AB463: Bill Text

1. Counseling the child or the child's parent, guardian or legal custodian.

2. Placing the child under the supervision of the county department, a licensed child welfare agency, the department of health and family services (DHFS) or a suitable adult under conditions prescribed by the juvenile court, including reasonable rules for the child's conduct, designed for the well-being of the child.

3. Ordering the child's parents to provide the child with special treatment and care, which is defined under current law as professional services, including medical, psychological or psychiatric treatment, alcohol or other drug abuse treatment or other services, which need to be provided to a child and his or her family to protect the well-being of the child, prevent placement of the child outside of the child's home or meet the special needs of the child.

4. Ordering the child to enter an outpatient alcohol or other drug abuse treatment program or to participate in an alcohol or other drug abuse eduction program.

In addition, under current law, the juvenile court may order the parent, guardian or legal custodian of a child who has been found to be in need of protection or services to comply with any conditions determined by the juvenile court to be necessary for the child's welfare. Such an order may include an order to participate in mental health treatment, anger management, individual or family counseling or parent training and education. Such an order, however, may not include inpatient treatment. Currently, a parent, guardian or legal custodian of a child who is found to be in need of protection or services may be ordered into inpatient treatment only under the mental health act.

This bill authorizes the juvenile court to impose one or more of the following dispositions on the expectant mother of an unborn child who is found to be in need of protection or services:

1. Counsel the expectant mother.

2. Place the expectant mother under the supervision of the county department, DHFS or a suitable adult under conditions prescribed by the juvenile court, including reasonable rules for the expectant mother's conduct, designed for the physical well-being of the unborn child. Such an order may include an order to participate in mental health treatment, anger management, individual or family counseling or parent or prenatal development training and education.

3. Order the expectant mother to obtain special treatment or care, which is defined in the bill as professional services, including medical, psychological or psychiatric treatment, alcohol or other drug abuse treatment or other services, which need to be provided to the expectant mother to protect the physical health of the unborn child and of the child when born.

4. Order the expectant mother to enter an outpatient alcohol or other drug abuse treatment program or to participate in an alcohol or other drug abuse education program.

5. Order the expectant mother to enter an inpatient alcohol or other drug abuse treatment program, but only if the juvenile court finds that the expectant mother is in need of inpatient treatment, that inpatient treatment is appropriate for the expectant mother's needs and that inpatient treatment is the least restrictive treatment consistent with the expectant mother's needs.

Abuse investigations

Under current law, certain individuals, such as physicians, nurses, social workers, teachers, day care providers and law enforcement officers (mandated reporters) having reasonable cause to suspect that a child seen in the course of professional duties has been abused or neglected or having reason to believe that a child seen in the course of professional duties has been threatened with abuse or neglect and that abuse or neglect will occur must, and any person (discretionary reporter) having reason to suspect that a child has been abused or neglected or reason to believe that a child has been threatened with abuse or neglect and that abuse or neglect will occur may, report that suspected or threatened abuse or neglect to the sheriff, local police department or county department. If the reporter requests an immediate investigation, the sheriff or local police department must immediately investigate to determine if there is reason to believe that the child's health or safety is in immediate danger and take necessary action, including taking the child into custody, to protect the child. The county department must initiate a diligent investigation within 24 hours after receiving a report to determine if the child is in need of protection or services and, if the county department determines that the child is in need of services, the county department must offer to provide those services. If those services are refused, the county department may request the district attorney to file a petition alleging that the child is in need of protection or services.

This bill extends the child abuse and neglect reporting law to unborn children who are suspected of having been abused or who are at substantial risk of abuse, which is defined in the bill as serious physical injury inflicted on an unborn child, and on the child when born, by the habitual lack of self-control of the expectant mother of the unborn child in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree.

Specifically, under the bill, a mandatory reporter having reasonable cause to suspect that an unborn child seen in the course of professional duties has been abused or having reason to believe that an unborn child seen in the course of professional duties is at substantial risk of abuse must, and a discretionary reporter having reason to suspect that an unborn child has been abused or reason to believe that an unborn child is at substantial risk of abuse may, report that suspected or threatened abuse to the sheriff, local police department or county department. The sheriff or local police department, and county department, then must investigate and take action in the same manner as they investigate and take action with respect to a child abuse or neglect report under current law.

Taking and holding expectant mother in custody

Under current law, a child may be taken into custody under a warrant, a capias or 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. Current law also permits a child to be taken into custody under 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 that removal from those surroundings is necessary or that the child has violated the conditions of the temporary physical custody order. The person taking the child into custody must make every effort to release the child immediately to the child's parent, guardian or legal custodian, but, if the child is not released, that person must deliver the child to the juvenile court intake worker (intake worker). The intake worker must also make every effort to release the child, but may decide to hold the child in custody if the intake worker determines that there is probable cause to believe that the child is within the jurisdiction of the juvenile court and that certain criteria are met, including the criterion that if the child is not held he or she will be subject to injury by others. A child who is held in custody may be held in custody in various places, including the home of a relative; a hospital or a physician's office, if the child is suffering from a serious physical condition that requires prompt diagnosis or treatment; or a treatment facility, if the child is believed to be mentally ill, drug dependent or intoxicated and to be dangerous to himself or herself or others. A child who is held in custody and who is not released must have a hearing within 48 hours, excluding Saturdays, Sundays and holidays, after the decision to hold the child was made to determine whether the child should continue to be held in custody.

This bill permits an expectant mother of an unborn child to be taken into custody under a warrant, a capias or an order of the juvenile court if made on a showing that due to the expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered unless the expectant mother is taken into custody. The bill also permits an expectant mother of an unborn child to be taken into custody under circumstances in which a law enforcement officer believes on reasonable grounds that there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered due to the expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, unless the expectant mother is taken into custody, or that the expectant mother has violated the terms of a temporary physical custody order.

The person taking the expectant mother into custody must make every effort to release the expectant mother to an adult relative or friend of the expectant mother or under her own supervision, but, if the expectant mother is not released, that person must deliver the expectant mother to the intake worker. The intake worker must also make every effort to release the expectant mother, but may decide to hold the expectant mother in custody if the intake worker determines that there is probable cause to believe that the expectant mother is within the jurisdiction of the juvenile court and that, if the expectant mother is not held, there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered by the expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree.

Under the bill, an expectant mother of an unborn child may be held in custody in the home of an adult relative or friend of the expectant mother; a hospital or a physician's office, if the unborn child or expectant mother is suffering from a serious physical condition that requires prompt diagnosis or treatment; or a treatment facility, if the expectant mother is believed to be mentally ill, drug dependent or intoxicated and dangerous to herself, others, the unborn child or the child when born. An expectant mother who is held in custody and who is not released must have a hearing within 48 hours, excluding Saturdays, Sundays and holidays, after the decision to held the expectant mother in custody was made to determine whether she should continue to be held in custody.

Procedures

Under current law, the children's code specifies the procedures governing a child who is referred to the juvenile court as in need of protection or services. Those procedures govern the intake inquiry by the intake worker, which may include administering a multidisciplinary screen for alcohol or other drug abuse or entering into an informal disposition rather than referring the case to the district attorney for the filing of a petition; the authority to file, and the form and content of, a petition alleging the child to be in need of protection or services; the issuing of summonses and notices of hearings on such a petition; prehearing procedures such as substitution of a judge, discovery, motions and physical, psychological, mental or developmental examinations; procedures at hearings on the petition, that is, the plea hearing, the fact-finding hearing and the dispositional hearing; delays, continuances and extensions; and the entering into of a consent decree rather than proceeding to disposition. This bill applies the procedures under current law governing a child alleged to be in need of protection or services to the expectant mother of an unborn child alleged to be in need of protection or services.

Duties and authority

Under current law, DHFS is required to promote the enforcement of laws for the protection of children in need of protection or services. This bill extends that duty to unborn children in need of protection or services.

Under current law, county departments have authority to investigate the conditions surrounding children in need of protection or services and to take every reasonable action within their powers to secure for them the full benefit of all laws enacted for their benefit. This bill extends that authority to include unborn children in need of protection or services.

Under current law, the child abuse and neglect prevention board awards grants and performs other duties to promote the prevention of child abuse and neglect. This bill extends the duties of the board to include the prevention of unborn child abuse.

For further information see the state and local fiscal 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:

AB463, s. 1 Section 1. 15.195 (4) (g) of the statutes is amended to read:

AB463,8,12 15.195 (4) (g) Eight public members appointed by the governor for staggered 3-year terms. Six of the public members shall be appointed on the basis of expertise, experience and interest in the prevention of child abuse and neglect or in the prevention of unborn child abuse or on the basis of expertise and experience in intervention in cases of child abuse and neglect or unborn child abuse. One public member shall be an adult who was a victim of abuse or neglect as a child or of abuse as an unborn child. One public member shall be a parent who formerly abused or neglected one or more of his or her children, or who formerly abused one or more of her unborn children, and who has received treatment or advice from an organization that provides child abuse and neglect or unborn child abuse prevention and intervention services.

AB463, s. 2 Section 2. 38.24 (1s) of the statutes is amended to read:

AB463,9,6 38.24 (1s) Additional fees. A district board may establish and charge a fee in addition to the fees under sub. (1m) for a court-approved alcohol or other drug abuse education program offered to individuals under s. 48.245 (2) (a) 4., 48.345 (13) (b), 48.347 (4) (b), 938.245 (2) (a) 4., 938.32 (1g) (b), 938.34 (6r) (b) or (14s) (b) 3., 938.343 (10) (c) or 938.344 (2g) (a).

AB463, s. 3 Section 3. 46.001 of the statutes is amended to read:

AB463,9,17 46.001 Purposes of chapter. The purposes of this chapter are to conserve human resources in Wisconsin; to provide a just and humane program of services to children and unborn children in need of protection or services and, nonmarital children and the expectant mothers of those unborn children; to prevent dependency, mental illness, developmental disability, mental infirmity and other forms of social maladjustment by a continuous attack on causes; to provide effective aid and services to all persons in need thereof and to assist those persons to achieve or regain self-dependence at the earliest possible date; to avoid duplication and waste of effort and money on the part of public and private agencies; and to coordinate and integrate a social welfare program.

AB463, s. 4 Section 4. 46.03 (7) (a) of the statutes is amended to read:

AB463,9,25 46.03 (7) (a) Promote the enforcement of laws for the protection of developmentally disabled children, children and unborn children in need of protection or services and nonmarital children; and to this end cooperate with courts assigned to exercise jurisdiction under chs. 48 and 938 and , licensed child welfare agencies and public and private institutions (public and private) and take the initiative in all matters involving the interests of such those children where and unborn children when adequate provision therefor for those interests has not already been made, including the establishment and enforcement of standards for services provided under s. ss. 48.345 and 48.347.

AB463, s. 5 Section 5. 46.40 (7m) of the statutes is amended to read:

AB463,10,17 46.40 (7m) Use by county of community aids funds to pay private attorneys for certain proceedings under the children's code. Upon application by a county department under s. 46.215, 46.22 or 46.23 to the department for permission to use funds allocated to that county department under sub. (2) to employ private counsel for the purposes specified in this subsection and a determination by the department that use of funds for those purposes does not affect any federal grants or federal funding allocated under this section, the department and the county department shall execute a contract authorizing the county department to expend, as agreed upon in the contract, funds allocated to that county department under sub. (2) to permit the county department to employ private counsel to represent the interests of the state or county in proceedings under ch. 48 relating to child abuse or neglect cases, unborn child abuse cases, proceedings to terminate parental rights and any ch. 48 cases or proceedings involving the Indian child welfare act, 25 USC 1901 to 1963.

AB463, s. 6 Section 6. 46.51 (title) of the statutes is amended to read:

AB463,10,19 46.51 (title) Child abuse and neglect and unborn child abuse services.

AB463, s. 7 Section 7. 46.51 (1) of the statutes is amended to read:

AB463,10,24 46.51 (1) From the amounts distributed under s. 46.40 (1) for services for children and families, the department shall distribute funds to eligible counties for services related to child abuse and neglect and to unborn child abuse, including child abuse and neglect and unborn child abuse prevention, investigation and treatment.

AB463, s. 8 Section 8. 46.51 (3) of the statutes is amended to read:

AB463,11,4 46.51 (3) The department shall distribute the funds under sub. (1) to counties that have a serious problem with child abuse and neglect or with unborn child abuse according to eligibility criteria and distribution criteria to be developed by the department.

AB463, s. 9 Section 9. 46.51 (4) of the statutes is amended to read:

AB463,11,9 46.51 (4) A county may use the funds distributed under this section to fund additional foster parents and treatment foster parents to care for abused and neglected children and to fund additional staff positions to provide services related to child abuse and neglect and to unborn child abuse.

AB463, s. 10 Section 10. 46.51 (5) of the statutes is amended to read:

AB463,11,14 46.51 (5) A county may not use the funds distributed under this section to reduce its expenditures from other sources for services related to child abuse and neglect or to unborn child abuse below the level in the year before the year for which the funds are distributed.

AB463, s. 11 Section 11. 46.95 (2) (a) of the statutes is amended to read:

AB463,11,21 46.95 (2) (a) The secretary shall make grants from the appropriations under s. 20.435 (1) (cd) and (hh) to organizations for the provision of any of the services specified in sub. (1) (d). Grants may be made to organizations which have provided those domestic abuse services in the past or to organizations which propose to provide those services in the future. No grant may be made to fund services for child or unborn child abuse or abuse of elderly persons.

AB463, s. 12 Section 12. 48.01 (1) (intro.) of the statutes is amended to read:

AB463,12,2 48.01 (1) (intro.)  This chapter may be cited as "The Children's Code". In construing this chapter, the best interests of the child or unborn child shall always be of paramount consideration. This chapter shall be liberally construed to effectuate the following express legislative purposes:

AB463, s. 13 Section 13. 48.01 (1) (a) of the statutes is amended to read:

AB463,12,18 48.01 (1) (a) While recognizing that the paramount goal of this chapter is to protect children and unborn children, to preserve the unity of the family, whenever appropriate, by strengthening family life through assisting parents and the expectant mothers of unborn children, whenever appropriate, in fulfilling their parental responsibilities as parents or expectant mothers. The courts and agencies responsible for child welfare should assist parents and the expectant mothers of unborn children in changing any circumstances in the home which might harm the child or unborn child, which may require the child to be placed outside the home or which may require the expectant mother to be taken into custody. 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.

AB463, s. 14 Section 14. 48.01 (1) (am) of the statutes is created to read:

AB463,13,3 48.01 (1) (am) To recognize that unborn children have certain basic needs which must be provided for, including the need to be free from physical injury and the need to develop physically to their potential. It is further recognized that, when an expectant mother of an unborn child suffers from an alcohol or other drug abuse impairment, in order to ensure that the needs of the unborn child, as described in this paragraph, are provided for, the court may determine that it is in the best interests of the unborn child for the expectant mother to be ordered to receive treatment, including inpatient treatment, for her alcohol or other drug abuse impairment, consistent with any applicable law relating to the rights of the expectant mother.

AB463, s. 15 Section 15. 48.01 (1) (bm) of the statutes is created to read:

AB463,13,7 48.01 (1) (bm) To ensure that unborn children are protected against the harmful effects resulting from the destructive behavior of their expectant mothers in providing care and protection for their unborn children.

AB463, s. 16 Section 16. 48.01 (1) (br) of the statutes is amended to read:

AB463,13,14 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 and to unborn children and their expectant mothers.

AB463, s. 17 Section 17. 48.01 (1) (dm) of the statutes is amended to read:

AB463,13,18 48.01 (1) (dm) To divert children and unborn children from formal proceedings under this chapter to the extent that this is consistent with protection of children, unborn children and the public safety.

AB463, s. 18 Section 18. 48.02 (1) (am) of the statutes is created to read:

AB463,13,23 48.02 (1) (am) Serious physical injury inflicted on an unborn child, and on the child when born, by the habitual lack of self-control of the expectant mother of the unborn child in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree.

AB463, s. 19 Section 19. 48.02 (1e) of the statutes is amended to read:

AB463,14,6 48.02 (1e) "Alcohol and other drug abuse impairment" means a condition of a person which is exhibited by characteristics of habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs to the extent that the person's health, or the health of the person's unborn child, is substantially affected or endangered or the person's social or economic functioning is substantially disrupted.

AB463, s. 20 Section 20. 48.02 (17m) of the statutes is amended to read:

AB463,14,15 48.02 (17m) "Special treatment or care" means professional services which need to be provided to a child or his or her family to protect the well-being of the child, prevent placement of the child outside the home or meet the special needs of the child. "Special treatment or care" also means professional services which need to be provided to the expectant mother of an unborn child to protect the physical health of the unborn child and of the child when born. This term includes, but is not limited to, medical, psychological or psychiatric treatment, alcohol or other drug abuse treatment or other services which the court finds to be necessary and appropriate.

AB463, s. 21 Section 21. 48.02 (19) of the statutes is created to read:

AB463,14,19 48.02 (19) "Unborn child" means an unborn human who is at that stage of fetal development when there is a reasonable likelihood of sustained survival outside the womb, with or without artificial support.

AB463, s. 22 Section 22. 48.06 (1) (a) 1. of the statutes is amended to read:

AB463,15,10 48.06 (1) (a) 1. In counties with a population of 500,000 or more, the county board of supervisors shall provide the court with the services necessary for investigating and supervising cases by operating a children's court center under the supervision of a director who is appointed as provided in s. 46.21 (1m) (a). The director is the chief administrative officer of the center and of the intake and probation sections and secure detention facilities of the center except as otherwise provided in this subsection. The director is charged with administration of the personnel and services of the sections and of the secure detention facilities, and is responsible for supervising both the operation of the physical plant and the maintenance and improvement of the buildings and grounds of the center. The center shall include investigative services for all children and unborn children alleged to be in need of protection or services to be provided by the county department, and the services of an assistant district attorney or assistant corporation counsel or both, who shall be assigned to the center to provide investigative as well as legal work in the cases.

AB463, s. 23 Section 23. 48.06 (1) (a) 3. of the statutes is amended to read:

AB463,16,9 48.06 (1) (a) 3. The county board of supervisors shall develop policies and establish necessary rules for the management and administration of the nonjudicial operations of the children's court center. The director of the center shall report and is responsible to the director of the county department for the execution of all nonjudicial operational policies and rules governing the center, including activities of probation officers whenever they are not performing services for the court. The director of the center is also responsible for the preparation and submission to the county board of supervisors of the annual budget for the center except for the judicial functions or responsibilities which are delegated by law to the judge or judges and clerk of circuit court. The county board of supervisors shall make provision in the organization of the office of director for the devolution of the director's authority in the case of temporary absence, illness, disability to act or a vacancy in position and shall establish the general qualifications for the position. The county board of supervisors also has the authority to investigate, arbitrate and resolve any conflict in the administration of the center as between judicial and nonjudicial operational policy and rules. The county board of supervisors does not have authority and may not assert jurisdiction over the disposition of any case or , child, unborn child or expectant mother of an unborn child after a written order is made under s. 48.21 or 48.213 or if a petition is filed under s. 48.25. All personnel of the intake and probation sections and of the secure detention facilities shall be appointed under civil service by the director except that existing court service personnel having permanent civil service status may be reassigned to any of the respective sections within the center specified in this paragraph.

AB463, s. 24 Section 24. 48.06 (1) (am) 3. of the statutes is amended to read:

AB463,16,16 48.06 (1) (am) 3. Each intake worker whose responsibilities include investigation or treatment of child abuse or neglect or unborn child abuse shall successfully complete additional training in child abuse and neglect and unborn child abuse protective services approved by the department under s. 48.981 (8) (d). Not more than 4 hours of the additional training may be applied to the requirement under subd. 1.

AB463, s. 25 Section 25. 48.06 (2) (c) of the statutes is amended to read:

AB463,16,23 48.06 (2) (c) Each intake worker whose responsibilities include investigation or treatment of child abuse or neglect or unborn child abuse shall successfully complete additional training in child abuse and neglect and unborn child abuse protective services approved by the department under s. 48.981 (8) (d). Not more than 4 hours of the additional training may be applied to the requirement under par. (b).

AB463, s. 26 Section 26. 48.065 (1) of the statutes is amended to read:

AB463,17,9 48.065 (1) The board of supervisors of any county may authorize the chief judge of the judicial administrative district to appoint one or more part-time or full-time juvenile court commissioners who shall serve at the discretion of the chief judge. A juvenile court commissioner shall be licensed to practice law in this state and shall have been so licensed for at least 2 years immediately prior to appointment and shall have a demonstrated interest in the welfare of children and unborn children. The chief judge may assign law clerks, bailiffs and deputies to the court commissioner. The chief judge shall supervise juvenile court commissioners, law clerks, bailiffs and deputies, except that the chief judge may delegate any of those duties.

AB463, s. 27 Section 27. 48.065 (2) (bm) of the statutes is created to read:

AB463,17,12 48.065 (2) (bm) Conduct hearings under s. 48.213 and thereafter order an expectant mother of an unborn child to be held in or released from custody.

AB463, s. 28 Section 28. 48.065 (2) (gm) of the statutes is amended to read:

AB463,17,14 48.065 (2) (gm) Conduct uncontested proceedings under s. ss. 48.13 and 48.133.

AB463, s. 29 Section 29. 48.065 (3) (c) of the statutes is amended to read:

AB463,17,17 48.065 (3) (c) Make dispositions other than approving consent decrees and other than dispositions in uncontested proceedings under s. 48.13 or 48.133.

AB463, s. 30 Section 30. 48.065 (3) (e) of the statutes is amended to read:

AB463,17,21 48.065 (3) (e) Make changes in placements of children or of the expectant mothers of unborn children, or revisions or extensions of dispositional orders, except in uncontested proceedings under s. 48.13 or 48.133.