2019 - 2020 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO ASSEMBLY BILL 559
December 6, 2019 - Offered by Representative Dittrich.
1An Act to repeal
48.422 (4); to amend
48.31 (2), 48.31 (4), 48.356 (2), 48.38 (5) 2
(a), 48.38 (5m) (a), 48.415 (intro.), 48.415 (4) (a), 48.422 (1), 48.422 (5), 48.424 3
(3), 48.424 (4) (intro.), 938.356 (2), 938.38 (5) (a) and 938.38 (5m) (a); and to
48.02 (5e), 48.13 (15), 48.356 (1m), 48.415 (3m), 48.415 (11) and 938.356 5
(1m) of the statutes; relating to: grounds for finding a child in need of
6protection or services or for terminating parental rights, right to a jury trial in
7a termination of parental rights proceeding, and permanency plan reviews.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
48.02 (5e) of the statutes is created to read:
“Drug-affected child” means any of the following:
(a) A child who suffered prenatal exposure to a controlled substance or alcohol, 11
used by the mother for a nonmedical purpose, as evidenced by withdrawal symptoms
in the child at birth, a positive result from a toxicology test of the mother or child at 2
the time of the child's birth, or developmental delays or other symptoms during the 3
child's first year of life that have been diagnosed as a fetal alcohol spectrum disorder 4
or as caused by prenatal exposure to a controlled substance.
(b) A child whose basic needs, as described in s. 48.01 (1) (ag), and safety have 6
been adversely affected by a parent's or guardian's chronic and severe use of alcohol 7
or a controlled substance.
48.13 (15) of the statutes is created to read:
(a) The child is a drug-affected child, as defined in s. 48.02 (5e) (a), 10
and the petition is filed within 18 months of the child's birth.
(b) The child is a drug-affected child, as defined in s. 48.02 (5e) (b).
48.31 (2) of the statutes is amended to read:
48.31 (2) The A
hearing on a termination of parental rights petition
shall be 14
to the court. A hearing on a petition under s. 48.13 or 48.133 shall be to the court 15
unless the child, the child's parent, guardian, or legal custodian, the unborn child's 16
guardian ad litem, or the expectant mother of the unborn child exercises the right 17
to a jury trial by demanding a jury trial at any time before or during the plea hearing. 18
If a jury trial is demanded in a proceeding under s. 48.13 or 48.133, the jury shall 19
consist of 6 persons. If a jury trial is demanded in a proceeding under s. 48.42, the
20jury shall consist of 12 persons unless the parties agree to a lesser number.
756 and 805 shall govern the selection of jurors. If the hearing involves a child victim 22
or witness, as defined in s. 950.02, the court may order that a deposition be taken by 23
audiovisual means and allow the use of a recorded deposition under s. 967.04 (7) to 24
(10) and, with the district attorney, shall comply with s. 971.105. At the conclusion 25
of the a
hearing on a termination of parental rights petition
, the court shall make a
1determination of the facts. At the conclusion of a hearing on a petition under s. 48.13
2or 48.133, the court
or jury shall make a determination of the facts, except that in a 3
case alleging a child or an unborn child to be in need of protection or services under 4
s. 48.13 or 48.133, the court shall make the determination under s. 48.13 (intro.) or 5
48.133 relating to whether the child or unborn child is in need of protection or 6
services that can be ordered by the court. If the court finds that the child or unborn 7
child is not within the jurisdiction of the court or, in a case alleging a child or an 8
unborn child to be in need of protection or services under s. 48.13 or 48.133, that the 9
child or unborn child is not in need of protection or services that can be ordered by 10
the court, or if the court or jury finds that the facts alleged in the petition have not 11
been proved, the court shall dismiss the petition with prejudice.
48.31 (4) of the statutes is amended to read:
The court shall make findings of fact and conclusions of law relating
14to the allegations of a petition filed under s. 48.42. The court
or jury shall make 15
findings of fact and the court shall make conclusions of law relating to the allegations 16
of a petition filed under s. 48.13, or
48.133 or 48.42
, except that the court shall make 17
findings of fact relating to whether the child or unborn child is in need of protection 18
or services which that
can be ordered by the court. In cases alleging a child to be in 19
need of protection or services under s. 48.13 (11), the court may not find that the child 20
is suffering emotional damage unless a licensed physician specializing in psychiatry 21
or a licensed psychologist appointed by the court to examine the child has testified 22
at the hearing that in his or her opinion the condition exists, and adequate 23
opportunity for the cross-examination of the physician or psychologist has been 24
afforded. The judge may use the written reports if the right to have testimony 25
presented is voluntarily, knowingly,
and intelligently waived by the guardian ad
litem or legal counsel for the child and the parent or guardian. In cases alleging a 2
child to be in need of protection or services under s. 48.13 (11m) or an unborn child 3
to be in need of protection or services under s. 48.133, the court may not find that the 4
child or the expectant mother of the unborn child is in need of treatment and 5
education for needs and problems related to the use or abuse of alcohol beverages, 6
or controlled substance analogs and its medical, personal, 7
or social effects unless an assessment for alcohol and other drug abuse that 8
conforms to the criteria specified under s. 48.547 (4) has been conducted by an 9
approved treatment facility.
48.356 (1m) of the statutes is created to read:
Whenever the court orders a child or expectant mother of an 12
unborn child to be placed outside his or her home or denies a parent visitation in an 13
order under s. 48.21 (4) or 48.32, the court shall orally inform the parent or parents 14
who appear in court or the expectant mother who appears in court of any grounds for 15
termination of parental rights under s. 48.415 that may be applicable and, if any 16
conditions are established for the parent or parents to be granted visitation with the 17
child, the court shall orally inform the parent or parents of those conditions.
48.356 (2) of the statutes is amended to read:
In addition to the notice required under sub. (1) or (1m)
, any written 20
order which places a child or an expectant mother outside the home or denies 21
visitation under sub. (1) or (1m)
shall notify the parent or parents or expectant 22
mother of the information specified under sub. (1) or (1m)
48.38 (5) (a) of the statutes is amended to read:
(a) Except as provided in s. 48.63 (5) (d), the court or a panel appointed 25
under par. (ag) shall review the permanency plan for each child for whom a
permanency plan is required under sub. (2) in the manner provided in this subsection 2
not later than 6 months after the date on which the child was first removed from his
3or her home of a hearing held under sub. (5m)
and every 6 months after a previous 4
review under this subsection for as long as the child is placed outside the home,
except that for the review that is required to be conducted not later than 12 months
6after the child was first removed from his or her home and the
reviews that are 7
required to be conducted every 12 months after that review the initial hearing under
the court shall hold a hearing under sub. (5m) to review the permanency 9
plan, which. The
hearing may be instead of or in addition to the review under this 10
subsection. The 6-month and 12-month periods referred to in this paragraph 11
include trial reunifications under s. 48.358.
48.38 (5m) (a) of the statutes is amended to read:
(a) The court shall hold a hearing to review the permanency plan 14
and to make the determinations specified in sub. (5) (c) for each child for whom a 15
permanency plan is required under sub. (2) no later than 12 6
months after the date 16
on which the child was first removed from the home and every 12 months after a 17
previous hearing under this subsection for as long as the child is placed outside the 18
home. The 6-month and
12-month periods referred to in this paragraph include 19
trial reunifications under s. 48.358.
48.415 (intro.) of the statutes is amended to read:
2148.415 Grounds for involuntary termination of parental rights.
At the fact-finding hearing the court or jury
shall determine whether grounds exist 23
for the termination of parental rights. If the child is an Indian child, the court or jury 24
shall also determine at the fact-finding hearing whether continued custody of the 25
Indian child by the Indian child's parent or Indian custodian is likely to result in
serious emotional or physical damage to the Indian child under s. 48.028 (4) (e) 1. and 2
whether active efforts under s. 48.028 (4) (e) 2. have been made to prevent the 3
breakup of the Indian child's family and whether those efforts have proved 4
unsuccessful, unless partial summary judgment on the grounds for termination of 5
parental rights is granted, in which case the court shall make those determinations 6
at the dispositional hearing. Grounds for termination of parental rights shall be one 7
of the following:
48.415 (3m) of the statutes is created to read:
48.415 (3m) Parental incarceration.
Parental incarceration, which shall be 10
established by proving all of the following:
(a) That the child has been adjudged to be in need of protection or services and, 12
while the parent is incarcerated, has been placed, or continued in a placement, 13
outside his or her home pursuant to one or more court orders under s. 48.345, 48.357, 14
48.363, or 48.365 containing the notice required under s. 48.356 (2).
(b) That the parent is incarcerated at the time of the fact-finding hearing under 16
(c) That the parent is likely to continue to be incarcerated for a substantial 18
period of the child's minority. In determining whether the parent is likely to continue 19
to be incarcerated for a substantial period of the child's minority, the court may 20
consider whether the parent has a history of repeated incarceration.
48.415 (4) (a) of the statutes is amended to read:
(a) That the parent has been denied periods of physical placement 23
by court order in an action affecting the family or has been denied visitation under 24
an order under s. 48.21 (4), 48.32,
48.363, 48.365, 48.38, 938.21
938.345, 938.355 (3),
938.365, or 938.38
containing the notice 2
required by s. 48.356 (2) or 938.356 (2).
48.415 (11) of the statutes is created to read:
48.415 (11) Drug-affected child.
The child is a drug-affected child, which 5
shall be established by proving all of the following:
(a) That the child has been adjudged to be a child in need of protection or 7
services under s. 48.13 (15) (b) and placed outside the home pursuant to one or more 8
court orders under s. 48.345, 48.347, 48.357, 48.363, or 48.365.
(b) That one of the following applies:
1. The parent has not made reasonable efforts to enroll in a substance use 11
disorder treatment or recovery program within 90 days of the placement of the child 12
outside the home pursuant to one or more court orders under s. 48.345, 48.347, 13
48.357, 48.363, or 48.365.
2. The parent enrolled in a substance use disorder treatment or recovery 15
program after placement of the child outside the home pursuant to one or more court 16
orders under s. 48.345, 48.347, 48.357, 48.363, or 48.365 but has not maintained 17
substantial compliance with the program.
(c) That the parent is not participating in a drug court program as described 19
in s. 165.955 (1).
(d) That there is a substantial likelihood that the parent will not meet the 21
conditions for the safe return of the child to the home by the anticipated date that 22
the child's permanency goal will be achieved, as specified in the child's permanency 23
plan under s. 48.38.
48.422 (1) of the statutes is amended to read:
Except as provided in s. 48.42 (2g) (ag), the hearing on the petition 2
to terminate parental rights shall be held within 30 days after the petition is filed. 3
At the hearing on the petition to terminate parental rights the court shall determine 4
whether any party wishes to contest the petition and inform the parties of their 5
rights under sub. (4) and
48.422 (4) of the statutes is repealed.
48.422 (5) of the statutes is amended to read:
Any nonpetitioning party, including the child, shall be granted a 9
continuance of the hearing for the purpose of consulting with an attorney on the
10request for a jury trial or
concerning a request for the substitution of a judge.
48.424 (3) of the statutes is amended to read:
48.424 (3) If the facts are determined by a jury, the jury may only The court
decide whether any grounds for the termination of parental rights have been 14
whether the allegations specified in s. 48.42 (1) (e) have been proved in 15
cases involving the involuntary termination of parental rights to an Indian child.
16The court shall decide, and
what disposition is in the best interest of the child.
48.424 (4) (intro.) of the statutes is amended to read:
(intro.) If the court finds
grounds for the termination of parental 19
rights are found by the court or jury
, the court shall find the parent unfit. A finding 20
of unfitness shall not preclude a dismissal of a petition under s. 48.427 (2). Except 21
as provided in s. 48.23 (2) (b) 3., the court shall then proceed immediately to hear 22
evidence and motions related to the dispositions enumerated in s. 48.427. Except as 23
provided in s. 48.42 (2g) (ag), the court may delay making the disposition and set a 24
date for a dispositional hearing no later than 45 days after the fact-finding hearing 25
if any of the following apply:
938.356 (1m) of the statutes is created to read: