AB151: Bill Text

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.

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: