LRBs0255/1
EAW:amn
2021 - 2022 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO ASSEMBLY BILL 628
November 30, 2021 - Offered by Representative Dittrich.
AB628-ASA1,1,3 1An Act to repeal 48.243 (1) (g); and to amend 48.028 (4) (d) 1., 48.028 (4) (d) 2.,
248.31 (2), 48.31 (4) and 48.31 (5) of the statutes; relating to: elimination of a
3jury trial in a child in need of protection or services (CHIPS) proceeding.
Analysis by the Legislative Reference Bureau
Under current law, in a proceeding to determine whether a child or unborn child
is in need of protection or services (CHIPS or UCHIPS), and in a termination of
parental rights (TPR) proceeding, a child or the child's parent, guardian, or legal
custodian; an unborn child's guardian ad litem; or an expectant mother of an unborn
child has a statutory right to a jury trial in the fact-finding portion of the proceeding.
This bill eliminates that statutory right in a CHIPS or UCHIPS proceeding.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB628-ASA1,1 4Section 1. 48.028 (4) (d) 1. of the statutes is amended to read:
AB628-ASA1,2,35 48.028 (4) (d) 1. The court or jury finds by clear and convincing evidence,
6including the testimony of one or more qualified expert witnesses chosen in the order

1of preference listed in par. (f), that continued custody of the Indian child by the parent
2or Indian custodian is likely to result in serious emotional or physical damage to the
3child.
AB628-ASA1,2 4Section 2. 48.028 (4) (d) 2. of the statutes is amended to read:
AB628-ASA1,2,105 48.028 (4) (d) 2. The court or jury finds by clear and convincing evidence that
6active efforts, as described in par. (g) 1., have been made to provide remedial services
7and rehabilitation programs designed to prevent the breakup of the Indian child's
8family and that those efforts have proved unsuccessful. The court or jury shall make
9that finding notwithstanding that a circumstance specified in s. 48.355 (2d) (b) 1. to
105. applies.
AB628-ASA1,3 11Section 3. 48.243 (1) (g) of the statutes is repealed.
AB628-ASA1,4 12Section 4 . 48.31 (2) of the statutes is amended to read:
AB628-ASA1,3,1113 48.31 (2) The A hearing on a petition under s. 48.13 or 48.133 shall be to the
14court. A hearing on a termination of parental rights petition shall be to the court
15unless the child, the child's parent, guardian, or legal custodian, the unborn child's
16guardian ad litem, or the expectant mother of the unborn child exercises the right
17to a jury trial by demanding a jury trial at any time before or during the plea hearing.
18If a jury trial is demanded in a proceeding under s. 48.13 or 48.133, the jury shall
19consist 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. Chapters
21756 and 805 shall govern the selection of jurors. If the hearing involves a child victim
22or witness, as defined in s. 950.02, the court may order that a deposition be taken by
23audiovisual 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
25of the a hearing on a termination of parental rights petition, the court or jury shall

1make a determination of the facts. At the conclusion of a hearing on a petition under
2s. 48.13 or 48.133, the court
shall make a determination of the facts, except that in
3a case alleging a child or an unborn child to be in need of protection or services under
4s. 48.13 or 48.133, the court shall make the
including a determination under s. 48.13
5(intro.) or 48.133 relating to whether the child or unborn child is in need of protection
6or services that can be ordered by the court. If the court finds that the child or unborn
7child is not within the jurisdiction of the court or, in a case alleging a child or an
8unborn child to be in need of protection or services under s. 48.13 or 48.133, that the
9child or unborn child is not in need of protection or services that can be ordered by
10the court, or if the court or jury finds that the facts alleged in the petition have not
11been proved, the court shall dismiss the petition with prejudice.
AB628-ASA1,5 12Section 5 . 48.31 (4) of the statutes is amended to read:
AB628-ASA1,4,913 48.31 (4) The court or jury shall make findings of fact and the court shall make
14conclusions of law relating to the allegations of a petition filed under s. 48.13, 48.133
15or 48.42, except that the court shall make findings of fact relating to whether the
16child or unborn child is in need of protection or services which can be ordered by the
17court
. The court shall make findings of fact and conclusions of law relating to the
18allegations of a petition filed under s. 48.13 or 48.133.
In cases alleging a child to be
19in need of protection or services under s. 48.13 (11), the court may not find that the
20child is suffering emotional damage unless a licensed physician specializing in
21psychiatry or a licensed psychologist appointed by the court to examine the child has
22testified at the hearing that in his or her opinion the condition exists, and adequate
23opportunity for the cross-examination of the physician or psychologist has been
24afforded. The judge may use the written reports if the right to have testimony
25presented is voluntarily, knowingly, and intelligently waived by the guardian ad

1litem or legal counsel for the child and the parent or guardian. In cases alleging a
2child to be in need of protection or services under s. 48.13 (11m) or an unborn child
3to be in need of protection or services under s. 48.133, the court may not find that the
4child or the expectant mother of the unborn child is in need of treatment and
5education for needs and problems related to the use or abuse of alcohol beverages,
6controlled substances, or controlled substance analogs and its medical, personal,
7family, or social effects unless an assessment for alcohol and other drug abuse that
8conforms to the criteria specified under s. 48.547 (4) has been conducted by an
9approved treatment facility.
AB628-ASA1,6 10Section 6. 48.31 (5) of the statutes is amended to read:
AB628-ASA1,4,1911 48.31 (5) If the child is an Indian child, the court or jury shall also determine
12at the fact-finding hearing on a petition under s. 48.13 or 48.133 whether continued
13custody of the Indian child by the Indian child's parent or Indian custodian is likely
14to result in serious emotional or physical damage to the Indian child under s. 48.028
15(4) (d) 1. and whether active efforts under s. 48.028 (4) (d) 2. have been made to
16prevent the breakup of the Indian child's family and whether those efforts have
17proved unsuccessful, unless partial summary judgment on the allegations under s.
1848.13 or 48.133 is granted, in which case the court shall make those determinations
19at the dispositional hearing
.
AB628-ASA1,7 20Section 7 . Initial applicability.
AB628-ASA1,4,2221 (1) Right to a jury trial. This act first applies to a petition that is filed under
22s. 48.13, 48.133, or 48.42 on the effective date of this subsection.
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