SB501: Bill Text

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

SB501,37,3 48.09 (5) By the district attorney or, if designated by the county board of supervisors, by the corporation counsel, in any matter arising under s. 48.13 or 48.977. If the county board transfers this authority to or from the district attorney on or after May 11, 1990, the board may do so only if the action is effective on September 1 of an odd-numbered year and the board notifies the department of administration of that change by January 1 of that odd-numbered year.

Note: Provides that the district attorney or, if designated by the county board, the corporation counsel, shall represent the interests of the public in guardianship proceedings under s. 48.977, stats., as created in this bill. [Under current s. 48.09 (6), stats., a county board also has authority to designate any other appropriate person to represent the interests of the public in such matters.]

SB501, s. 21 Section 21. 48.13 (3) of the statutes is amended to read:

SB501,37,7 48.13 (3) Who has been the victim of sexual or physical abuse, as defined in s. 48.02 (1) (a), (b), (c), (d), (e) or (f), including injury which that is self-inflicted or inflicted by another by other than accidental means;

Note: Current law does not define sexual or physical abuse for purposes of CHIPS jurisdiction. This bill provides a definition of "abuse" for purposes of CHIPS jurisdiction by cross-referencing the paragraphs in the definition of "abuse" in s. 48.02 (1) (a) to (f), stats., as created by this bill, which include "physical injury" [as defined in s. 48.02 (14m), stats., as created by this bill], including a provision that the "physical injury" be inflicted by other than accidental means, and which list various sex crimes.

SB501, s. 22 Section 22. 48.13 (3m) of the statutes is amended to read:

SB501,37,13 48.13 (3m) Who is at substantial risk of becoming the victim of sexual or physical abuse, as defined in s. 48.02 (1) (a), (b), (c), (d), (e) or (f), including injury that is self-inflicted or inflicted by another by other than accidental means, based on reliable and credible information that another child in the home has been the victim of sexual or physical such abuse;

Note: Current law does not define sexual or physical abuse for purposes of CHIPS jurisdiction. This bill provides a definition of "abuse" for purposes of CHIPS jurisdiction by cross-referencing the paragraphs in the definition of "abuse" in s. 48.02 (1) (a) to (f), stats., as created by this bill, which include "physical injury" [as defined in s. 48.02 (14m), stats., as created by this bill], including a provision that the "physical injury" be inflicted by other than accidental means, and which list various sex crimes.

SB501, s. 23 Section 23. 48.13 (4) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

SB501,38,3 48.13 (4) Whose parent or guardian signs the petition requesting jurisdiction under this subsection and states that he or she is unable or needs assistance to care for or provide necessary special treatment or care for the child;

Note: Amends this ground for CHIPS jurisdiction as follows:

1. In addition to providing a ground for jurisdiction if a parent or guardian is unable to care for or provide necessary special treatment or care for a child, provides a ground for jurisdiction if the parent or guardian needs assistance in doing so.

2. Provides that this ground for jurisdiction is not established simply by the parent's or guardian's statement that he or she is unable to care for or provide necessary special treatment or care for a child but, rather, is established only if the parent or guardian proves that he or she is unable or needs assistance to do so.

SB501, s. 24 Section 24. 48.13 (9) of the statutes is amended to read:

SB501,38,8 48.13 (9) Who is at least age 12, signs the petition requesting jurisdiction under this subsection and attests in court that he or she is in need of special care and treatment or care which the parent, guardian or legal custodian is unwilling, neglecting, unable or needs assistance to provide;

Note: 1. Provides a ground for CHIPS jurisdiction if a child 12 years of age or over signs the petition and the parent, guardian or legal custodian is unwilling, neglecting, unable or needs assistance to provide needed special treatment or care rather than being unwilling to do so.

2. Changes the phrase "special care or treatment" to "special treatment or care" which is currently defined in s. 48.02 (17m), stats.

SB501, s. 25 Section 25. 48.13 (11) of the statutes is amended to read:

SB501,38,13 48.13 (11) Who is suffering emotional damage for which the parent or, guardian is unwilling or legal custodian is neglecting, refusing or unable to provide treatment, which is evidenced by one or more of the following characteristics, exhibited to a severe degree: anxiety, depression, withdrawal or outward aggressive behavior;

Note: Makes the following changes:

1. Deletes from this ground for CHIPS jurisdiction the requirements that "emotional damage" be evidenced by anxiety, depression, withdrawal or outward aggressive behavior exhibited to a severe degree. The definition of "emotional damage" in s. 48.02 (5j), stats., as created by this bill, includes a provision that these characteristics must be exhibited to a substantial degree but also defines as "emotional damage" 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".

2. Adds grounds for jurisdiction over a child who is suffering emotional damage if a parent or guardian is neglecting, refusing or unable to provide treatment rather than merely being unwilling to do so.

3. Adds grounds for jurisdiction over a child who is suffering emotional damage if a legal custodian is neglecting, refusing or unable to provide treatment.

SB501, s. 26 Section 26. 48.13 (11m) of the statutes is amended to read:

SB501,39,4 48.13 (11m) Who is suffering from an alcohol and other drug abuse impairment, exhibited to a severe degree, for which the parent or, guardian or legal custodian is unwilling neglecting, refusing or unable to provide treatment;

Note: 1. Adds grounds for CHIPS jurisdiction if a child is suffering from an alcohol or other drug abuse impairment if a parent or guardian is neglecting, refusing or unable to provide treatment rather than being unwilling to do so.

2. Adds grounds for jurisdiction for alcohol or other drug abuse impairment if a legal custodian is neglecting, refusing or unable to provide treatment.

SB501, s. 27 Section 27. 48.14 (2) (b) of the statutes is amended to read:

SB501,39,9 48.14 (2) (b) The appointment and removal of a guardian of the person for a child under ss. 48.427, 48.428, 48.43, 48.831, 48.832 and , 48.839 (4) (a) and 48.977 and ch. 880 and for a child found to be in need of protection or services under s. 48.13 because the child is without parent or guardian.

Note: Section 48.14 (2) (b), stats., sets forth a list of matters over which the juvenile court has exclusive jurisdiction (no other court, for example, a regular branch of the circuit court, can deal with these matters). Currently the juvenile court has exclusive jurisdiction over the appointment and removal of a guardian of the person for a child under all of the following provisions:

1. Section 48.427, stats., relating to dispositions in TPR proceedings.

2. Section 48.428, stats., relating to sustaining care.

3. Section 48.43, stats., relating to court orders in TPR cases.

4. Section 48.831, stats., relating to appointment of a guardian for a child without a living parent for an adoptability finding.

5. Section 48.832, stats., relating to transfer of guardianship upon revocation of a guardian's license.

6. Section 48.839 (4) (a), stats., relating to transfer of guardianship of a child from a foreign jurisdiction if the guardian does not file a TPR or adoption petition.

7. Chapter 880, stats., the general guardianship chapter.

8. For a child adjudged CHIPS under 48.13 (1), stats., because the child is without a parent or guardian.

This Section adds a reference to s. 48.977, stats., as created in this bill, relating to the appointment of relatives as guardians for certain children in need of protection or services under certain circumstances.

SB501, s. 28 Section 28. 48.185 (1) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

SB501,40,9 48.185 (1) Venue Subject to sub. (2), venue for any proceeding under ss. 48.13, 48.135 and 48.14 (1) to (9) may be in any of the following: the county where the child resides, the county where the child is present or, in the case of a violation of a state law or a county, town or municipal ordinance, the county where the violation occurred. Venue for proceedings brought under subch. VIII is as provided in this subsection except where the child has been placed and is living outside the home of the child's parent pursuant to a dispositional order, in which case venue is as provided in sub. (2). Venue for a proceeding under s. 48.14 (10) is as provided in s. 801.50 (5s).

SB501, s. 29 Section 29. 48.185 (2) of the statutes is amended to read:

SB501,40,19 48.185 (2) In an action under s. 48.41, venue shall be in the county where the birth parent or child resides at the time that the petition is filed. Venue for any proceeding under s. 48.363 or, 48.365 or 48.977, or any other proceeding under subch. VIII when the child has been placed outside the home pursuant to a dispositional order under s. 48.345, shall be in the county where the dispositional order was issued, unless the child's county of residence has changed, or the parent of the child has resided in a different county of this state for 6 months. In either case, the court may, upon a motion and for good cause shown, transfer the case, along with all appropriate records, to the county of residence of the child or parent.

Note: Amends s. 48.185 (1) and (2), stats., to provide that venue for a guardianship proceeding as created by this bill is in the county where the CHIPS dispositional order was issued, unless the child's county of residence has changed or the child's parent has resided in a different county of this state for 6 months.

SB501, s. 30 Section 30. 48.205 (1) (b) of the statutes is amended to read:

SB501,41,2 48.205 (1) (b) Probable cause exists to believe that the parent, guardian or legal custodian of the child or other responsible adult is neglecting, refusing, unable or unavailable, unwilling or unable to provide adequate supervision and care and that services to ensure the child's safety and well-being are not available or would be inadequate; or

Note: Provides that, with respect to one of the possible criteria for holding a child in physical custody, there must be probable cause to believe that the child's parent, guardian or legal custodian or other responsible adult is neglecting, refusing, unable or unavailable to provide adequate supervision and care rather than being unavailable, unwilling or unable to do so.

SB501, s. 31 Section 31. 48.21 (1) (a) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

SB501,41,17 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 48 hours of the time the decision to hold the child was made, excluding Saturdays, Sundays and legal holidays. 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. 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 24 48 hours , excluding Saturdays, Sundays and legal holidays, 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.

Note: Provides that a detention hearing must be held within 48 hours, excluding Saturdays, Sundays and legal holidays, after the decision was made to hold the child, rather than 24 hours, excluding Saturdays, Sundays and legal holidays.

SB501, s. 32 Section 32. 48.21 (1) (b) of the statutes is amended to read:

SB501,42,10 48.21 (1) (b) If no petition has been filed by the time of the hearing, a child may be held in custody with approval of the judge or juvenile court commissioner for an additional 48 72 hours from the time of the hearing, excluding Saturdays, Sundays and legal holidays, only if, as a result of the facts brought forth at the hearing, the judge or juvenile court commissioner determines that probable cause exists to believe that the child is an imminent danger to himself or herself or to others, or that probable cause exists to believe that the parent, guardian or legal custodian of the child or other responsible adult is unwilling neglecting, refusing, unable or unavailable to provide adequate supervision and care. The extension may be granted only once for any petition. In the event of failure to file a petition within the 48-hour extension period provided for in this paragraph, the judge or juvenile court commissioner shall order the child's immediate release from custody.

Note: Expands the 48-hour extension period to a 72-hour extension period, excluding Saturdays, Sundays and legal holidays.

SB501, s. 33 Section 33. 48.235 (1) (c) of the statutes is amended to read:

SB501,42,15 48.235 (1) (c) The court shall appoint a guardian ad litem for any child who is the subject of a proceeding to terminate parental rights, whether voluntary or involuntary, and for a child who is the subject of a contested adoption proceeding and for a child who is the subject of a proceeding under s. 48.977.

Note: Requires a juvenile court to appoint a guardian ad litem (GAL) for a child who is the subject of a guardianship proceeding under s. 48.977, stats., as created by this bill.

SB501, s. 34 Section 34. 48.235 (3) (title) of the statutes is amended to read:

SB501,42,17 48.235 (3) (title) Responsibilities Duties and responsibilities.

SB501, s. 35 Section 35. 48.235 (3) of the statutes is renumbered 48.235 (3) (a).

SB501, s. 36 Section 36. 48.235 (3) (b) of the statutes is created to read:

SB501,42,22 48.235 (3) (b) In addition to any other duties and responsibilities required of a guardian ad litem, a guardian ad litem appointed for a child who is the subject of a proceeding under s. 48.13 shall do all of the following:

SB501,43,4 1. Personally meet with the child, personally interview the child if the child is old enough to communicate, determine the child's goals and concerns regarding his or her placement and assess the appropriateness and safety of the child's environment in each placement.

SB501,43,11 2. Personally, or through a trained designee, conduct, when applicable, interviews with the child's parents, general guardian, legal custodian, foster parents, caseworkers, therapists, counselors, school personnel and mental health professionals and, if any injuries or abuse have occurred or are alleged, review photographs and available videotapes or audiotapes of interviews with the child and contact appropriate health care facilities and health care providers for more information relating to those injuries or that abuse.

SB501,43,15 3. Personally, or through a trained designee, determine whether there are alternatives to initial or continued out-of-home placement of the child, including in-home services or removal of the perpetrator of any abuse or alleged abuse from the child's home.

SB501,43,18 4. Personally, or through a trained designee, identify appropriate community resources and advocate for those resources, when appropriate, to protect the best interests of the child.

SB501,43,23 5. Make clear and specific recommendations to the court concerning the best interest of the child at every stage of the proceeding, including all placement decisions, and ask that clear and specific orders be entered for the provision of treatment and services for the child and his or her family and for the evaluation, assessment and protection of the child and his or her family.

Note: This Section sets forth specific duties and responsibilities applicable to a guardian ad litem (GAL) appointed in a CHIPS case. Current s. 48.235 (3), stats., provides that a GAL must be an advocate for the best interests of "the person for whom the appointment is made" (e.g., the child in a CHIPS case), but does not set forth in detail any of the duties or responsibilities of the GAL in advocating for the best interests of the child. For example, the special committee received substantial testimony that some GALs in CHIPS cases do not meet with the child they are appointed to represent, arguing that current law does not require, or is not clear as to requiring, such a meeting with the child. The list of duties and responsibilities specified in this Section is not intended to be an exhaustive list of the duties and responsibilities of GALs appointed in CHIPS cases.

SB501, s. 37 Section 37. 48.235 (4) (a) 7g. of the statutes is created to read:

SB501,44,4 48.235 (4) (a) 7g. Petition for the appointment of a guardian under s. 48.977 (2), the revision of a guardianship order under s. 48.977 (6) or the removal of a guardian under s. 48.977 (7).

Note: Permits the GAL of a child found to be in need of protection or services to petition for the appointment of a guardian for the child under s. 48.977 (2), stats., as created by this bill; to petition for the revision of a guardianship order under s. 48.977 (6), stats., as created by this bill; and to petition for the removal of a guardian under s. 48.977 (7), stats., as created by this bill.

SB501, s. 38 Section 38. 48.235 (4) (a) 7m. of the statutes is created to read:

SB501,44,7 48.235 (4) (a) 7m. Bring an action or motion for the determination of the child's paternity under s. 767.45.

Note: Permits the GAL of a child found to be in need of protection or services to bring an action or motion for the determination of the child's paternity.

SB501, s. 39 Section 39. 48.245 (2) (b) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

SB501,44,11 48.245 (2) (b) Informal disposition may not include any form of residential placement and may not exceed 6 months, except as provided under sub. (2r).

SB501, s. 40 Section 40. 48.245 (2r) of the statutes is created to read:

SB501,45,4 48.245 (2r) If an informal disposition is based on allegations that a child is in need of protection or services, the intake worker may, after giving written notice to the child and the child's parent, guardian and legal custodian and their counsel, if any, extend the informal disposition for up to an additional 6 months unless the child or the child's parent, guardian or legal custodian objects to the extension. If the child or the child's parent, guardian or legal custodian objects to the extension, the intake worker may recommend to the district attorney or corporation counsel that a petition be filed under s. 48.13. An extension under this subsection may be granted only once for any informal disposition.

note: This Section relates to extension of an informal disposition for a child when the informal disposition is based on allegations that the child is in need of protection or services (CHIPS).

Under current law, a juvenile court intake worker may enter into a written agreement which imposes an informal disposition if: (1) the intake worker determines that the best interests of neither the child nor the public require the filing of a petition for circumstances relating to s. 48.12 (delinquency), 48.125 (violation of a civil law or ordinance), 48.13 (CHIPS), 48.135 (proceedings under ch. 51 (mental health act) or ch. 55 (protective services) or 48.14, stats., (other matters relating to children); (2) the facts persuade the intake worker that jurisdiction of the juvenile court would exist if sought; and (3) the child and the child's parent, guardian and legal custodian consent to the informal disposition.

Under current law, an informal disposition may not exceed 6 months unless the informal disposition is based on allegations that a child is CHIPS based on habitual truancy. In that case, the informal disposition may not exceed one year. This bill permits an intake worker to extend for up to an additional 6 months an informal disposition that is based on allegations that a child is CHIPS, other than allegations that the child is CHIPS based on habitual truancy. [The bill does not affect the provision for a one-year informal disposition when a child is alleged to be CHIPS based on habitual truancy.]

The bill requires that the intake worker give written notice to the child and the child's parent, guardian and legal custodian prior to extending an informal disposition. The bill provides that the intake worker may not extend an informal disposition if the child or the child's parent, guardian or legal custodian objects to the extension. The bill also provides that if there is an objection to the extension, the intake worker may recommend that a CHIPS petition be filed.

SB501, s. 41 Section 41. 48.27 (3) (a) of the statutes is renumbered 48.27 (3) (a) 1. and amended to read:

SB501,46,5 48.27 (3) (a) 1. The court shall also notify, under s. 48.273, the child, any parent, guardian and legal custodian of the child, any foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) of the child and any person specified in par. (b), if applicable, of all hearings involving the child except hearings on motions for which notice need only be provided to the child and his or her counsel. Where parents entitled to notice have the same place of residence, notice to one shall constitute notice to the other. The first notice to any interested party, foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) shall be written and may have a copy of the petition attached to it. Thereafter, notice of hearings may be given by telephone at least 72 hours before the time of the hearing. The person giving telephone notice shall place in the case file a signed statement of the time notice was given and the person to whom he or she spoke.

SB501, s. 42 Section 42. 48.27 (3) (a) 2. of the statutes is created to read:

SB501,46,13 48.27 (3) (a) 2. Failure to give notice under subd. 1. to a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) does not deprive the court of jurisdiction in the action or proceeding. If a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) is not given notice under subd. 1., that person may request a rehearing on the matter during the pendency of an order resulting from the hearing. If the request is made, the court shall order a rehearing.

Note: Expands current s. 48.27 (3) (a), stats., which requires, in general, notice of all hearings under the children's code involving a child to be given to specified persons (i.e., the child and any parent, guardian and legal custodian of the child as well as certain persons who may be the father of the child), to require that notice to be given to the child's foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2), stats. Section 48.62 (2), stats., sets forth those persons who provide care and maintenance for children but who are not required to obtain a foster care or treatment foster care license (e.g., a relative of the child providing "kinship" care). The bill also specifies that: (1) failure to give notice to a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2), stats., does not deprive the juvenile court of jurisdiction in the action or proceeding; and (2) if a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2), stats., is not given the required notice of a hearing and that person requests a rehearing on the matter during the pendency of an order resulting from the hearing, the juvenile court must order that a rehearing on the matter be held. Under current law, failure to give notice (or adequate notice) may result in dismissal of an action or proceeding for lack of juvenile court jurisdiction and the necessity of recommencing the action or proceeding, with the accompanying delays.

SB501, s. 43 Section 43. 48.293 (4) of the statutes is created to read:

SB501,46,17 48.293 (4) In addition to the discovery procedures permitted under subs. (1) to (3), the discovery procedures permitted under ch. 804 shall apply in all proceedings under this chapter.