AB463: Bill Text

AB463,21,21 48.135 (2) Any voluntary or involuntary admissions, placements or commitments of a child made in or to an inpatient facility, as defined in s. 51.01 (10), shall be governed by ch. 51 or 55. Except as provided in s. 48.347 (5), any voluntary or involuntary admissions, placements or commitments of an expectant mother of an unborn child made in or to an inpatient facility, as defined in s. 51.01 (10), shall be governed by ch. 51 or 55.

AB463, s. 46 Section 46. 48.14 (5) of the statutes is amended to read:

AB463,21,24 48.14 (5) Proceedings under chs. 51 and 55 which apply to minors or to the expectant mothers of unborn children.

AB463, s. 47 Section 47. 48.15 of the statutes is amended to read:

AB463,22,9 48.15 Jurisdiction of other courts to determine legal custody. Nothing contained in ss. 48.13, 48.133 and 48.14 deprives other courts of the right to determine the legal custody of children by habeas corpus or to determine the legal custody or guardianship of children if the legal custody or guardianship is incidental to the determination of causes pending in the other courts. But the jurisdiction of the court assigned to exercise jurisdiction under this chapter and ch. 938 is paramount in all cases involving children alleged to come within the provisions of ss. 48.13 and 48.14 and unborn children and their expectant mothers alleged to come within the provisions of ss. 48.133 and 48.14 (5).

AB463, s. 48 Section 48. 48.185 (1) of the statutes is amended to read:

AB463,22,19 48.185 (1) Subject to sub. (2), venue for any proceeding under ss. 48.13, 48.133, 48.135 and 48.14 (1) to (9) may be in any of the following: the county where the child or the expectant mother of the unborn child resides , or the county where the child is or expectant mother 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).

AB463, s. 49 Section 49. 48.185 (2) of the statutes is amended to read:

AB463,23,5 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, 48.365 or 48.977, or any 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 or the expectant mother of the unborn 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 or expectant mother.

AB463,23,7 Subchapter IV (title) of chapter 48 [precedes 48.19] of the statutes is amended to read:

AB463,23,8 Chapter 48

AB463,23,11 subchapter iv holding a child or an expectant mother in custody

AB463, s. 50 Section 50. 48.19 (1) (c) of the statutes is amended to read:

AB463,23,16 48.19 (1) (c) An order of the judge if made upon a showing satisfactory to the judge that the welfare of the child demands that the child be immediately removed from his or her present custody. The order shall specify that the child be held in custody under s. 48.207 (1).

AB463, s. 51 Section 51. 48.193 of the statutes is created to read:

AB463,23,19 48.193 Taking an expectant mother into custody. (1) The expectant mother of an unborn child may be taken into custody under any of the following:

AB463,23,20 (a) A warrant.

AB463,23,21 (b) A capias issued by a judge under s. 48.28.

AB463,24,3 (c) An order of the judge if made upon a showing satisfactory to the judge 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 order shall specify that the expectant mother be held in custody under s. 48.207 (1m).

AB463,24,5 (d) Circumstances in which a law enforcement officer believes on reasonable grounds that any of the following conditions exists:

AB463,24,7 1. A capias or warrant for the apprehension of the expectant mother has been issued in this state or in another state.

AB463,24,12 2. 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.

AB463,24,14 3. The expectant mother has violated the conditions of an order under s. 48.213 (3) or the conditions of an order for temporary physical custody by an intake worker.

AB463,24,24 (2) When the expectant mother of an unborn child is taken into physical custody as provided in this section, the person taking the expectant mother into custody shall immediately attempt to notify an adult relative or friend of the expectant mother by the most practical means. The person taking the expectant mother into custody shall continue such attempt until an adult relative or friend is notified, or the expectant mother is delivered to an intake worker under s. 48.203 (2), whichever occurs first. If the expectant mother is delivered to the intake worker before an adult relative or friend is notified, the intake worker, or another person at his or her direction, shall continue the attempt to notify until an adult relative or friend of the expectant mother is notified.

AB463,25,2 (3) Taking into custody is not an arrest except for the purpose of determining whether the taking into custody or the obtaining of any evidence is lawful.

AB463, s. 52 Section 52. 48.20 (title) of the statutes is amended to read:

AB463,25,4 48.20 (title) Release or delivery of child from custody.

AB463, s. 53 Section 53. 48.20 (7) (b) of the statutes is amended to read:

AB463,25,10 48.20 (7) (b) The intake worker shall review the need to hold the child in custody and shall make every effort to release the child from custody as provided in par. (c). The intake worker shall base his or her decision as to whether to release the child or to continue to hold the child in custody on the criteria specified in s. 48.205 (1) and criteria established under s. 48.06 (1) or (2).

AB463, s. 54 Section 54. 48.203 of the statutes is created to read:

AB463,25,19 48.203 Release or delivery of expectant mother from custody. (1) A person taking the expectant mother of an unborn child into custody shall make every effort to release the expectant mother to an adult relative or friend of the expectant mother after counseling or warning the expectant mother as may be appropriate or, if an adult relative or friend is unavailable, unwilling or unable to accept the release of the expectant mother, the person taking the expectant mother into custody may release the expectant mother under the expectant mother's own supervision after counseling or warning the expectant mother as may be appropriate.

AB463,26,2 (2) If the expectant mother is not released under sub. (1), the person who took the expectant mother into custody shall arrange in a manner determined by the court and law enforcement agencies for the expectant mother to be interviewed by the intake worker under s. 48.067 (2), and shall make a statement in writing with supporting facts of the reasons why the expectant mother was taken into physical custody and shall give the expectant mother a copy of the statement in addition to giving a copy to the intake worker. When the intake interview is not done in person, the report may be read to the intake worker.

AB463,26,7 (3) If the unborn child or expectant mother is believed to be suffering from a serious physical condition which requires either prompt diagnosis or prompt treatment, the person taking the expectant mother into physical custody, the intake worker or other appropriate person shall deliver the expectant mother to a hospital, as defined in s. 50.33 (2) (a) and (c), or physician's office.

AB463,26,15 (4) If the expectant mother is believed to be mentally ill, drug dependent or developmentally disabled, and exhibits conduct which constitutes a substantial probability of physical harm to herself, others, the unborn child or the child when born, or a very substantial probability of physical impairment or injury to the expectant mother, unborn child or child when born exists due to the impaired judgment of the expectant mother, and the standards of s. 51.15 are met, the person taking the expectant mother into physical custody, the intake worker or other appropriate person shall proceed under s. 51.15.

AB463,26,21 (5) If the expectant mother is believed to be an intoxicated person who has threatened, attempted or inflicted physical harm on herself, on another or on the unborn child and is likely to inflict such physical harm unless committed, or is incapacitated by alcohol, the person taking the expectant mother into physical custody, the intake worker or other appropriate person shall proceed under s. 51.45 (11).

AB463,26,23 (6) (a) When an expectant mother is interviewed by an intake worker, the intake worker shall inform the expectant mother of her right to counsel.

AB463,27,4 (b) The intake worker shall review the need to hold the expectant mother in custody and shall make every effort to release the expectant mother from custody as provided in par. (c). The intake worker shall base his or her decision as to whether to release the expectant mother or to continue to hold the expectant mother in custody on the criteria specified in s. 48.205 (1m) and criteria established under s. 48.06 (1) or (2).

AB463,27,10 (c) The intake worker may release the expectant mother to an adult relative or friend of the expectant mother after counseling or warning the expectant mother as may be appropriate or, if an adult relative or friend is unavailable, unwilling or unable to accept the release of the expectant mother, the intake worker may release the expectant mother under the expectant mother's own supervision after counseling or warning the expectant mother as may be appropriate.

AB463,27,15 (7) If an expectant mother is held in custody, the intake worker shall notify the expectant mother and unborn child, through its guardian ad litem, of the reasons for holding the expectant mother in custody, the time and place of the detention hearing required under s. 48.213, the nature and possible consequences of that hearing, and the right to present and cross-examine witnesses at the hearing.

AB463, s. 55 Section 55. 48.205 (title) of the statutes is amended to read:

AB463,27,18 48.205 (title) Criteria for holding a child or expectant mother in physical custody.

AB463, s. 56 Section 56. 48.205 (1) (intro.) of the statutes is amended to read:

AB463,27,22 48.205 (1) (intro.)  A child may be held under s. 48.207 (1), 48.208 or 48.209 if the intake worker determines that there is probable cause to believe the child is within the jurisdiction of the court and:

AB463, s. 57 Section 57. 48.205 (1m) of the statutes is created to read:

AB463,28,6 48.205 (1m) The expectant mother of an unborn child may be held under s. 48.207 (1m) if the intake worker determines that there is probable cause to believe that the expectant mother is within the jurisdiction of the court and to believe 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.

AB463, s. 58 Section 58. 48.205 (2) of the statutes is amended to read:

AB463,28,10 48.205 (2) The criteria for holding a child or the expectant mother of an unborn child in custody specified in this section shall govern the decision of all persons responsible for determining whether the action is appropriate.

AB463, s. 59 Section 59. 48.207 (title) of the statutes is amended to read:

AB463,28,13 48.207 (title) Places where a child or expectant mother may be held in nonsecure custody.

AB463, s. 60 Section 60. 48.207 (1) (intro.) of the statutes is amended to read:

AB463,28,16 48.207 (1) (intro.)  A child held in physical custody under s. 48.205 (1) may be held in any of the following places:

AB463, s. 61 Section 61. 48.207 (1m) of the statutes is created to read:

AB463,28,19 48.207 (1m) The expectant mother of an unborn child held in physical custody under s. 48.205 (1m) may be held in any of the following places:

AB463,28,20 (a) The home of an adult relative or friend of the expectant mother.

AB463,28,22 (b) A hospital, as defined in s. 50.33 (2) (a) and (c), or a physician's office if the expectant mother is held under s. 48.203 (3).

AB463,28,24 (c) A place listed in s. 51.15 (2) if the expectant mother is held under s. 48.203 (4).

AB463,29,2 (d) An approved public treatment facility for emergency treatment if the expectant mother is held under s. 48.203 (5).

AB463, s. 62 Section 62. 48.207 (2) of the statutes is renumbered 48.207 (2) (a) and amended to read:

AB463,29,10 48.207 (2) (a) If a facility listed in sub. (1) (b) to (k) is used to hold children a child in custody, or if supervisory services of a home detention program are provided to children a child held under sub. (1) (a), its the authorized rate of the facility or home detention program shall be paid by the county for the care of the child. If no authorized rate has been established, a reasonable sum to be fixed by the court shall be paid by the county for the supervision or care of the child.

AB463, s. 63 Section 63. 48.207 (2) (b) of the statutes is created to read:

AB463,29,18 48.207 (2) (b) If a facility listed in sub. (1m) (b) to (d) is used to hold an expectant mother of an unborn child in custody, or if supervisory services of a home detention program are provided to an expectant mother held under sub. (1m) (a), the authorized rate of the facility or home detention program shall be paid by the county for the care of the expectant mother. If no authorized rate has been established, a reasonable sum to be fixed by the court shall be paid by the county for the supervision or care of the expectant mother.

AB463, s. 64 Section 64. 48.208 (4) of the statutes is amended to read:

AB463,29,23 48.208 (4) Probable cause exists to believe that the child, having been placed in nonsecure custody by an intake worker under s. 48.207 (1) or by the judge or juvenile court commissioner under s. 48.21 (4), has run away or committed a delinquent act and no other suitable alternative exists.

AB463, s. 65 Section 65. 48.213 of the statutes is created to read:

AB463,30,13 48.213 Hearing for expectant mother in custody. (1) Hearing; when held. (a) If an expectant mother of an unborn child who has been taken into custody is not released under s. 48.203, a hearing to determine whether the expectant mother shall continue to be held in custody under the criteria of s. 48.205 (1m) shall be conducted by the judge or juvenile court commissioner within 48 hours after the time that the decision to hold the expectant mother 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 when an expectant mother is taken into custody under s. 48.193 (1) (b) or (d) 1. or 3., in which case a written statement of the reasons for holding the expectant mother in custody shall be substituted if the petition is not filed. If no hearing has been held within those 48 hours, excluding Saturdays, Sundays and legal holidays, or if no petition or statement has been filed at the time of the hearing, the expectant mother shall be released except as provided in par. (b).

AB463,31,2 (b) If no petition has been filed by the time of the hearing, an expectant mother of an unborn child may be held in custody with the approval of the judge or juvenile court commissioner for an additional 72 hours after 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 there is a substantial risk that if the expectant mother is not held, 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. The extension may be granted only once for any petition. In the event of failure to file a petition within the extension period provided for in this paragraph, the judge or juvenile court commissioner shall order the expectant mother's immediate release from custody.

AB463,31,6 (2) Proceedings concerning unborn children in need of protection or services and their expectant mothers. (a) Proceedings concerning an unborn child and its expectant mother who come within the jurisdiction of the court under s. 48.133 shall be conducted according to this subsection.

AB463,31,8 (b) The expectant mother may waive the hearing under this section. After any waiver, a hearing shall be granted at the request of any interested party.

AB463,31,12 (c) A copy of the petition shall be given to the expectant mother, and to the unborn child, through its guardian ad litem, before the hearing begins. Prior notice of the hearing shall be given to the expectant mother and unborn child in accordance with s. 48.203 (7).

AB463,31,17 (d) Prior to the commencement of the hearing, the expectant mother and unborn child, through its guardian ad litem, shall be informed by the court of the allegations that have been made or may be made, the nature and possible consequences of this hearing as compared to possible future hearings, the right to confront and cross-examine witnesses and the right to present witnesses.

AB463,31,24 (e) If the expectant mother is not represented by counsel at the hearing and the expectant mother is continued in custody as a result of the hearing, the expectant mother may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold the expectant mother in custody be reheard. If the request is made, a rehearing shall take place as soon as possible. Any order to hold the expectant mother in custody shall be subject to rehearing for good cause, whether or not counsel was present.

AB463,32,4 (3) Continuation of custody. If the judge or juvenile court commissioner finds that the expectant mother should be continued in custody under the criteria of s. 48.205 (1m), the judge or juvenile court commissioner shall enter one of the following orders:

AB463,32,11 (a) Release the expectant mother and impose reasonable restrictions on the expectant mother's travel, association with other persons or places of abode during the period of the order, including a condition requiring the expectant mother to return to other custody as requested; or subject the expectant mother to the supervision of an agency agreeing to supervise the expectant mother. Reasonable restrictions may be placed upon the conduct of the expectant mother which may be necessary to ensure the safety of the unborn child and of the child when born.

AB463,32,13 (b) Order the expectant mother to be held in an appropriate manner under s. 48.207 (1m).

AB463,32,16 (4) Orders in writing. All orders to hold an expectant mother of an unborn child in custody shall be in writing, listing the reasons and criteria forming the basis for the decision.

AB463,32,20 (5) Amendment of order. An order under sub. (3) (a) imposing restrictions on an expectant mother of an unborn child may at any time be amended, with notice, so as to return the expectant mother to another form of custody for failure of the expectant mother to conform to the conditions originally imposed.

AB463,32,25 (6) Informal disposition. If the judge or juvenile court commissioner determines that the best interests of the unborn child and the public are served, the judge or juvenile court commissioner may enter a consent decree under s. 48.32 or order the petition dismissed and refer the matter to the intake worker for informal disposition in accordance with s. 48.245.

AB463, s. 66 Section 66. 48.23 (2m) of the statutes is created to read:

AB463,33,5 48.23 (2m) Right of expectant mother to counsel. (a) When an unborn child is alleged to be in need of protection or services under s. 48.133, the expectant mother of the unborn child, if under 18 years of age, shall be represented by counsel and may not waive counsel.

AB463,33,14 (b) If a petition under s. 48.133 is contested, no expectant mother may be placed outside of her home unless the expectant mother is represented by counsel at the fact-finding hearing and subsequent proceedings. If the petition is not contested, the expectant mother may not be placed outside of her home unless the expectant mother is represented by counsel at the hearing at which the placement is made. An expectant mother 18 years of age or over, however, may waive counsel if the court is satisfied that the waiver is knowingly and voluntarily made and the court may place the expectant mother outside of her home even though the expectant mother was not represented by counsel.

AB463, s. 67 Section 67. 48.23 (4) of the statutes is amended to read:

AB463,34,11 48.23 (4) Providing counsel. In any situation under this section in which a person has a right to be represented by counsel or is provided counsel at the discretion of the court and counsel is not knowingly and voluntarily waived, the court shall refer the person to the state public defender and counsel shall be appointed by the state public defender under s. 977.08 without a determination of indigency. If the referral is of a person who has filed a petition under s. 48.375 (7), the state public defender shall appoint counsel within 24 hours after that referral. Any counsel appointed in a petition filed under s. 48.375 (7) shall continue to represent the child in any appeal brought under s. 809.105 unless the child requests substitution of counsel or extenuating circumstances make it impossible for counsel to continue to represent the child. In any situation under sub. (2) or (2m) in which a parent or expectant mother 18 years of age or older is entitled to representation by counsel; counsel is not knowingly and voluntarily waived; and it appears that the parent is unable to afford counsel in full, or the parent so indicates; the court shall refer the parent to the authority for indigency determinations specified under s. 977.07 (1). In any other situation under this section in which a person has a right to be represented by counsel or is provided counsel at the discretion of the court, competent and independent counsel shall be provided and reimbursed in any manner suitable to the court regardless of the person's ability to pay, except that the court may not order a person who files a petition under s. 813.122 or 813.125 to reimburse counsel for the child who is named as the respondent in that petition.

AB463, s. 68 Section 68. 48.235 (1) (f) of the statutes is created to read:

AB463,34,15 48.235 (1) (f) The court shall appoint a guardian ad litem, or extend the appointment of a guardian ad litem previously appointed under par. (a), for any unborn child alleged or found to be in need of protection or services.

AB463, s. 69 Section 69. 48.235 (3) of the statutes is amended to read:

AB463,35,2 48.235 (3) Duties and responsibilities. (a) The guardian ad litem shall be an advocate for the best interests of the person or unborn child for whom the appointment is made. The guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but shall not be bound by, the wishes of such that person or the positions of others as to the best interests of such that person or unborn child. If the guardian ad litem determines that the best interests of the person are substantially inconsistent with the wishes of such that person, the guardian ad litem shall so inform the court and the court may appoint counsel to represent that person. The guardian ad litem has none of the rights or duties of a general guardian.

AB463,35,6 (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 or for an unborn child who is the subject of a proceeding under s. 48.133 shall do all of the following:

AB463,35,11 1. Unless granted leave by the court not to do so, personally, or through a trained designee, meet with the child or expectant mother of the unborn child, assess the appropriateness and safety of the child's environment of the child or unborn child and, if the child is old enough to communicate, interview the child and determine the child's goals and concerns regarding his or her placement.

AB463,35,13 2. Make clear and specific recommendations to the court concerning the best interest of the child or unborn child at every stage of the proceeding.