AB463: Bill Text Engrossed

LRB-4382/1

GMM:jlg:hfm

1997 - 1998 LEGISLATURE

Engrossed 1997 Assembly BILL 463

November 24, 1997 - Printed by direction of Assembly Chief Clerk.

AB463-engrossed,4,2 An Act to renumber and amend 48.207 (2), 48.243 (2), 48.27 (1), 48.27 (4) (intro.) and 48.985 (2) (a); to amend 38.24 (1s), 46.001, 46.03 (7) (a), 46.238, 46.40 (7m), 46.51 (title), 46.51 (1), 46.51 (3), 46.51 (4), 46.51 (5), 46.95 (2) (a), 48.01 (1) (intro.), 48.01 (1) (a), 48.01 (1) (br), 48.01 (1) (dm), 48.02 (17m), 48.06 (1) (a) 1., 48.06 (1) (a) 3., 48.06 (1) (am) 3., 48.06 (2) (c), 48.065 (1), 48.065 (2) (gm), 48.065 (3) (c), 48.065 (3) (e), 48.067 (1), 48.067 (2), 48.067 (3), 48.067 (4), 48.067 (6m), 48.067 (8), 48.069 (1) (a), 48.069 (1) (c), 48.07 (4), 48.08 (1), 48.09 (5), 48.135 (title), 48.135 (1), 48.135 (2), 48.14 (5), 48.15, 48.185 (1), 48.185 (2), subchapter IV (title) of chapter 48 [precedes 48.19], 48.19 (1) (c), 48.20 (title), 48.20 (7) (b), 48.20 (8), 48.205 (title), 48.205 (1) (intro.), 48.205 (2), 48.207 (title), 48.207 (1) (intro.), 48.207 (1) (g), 48.208 (4), 48.21 (1) (b), 48.21 (3) (intro.), 48.21 (3) (b), 48.21 (6), 48.21 (7), 48.227 (4) (e) 2., 48.23 (4), 48.235 (3), 48.235 (6), 48.24 (1), 48.24 (1m), 48.24 (2) (a), 48.24 (2m) (a) (intro.), 48.24 (3), 48.24 (5), 48.243 (1) (intro.), (a), (b), (c), (d), (e), (f) and (g), 48.243 (3), 48.245 (1), 48.245 (2) (a) 1., 48.245 (2) (a) 2., 48.245 (2) (a) 3., 48.245 (2) (a) 4., 48.245 (2) (c), 48.245 (2r), 48.245 (3), 48.245 (4), 48.245 (5), 48.245 (8), 48.25 (1), 48.25 (2), 48.255 (1) (intro.), 48.255 (2), 48.255 (3), 48.255 (4), 48.263 (1), 48.263 (2), 48.27 (3) (a) 1., 48.27 (3) (b) 1. (intro.), 48.27 (8), 48.275 (1), 48.275 (2) (a), 48.275 (2) (b), 48.275 (2) (c), 48.275 (2) (cg) (intro.), 48.29 (1), 48.293 (2), 48.293 (3), 48.295 (1), 48.295 (1c), 48.295 (1g), 48.295 (2), 48.295 (3), 48.297 (4), 48.297 (5), 48.297 (6), 48.299 (1) (a), 48.299 (1) (ag), 48.299 (1) (b), 48.299 (4) (b), 48.299 (5), 48.30 (1), 48.30 (2), 48.30 (3), 48.30 (6), 48.30 (7), 48.30 (8) (a), 48.30 (8) (c), 48.30 (9), 48.305, 48.31 (1), 48.31 (2), 48.31 (4), 48.31 (7), 48.315 (1) (a), 48.315 (1) (b), 48.315 (1) (f), 48.32 (1), 48.32 (2) (a), 48.32 (2) (c), 48.32 (3), 48.32 (5) (intro.), 48.32 (5) (a), 48.32 (5) (b), 48.32 (6), 48.33 (1) (intro.), 48.33 (1) (a), 48.33 (1) (b), 48.33 (1) (c), 48.33 (1) (d), 48.33 (1) (f), 48.33 (2), 48.33 (4) (intro.), 48.335 (1), 48.345 (intro.), 48.345 (2), 48.345 (2m), 48.345 (13) (c), 48.35 (1) (b) (intro.), 48.35 (1) (b) 1., 48.35 (1) (b) 2., 48.35 (2), 48.355 (1), 48.355 (2) (a), 48.355 (2) (b) 1., 48.355 (2) (b) 1m., 48.355 (2) (b) 7., 48.355 (2) (d), 48.355 (2m), 48.355 (4), 48.355 (5), 48.355 (7), 48.356 (1), 48.356 (2), 48.357 (1), 48.357 (2), 48.357 (2m), 48.36 (2), 48.361 (1) (b), 48.361 (1) (c), 48.361 (2) (am) 1., 48.361 (2) (am) 2., 48.361 (2) (b) 1., 48.361 (2) (c), 48.362 (2), 48.362 (4) (a), 48.362 (4) (c), 48.363 (1), 48.365 (1m), 48.365 (2), 48.365 (2g) (a), 48.365 (2m) (a), 48.365 (2m) (b), 48.396 (1), 48.396 (1b), 48.396 (1d), 48.396 (5) (b), 48.396 (5) (c), 48.396 (5) (e), 48.415 (2) (a), 48.415 (2) (b) 1., 48.415 (2) (b) 2., 48.415 (2) (c), 48.44 (1), 48.45 (1) (b), 48.45 (2), 48.46 (1), 48.48 (1), 48.48 (16), 48.52 (title), 48.52 (2) (a), 48.547 (title), 48.547 (1), 48.547 (2), 48.547 (3) (intro.), (b) and (d), 48.547 (4), 48.57 (1) (a), 48.57 (1) (b), 48.57 (1) (c), 48.57 (1) (g), 48.57 (2), 48.59 (1), 48.59 (2), 48.981 (title), 48.981 (1) (h) (intro.), 48.981 (1) (h) 2., 48.981 (2), 48.981 (2m) (title), 48.981 (3) (a), 48.981 (3) (b) 1., 48.981 (3) (b) 2., 48.981 (3) (bm) (intro.), 48.981 (3) (bm) 1., 48.981 (3) (bm) 2., 48.981 (3) (bm) 3., 48.981 (3) (c) 1., 48.981 (3) (c) 3., 48.981 (3) (c) 5., 48.981 (3) (c) 6., 48.981 (3) (c) 6m., 48.981 (3) (c) 7., 48.981 (3) (c) 8., 48.981 (3) (d) 1., 48.981 (3) (d) 2., 48.981 (4), 48.981 (7) (a) 1m., 48.981 (7) (a) 3m., 48.981 (7) (a) 4., 48.981 (7) (a) 5., 48.981 (7) (a) 6., 48.981 (7) (a) 10., 48.981 (7) (a) 10m., 48.981 (7) (a) 11., 48.981 (7) (a) 11m., 48.981 (7) (a) 11r., 48.981 (7) (a) 17., 48.981 (8) (a), 48.981 (8) (b), 48.981 (8) (c), 48.981 (8) (d) 1., 48.981 (9), 48.985 (1), 51.13 (4) (h) 4., 51.30 (4) (b) 9., 51.30 (4) (b) 11., 51.30 (4) (b) 14., 51.30 (4) (b) 17., 51.61 (1) (intro.), 146.0255 (2), 146.0255 (3) (intro.), 146.82 (2) (a) 11., 757.69 (1) (g), 808.075 (4) (a) 4., 813.122 (1) (a), 904.085 (4) (d), 905.04 (4) (e) (title) and 938.245 (8); and to create 48.01 (1) (am), 48.01 (1) (ap), 48.01 (1) (bm), 48.02 (1) (am), 48.029, 48.02 (19), 48.065 (2) (bm), 48.08 (3), 48.133, 48.19 (1) (cm), 48.19 (1) (d) 8., 48.193, 48.20 (4m), 48.203, 48.205 (1) (d), 48.205 (1m), 48.207 (1m), 48.207 (2) (b), 48.213, 48.23 (2m), 48.235 (1) (f), 48.235 (4m), 48.24 (2m) (a) 6., 48.255 (1m), 48.27 (1) (b), 48.27 (3) (c), 48.27 (3) (d), 48.27 (4) (b), 48.345 (14), 48.345 (15), 48.347, 48.355 (2) (b) 2m., 48.357 (5r), 48.361 (2) (a) 1m., 48.361 (2) (b) 1m., 48.362 (3m), 48.396 (2) (aj), 48.396 (2) (ap), 48.45 (1) (am), 48.45 (1r), 48.52 (1m), 48.78 (2) (aj), 48.78 (2) (ap), 48.981 (1) (ct), 48.981 (1) (h) 1m., 48.981 (2r), 48.981 (3) (b) 2m., 48.981 (3) (c) 2m., 51.30 (4) (b) 11m., 301.01 (2) (cm) and 905.04 (4) (e) 3. of the statutes; relating to: unborn children who are at substantial risk of serious physical injury due to the habitual lack of self-control of their expectant mothers in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree.

Analysis by the Legislative Reference Bureau

Engrossment information:

The text of Engrossed 1997 Assembly Bill 463 consists of the following documents adopted in the assembly on November 19, 1997: Assembly Substitute Amendment 1 as affected by Assembly Amendments 4, 6, 7, 8, 9, 10, 13 and 15.

Content of Engrossed 1997 Assembly Bill 463:

Under current law, the children's code grants to the court assigned to exercise jurisdiction under the children's code (juvenile court) jurisdiction over children alleged to be in need of protection or services and authorizes the juvenile court to impose certain dispositions on a child found to be in need of protection or services. The children's code also requires certain individuals to report to the sheriff, local police department or county department of human services or social services (county department) any suspected or threatened abuse or neglect of a child seen in the course of the individual's professional duties and requires the sheriff or police department, and the county department, to investigate those reports. Finally, the children's code permits children to be taken into and held in custody under certain circumstances.

This engrossed bill extends, as explained in this analysis, the coverage of the children's code to unborn children, which are defined in the bill as human beings from the time of fertilization to the time of birth.

Jurisdiction

Under current law, the juvenile court has exclusive original jurisdiction over a child who is alleged to be in need of protection or services which can be ordered by the juvenile court and who meets certain jurisdictional grounds, including the ground that the child has been the victim of abuse, which is defined under current law, in part, as physical injury inflicted on a child by other than accidental means.

The engrossed bill grants to the juvenile court exclusive original jurisdiction over an unborn child who is alleged to be in need of protection or services which can be ordered by the juvenile court and whose expectant mother habitually lacks self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, to the extent 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 unless the expectant mother receives prompt and adequate treatment for that habitual lack of self-control. The engrossed bill also grants to the juvenile court exclusive original jurisdiction over the expectant mother of such an unborn child.

Dispositions

Under current law, if the juvenile court finds that a child is in need of protection or services, the juvenile court must enter a dispositional order imposing one or more of the dispositions authorized under current law. Those dispositions include all of the following:

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 to be placed in the home of a relative or in a foster home, treatment foster home, group home or residential treatment facility.

4. 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 (AODA) 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.

5. Ordering the child to enter an outpatient AODA treatment program or to participate in an AODA 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.

The engrossed bill authorizes the juvenile court to impose on a child expectant mother of an unborn child who is found to be in need of protection or services one or more of the following dispositions, in addition to any of the dispositions that may be imposed on any child under the children's code, except that the juvenile court may not place a child expectant mother of an unborn child in need of protection or services outside of the child expectant mother's home unless the juvenile court finds that the child expectant mother is refusing or has refused to accept any AODA services offered to her or is not making or has not made a good faith effort to participate in any AODA services offered to her:

1. Order the child expectant mother to enter an inpatient AODA treatment program, but only if the juvenile court finds that the child expectant mother is in need of inpatient treatment, that inpatient treatment is appropriate for the child expectant mother's needs and that inpatient treatment is the least restrictive treatment consistent with the child expectant mother's needs.

2. If it appears that the unborn child may be born during the period of the dispositional order, order that the child, when born, be provided with any services or care that may be ordered for a child in need of protection or services under the children's code.

Similarly, the engrossed bill authorizes the juvenile court to impose one or more of the following dispositions on an adult expectant mother of an unborn child who is found to be in need of protection or services, except that the juvenile court may not place an adult expectant mother of an unborn child in need of protection or services outside of the adult expectant mother's home unless the juvenile court finds that the adult expectant mother is refusing or has refused to accept any AODA services offered to her or is not making or has not made a good faith effort to participate in any AODA services offered to her:

1. Counsel the adult expectant mother.

2. Place the adult 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 adult 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 adult expectant mother to be placed in the home of an adult relative or friend or in a community-based residential facility.

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

5. Order the adult expectant mother to enter an outpatient AODA treatment program or to participate in an AODA education program.

6. Order the adult expectant mother to enter an inpatient AODA treatment program, but only if the juvenile court finds that the adult expectant mother is in need of inpatient treatment, that inpatient treatment is appropriate for the adult expectant mother's needs and that inpatient treatment is the least restrictive treatment consistent with the adult expectant mother's needs.

7. If it appears that the unborn child may be born during the period of the dispositional order, order that the child, when born, be provided with any services or care that may be ordered for a child in need of protection or services under the children's code.

Abuse investigations

Under current law, subject to certain exceptions, 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. Current law, however, provides an exception to the child abuse reporting requirement for a health care provider who provides health care services, such as family planning services or obstetrical treatment, to a child. 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. Under current law, any person participating in good faith in the making of a report, conducting an investigation or performing a medical examination under the child abuse reporting law is immune from any liability that results from that action.

The engrossed 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 harm inflicted on an unborn child, and the risk of serious physical harm to the child when born, caused 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 engrossed bill, subject to certain exceptions, 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 engrossed bill, however, provides an exception to the unborn child abuse reporting requirement for a health care provider who provides health care services, such as family planning services or obstetrical treatment, to an expectant mother of an unborn child and for an AODA services provider who provides AODA services to an expectant mother of an unborn child, except that an AODA services provider must report as required if the expectant mother has refused or is refusing to accept any AODA services offered to her or is not making or has not made a good faith effort to participate in any AODA services offered to her. 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. Under the engrossed bill, any person who fails to report abuse of an unborn child based on a good faith evaluation is immune from liability for that failure to report.

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.

The engrossed 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 and that the expectant mother is refusing or has refused to accept any AODA services offered to her or is not making or has not made a good faith effort to participate in any AODA services offered to her. The engrossed 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 and that the expectant mother is refusing or has refused to accept any AODA services offered to her or is not making or has not made a good faith effort to participate in any AODA services offered to her; 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 a child expectant mother to her parent, guardian or legal custodian or to release an adult expectant mother to an adult relative or friend of the adult 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, 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 and that the expectant mother is refusing or has refused to accept any AODA services offered to her or is not making or has not made a good faith effort to participate in any AODA services offered to her.

Under the bill, a child expectant mother of an unborn child may be held in custody in any of the places that any other child may be held under the children's code and an adult expectant mother of an unborn child may be held in the home of an adult relative or friend of the adult expectant mother; a community-based residential facility; a hospital or a physician's office, if the unborn child or adult expectant mother is suffering from a serious physical condition that requires prompt diagnosis or treatment; or a treatment facility, if the adult 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. The engrossed 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.

Termination of parental rights

Under current law, one of the grounds for involuntary termination of parental rights (TPR) is continuing need of protection or services (continuing CHIPS) which may be established by proving that a child has been adjudged to be in need of protection or services and placed, or continued in a placement, outside of his or her home; that the agency responsible for the care of the child and the family has made a diligent effort to provide the services ordered by the juvenile court; and that the child has been outside the home for a cumulative total period of 6 months or longer, the parent has failed to demonstrate substantial progress toward meeting the conditions established for the return of the child to the home and there is a substantial likelihood that the parent will not meet those conditions within the 12-month period following the TPR fact-finding hearing.

The engrossed bill extends the continuing CHIPS TPR ground to include unborn children in need of protection or services, except that time spent outside the home as an unborn child may not be counted toward the 6-month out-of-home placement requirement.

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. The engrossed bill extends that duty to unborn children in need of protection or services.