Amendment ASA1-AB628

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 An Act to repeal 48.243 (1) (g); and to amend 48.028 (4) (d) 1., 48.028 (4) (d) 2., 48.31 (2), 48.31 (4) and 48.31 (5) of the statutes; relating to: elimination of a jury 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 Section 1. 48.028 (4) (d) 1. of the statutes is amended to read:

AB628-ASA1,2,3 48.028 (4) (d) 1. The court or jury finds by clear and convincing evidence, including the testimony of one or more qualified expert witnesses chosen in the order of preference listed in par. (f), that continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

AB628-ASA1,2 Section 2. 48.028 (4) (d) 2. of the statutes is amended to read:

AB628-ASA1,2,10 48.028 (4) (d) 2. The court or jury finds by clear and convincing evidence that active efforts, as described in par. (g) 1., have been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful. The court or jury shall make that finding notwithstanding that a circumstance specified in s. 48.355 (2d) (b) 1. to 5. applies.

AB628-ASA1,3 Section 3. 48.243 (1) (g) of the statutes is repealed.

AB628-ASA1,4 Section 4 . 48.31 (2) of the statutes is amended to read:

AB628-ASA1,3,11 48.31 (2) The A hearing on a petition under s. 48.13 or 48.133 shall be to the court. A hearing on a termination of parental rights petition shall be to the court unless the child, the child's parent, guardian, or legal custodian, 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 a hearing on a termination of parental rights petition, the court or jury shall make a determination of the facts. At the conclusion of a hearing on a petition under s. 48.13 or 48.133, the court 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 including a 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.

AB628-ASA1,5 Section 5 . 48.31 (4) of the statutes is amended to read:

AB628-ASA1,4,9 48.31 (4) The court or jury shall make findings of fact and the court shall make conclusions of law relating to the allegations of a petition filed under s. 48.13, 48.133 or 48.42, except that the court shall make findings of fact relating to whether the child or unborn child is in need of protection or services which can be ordered by the court. The court shall make findings of fact and conclusions of law relating to the allegations of a petition filed under s. 48.13 or 48.133. In cases alleging a child to be in need of protection or services under s. 48.13 (11), the court may not find that the child is suffering emotional damage unless a licensed physician specializing in psychiatry or a licensed psychologist appointed by the court to examine the child has testified at the hearing that in his or her opinion the condition exists, and adequate opportunity for the cross-examination of the physician or psychologist has been afforded. The judge may use the written reports if the right to have testimony 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 child to be in need of protection or services under s. 48.13 (11m) or an unborn child to be in need of protection or services under s. 48.133, the court may not find that the child or the expectant mother of the unborn child is in need of treatment and education for needs and problems related to the use or abuse of alcohol beverages, controlled substances, or controlled substance analogs and its medical, personal, family, or social effects unless an assessment for alcohol and other drug abuse that conforms to the criteria specified under s. 48.547 (4) has been conducted by an approved treatment facility.

AB628-ASA1,6 Section 6. 48.31 (5) of the statutes is amended to read:

AB628-ASA1,4,19 48.31 (5) If the child is an Indian child, the court or jury shall also determine at the fact-finding hearing on a petition under s. 48.13 or 48.133 whether continued custody of the 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) (d) 1. and whether active efforts under s. 48.028 (4) (d) 2. have been made to prevent the breakup of the Indian child's family and whether those efforts have proved unsuccessful, unless partial summary judgment on the allegations under s. 48.13 or 48.133 is granted, in which case the court shall make those determinations at the dispositional hearing.

AB628-ASA1,7 Section 7 . Initial applicability.

AB628-ASA1,4,22 (1) Right to a jury trial. This act first applies to a petition that is filed under s. 48.13, 48.133, or 48.42 on the effective date of this subsection.

AB628-ASA1,4,23 (End)