AB151: Bill Text

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.

AB151,7,20 (b) In any situation under sub. (2) (a), (2g), or (2m) in which a parent 18 years of age or over or an adult expectant mother is entitled to representation by counsel; counsel is not knowingly and voluntarily waived; and it appears that the parent or adult expectant mother is unable to afford counsel in full, or the parent or adult expectant mother so indicates; the court shall refer the parent or adult expectant mother to the authority for indigency determinations specified under s. 977.07 (1).

AB151,8,2 (e) 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.

Note: This Section separates current law into paragraphs to distinguish how counsel may be provided in different types of proceedings.

AB151,10 Section 10. 48.23 (4) (c) and (d) of the statutes are created to read:

AB151,8,7 48.23 (4) (c) In any situation under sub. (2) (bm) in which a parent has a right to be represented by counsel, the parent shall be referred as soon as is practicable to the state public defender, who shall appoint counsel for the parent under s. 977.08 without a determination of indigency.

AB151,8,16 (d) 1. At or after the conclusion of a proceeding under sub. (2) (bm) in which the state public defender has provided counsel for a parent, the court may inquire as to the parent's ability to reimburse the state for the costs of representation. If the court determines that the parent is able to make reimbursement for all or part of the costs of representation, the court may order the parent to reimburse the state an amount not to exceed the maximum amount established by the public defender board under s. 977.075 (4). Upon the court's request, the state public defender shall conduct a determination of indigency under s. 977.07 and report the results of the determination to the court.

AB151,8,23 2. Reimbursement ordered under subd. 1. shall be made to the clerk of courts of the county where the proceedings took place. The clerk of courts shall transmit payments under this section to the county treasurer, who shall deposit 25 percent of the payment amount in the county treasury and transmit the remainder to the secretary of administration. Payments transmitted to the secretary of administration shall be deposited in the general fund and credited to the appropriation account under s. 20.550 (1) (L).

AB151,9,4 3. By January 31st of each year, the clerk of courts for each county shall report to the state public defender the total amount of reimbursements ordered under subd. 1. in the previous calendar year and the total amount of reimbursements paid to the clerk under subd. 2. in the previous year.

Note: This Section specifies that a nonpetitioning parent, whether minor or adult, who has a right to counsel in a CHIPS proceeding must be referred as soon as practicable to the SPD, which must appoint counsel for the person without a determination of indigency unless counsel was knowingly and voluntarily waived. This Section also specifies that at, or after, the conclusion of a CHIPS proceeding in which the SPD provided counsel, the juvenile court may inquire as to the parent's ability to reimburse the state for the costs of representation in the CHIPS proceeding. If the juvenile court determines that the parent is able to reimburse the state for the costs of representation, the juvenile court may order the parent to reimburse the state an amount not to exceed the maximum amount established by the SPD board, by rule, for the type of case.

AB151,11 Section 11. 48.23 (6) of the statutes is created to read:

AB151,9,10 48.23 (6) By January 1, 2017, the department and the state public defender shall each submit a report to the joint committee on finance, and to the chief clerk of each house of the legislature for distribution to the appropriate standing committees under s. 13.172 (3), regarding costs and data from implementing a parent's right to counsel under sub. (2) (bm).

Note: This Section requires DCF and SPD to 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.

AB151,12 Section 12. 48.235 (6) of the statutes is repealed.

Note: This Section deletes the reference to explaining a guardian ad litem's role to a jury.

AB151,13 Section 13. 48.243 (1) (g) of the statutes is repealed.

Note: This Section repeals the requirement that an intake worker inform a parent, expectant mother, or child age 12 or older of the right to a jury trial.

AB151,14 Section 14. 48.30 (2) of the statutes is amended to read:

AB151,9,16 48.30 (2) At the commencement of the hearing under this section the child and the parent, guardian, legal custodian, or Indian custodian; the child expectant mother, her parent, guardian, legal custodian, or Indian custodian, and the unborn child through the unborn child's guardian ad litem; or the adult expectant mother and the unborn child through the unborn child's guardian ad litem; shall be advised of their rights as specified in s. 48.243 and shall be informed that a request for a jury trial or for a substitution of judge under s. 48.29 must be made before the end of the plea hearing or is waived. Nonpetitioning parties, including the child, shall be granted a continuance of the plea hearing if they wish to consult with an attorney on the request for a jury trial or substitution of a judge.

Note: This Section eliminates the requirement that the juvenile court advise the parties to a CHIPS proceeding of the right to request a jury trial at the plea hearing. It also eliminates the right of a nonpetitioning party to be granted a continuance for the purpose of consulting with an attorney on a request for a jury trial.

AB151,15 Section 15. 48.31 (2) of the statutes is amended to read:

AB151,11,6 48.31 (2) The hearing shall be to the court unless the child, the child's parent, guardian, or legal custodian, the unborn child by the unborn child's guardian ad litem, or the expectant mother of the unborn child exercises the right to a jury trial by demanding a jury trial at any time before or during the plea hearing. If a jury trial is demanded in a proceeding under s. 48.13 or 48.133, the jury shall consist of 6 persons. If a jury trial is demanded in a proceeding under s. 48.42, the jury shall consist of 12 persons unless the parties agree to a lesser number. Chapters 756 and 805 shall govern the selection of jurors. If the hearing involves a child victim or witness, as defined in s. 950.02, the court may order that a deposition be taken by audiovisual means and allow the use of a recorded deposition under s. 967.04 (7) to (10) and, with the district attorney, shall comply with s. 971.105. At the conclusion of the hearing, the court or jury shall make a determination of the facts, except that and, in a case alleging a child or an unborn child to be in need of protection or services under s. 48.13 or 48.133, the court shall make the determination under s. 48.13 (intro.) or 48.133 relating to whether the child or unborn child is in need of protection or services that can be ordered by the court. If the court finds that the child or unborn child is not within the jurisdiction of the court or, in a case alleging a child or an unborn child to be in need of protection or services under s. 48.13 or 48.133, that the child or unborn child is not in need of protection or services that can be ordered by the court or if the court or jury finds that the facts alleged in the petition have not been proved, the court shall dismiss the petition with prejudice.

Note: This Section deletes the references to a jury trial in a provision governing the fact-finding hearing in a CHIPS or TPR proceeding.

AB151,16 Section 16. 48.31 (4) of the statutes is amended to read:

AB151,12,4 48.31 (4) The court or jury shall make findings of fact and the court shall make conclusions of law relating to the allegations of a petition filed under s. 48.13, 48.133, or 48.42, except that the court and shall make findings of fact relating to whether the child or unborn child is in need of protection or services which that can be ordered by the court. In cases alleging a child to be in need of protection or services under s. 48.13 (11), the court may not find that the child is suffering emotional damage unless a licensed physician specializing in psychiatry or a licensed psychologist appointed by the court to examine the child has testified at the hearing that in his or her opinion the condition exists, and adequate opportunity for the cross-examination of the physician or psychologist has been afforded. The judge may use the written reports if the right to have testimony presented is voluntarily, knowingly, and intelligently waived by the guardian ad litem or legal counsel for the child and the parent or guardian. In cases alleging a child to be in need of protection or services under s. 48.13 (11m) or an unborn child to be in need of protection or services under s. 48.133, the court may not find that the child or the expectant mother of the unborn child is in need of treatment and education for needs and problems related to the use or abuse of alcohol beverages, controlled substances, or controlled substance analogs and its medical, personal, family, or social effects unless an assessment for alcohol and other drug abuse that conforms to the criteria specified under s. 48.547 (4) has been conducted by an approved treatment facility.

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

AB151,17 Section 17. 48.31 (5) of the statutes is amended to read:

AB151,12,13 48.31 (5) If the child is an Indian child, the court or jury shall also determine at the fact-finding hearing whether continued custody of the Indian child by the Indian child's parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child under s. 48.028 (4) (d) 1. and whether active efforts under s. 48.028 (4) (d) 2. have been made to prevent the breakup of the Indian child's family and whether those efforts have proved unsuccessful, unless partial summary judgment on the allegations under s. 48.13 or 48.133 is granted, in which case the court shall make those determinations at the dispositional hearing.

Note: This Section deletes the reference to a jury making particular findings of fact that are required for an Indian child, and refers only to the juvenile court making those findings of fact.

AB151,18 Section 18 . 48.317 (intro.) and (1) of the statutes are consolidated, renumbered 48.317 and amended to read:

AB151,12,17 48.317 Jeopardy. Jeopardy attaches : (1) In a trial to the court, when a witness is sworn.

AB151,19 Section 19 . 48.317 (2) of the statutes is repealed.

Note: Sections 18 and 19 delete the provision governing when jeopardy attaches in a jury trial, and refer only to when jeopardy attaches in a trial to the juvenile court.

AB151,20 Section 20. 48.415 (intro.) of the statutes is amended to read:

AB151,13,12 48.415 Grounds for involuntary termination of parental rights. (intro.) At the fact-finding hearing the court or jury shall determine whether grounds exist for the termination of parental rights. If the child is an Indian child, the court or jury shall also determine at the fact-finding hearing whether continued custody of the Indian child by the Indian child's parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child under s. 48.028 (4) (e) 1. and whether active efforts under s. 48.028 (4) (e) 2. have been made to prevent the breakup of the Indian child's family and whether those efforts have proved unsuccessful, unless partial summary judgment on the grounds for termination of parental rights is granted, in which case the court shall make those determinations at the dispositional hearing. Grounds for termination of parental rights shall be one of the following:

Note: This Section deletes references to a jury determining whether grounds exist for TPR, and refers only to the juvenile court making that finding of fact.

AB151,21 Section 21. 48.422 (1) of the statutes is amended to read:

AB151,13,18 48.422 (1) Except as provided in s. 48.42 (2g) (ag), the hearing on the petition to terminate parental rights shall be held within 30 days after the petition is filed. At the hearing on the petition to terminate parental rights the court shall determine whether any party wishes to contest the petition and inform the parties of their rights under sub. (4) and s. 48.423.

Note: This Section deletes the requirement that the juvenile court inform the parties to a TPR proceeding of the right to request a jury trial at the initial hearing on the TPR petition.

AB151,22 Section 22. 48.422 (4) of the statutes is repealed.

Note: This Section repeals the right of a party to request a jury trial in a TPR proceeding.

AB151,23 Section 23. 48.422 (5) of the statutes is amended to read:

AB151,14,3 48.422 (5) Any nonpetitioning party, including the child, shall be granted a continuance of the hearing for the purpose of consulting with an attorney on the request for a jury trial or concerning a request for the substitution of a judge.

Note: This Section eliminates the right of a nonpetitioning party in a TPR proceeding to be granted a continuance for the purpose of consulting with an attorney on a request for a jury trial.

AB151,24 Section 24. 48.424 (3) of the statutes is amended to read:

AB151,14,9 48.424 (3) If the facts are determined by a jury, the jury may only The court shall decide whether any grounds for the termination of parental rights have been proved and, whether the allegations specified in s. 48.42 (1) (e) have been proved in cases involving the involuntary termination of parental rights to an Indian child. The court shall decide, and what disposition is in the best interest of the child.

Note: This Section deletes a reference to a jury determining whether any TPR grounds have been proven. It instead requires the juvenile court to make this determination in addition to then determining what disposition is in the best interest of the child.

AB151,25 Section 25. 48.424 (4) (intro.) of the statutes is amended to read:

AB151,14,17 48.424 (4) (intro.) If grounds for the termination of parental rights are found by the court or jury, the court shall find the parent unfit. A finding of unfitness shall not preclude a dismissal of a petition under s. 48.427 (2). The court shall then proceed immediately to hear evidence and motions related to the dispositions enumerated in s. 48.427. Except as provided in s. 48.42 (2g) (ag), the court may delay making the disposition and set a date for a dispositional hearing no later than 45 days after the fact-finding hearing if any of the following apply:

Note: This Section deletes a reference to a jury finding grounds for TPR, and refers only to the juvenile court making that determination.

AB151,26 Section 26. 977.075 (4) of the statutes is amended to read:

AB151,15,4 977.075 (4) The board shall establish by rule a fee schedule that sets the maximum amount that a parent subject to s. 48.23 (4) (d), 48.275 (2) (b), or 938.275 (2) (b) shall pay as reimbursement for legal services and sets the maximum amount that a person subject to s. 51.605 or 55.107 shall pay as reimbursement for legal services. The maximum amounts under this subsection shall be based on the average cost, as determined by the board, for each applicable type of case.

Note: This Section requires the SPD to set in its fee schedule the maximum amount that a parent in a CHIPS proceeding must pay as reimbursement for legal services provided by the SPD.

AB151,27 Section 27. Fiscal changes; Public Defender Board.

AB151,15,12 (1) Appellate representation. In the schedule under section 20.005 (3) of the statutes for the appropriation to the public defender board under section 20.550 (1) (b) of the statutes, as affected by the acts of 2013, the dollar amount is increased by $209,440 for the second fiscal year of the fiscal biennium in which this subsection takes effect to increase the authorized FTE positions for the public defender board by 2.0 GPR attorney positions and to otherwise fund the cost of appellate representation.

Note: This Section increases the SPD's appropriation for appellate representation by $209,440 to increase the number of SPD appellate attorneys by 2.0 full-time equivalent (FTE) positions and to otherwise fund representation for a parent appealing a disposition of a contested CHIPS petition.

AB151,15,19 (2) Trial representation. In the schedule under section 20.005 (3) of the statutes for the appropriation to the public defender board under section 20.550 (1) (c) of the statutes, as affected by the acts of 2013, the dollar amount is increased by $851,382 for the second fiscal year of the fiscal biennium in which this subsection takes effect to increase the authorized FTE positions for the public defender board by 10.0 GPR attorney positions and to otherwise fund the cost of trial representation provided by the public defender board.

Note: This Section increases the SPD's appropriation for trial representation by $851,382 to increase the number of SPD trial attorneys by 10.0 FTE positions and to otherwise fund representation for a parent in CHIPS proceedings.

AB151,16,5 (3) Private bar and investigator reimbursement. In the schedule under section 20.005 (3) of the statutes for the appropriation to the public defender board under section 20.550 (1) (d) of the statutes, as affected by the acts of 2013, the dollar amount is increased by $1,904,000 for the second fiscal year of the fiscal biennium in which this subsection takes effect for the purpose for which the appropriation is made.

Note: This Section increases the SPD's appropriation for representation by members of the private bar by $1,904,000 to fund the reimbursement of private attorneys representing parents in CHIPS proceedings.

AB151,16,10 (4) Private bar and investigator payments. In the schedule under section 20.005 (3) of the statutes for the appropriation to the public defender board under section 20.550 (1) (e) of the statutes, as affected by the acts of 2013, the dollar amount is increased by $125,000 for the second fiscal year of the fiscal biennium in which this subsection takes effect for the purpose for which the appropriation is made.

Note: This Section increases the SPD's appropriation for the administrative costs of private bar representation by $125,000 to fund the administrative costs of appointing private attorneys to represent parents in CHIPS proceedings.

AB151,16,15 (5) Transcripts, discovery, and interpreters. In the schedule under section 20.005 (3) of the statutes for the appropriation to the public defender board under section 20.550 (1) (f) of the statutes, as affected by the acts of 2013, the dollar amount is increased by $125,000 for the second fiscal year of the fiscal biennium in which this subsection takes effect for the purpose for which the appropriation is made.

Note: This Section increases the SPD's appropriation for payments made to obtain transcripts, discovery materials, and interpreters for clients to fund those costs in CHIPS proceedings.

AB151,28 Section 28. Initial applicability.

AB151,17,3 (1) Representation in proceedings involving children in need of protection or services. The treatment of sections 48.20 (8) (a), 48.21 (3) (d), 48.213 (2) (d), 48.23 (3), and 977.075 (4) of the statutes, the renumbering of section 48.23 (2) of the statutes, the renumbering and amendment of section 48.23 (4) of the statutes, and the creation of section 48.23 (2) (bm) and (4) (c) and (d) of the statutes first apply to proceedings commenced under section 48.13 or 48.21 of the statutes on the effective date of this subsection.

Note: This Section specifies that a parent's right to counsel and the right to be represented by an SPD in a CHIPS proceeding first apply to a CHIPS proceeding that is commenced on the effective date of the bill.

AB151,17,9 (2) Elimination of jury trials in proceedings under the Children's Code. The treatment of sections 48.028 (4) (d) 1. and 2., (e) 1. and 2., and (g) 1., 48.235 (6), 48.243 (1) (g), 48.30 (2), 48.31 (2), (4) and (5), 48.317 (intro.), (1) and (2), 48.415 (intro.), 48.422 (1), (4) and (5), and 48.424 (3) and (4) (intro.) of the statutes first applies to a child in need of protection or services, or termination of parental rights, proceeding in which the petition is filed on the effective date of this subsection.

Note: This Section provides that provisions of the bill eliminating jury trials in proceedings under the Children's Code first apply to a CHIPS or TPR proceeding in which the petition is filed on the effective date of the bill.

AB151,29 Section 29. Effective date.

AB151,17,12 (1) This act takes effect on the first day of the 6th month beginning after publication.

Note: This Section delays the effective date of the bill until the first day of the 6th month following publication.

AB151,17,13 (End)