AB151: Bill Text

LRB-1629/1

GMM:sac:jf

2013 - 2014 LEGISLATURE

2013 Assembly BILL 151

April 15, 2013 - Introduced by Joint Legislative Council. Referred to Committee on Family Law.

AB151,1,12 An Act to repeal 48.235 (6), 48.243 (1) (g), 48.317 (2) and 48.422 (4); to renumber 48.23 (2); to renumber and amend 48.23 (4); to consolidate, renumber and amend 48.317 (intro.) and (1); to amend 48.028 (4) (d) 1. and 2., (e) 1. and 2. and (g) 1., 48.20 (8) (a), 48.21 (3) (d), 48.213 (2) (d), 48.23 (3), 48.30 (2), 48.31 (2), 48.31 (4), 48.31 (5), 48.415 (intro.), 48.422 (1), 48.422 (5), 48.424 (3), 48.424 (4) (intro.) and 977.075 (4); and to create 48.23 (2) (bm), 48.23 (2) (br), 48.23 (4) (c) and (d) and 48.23 (6) of the statutes; relating to: the right of a parent to have counsel in a proceeding for a child alleged to be in need of protection or services; the power of the juvenile court to appoint counsel in such a proceeding; and elimination of the right to a jury trial in such a proceeding or in a proceeding for termination of parental rights; granting rule-making authority; and making appropriations.

Analysis by the Legislative Reference Bureau

This bill is explained in the Notes provided by the Joint Legislative Council in the bill.

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:

Joint Legislative Council prefatory note: This bill was prepared for the Joint Legislative Council's Special Committee on Permanency for Young Children in the Child Welfare System.

Power of the Court to Appoint Counsel

Under current statutes, in a proceeding under the Children's Code, the court assigned to exercise jurisdiction under the Children's Code (juvenile court) may appoint counsel for the child and any other party, with one exception. The juvenile court may not appoint counsel for any party other than the child, an Indian parent, or an Indian custodian in a proceeding in which it is alleged that a child is in need of protection or services (CHIPS). This statutory prohibition, however, was ruled unconstitutional by the Wisconsin Supreme Court in Joni B. v. State, 202 Wis. 2d 1 (1996), on the grounds that the prohibition constitutes a violation of the separation of powers doctrine of the Wisconsin Constitution.

This bill eliminates the statutory prohibition placed on a juvenile court regarding appointment of counsel for parents, clarifying in the statutes that a court has the power to appoint counsel for any party, including a parent 18 years of age or over, to a CHIPS proceeding, consistent with constitutional law.

Right to Counsel and Referral to the State Public Defender

Under current law, a parent over the age of 18 does not have a statutory right to be represented by counsel during a CHIPS proceeding. Therefore, the juvenile court may not refer such a parent to the state public defender (SPD) for possible representation. The juvenile court may, however, appoint counsel at its discretion, in which case the parent's legal representation is provided at the county's expense.

This bill grants a parent of any age the right to counsel in a CHIPS proceeding, if the child has been taken into custody, thereby permitting such a parent to be represented by an SPD. In order for an SPD to be appointed immediately for a temporary physical custody hearing, the juvenile court may order an indigency determination at the conclusion of the hearing, rather than upon the initial referral to SPD.

Under the bill, the right to counsel for a parent in a CHIPS proceeding sunsets on June 30, 2017. Also, the SPD and the Department of Children and Families (DCF) must each submit a report by January 1, 2017, to the Joint Committee on Finance and each house of the legislature regarding the costs and data from implementing a parent's right to counsel in a CHIPS proceeding.

Elimination of Jury Trial in a CHIPS or Termination of Parental Rights Proceeding

Under current law, a party to a CHIPS or termination of parental rights (TPR) proceeding may request a trial by a jury to determine if there are grounds to grant a CHIPS adjudication or TPR order.

This bill eliminates the right to request a jury trial in both CHIPS and TPR proceedings.

AB151,1 Section 1. 48.028 (4) (d) 1. and 2., (e) 1. and 2. and (g) 1. of the statutes are amended to read:

AB151,3,5 48.028 (4) (d) 1. The court or jury finds by clear and convincing evidence, including the testimony of one or more qualified expert witnesses chosen in the order of preference listed in par. (f), that continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

AB151,3,11 2. The court or jury finds by clear and convincing evidence that active efforts, as described in par. (g) 1., have been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful. The court or jury shall make that finding notwithstanding that a circumstance specified in s. 48.355 (2d) (b) 1. to 5. applies.

AB151,3,15 (e) 1. The court or jury finds beyond a reasonable doubt, including the testimony of one or more qualified expert witnesses chosen in the order of preference listed in par. (f), that the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

AB151,3,19 2. The court or jury finds by clear and convincing evidence that active efforts, as described in par. (g) 1., have been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful.

AB151,4,5 (g) 1. The court may not order an Indian child to be removed from the home of the Indian child's parent or Indian custodian and placed in an out-of-home care placement unless the evidence of active efforts under par. (d) 2. or (e) 2. shows that there has been an ongoing, vigorous, and concerted level of case work and that the active efforts were made in a manner that takes into account the prevailing social and cultural values, conditions, and way of life of the Indian child's tribe and that utilizes the available resources of the Indian child's tribe, tribal and other Indian child welfare agencies, extended family members of the Indian child, other individual Indian caregivers, and other culturally appropriate service providers. The consideration by the court or jury of whether active efforts were made under par. (d) 2. or (e) 2. shall include whether all of the following activities were conducted:

Note: This Section deletes the references related to a jury making findings of fact in a CHIPS or TPR proceeding involving an Indian child, and refers only to the juvenile court making those findings of fact.

AB151,2 Section 2. 48.20 (8) (a) of the statutes is amended to read:

AB151,4,22 48.20 (8) (a) If a child is held in custody, the intake worker shall notify the child's parent, guardian, legal custodian, and Indian custodian of the reasons for holding the child in custody and of the child's whereabouts unless there is reason to believe that notice would present imminent danger to the child. The parent, guardian, legal custodian, and Indian custodian shall also be notified of the time and place of the detention hearing required under s. 48.21, the nature and possible consequences of that hearing, the right to counsel under s. 48.23 regardless of ability to pay, the right to present and cross-examine witnesses at the hearing, and, in the case of a parent or Indian custodian of an Indian child who is the subject of an Indian child custody proceeding, as defined in s. 48.028 (2) (d) 2., the right to counsel under s. 48.028 (4) (b). If the parent, guardian, legal custodian, or Indian custodian is not immediately available, the intake worker or another person designated by the court shall provide notice as soon as possible. When the child is 12 years of age or older, the child shall receive the same notice about the detention hearing as the parent, guardian, legal custodian, or Indian custodian. The intake worker shall notify both the child and the child's parent, guardian, legal custodian, or Indian custodian.

Note: This Section requires a juvenile court intake worker (intake worker) to notify a parent of a child held in temporary physical custody of the parent's right to counsel regardless of ability to pay at the same time the intake worker is notifying the parent of the time and place of the detention hearing.

AB151,3 Section 3. 48.21 (3) (d) of the statutes is amended to read:

AB151,5,9 48.21 (3) (d) Prior to the commencement of the hearing, the court shall inform the parent, guardian, legal custodian, or Indian custodian 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 counsel under s. 48.23 regardless of ability to pay, the right to present, confront, and cross-examine witnesses, and, in the case of a parent or Indian custodian of an Indian child who is the subject of an Indian child custody proceeding under s. 48.028 (2) (d) 2., the right to counsel under s. 48.028 (4) (b).

Note: This Section requires the juvenile court to inform a parent, guardian, legal custodian, or Indian custodian of his or her right to counsel regardless of ability to pay prior to the commencement of the detention hearing for a child held in temporary physical custody who comes within the CHIPS jurisdiction of the juvenile court.

AB151,4 Section 4 . 48.213 (2) (d) of the statutes is amended to read:

AB151,5,17 48.213 (2) (d) Prior to the commencement of the hearing, the court shall inform the adult expectant mother and the unborn child, through the unborn child's 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 counsel under s. 48.23 regardless of ability to pay, and the right to present, confront, and cross-examine witnesses and the right to present witnesses.

Note: This Section requires the juvenile court to inform an adult expectant mother held in temporary physical custody who comes within the unborn child in need of protection or services jurisdiction of the juvenile court of her right to counsel regardless of ability to pay prior to the commencement of the detention hearing for the adult expectant mother.

AB151,5 Section 5. 48.23 (2) of the statutes is renumbered 48.23 (2) (a).

AB151,6 Section 6. 48.23 (2) (bm) of the statutes is created to read:

AB151,6,9 48.23 (2) (bm) If a proceeding involves a child alleged to be in need of protection or services under s. 48.13, and the child has been taken into custody, any nonpetitioning parent who appears before the court shall be represented by counsel throughout the proceeding. The right to be represented by counsel begins with a hearing held under s. 48.21, or anytime after the filing of a petition under s. 48.255 if the child has been taken into custody or the court has ordered the child placed outside of his or her home. Once begun, the right to be represented by counsel continues throughout all stages of the proceedings. A parent may waive counsel if the court is satisfied that the waiver is knowingly and voluntarily made.

Note: Sections 5 and 6 create a right for a parent, whether minor or adult, to be represented by counsel in a CHIPS proceeding, if the child has been taken into custody. The right begins with the temporary physical custody hearing, or upon the child being taken into custody anytime after the filing of a CHIPS petition, and continues throughout all stages of the proceedings.

AB151,7 Section 7. 48.23 (2) (br) of the statutes is created to read:

AB151,6,12 48.23 (2) (br) Paragraph (bm) does not apply to a proceeding commenced under s. 48.13 or 48.21 after June 30, 2017.

Note: This Section specifies that the right to counsel for a parent in a CHIPS proceeding sunsets on June 30, 2017.

AB151,8 Section 8 . 48.23 (3) of the statutes is amended to read:

AB151,6,18 48.23 (3) Power of the court to appoint counsel. Except in proceedings under s. 48.13, at At any time, upon request or on its own motion, the court may appoint counsel for the child or any party, unless the child or the party has or wishes to retain counsel of his or her own choosing. Except as provided in sub. (2g), the court may not appoint counsel for any party other than the child in a proceeding under s. 48.13.

Note: This Section specifies that a juvenile court has the power to appoint counsel for any party involved in a CHIPS proceeding, not just a child, thereby making the statutes consistent with current case law.

AB151,9 Section 9. 48.23 (4) of the statutes is renumbered 48.23 (4) (a) and amended to read:

AB151,7,14 48.23 (4) Providing counsel. (a) If In any situation under sub. (2) (a), if a child or a parent under 18 years of age has a right to be represented by counsel or is provided counsel at the discretion of the court under this section and counsel is not knowingly and voluntarily waived, the court shall refer the child or parent under 18 years of age 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 child 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.