SB501: Bill Text

Note: This Section authorizes counties to use certain community aids funds to employ private practice attorneys for ch. 48 proceedings relating to child abuse and neglect, TPR or any ch. 48 proceedings involving the Indian child welfare act (ICWA).

Under current law "community aids" are state and federal funds which are distributed by DHSS to counties for the provision of human services. Section 46.40, stats., sets forth the basic community aids funding allocations.

This bill specifies that DHSS and a county may, after application by the county and a determination by DHSS that use of community aids funds for the purpose of employing private counsel for certain ch. 48 proceedings does not affect any federal grants or federal funding relating to community aids, enter into a contract relating to the use of a certain amount of community aids funds to employ private counsel (i.e., private practice attorneys) to represent the interests of the state or county in proceedings under ch. 48 relating to child abuse and neglect, TPR or any ch. 48 proceedings involving the ICWA. The intent of this new authorization is to permit counties which do not have any or enough government attorneys with sufficient expertise in TPR, the ICWA or other child abuse or neglect-related cases to use certain community aids funds to employ experienced private practice attorneys to handle these proceedings.

SB501, s. 2 Section 2. 48.01 (1) (ag) of the statutes is created to read:

SB501,30,3 48.01 (1) (ag) To recognize that children have certain basic needs which must be provided for, including the need for adequate food, clothing and shelter; the need to be free from physical, sexual or emotional injury or exploitation; the need to develop physically, mentally and emotionally to their potential; and the need for a safe and permanent family. It is further recognized that, under certain circumstances, in order to ensure that the needs of a child are provided for, the court may determine that it is in the best interests of the child for the child to be removed from his or her parents, consistent with any applicable law relating to the rights of parents.

Note: This Section creates a new provision in the statement of legislative purpose section of the children's code [s. 48.01, stats.], recognizing that children have basic needs, including all of the following:

1. The need for adequate food, clothing and shelter.

2. The need to be free from physical, sexual or emotional injury or exploitation.

3. The need to develop physically, mentally and emotionally to their potential.

4. The need for a safe and permanent family.

In keeping with the increased focus of this new purpose section on the best interests of the child, this new provision recognizes that, under certain circumstances, in order to ensure that the needs of a child are provided for, it may be necessary for the juvenile court to remove a child from his or her parents, consistent with any applicable law relating to the rights of parents [i.e., there is a sufficient basis under law for the court assigned to exercise jurisdiction under the children's code (juvenile court) to intervene in the family].

SB501, s. 3 Section 3. 48.01 (1) (b) of the statutes is repealed.

Note: This Section repeals current s. 48.01 (1) (b), stats., relating to providing for the "wholesome mental, and physical development of children", because the content of that paragraph is incorporated into new sub. (1) (ag), as created in this bill.

SB501, s. 4 Section 4. 48.01 (1) (bg) of the statutes is created to read:

SB501,30,10 48.01 (1) (bg) 1. To ensure that children are protected against the harmful effects resulting from the absence of parents or parent substitutes, from the inability, other than financial inability, of parents or parent substitutes to provide care and protection for their children and from the destructive behavior of parents or parent substitutes in providing care and protection for their children.

SB501,30,13 2. To ensure that children are provided good substitute parental care in the event of the absence, temporary or permanent inability, other than financial inability, or unfitness of parents to provide care and protection for their children.

Note: This Section creates new provisions in s. 48.01, stats., recognizing that children must be ensured of all of the following:

1. Protection against the harmful effects resulting from: (a) the absence of parents or parent substitutes; (b) the inability [other than "financial inability" — i.e., poverty] of parents or parent substitutes to provide care and protection for their children; and (c) the destructive behavior of parents or parent substitutes in providing care and protection for their children.

2. Good substitute parental care in the event of the absence, temporary or permanent inability [other than financial inability] or unfitness of parents to provide care and protection for their children.

As with the other new or modified legislative purpose provisions in the bill, this new language is intended to focus attention on: (1) the best interests of the child in any formal or informal proceedings or determinations under ch. 48; and (2) the need for juvenile courts in proceedings and determinations under ch. 48, to take a closer look at, and make more timely decisions regarding, the fitness or unfitness of parents to care for and protect their children.

SB501, s. 5 Section 5. 48.01 (1) (br) of the statutes is created to read:

SB501,31,6 48.01 (1) (br) To encourage innovative and effective prevention, intervention and treatment approaches, including collaborative community efforts and the use of community-based programs, as significant strategies in planning and implementing legislative, executive and local government policies and programs relating to children and their families and substitute families.

Note: This Section creates a new provision in s. 48.01 (1), stats., emphasizing the significance of prevention and intervention approaches in legislative, executive and local government programs, policies and planning strategies for dealing with children under the children's code.

SB501, s. 6 Section 6. 48.01 (1) (dm) of the statutes is created to read:

SB501,31,9 48.01 (1) (dm) To divert children from formal proceedings under this chapter to the extent that this is consistent with protection of children and the public safety.

Note: This Section creates a new provision in s. 48.01, stats., to emphasize the diversion of children from formal proceedings under the children's code to the extent that this is consistent with protection of children and the public safety.

SB501, s. 7 Section 7. 48.01 (1) (e) of the statutes is repealed.

Note: This Section repeals current s. 48.01 (1) (e), stats., relating to responding to children's needs for care and treatment through community-based programs because the content of that paragraph is incorporated into new sub. (1) (ag), as created in this bill.

SB501, s. 8 Section 8. 48.01 (1) (g) of the statutes is amended to read:

SB501,32,9 48.01 (1) (g) To provide children in the state with permanent and stable family relationships While recognizing that the paramount goal of this chapter is to protect children, to preserve the unity of the family, whenever appropriate, by strengthening family life through assisting parents in fulfilling their parental responsibilities. The courts and agencies responsible for child welfare should assist parents in changing any circumstances in the home which might harm the child or which may require the child to be placed outside the home. The courts should recognize that they have the authority, in appropriate cases, not to reunite a child with his or her family. The courts and agencies responsible for child welfare should also recognize that instability and impermanence in family relationships are contrary to the welfare of children and should therefore recognize the importance of eliminating the need for children to wait unreasonable periods of time for their parents to correct the conditions that prevent their return to the family.

Note: This Section amends s. 48.01 (1) (g), stats., to do all of the following:

1. Specify that one of the legislative purposes of ch. 48 is to preserve the unity of the family, whenever appropriate, by strengthening family life through assisting parents in fulfilling their parental responsibilities.

2. Stress to the juvenile court judges that they have the authority, in appropriate cases, not to reunite a child with his or her family. The committee determined that, in some cases, parents comply in a minimal way with court-ordered requirements for the return of their child [or children] and that the child [or children] are, in fact, returned to the parents based on this minimal compliance [which often occurs just prior to the court hearing to review the out-of-home placement]. Because reunification in such cases is often contrary to the best interests of the child, the committee hopes that this new provision reemphasizes to juvenile courts that such minimal compliance may not be sufficient, considering the best interests of the child, to reunite the parent and that child. The best interests of the child must always be the paramount consideration.

SB501, s. 9 Section 9. 48.01 (1) (gr) of the statutes is amended to read:

SB501,32,14 48.01 (1) (gr) To allow for the termination of parental rights at the earliest possible time after rehabilitation and reunification efforts are discontinued in accordance with this chapter and termination of parental rights is in the best interest of the child.

Note: This Section adds the phrase "in accordance with this chapter" to s. 48.01 (1) (gr), stats., to clarify that the rehabilitation and reunification efforts prior to termination of parental rights (TPR) should at least be at a level in accordance with ch. 48, stats., before they can be discontinued and TPR proceedings commenced. Committee members expressed concern that the current language in that paragraph could be interpreted to permit lesser efforts prior to TPR.

SB501, s. 10 Section 10. 48.01 (1) (gt) of the statutes is created to read:

SB501,33,3 48.01 (1) (gt) To reaffirm that the duty of a parent to support and maintain his or her child continues during any period in which the child may be removed from the custody of the parent.

Note: This Section creates a new provision in s. 48.01, stats., which emphasizes that a parent's duty to support and maintain his or her minor child continues during any period in which the minor child may be removed from the custody of the parent under ch. 48, stats.

SB501, s. 11 Section 11 . 48.01 (2) of the statutes is renumbered 48.01 (2) (intro.) and amended to read:

SB501,33,14 48.01 (2) (intro.) This chapter shall be liberally construed to effect the objectives contained in this section. The best interests of the child shall always be of paramount consideration, but the court shall also consider the interest of the parents or guardian of the child, the interest of the person or persons with whom the child has been placed for adoption and the interests of the public. In proceedings involving an American Indian child, the best interests of the child must be determined consistent with the Indian child welfare act, 25 USC 1901 to 1963. In this subsection, "American Indian child" means any unmarried person who is under 18 years of age and is one of the following:

Note: This Section deletes certain language in current s. 48.01 (2), stats., to more strongly emphasize that the best interests of the child must always be of the paramount consideration under ch. 48, stats. Deleted is language specifying that the juvenile court must "also consider the interest of the parents or guardian of the child, the interest of the person or persons with whom the child has been placed for adoption and the interests of the public". This Section adds language to current s. 48.01 (2), stats., to clarify that, in proceedings involving a child who is an American Indian, the best interests of the child must be determined consistent with the federal Indian child welfare act, 25 USC 1901 to 1963.

The definition of "American Indian child" in this Section and in Section 12 (which completes the definition) is based on the definition of "Indian child" in 25 USC 1903 (4).

SB501, s. 12 Section 12 . 48.01 (2) (a) and (b) of the statutes are created to read:

SB501,33,16 48.01 (2) (a) A member of an Indian tribe, as defined in 25 USC 1903 (8).

SB501,34,2 (b) Eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

Note: See the Note following Section 11 of this bill.

SB501, s. 13 Section 13. 48.02 (1) of the statutes, as affected by 1995 Wisconsin Act 77, is renumbered 48.02 (1d).

Note: Renumbers the definition of "adult" in order to insert the definition of "abuse" in the general definitions section of ch. 48.

SB501, s. 14 Section 14. 48.02 (1) of the statutes is created to read:

SB501,34,7 48.02 (1) "Abuse", other than when used in referring to abuse of alcohol beverages or other drugs, means any of the following:

SB501,34,8 (a) Physical injury inflicted on a child by other than accidental means.

SB501,34,9 (b) Sexual intercourse or sexual contact under s. 940.225, 948.02 or 948.025.

SB501,34,10 (c) A violation of s. 948.05.

SB501,34,11 (d) Permitting, allowing or encouraging a child to violate s. 944.30.

SB501,34,12 (e) A violation of s. 948.055.

SB501,34,13 (f) A violation of s. 948.10.

SB501,34,14 (g) Emotional damage.

Note: Defines "abuse" in the general definitions section of ch. 48 as meaning any of the following:

1. Physical injury [as defined in s. 48.02 (14m), stats., as created by this bill] inflicted on a child by other than accidental means.

2. Sexual intercourse or sexual contact under s. 940.225, stats., (the general sexual assault statute), s. 948.02, stats., [sexual assault of a child under the age of 13 (first degree) or under the age of 16 (2nd degree)] or s. 948.025, stats., (repeated acts of sexual assault against the same child).

3. A violation of s. 948.05, stats., (sexual exploitation of child).

4. Permitting, allowing or encouraging a child to violate s. 944.30, stats., (prostitution).

5. A violation of s. 948.055, stats., (causing a child to view or listen to sexual activity).

6. A violation of s. 948.10, stats., (for purposes of sexual arousal or gratification, either causing a child to expose genitals or pubic area or exposing genitals or pubic area to a child).

7. Emotional damage [as defined in s. 48.02 (5j), stats., as created by this bill].

SB501, s. 15 Section 15. 48.02 (5j) of the statutes is created to read:

SB501,35,8 48.02 (5j) "Emotional damage" means harm to a child's psychological or intellectual functioning for which the child's parent, guardian or legal custodian has neglected, refused or been unable to obtain the necessary treatment or to take necessary steps to ameliorate the symptoms. "Emotional damage" shall be evidenced by one or more of the following characteristics exhibited to a substantial degree: anxiety; depression; withdrawal; outward aggressive behavior; or a substantial and observable change in behavior, emotional response or cognition that is not within the normal range for the child's age and stage of development.

Note: 1. Defines "emotional damage" in the general definitions section of ch. 48 as meaning harm to a child's psychological or intellectual functioning for which the child's parent, guardian or legal custodian has neglected, refused or been unable either to obtain the necessary treatment or to take necessary steps to ameliorate the symptoms.

2. Requires that emotional damage be evidenced by one or more of the following characteristics exhibited to a substantial degree:

a. Anxiety.

b. Depression.

c. Withdrawal.

d. Outward aggressive behavior.

e. Substantial and observable change in behavior, emotional response or cognition that is not within the normal range for the child's age and stage of development.

SB501, s. 16 Section 16. 48.02 (14m) of the statutes is created to read:

SB501,35,12 48.02 (14m) "Physical injury" means bodily harm, as defined in s. 939.22 (4). "Physical injury" does not include reasonable discipline of a child by a person responsible for the child's welfare, as defined in s. 939.45 (5) (a) 3.

SB501, s. 17 Section 17. 48.02 (14r) of the statutes is created to read:

SB501,35,18 48.02 (14r) "Reasonable discipline" means discipline that involves only such force as a reasonable person believes is necessary. "Reasonable discipline" does not include the use of force which is intended to cause, or which creates an unreasonable risk of, lacerations, fractured bones, burns, internal injuries, severe or frequent bruising, great bodily harm, as defined in s. 939.22 (14), or death.

Note: 1. Defines "physical injury" in the general definitions section of ch. 48 and that definition is then incorporated in the definition of "abuse" under s. 48.02 (1), stats., as created by this bill.

2. Provides that "physical injury" means "bodily harm", which is defined in s. 939.22 (4), stats., as "physical pain or injury, illness or any impairment of physical condition", but provides an exception for reasonable discipline by a "person responsible for the child's welfare", which is defined in s. 939.45 (5) (a) 3., stats., as "includ[ing] the child's parent or guardian; an employe of a public or private residential home, institution or agency in which the child resides or is confined or that provides services to the child; or any other person legally responsible for the child's welfare in a residential setting".

3. Provides that reasonable discipline may involve only such force as a reasonable person believes is necessary and specifies that reasonable discipline does not include the use of force which is intended to cause lacerations, fractured bones, burns, internal injuries, severe or frequent bruising, great bodily harm, as defined in s. 939.22 (14), stats., or death or creates an unreasonable risk of such injuries or death. ["Great bodily harm" is defined in s. 939.22 (14), stats., as "bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury".]

SB501, s. 18 Section 18. 48.023 (intro.) of the statutes is amended to read:

SB501,36,6 48.023 Guardianship. (intro.) A Except as limited by an order of the court under s. 48.977 (5) (b), a person appointed by the court to be the guardian of a child under this chapter has the duty and authority to make important decisions in matters having a permanent effect on the life and development of the child and the duty to be concerned about the child's general welfare, including but not limited to:

Note: Clarifies that the duties and authority of a person appointed by the juvenile court to be guardian of a child under ch. 48 to make decisions relating to the child's life, development and general welfare may be limited by order of the juvenile court.

SB501, s. 19 Section 19. 48.065 (3) (g) of the statutes is created to read:

SB501,36,9 48.065 (3) (g) Conduct hearings, make findings or issue orders in proceedings under s. 48.977.

Note: Prohibits a juvenile court commissioner from conducting hearings, making findings or issuing orders in guardianship proceedings under s. 48.977, stats., as created in this bill.

SB501, s. 20 Section 20. 48.09 (5) of the statutes is amended to read: