2013 - 2014 LEGISLATURE
April 15, 2013 - Introduced by Joint Legislative Council. Referred to Committee
on Family Law.
AB151,1,12 1An Act to repeal 48.235 (6), 48.243 (1) (g), 48.317 (2) and 48.422 (4); to
2renumber
48.23 (2); to renumber and amend 48.23 (4); to consolidate,
3renumber and amend
48.317 (intro.) and (1); to amend 48.028 (4) (d) 1. and
42., (e) 1. and 2. and (g) 1., 48.20 (8) (a), 48.21 (3) (d), 48.213 (2) (d), 48.23 (3), 48.30
5(2), 48.31 (2), 48.31 (4), 48.31 (5), 48.415 (intro.), 48.422 (1), 48.422 (5), 48.424
6(3), 48.424 (4) (intro.) and 977.075 (4); and to create 48.23 (2) (bm), 48.23 (2)
7(br), 48.23 (4) (c) and (d) and 48.23 (6) of the statutes; relating to: the right of
8a parent to have counsel in a proceeding for a child alleged to be in need of
9protection or services; the power of the juvenile court to appoint counsel in such
10a proceeding; and elimination of the right to a jury trial in such a proceeding
11or in a proceeding for termination of parental rights; granting rule-making
12authority; 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 1Section 1. 48.028 (4) (d) 1. and 2., (e) 1. and 2. and (g) 1. of the statutes are
2amended to read:
AB151,3,5
148.028 (4) (d) 1. The court or jury finds by clear and convincing evidence,
2including the testimony of one or more qualified expert witnesses chosen in the order
3of preference listed in par. (f), that continued custody of the Indian child by the parent
4or Indian custodian is likely to result in serious emotional or physical damage to the
5child.
AB151,3,116 2. The court or jury finds by clear and convincing evidence that active efforts,
7as described in par. (g) 1., have been made to provide remedial services and
8rehabilitation programs designed to prevent the breakup of the Indian child's family
9and that those efforts have proved unsuccessful. The court or jury shall make that
10finding notwithstanding that a circumstance specified in s. 48.355 (2d) (b) 1. to 5.
11applies.
AB151,3,1512 (e) 1. The court or jury finds beyond a reasonable doubt, including the
13testimony of one or more qualified expert witnesses chosen in the order of preference
14listed in par. (f), that the continued custody of the Indian child by the parent or Indian
15custodian is likely to result in serious emotional or physical damage to the child.
AB151,3,1916 2. The court or jury finds by clear and convincing evidence that active efforts,
17as described in par. (g) 1., have been made to provide remedial services and
18rehabilitation programs designed to prevent the breakup of the Indian child's family
19and that those efforts have proved unsuccessful.
AB151,4,520 (g) 1. The court may not order an Indian child to be removed from the home of
21the Indian child's parent or Indian custodian and placed in an out-of-home care
22placement unless the evidence of active efforts under par. (d) 2. or (e) 2. shows that
23there has been an ongoing, vigorous, and concerted level of case work and that the
24active efforts were made in a manner that takes into account the prevailing social
25and cultural values, conditions, and way of life of the Indian child's tribe and that

1utilizes the available resources of the Indian child's tribe, tribal and other Indian
2child welfare agencies, extended family members of the Indian child, other
3individual Indian caregivers, and other culturally appropriate service providers.
4The consideration by the court or jury of whether active efforts were made under par.
5(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 6Section 2. 48.20 (8) (a) of the statutes is amended to read:
AB151,4,227 48.20 (8) (a) If a child is held in custody, the intake worker shall notify the
8child's parent, guardian, legal custodian, and Indian custodian of the reasons for
9holding the child in custody and of the child's whereabouts unless there is reason to
10believe that notice would present imminent danger to the child. The parent,
11guardian, legal custodian, and Indian custodian shall also be notified of the time and
12place of the detention hearing required under s. 48.21, the nature and possible
13consequences of that hearing, the right to counsel under s. 48.23 regardless of ability
14to pay,
the right to present and cross-examine witnesses at the hearing, and, in the
15case of a parent or Indian custodian of an Indian child who is the subject of an Indian
16child custody proceeding, as defined in s. 48.028 (2) (d) 2., the right to counsel under
17s. 48.028 (4) (b). If the parent, guardian, legal custodian, or Indian custodian is not
18immediately available, the intake worker or another person designated by the court
19shall provide notice as soon as possible. When the child is 12 years of age or older,
20the child shall receive the same notice about the detention hearing as the parent,
21guardian, legal custodian, or Indian custodian. The intake worker shall notify both
22the 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 1Section 3. 48.21 (3) (d) of the statutes is amended to read:
AB151,5,92 48.21 (3) (d) Prior to the commencement of the hearing, the court shall inform
3the parent, guardian, legal custodian, or Indian custodian of the allegations that
4have been made or may be made, the nature and possible consequences of this
5hearing as compared to possible future hearings, the right to counsel under s. 48.23
6regardless of ability to pay,
the right to present, confront, and cross-examine
7witnesses, and, in the case of a parent or Indian custodian of an Indian child who is
8the subject of an Indian child custody proceeding under s. 48.028 (2) (d) 2., the right
9to 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 10Section 4 . 48.213 (2) (d) of the statutes is amended to read:
AB151,5,1711 48.213 (2) (d) Prior to the commencement of the hearing, the court shall inform
12the adult expectant mother and the unborn child, through the unborn child's
13guardian ad litem, shall be informed by the court of the allegations that have been
14made or may be made, the nature and possible consequences of this hearing as
15compared to possible future hearings, the right to counsel under s. 48.23 regardless
16of ability to pay, and
the right to present, confront, and cross-examine witnesses and
17the 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 18Section 5. 48.23 (2) of the statutes is renumbered 48.23 (2) (a).
AB151,6 19Section 6. 48.23 (2) (bm) of the statutes is created to read:
AB151,6,9
148.23 (2) (bm) If a proceeding involves a child alleged to be in need of protection
2or services under s. 48.13, and the child has been taken into custody, any
3nonpetitioning parent who appears before the court shall be represented by counsel
4throughout the proceeding. The right to be represented by counsel begins with a
5hearing held under s. 48.21, or anytime after the filing of a petition under s. 48.255
6if the child has been taken into custody or the court has ordered the child placed
7outside of his or her home. Once begun, the right to be represented by counsel
8continues throughout all stages of the proceedings. A parent may waive counsel if
9the 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 10Section 7. 48.23 (2) (br) of the statutes is created to read:
AB151,6,1211 48.23 (2) (br) Paragraph (bm) does not apply to a proceeding commenced under
12s. 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 13Section 8 . 48.23 (3) of the statutes is amended to read:
AB151,6,1814 48.23 (3) Power of the court to appoint counsel. Except in proceedings under
15s. 48.13, at
At any time, upon request or on its own motion, the court may appoint
16counsel for the child or any party, unless the child or the party has or wishes to retain
17counsel of his or her own choosing. Except as provided in sub. (2g), the court may not
18appoint 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
1Section 9. 48.23 (4) of the statutes is renumbered 48.23 (4) (a) and amended
2to read:
AB151,7,143 48.23 (4) Providing counsel. (a) If In any situation under sub. (2) (a), if a child
4or a parent under 18 years of age has a right to be represented by counsel or is
5provided counsel at the discretion of the court under this section and counsel is not
6knowingly and voluntarily waived, the court shall refer the child or parent under 18
7years of age
to the state public defender and counsel shall be appointed by the state
8public defender under s. 977.08 without a determination of indigency. If the referral
9is of a child who has filed a petition under s. 48.375 (7), the state public defender shall
10appoint counsel within 24 hours after that referral. Any counsel appointed in a
11petition filed under s. 48.375 (7) shall continue to represent the child in any appeal
12brought under s. 809.105 unless the child requests substitution of counsel or
13extenuating circumstances make it impossible for counsel to continue to represent
14the child.
AB151,7,20 15(b) In any situation under sub. (2) (a), (2g), or (2m) in which a parent 18 years
16of age or over or an adult expectant mother is entitled to representation by counsel;
17counsel is not knowingly and voluntarily waived; and it appears that the parent or
18adult expectant mother is unable to afford counsel in full, or the parent or adult
19expectant mother so indicates; the court shall refer the parent or adult expectant
20mother to the authority for indigency determinations specified under s. 977.07 (1).
AB151,8,2 21(e) In any other situation under this section in which a person has a right to
22be represented by counsel or is provided counsel at the discretion of the court,
23competent and independent counsel shall be provided and reimbursed in any
24manner suitable to the court regardless of the person's ability to pay, except that the

1court may not order a person who files a petition under s. 813.122 or 813.125 to
2reimburse 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 3Section 10. 48.23 (4) (c) and (d) of the statutes are created to read:
AB151,8,74 48.23 (4) (c) In any situation under sub. (2) (bm) in which a parent has a right
5to be represented by counsel, the parent shall be referred as soon as is practicable
6to the state public defender, who shall appoint counsel for the parent under s. 977.08
7without a determination of indigency.
AB151,8,168 (d) 1. At or after the conclusion of a proceeding under sub. (2) (bm) in which the
9state public defender has provided counsel for a parent, the court may inquire as to
10the parent's ability to reimburse the state for the costs of representation. If the court
11determines that the parent is able to make reimbursement for all or part of the costs
12of representation, the court may order the parent to reimburse the state an amount
13not to exceed the maximum amount established by the public defender board under
14s. 977.075 (4). Upon the court's request, the state public defender shall conduct a
15determination of indigency under s. 977.07 and report the results of the
16determination to the court.
AB151,8,2317 2. Reimbursement ordered under subd. 1. shall be made to the clerk of courts
18of the county where the proceedings took place. The clerk of courts shall transmit
19payments under this section to the county treasurer, who shall deposit 25 percent of
20the payment amount in the county treasury and transmit the remainder to the
21secretary of administration. Payments transmitted to the secretary of
22administration shall be deposited in the general fund and credited to the
23appropriation account under s. 20.550 (1) (L).
AB151,9,4
13. By January 31st of each year, the clerk of courts for each county shall report
2to the state public defender the total amount of reimbursements ordered under subd.
31. in the previous calendar year and the total amount of reimbursements paid to the
4clerk 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 5Section 11. 48.23 (6) of the statutes is created to read:
AB151,9,106 48.23 (6) By January 1, 2017, the department and the state public defender
7shall each submit a report to the joint committee on finance, and to the chief clerk
8of each house of the legislature for distribution to the appropriate standing
9committees under s. 13.172 (3), regarding costs and data from implementing a
10parent'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 11Section 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 12Section 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 13Section 14. 48.30 (2) of the statutes is amended to read:
AB151,9,1614 48.30 (2) At the commencement of the hearing under this section the child and
15the parent, guardian, legal custodian, or Indian custodian; the child expectant
16mother, her parent, guardian, legal custodian, or Indian custodian, and the unborn

1child through the unborn child's guardian ad litem; or the adult expectant mother
2and the unborn child through the unborn child's guardian ad litem; shall be advised
3of their rights as specified in s. 48.243 and shall be informed that a request for a jury
4trial or
for a substitution of judge under s. 48.29 must be made before the end of the
5plea hearing or is waived. Nonpetitioning parties, including the child, shall be
6granted a continuance of the plea hearing if they wish to consult with an attorney
7on 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 8Section 15. 48.31 (2) of the statutes is amended to read:
AB151,11,69 48.31 (2) The hearing shall be to the court unless the child, the child's parent,
10guardian, or legal custodian, the unborn child by the unborn child's guardian ad
11litem, or the expectant mother of the unborn child exercises the right to a jury trial
12by demanding a jury trial at any time before or during the plea hearing. If a jury trial
13is demanded in a proceeding under s. 48.13 or 48.133, the jury shall consist of 6
14persons. If a jury trial is demanded in a proceeding under s. 48.42, the jury shall
15consist of 12 persons unless the parties agree to a lesser number. Chapters 756 and
16805 shall govern the selection of jurors
. If the hearing involves a child victim or
17witness, as defined in s. 950.02, the court may order that a deposition be taken by
18audiovisual means and allow the use of a recorded deposition under s. 967.04 (7) to
19(10) and, with the district attorney, shall comply with s. 971.105. At the conclusion
20of the hearing, the court or jury shall make a determination of the facts, except that
21and, in a case alleging a child or an unborn child to be in need of protection or services
22under s. 48.13 or 48.133, the court shall make the determination under s. 48.13
23(intro.) or 48.133 relating to whether the child or unborn child is in need of protection

1or services that can be ordered by the court. If the court finds that the child or unborn
2child is not within the jurisdiction of the court or, in a case alleging a child or an
3unborn child to be in need of protection or services under s. 48.13 or 48.133, that the
4child or unborn child is not in need of protection or services that can be ordered by
5the court or if the court or jury finds that the facts alleged in the petition have not
6been 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 7Section 16. 48.31 (4) of the statutes is amended to read:
AB151,12,48 48.31 (4) The court or jury shall make findings of fact and the court shall make
9conclusions of law relating to the allegations of a petition filed under s. 48.13, 48.133,
10or 48.42, except that the court and shall make findings of fact relating to whether the
11child or unborn child is in need of protection or services which that can be ordered
12by the court. In cases alleging a child to be in need of protection or services under
13s. 48.13 (11), the court may not find that the child is suffering emotional damage
14unless a licensed physician specializing in psychiatry or a licensed psychologist
15appointed by the court to examine the child has testified at the hearing that in his
16or her opinion the condition exists, and adequate opportunity for the
17cross-examination of the physician or psychologist has been afforded. The judge
18may use the written reports if the right to have testimony presented is voluntarily,
19knowingly, and intelligently waived by the guardian ad litem or legal counsel for the
20child and the parent or guardian. In cases alleging a child to be in need of protection
21or services under s. 48.13 (11m) or an unborn child to be in need of protection or
22services under s. 48.133, the court may not find that the child or the expectant mother
23of the unborn child is in need of treatment and education for needs and problems

1related to the use or abuse of alcohol beverages, controlled substances, or controlled
2substance analogs and its medical, personal, family, or social effects unless an
3assessment for alcohol and other drug abuse that conforms to the criteria specified
4under 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 5Section 17. 48.31 (5) of the statutes is amended to read:
AB151,12,136 48.31 (5) If the child is an Indian child, the court or jury shall also determine
7at the fact-finding hearing whether continued custody of the Indian child by the
8Indian child's parent or Indian custodian is likely to result in serious emotional or
9physical damage to the Indian child under s. 48.028 (4) (d) 1. and whether active
10efforts under s. 48.028 (4) (d) 2. have been made to prevent the breakup of the Indian
11child's family and whether those efforts have proved unsuccessful, unless partial
12summary judgment on the allegations under s. 48.13 or 48.133 is granted, in which
13case 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 14Section 18 . 48.317 (intro.) and (1) of the statutes are consolidated,
15renumbered 48.317 and amended to read:
AB151,12,17 1648.317 Jeopardy. Jeopardy attaches : (1) In a trial to the court, when a
17witness is sworn.
AB151,19 18Section 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 19Section 20. 48.415 (intro.) of the statutes is amended to read:
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