SB246: Bill Text

LRB-3587/1

GMM:jrd:km

1995 - 1996 LEGISLATURE

1995 Senate BILL 246

June 1, 1995 - Introduced by Senators Darling, Moore, Andrea, Farrow, Plewa, Cowles, Rosenzweig, Buettner, A. Lasee, Rude and Weeden, cosponsored by Representatives Silbaugh, Krusick, Foti, Plache, Duff, Dobyns, Kreibich, Owens, Huber, Ainsworth, Springer, Zukowski, Schneiders, Goetsch, Musser, Ziegelbauer, Underheim, Jensen, Seratti, Riley and Klusman. Referred to Committee on Judiciary.

SB246,1,12 An Act to repeal 48.422 (4); to renumber 48.415 (2) (a), 48.415 (2) (b) and 48.415 (2) (c); to amend 20.435 (7) (pd), 48.02 (6), 48.02 (17q), 48.21 (1) (a), 48.31 (2), 48.415 (intro.), 48.415 (2) (intro.), 48.422 (1), 48.422 (5), 48.424 (2) (a), 48.424 (3), 48.424 (4) (intro.), 48.62 (1), 48.625 (1), 48.625 (3) and 50.01 (1) (a) 1.; and to create 48.21 (1) (am), 48.415 (2) (am), 48.424 (2) (c), 48.62 (1) (c), 48.62 (5) and 48.645 of the statutes; relating to: jury trials in termination of parental rights proceedings, repeat out-of-home placements as a grounds for termination of parental rights, the number of individuals for whom a foster home, treatment foster home or adult family care home may be licensed to provide care and maintenance, the time within which a hearing must be held for certain children who are taken into custody under the children's code, a foster care and treatment foster care hotline and making an appropriation.

Analysis by the Legislative Reference Bureau

Under current law, any party to a termination of parental rights (TPR) proceeding whose rights may be affected by the TPR order may demand a jury trial to determine if there are any grounds for TPR. This bill eliminates the right to a jury trial in TPR proceedings.

Current law provides that continuing need of protection or services is a ground for involuntary TPR. Currently, continuing need of protection or services may be established by a showing that: 1) the child has been found to be in need of protection or services and placed, or continued in a placement, outside the child's home by the court assigned to exercise jurisdiction under the children's code (juvenile court); 2) the agency responsible for the care of the child and the family has made a diligent effort to provide the services ordered by the juvenile court; and 3) the child has been outside the home for a cumulative total period of one year or longer or, if the child has not attained the age of 3 years, for a cumulative total period of 6 months or longer, the parent has failed to demonstrate substantial progress toward meeting the conditions established for the return of the child to the home and there is a substantial likelihood that the parent will not meet those conditions within the next 12 months.

This bill creates an alternative method of establishing continuing need of protection or services. Specifically, the bill provides that continuing need of protection or services may be established by a showing that the child has been found to be in need of protection or services and on 3 or more separate occasions has been placed, or continued in a placement, outside the child's home by the juvenile court. If that showing is made, the further showings required under current law to establish continuing need of protection or services, that is, that the agency has made a diligent effort and that the parent has made substantial progress, need not be made.

Under current law, a foster home and an adult family home may provide care for no more than 4 individuals, unless all of the individuals are siblings. Currently, a treatment foster home may provide care for no more than 4 individuals. This bill permits the department of health and social services (DHSS), a county department of human services or social services or a licensed child welfare agency (licensing agency) to license a foster home, treatment foster home or adult family home to provide care for more than 4 individuals who are not siblings if the licensing agency determines that it would not be contrary to the welfare of those individuals.

Under current law, if a child is taken into custody under the children's code and not released, a hearing to determine whether the child should continue to be held in custody (custody hearing) must be conducted within 24 hours after the time that the decision to hold the child was made, exclusive of Saturdays, Sundays and legal holidays. This bill permits a custody hearing to be held within 72 hours after the time that the decision to hold the child was made, exclusive of Saturdays, Sundays and legal holidays, for a child who was taken into custody under either of the following:

1. An order of the juvenile court if made on a showing that the welfare of the child demands that the child be immediately removed from his or her present custody.

2. Circumstances in which a law enforcement officer believes on reasonable grounds that the child is suffering from illness or injury or is in immediate danger from his or her surroundings and removal from those surroundings is necessary.

Finally, the bill requires DHSS to allocate $46,000 in federal foster care and adoption assistance (generally referred to as "IV-E") funds in each fiscal year to provide a foster care and treatment foster care hotline that foster parents, treatment foster parents, foster children, treatment foster children, parents with children in foster care or treatment foster care, guardians ad litem, child protection caseworkers and others may call to obtain information about foster care and treatment foster care. The bill also authorizes 1.0 full-time equivalent (FTE) position for DHSS to staff that hotline.

For further information see the state and local lfiscal 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:

SB246, s. 1 Section 1. 20.435 (7) (pd) of the statutes is amended to read:

SB246,3,7 20.435 (7) (pd) Federal aid; state foster care and adoption services. All federal moneys received for meeting the costs of providing foster care, treatment foster care and institutional child care under ss. 48.48 (4) and (14) and 48.52, and for the cost of care for children under s. 49.19 (10) (d). Disbursements for foster care under s. 46.03 (20) and for the purposes described under s. ss. 48.627 and 48.645 may be made from this appropriation.

SB246, s. 2 Section 2. 48.02 (6) of the statutes is amended to read:

SB246,3,14 48.02 (6) "Foster home" means any facility that is operated by a person required to be licensed by s. 48.62 (1) (a) and that provides care and maintenance for no more than 4 children unless all of the children are siblings or the department, county department or licensed child welfare agency issuing the license determines that providing care and maintenance for more than 4 children would not be contrary to the welfare of those children.

SB246, s. 3 Section 3. 48.02 (17q) of the statutes is amended to read:

SB246,4,5 48.02 (17q) "Treatment foster home" means any facility that is operated by a person required to be licensed under s. 48.62 (1) (b), that is operated under the supervision of the department, a county department or a licensed child welfare agency, and that provides to no more than 4 children care, maintenance and structured, professional treatment by trained individuals, including the treatment foster parents, to no more than 4 children unless all of the children are siblings or the department, county department or licensed child welfare agency issuing the license determines that providing those services for more than 4 children would not be contrary to the welfare of those children.

SB246, s. 4 Section 4. 48.21 (1) (a) of the statutes is amended to read:

SB246,4,19 48.21 (1) (a) If a child who has been taken into custody is not released under s. 48.20, a hearing to determine whether the child shall continue to be held in custody under the criteria of ss. 48.205 to 48.209 shall be conducted by the judge or juvenile court commissioner within 24 hours of the time the decision to hold the child was made, excluding Saturdays, Sundays and legal holidays the time period specified in par. (am). By the time of the hearing a petition under s. 48.25 shall be filed, except that no petition need be filed where a child is taken into custody under s. 48.19 (1) (b) or (d) 2., 6. or 7. or where the child is a runaway from another state, in which case a written statement of the reasons for holding a child in custody shall be substituted if the petition is not filed. If no hearing has been held within 2 4 hours the time period specified in par. (am) or if no petition or statement has been filed at the time of the hearing, the child shall be released except as provided in par. (b). A parent not present at the hearing shall be granted a rehearing upon request.

SB246, s. 5 Section 5. 48.21 (1) (am) of the statutes is created to read:

SB246,5,2 48.21 (1) (am) The judge or juvenile court commissioner shall conduct the hearing under par. (a) within 24 hours after the time that the decision to hold the child in custody was made, excluding Saturdays, Sundays and legal holidays, except that if the child was taken into custody under s. 48.19 (1) (c) or (d) 5. the judge or juvenile court commissioner shall conduct the hearing under par. (a) within 72 hours after the time that the decision to hold the child in custody was made, excluding Saturdays, Sundays and legal holidays.

SB246, s. 6 Section 6. 48.31 (2) of the statutes is amended to read:

SB246,5,17 48.31 (2) The A hearing on a termination of parental rights petition shall be to the court. A hearing on a petition under s. 48.12, 48.125 or 48.13 or a citation under s. 48.125 shall be to the court unless the child, parent, guardian or legal custodian exercises the right to a jury trial by demanding a jury trial at any time before or during the plea hearing. Chapters 756 and 805 shall govern the selection of jurors except that ss. 972.03 and 972.04 shall apply in cases in which the juvenile is alleged to be delinquent under s. 48.12. If the hearing involves a child victim or witness, as defined in s. 950.02, the court may order the taking and allow the use of a videotaped deposition under s. 967.04 (7) to (10) and, with the district attorney, shall comply with s. 971.105. At the conclusion of the hearing, the court or jury shall make a determination of the facts. If the court finds that the child is not within the jurisdiction of the court or the court or jury finds that the facts alleged in the petition or citation have not been proved, the court shall dismiss the petition or citation with prejudice.

SB246, s. 7 Section 7. 48.415 (intro.) of the statutes is amended to read:

SB246,5,22 48.415 Grounds for involuntary termination of parental rights. (intro.) At the fact-finding hearing the court or jury may make a finding that grounds exist for the termination of parental rights. Grounds for termination of parental rights shall be one of the following:

SB246, s. 8 Section 8. 48.415 (2) (intro.) of the statutes is amended to read:

SB246,6,3 48.415 (2) Continuing need of protection or services. (intro.) Continuing need of protection or services may be established by a showing of all any of the following:

SB246, s. 9 Section 9. 48.415 (2) (a) of the statutes is renumbered 48.415 (2) (a) 1.

SB246, s. 10 Section 10. 48.415 (2) (b) of the statutes is renumbered 48.415 (2) (a) 2.

SB246, s. 11 Section 11. 48.415 (2) (c) of the statutes is renumbered 48.415 (2) (a) 3.

SB246, s. 12 Section 12. 48.415 (2) (am) of the statutes is created to read:

SB246,6,11 48.415 (2) (am) That the child has been adjudged to be in need of protection or services and on 3 or more separate occasions has been placed, or continued in a placement, outside his or her home pursuant to one or more court orders under s. 48.345, 48.357, 48.363 or 48.365 containing the notice required by s. 48.356 (2).

SB246, s. 13 Section 13. 48.422 (1) of the statutes is amended to read:

SB246,6,16 48.422 (1) The hearing on the petition to terminate parental rights shall be held within 30 days after the petition is filed. At the hearing on the petition to terminate parental rights the court shall determine whether any party wishes to contest the petition and inform the parties of their rights under sub. (4) and s. 48.423.

SB246, s. 14 Section 14. 48.422 (4) of the statutes is repealed.

SB246, s. 15 Section 15. 48.422 (5) of the statutes is amended to read:

SB246,6,21 48.422 (5) Any nonpetitioning party, including the child, shall be granted a continuance of the hearing for the purpose of consulting with an attorney on the request for a jury trial or concerning a request for the substitution of a judge.

SB246, s. 16 Section 16. 48.424 (2) (a) of the statutes is amended to read:

SB246,6,23 48.424 (2) (a) The court may exclude the child from the hearing; and.

SB246, s. 17 Section 17. 48.424 (2) (c) of the statutes is created to read:

SB246,6,25 48.424 (2) (c) There is no right to a jury trial.

SB246, s. 18 Section 18. 48.424 (3) of the statutes is amended to read: