) (a) 3., 48.365 (2m) (a) 2., 48.415 (2) (a) 2. b., 48.415 (2) (a) 3., 48.415 (3) (a), 48.415 (5) (a), 48.415 (8), 48.415 (9) (a), 48.415 (9) (b), 48.415 (9m) (a), 48.415 (10) (a), 48.42 (2) (b) 3., 48.42 (2m) (a), 48.423 (1), 48.427 (7), 48.46 (1), (1m) and (2), 48.977 (2) (a), 48.977 (4) (b) 3., 938.21 (5) (b) 3., 938.32 (1) (c) 2., 938.355 (2) (b) 6r., 938.355 (2d) (b) (intro.), 938.357 (2v) (a) 3. and 938.365 (2m) (a) 2.; and to create 48.13 (14), 48.23 (2) (c) and (d), 48.355 (2d) (c) 1., 48.415 (9) (c), 809.10 (1) (b) 7., 809.107 (2) (bm) 6. and 938.355 (2d) (c) 1. of the statutes; relating to: children in need of protection or services jurisdiction over, and grounds for involuntary termination of parental rights to, a child under 3 years of age whose parent had an involuntary termination of parental rights within 3 years prior to the child's birth; reasonable efforts by an agency to return a child safely home when the child has been adjudged to be in need of protection or services; requirements for further participation in an action to terminate parental rights by a man alleged to be the child's father; revising certain grounds for an involuntary termination of parental rights and certain notice exceptions for an involuntary termination of parental rights proceeding; waiver of counsel for a parent in an involuntary termination of parental rights or a contested adoption proceeding; and requiring a parent's signature on a petition for postdispositional relief or a notice of appeal of a termination of parental rights order or a child in need of protection or services or paternity adjudication.

Analysis by the Legislative Reference Bureau

This bill is explained in the Notes provided by the Joint Legislative Council in the bill.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

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

Joint Legislative Council prefatory note: This bill was prepared for the Joint Legislative Council's Special Committee on Permanency for Young Children in the Child Welfare System.

Child in Need of Protection or Services (CHIPS) Petition and Subsequent Involuntary Termination of Parental Rights (TPR) Based Upon an Involuntary TPR Within the Prior Three Years

Under current law, a court assigned to exercise jurisdiction under the Children's Code (juvenile court) has jurisdiction over a child who is alleged to be in need of protection or services. A juvenile court may issue an order to remove the child from the home and may order that services be provided if the child meets one of several specified conditions, including abuse or neglect of the child.

Also under current law, a petition for an involuntary TPR to a child may be filed against a person, if within three years prior to the date of birth of the child a juvenile court has ordered an involuntary TPR with respect to another child of the person.

This bill creates a new ground to file a CHIPS petition. The bill grants the juvenile court jurisdiction over a child who is under three years of age and whose parent had his or her parental rights involuntarily terminated with respect to another child within three years prior to the child's date of birth, if the juvenile court found at a temporary physical custody (TPC) hearing that the child should be continued in custody and if the parent has the right to counsel under s. 48.23, stats., and had that right during the proceeding under s. 48.21, stats., unless that right has been knowingly and voluntarily waived. The bill also allows a TPR petition to be filed with respect to a child found to be in need of protection or services based upon the new CHIPS ground created under this bill. The juvenile court must provide oral and written notification of this fact when entering an order terminating the parental rights of one or both parents with respect to a previous child. The bill also allows a juvenile court to appoint a guardian for a child adjudged to be in need of protection or services based upon the new CHIPS ground.

TPR -- Continuing Need of Protection or Services

Under current law, in order to terminate a person's parental rights, a court or a jury must find that one or more statutory grounds exist. One of the grounds under which an involuntary TPR may be filed is if a child is in continuing need of protection or services (continuing CHIPS). This ground may be established by proving all of the following elements:

• The child has been adjudicated in need of protection or services and continues to be placed outside the home under the CHIPS order.

• The responsible social services agency has made reasonable efforts to provide the services ordered by the court.

• The child has been placed outside the home for a cumulative total period of six months or longer pursuant to the CHIPS order.

• The parent has failed to meet the conditions established for the safe return of the child to the home.

• There is a substantial likelihood that the parent will not meet the conditions established for the safe return of the child to the home within the next nine months after the TPR fact-finding hearing.

This bill deletes from the TPR ground of continuing CHIPS the showing that there is a substantial likelihood that the parent will continue to fail for the next nine months to meet the conditions for the safe return of the child to the home. However, the bill provides that if 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.

TPR -- Continuing Parental Disability

Under current law, a parent's continuing disability is a ground for involuntary TPR. This ground requires all of the following findings: 1) the parent is currently receiving inpatient treatment in a hospital or treatment facility for mental illness, developmental disability, or other like incapacity; 2) the parent has received inpatient treatment in one or more hospitals or treatment facilities for a cumulative total period of at least two of the last five years immediately prior to the filing of the TPR petition; 3) the parent's condition is likely to continue indefinitely; and 4) the child is not being provided with adequate care by a relative, parent, or guardian.

This bill revises the TPR ground of a continuing parental disability to require a parent to have had an 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.

TPR -- Parenthood as a Result of Sexual Assault

Under current law, a parent's commission of sexual assault that results in conception of a child is a ground for TPR. Conception as a result of sexual assault may be proven by a final judgment of conviction or other evidence produced at a fact-finding hearing showing that the person who may be the father committed sexual assault against the mother during a possible time of conception. The mother of the child must be afforded an opportunity to be heard on her desire for the termination of the father's parental rights.

This bill 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. The bill, however, specifies that the ground 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.

In addition, under current law, a juvenile court is not required to provide notice of a CHIPS or TPR action to a person who may be the father of a child conceived as a result of a sexual assault, if a physician attests to a belief that there was a sexual assault of the child's mother that may have resulted in the child's conception.

This bill eliminates that physician attestation requirement from those notice exceptions and instead requires proof of a sexual assault by a final judgment of conviction or other evidence. Under the bill, that notice exception does not apply 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.

TPR -- Pattern of Child Abuse; Homicide of Parent; and Felony Against a Child

Under current law, a parent's commission of certain egregious crimes is a ground for TPR. These crimes include: 1) exhibiting a pattern of physically or sexually abusive behavior that is a substantial threat to the health of the child (child abuse); 2) committing homicide or soliciting the homicide of the other parent (homicide of a parent); or 3) committing a serious felony against the person's own child or committing child trafficking against any child (felony against a child).

Each of these grounds requires evidence of a final judgment of conviction for the crime. In order for a judgment of conviction to be considered as final under the law, the time for appeal must have expired, or, if appealed, all appeals directly challenging the parent's guilt must be exhausted.

This bill revises the TPR grounds of child abuse, homicide of a parent, and 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.

Reasonable Efforts to Return a Child Safely Home

The federal Adoption and Safe Families Act of 1997 (ASFA) requires that reasonable efforts be made to preserve and reunify a family prior to a child's removal from the home, and, if a child is removed from the home, that reasonable efforts be made to make it possible for the child's safe return to the home or to achieve any other goal of the child's permanency plan (reasonable efforts).

ASFA specifies that reasonable efforts "shall not be required" under certain egregious circumstances. These circumstances have been codified in Wisconsin law to specify that a juvenile court is not required to include a finding as to whether an agency has made reasonable efforts if a parent:

• Has subjected the child to aggravated circumstances, including torture, chronic abuse, sexual abuse, or felony abandonment of the child.

• Committed or attempted murder of the child's other parent.

• Committed an assault crime that resulted in great or substantial bodily harm to the child or another child of the parent.

• Had parental rights to another child involuntarily terminated.

• Has relinquished custody of the child within 72 hours of the child's birth.

Wisconsin law does not expressly prohibit a juvenile court from requiring a social service agency to make reasonable efforts in these circumstances, nor does the law specify a standard to evaluate when reasonable efforts may be required under these circumstances.

In addition, under Wisconsin law, when considering a TPR petition on the ground of continuing CHIPS, a number of elements must be found, including that a social services agency has made reasonable efforts to provide the services ordered by the juvenile court. No exception is made for the egregious circumstances under which reasonable efforts are not required under ASFA, as codified in Wisconsin law.

This bill revises the requirements relating to reasonable efforts as follows:

• The bill specifies that a juvenile court must determine that an agency is not required to make reasonable efforts if there are egregious circumstances under which reasonable efforts are not required, unless the court determines that such efforts would be in the best interests of the child.

• The bill specifies in the TPR ground based on continuing CHIPS that the requirement for an agency to have made reasonable efforts to reunify the family is inapplicable for any period when reasonable efforts were not required due to the egregious circumstances specified in statute.

Because the Juvenile Justice Code contains parallel provisions to the Children's Code for holding a child or juvenile in custody, the bill revises the parallel provisions relating to reasonable efforts in both the Children's Code and the Juvenile Justice Code to make both codes consistent.

Waiver of Counsel; Parent's Signature

Under current law, in a proceeding involving TPR, or a contested adoption, a parent who appears before the juvenile court must be represented by counsel. A parent 18 years of age or over may waive counsel if the juvenile court is satisfied that the waiver is knowingly and voluntarily made. However, a parent under age 18 may not waive counsel.