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LRB-3119/1
EAW:skw&wlj
2019 - 2020 LEGISLATURE
October 23, 2019 - Introduced by Representatives Dittrich, Murphy, Felzkowski,
James, Kulp, Kurtz, Magnafici, Milroy, Ramthun, Tusler, Tranel,
Thiesfeldt and Tittl. Referred to Committee on Family Law.
AB559,1,8 1An Act to repeal 48.422 (4); to amend 48.31 (2), 48.31 (4), 48.356 (1), 48.38 (5)
2(a), 48.38 (5m) (a), 48.415 (intro.), 48.415 (2) (a) 1., 48.415 (4) (a), 48.415 (6) (b),
348.422 (1), 48.422 (5), 48.424 (3), 48.424 (4) (intro.), 938.356 (1), 938.38 (5) (a)
4and 938.38 (5m) (a); and to create 48.02 (5e), 48.13 (15), 48.415 (1) (a) 4., 48.415
5(1) (a) 5., 48.415 (3m) and 48.415 (11) of the statutes; relating to: grounds for
6finding a child in need of protection or services or for terminating parental
7rights, right to a jury trial in a termination of parental rights proceeding, and
8permanency plan reviews.
Analysis by the Legislative Reference Bureau
This bill changes the grounds for finding that a child is in need of protection or
services under the Children's Code and for involuntarily terminating parental rights
(TPR), eliminates the right to a jury trial in a TPR proceeding, and changes the
process for permanency plan reviews under the Children's Code and Juvenile Justice
Code.
Grounds for CHIPS
Under current law, the court assigned to exercise jurisdiction under the
Children's Code (juvenile court) has exclusive original jurisdiction over a child who
is alleged to be in need of protection or services (CHIPS) that can be ordered by the

juvenile court and who meets certain grounds. This bill creates a new ground for
CHIPS where a child is found to be a drug-affected child. Under the bill, a
drug-affected child is defined as a child who suffered prenatal exposure to a
controlled substance or a child whose basic needs and safety have been adversely
affected by a parent's or guardian's chronic and severe use of alcohol or a controlled
substance.
Grounds for TPR
Under current law, in a proceeding for involuntary TPR, the juvenile court must
determine whether grounds exist for TPR. One of the grounds for TPR under current
law is failure to assume parental responsibility for the child, which is established by
proving that the parent or the person who may be the parent of the child has not had
a substantial parental relationship with the child. “Substantial parental
relationship” is defined in current law as the acceptance and exercise of significant
responsibility for the daily supervision, education, protection, and care of the child.
In evaluating whether a person has had a substantial parental relationship with the
child, current law allows the juvenile court to consider certain factors, including
whether the person has expressed concern for or interest in the support, care, or
well-being of the child and whether, with respect to a person who is or may be the
father of the child, the person has expressed concern for or interest in the support,
care, or well-being of the mother during her pregnancy.
This bill changes the factor related to expressing concern for or interest in the
support, care, or well-being of the child to whether the person has provided care or
support for the child. The bill eliminates the factor of whether the person has
expressed concern for or interest in the support, care, or well-being of the mother
during her pregnancy. The bill instead provides that proving that a person who is
or may be the father of the child failed to provide care and support for the mother
during her pregnancy, without reasonable cause, establishes abandonment of a
child, which is a ground for TPR under current law. Also under the bill, proving that
a parent has failed without reasonable cause to pay court-ordered payments of child
support establishes abandonment of the child.
Other grounds for TPR under current law include 1) continuing need of
protection or services (continuing CHIPS), if a child is placed outside of the home for
15 of the last 22 months under a court order; or 2) a continuing denial of periods of
physical placement or visitation, if a court order denying physical placement or
visitation has been in place for one year. Under current law, the timeline for both of
these grounds begins when a court order is entered in a CHIPS or juvenile in need
of protection or services (JIPS) proceeding. Under this bill, the timeline for these two
grounds can also begin when the court enters an order for temporary custody, when
a child or juvenile is placed outside the home under a consent decree, or when a
court-approved permanency plan places a child outside the home.
The bill creates a new ground for involuntary TPR where the child is a
drug-affected child, which is established by showing that the child has been found
to be a drug-affected child in a CHIPS proceeding. Under the bill, parental rights
may not be terminated if a parent proves, by a preponderance of the evidence, that
he or she enrolled in a substance abuse treatment or recovery program within 90

days of the birth of the child or the placement of the child outside of the home under
a CHIPS order, and that he or she continues to maintain substantial compliance with
the substance abuse treatment or recovery program.
This bill also creates a new ground for TPR based on parental incarceration,
which must be established by proving 1) that the child has been adjudged to be in
need of protection or services and placed, or continued in a placement, outside the
child's home pursuant to one or more court orders containing notice of the grounds
for TPR that may be applicable and the conditions necessary for the child to be
returned to the home; 2) that the parent is presently incarcerated; and 3) that the
parent is likely to be incarcerated for a substantial period of the child's minority. In
determining whether the parent is likely to be incarcerated for a substantial period
of the child's minority, the court may consider a parent's history of repeated
incarceration.
Right to a jury trial
Under current law, in a TPR proceeding, the juvenile court must hold a
fact-finding hearing to determine if there are any grounds for the TPR. Under
current law, any party to a TPR proceeding whose rights may be affected by the TPR
order may demand a jury trial for this fact-finding hearing. This bill eliminates the
right to a jury trial for the fact-finding hearing.
Permanency plan reviews
Under current law, within six months after a child is removed from his or her
home in a proceeding under the Children's Code or the Juvenile Justice Code and
every 12 months after that, the permanency plan is reviewed by the juvenile court
or by a panel that is appointed by the juvenile court or by a child welfare agency.
Within six months of the initial review and every 12 months after that, the
permanency plan is reviewed in a hearing before the juvenile court. Under this bill,
the initial six-month review and the reviews done every 12 months after that
six-month review are done in a hearing before the juvenile court.
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:
AB559,1 1Section 1 . 48.02 (5e) of the statutes is created to read:
AB559,3,22 48.02 (5e) “Drug-affected child” means any of the following:
AB559,4,33 (a) A child who suffered prenatal exposure to a controlled substance or alcohol,
4used by the mother for a nonmedical purpose, as evidenced by withdrawal symptoms
5in the child at birth, a positive result from a toxicology test of the mother or child at

1the time of the child's birth, or developmental delays or other symptoms during the
2child's first year of life that have been diagnosed as a fetal alcohol spectrum disorder
3or as caused by prenatal exposure to a controlled substance.
AB559,4,54 (b) A child whose basic needs and safety have been adversely affected by a
5parent's or guardian's chronic and severe use of alcohol or a controlled substance.
AB559,2 6Section 2 . 48.13 (15) of the statutes is created to read:
AB559,4,77 48.13 (15) The child is a drug-affected child.
AB559,3 8Section 3 . 48.31 (2) of the statutes is amended to read:
AB559,5,79 48.31 (2) The A hearing on a termination of parental rights petition shall be
10to the court. A hearing on a petition under s. 48.13 or 48.133 shall be to the court
11unless the child, the child's parent, guardian, or legal custodian, the unborn child's
12guardian ad litem, or the expectant mother of the unborn child exercises the right
13to a jury trial by demanding a jury trial at any time before or during the plea hearing.
14If a jury trial is demanded in a proceeding under s. 48.13 or 48.133, the jury shall
15consist of 6 persons. If a jury trial is demanded in a proceeding under s. 48.42, the
16jury shall consist of 12 persons unless the parties agree to a lesser number.
Chapters
17756 and 805 shall govern the selection of jurors. If the hearing involves a child victim
18or witness, as defined in s. 950.02, the court may order that a deposition be taken by
19audiovisual means and allow the use of a recorded deposition under s. 967.04 (7) to
20(10) and, with the district attorney, shall comply with s. 971.105. At the conclusion
21of the a hearing on a termination of parental rights petition, the court shall make a
22determination of the facts. At the conclusion of a hearing on a petition under s. 48.13
23or 48.133, the court
or jury shall make a determination of the facts, except that in a
24case alleging a child or an unborn child to be in need of protection or services under
25s. 48.13 or 48.133, the court shall make the determination under s. 48.13 (intro.) or

148.133 relating to whether the child or unborn child is in need of protection or
2services that can be ordered by the court. If the court finds that the child or unborn
3child is not within the jurisdiction of the court or, in a case alleging a child or an
4unborn child to be in need of protection or services under s. 48.13 or 48.133, that the
5child or unborn child is not in need of protection or services that can be ordered by
6the court, or if the court or jury finds that the facts alleged in the petition have not
7been proved, the court shall dismiss the petition with prejudice.
AB559,4 8Section 4 . 48.31 (4) of the statutes is amended to read:
AB559,6,59 48.31 (4) The court shall make findings of fact and conclusions of law relating
10to the allegations of a petition filed under s. 48.42. The court
or jury shall make
11findings of fact and the court shall make conclusions of law relating to the allegations
12of a petition filed under s. 48.13, or 48.133 or 48.42, except that the court shall make
13findings of fact relating to whether the child or unborn child is in need of protection
14or services which that can be ordered by the court. In cases alleging a child to be in
15need of protection or services under s. 48.13 (11), the court may not find that the child
16is suffering emotional damage unless a licensed physician specializing in psychiatry
17or a licensed psychologist appointed by the court to examine the child has testified
18at the hearing that in his or her opinion the condition exists, and adequate
19opportunity for the cross-examination of the physician or psychologist has been
20afforded. The judge may use the written reports if the right to have testimony
21presented is voluntarily, knowingly, and intelligently waived by the guardian ad
22litem or legal counsel for the child and the parent or guardian. In cases alleging a
23child to be in need of protection or services under s. 48.13 (11m) or an unborn child
24to be in need of protection or services under s. 48.133, the court may not find that the
25child or the expectant mother of the unborn child is in need of treatment and

1education for needs and problems related to the use or abuse of alcohol beverages,
2controlled substances, or controlled substance analogs and its medical, personal,
3family, or social effects unless an assessment for alcohol and other drug abuse that
4conforms to the criteria specified under s. 48.547 (4) has been conducted by an
5approved treatment facility.
AB559,5 6Section 5 . 48.356 (1) of the statutes is amended to read:
AB559,6,167 48.356 (1) Whenever the court orders a child to be placed outside his or her
8home, orders an expectant mother of an unborn child to be placed outside of her
9home, or denies a parent visitation because the child or unborn child has been
10adjudged to be in need of protection or services under s. 48.21 (4), 48.32, 48.345,
1148.347, 48.357, 48.363, or 48.365 and whenever the court reviews a permanency plan
12under s. 48.38 (5m), the court shall orally inform the parent or parents who appear
13in court or the expectant mother who appears in court of any grounds for termination
14of parental rights under s. 48.415 which may be applicable and of the conditions
15necessary for the child or expectant mother to be returned to the home or for the
16parent to be granted visitation.
AB559,6 17Section 6 . 48.38 (5) (a) of the statutes is amended to read:
AB559,7,518 48.38 (5) (a) Except as provided in s. 48.63 (5) (d), the court or a panel appointed
19under par. (ag) shall review the permanency plan for each child for whom a
20permanency plan is required under sub. (2) in the manner provided in this subsection
21not later than 6 months after the date on which the child was first removed from his
22or her home
of a hearing held under sub. (5m) and every 6 months after a previous
23review under this subsection for as long as the child is placed outside the home,
24except that for the review that is required to be conducted not later than 12 months
25after the child was first removed from his or her home and the
reviews that are

1required to be conducted every 12 months after that review the initial hearing under
2sub. (5m),
the court shall hold a hearing under sub. (5m) to review the permanency
3plan, which. The hearing may be instead of or in addition to the review under this
4subsection. The 6-month and 12-month periods referred to in this paragraph
5include trial reunifications under s. 48.358.
AB559,7 6Section 7 . 48.38 (5m) (a) of the statutes is amended to read:
AB559,7,137 48.38 (5m) (a) The court shall hold a hearing to review the permanency plan
8and to make the determinations specified in sub. (5) (c) for each child for whom a
9permanency plan is required under sub. (2) no later than 12 6 months after the date
10on which the child was first removed from the home and every 12 months after a
11previous hearing under this subsection for as long as the child is placed outside the
12home. The 6-month and 12-month periods referred to in this paragraph include
13trial reunifications under s. 48.358.
AB559,8 14Section 8. 48.415 (intro.) of the statutes is amended to read:
AB559,8,2 1548.415 Grounds for involuntary termination of parental rights. (intro.)
16At the fact-finding hearing the court or jury shall determine whether grounds exist
17for the termination of parental rights. If the child is an Indian child, the court or jury
18shall also determine at the fact-finding hearing whether continued custody of the
19Indian child by the Indian child's parent or Indian custodian is likely to result in
20serious emotional or physical damage to the Indian child under s. 48.028 (4) (e) 1. and
21whether active efforts under s. 48.028 (4) (e) 2. have been made to prevent the
22breakup of the Indian child's family and whether those efforts have proved
23unsuccessful, unless partial summary judgment on the grounds for termination of
24parental rights is granted, in which case the court shall make those determinations

1at the dispositional hearing. Grounds for termination of parental rights shall be one
2of the following:
AB559,9 3Section 9 . 48.415 (1) (a) 4. of the statutes is created to read:
AB559,8,64 48.415 (1) (a) 4. That a person who is or may be the father of the child failed
5without reasonable cause to provide care and support for the mother during her
6pregnancy.
AB559,10 7Section 10 . 48.415 (1) (a) 5. of the statutes is created to read:
AB559,8,98 48.415 (1) (a) 5. That the parent has failed without reasonable cause to pay
9court-ordered payments of child support.
AB559,11 10Section 11 . 48.415 (2) (a) 1. of the statutes is amended to read:
AB559,8,1611 48.415 (2) (a) 1. That the child has been adjudged to be a child or an unborn
12child in need of protection or services and placed, or continued in a placement,
13outside his or her home pursuant to one or more court orders under s. 48.21 (4), 48.32,
1448.345, 48.347, 48.357, 48.363, 48.365, 48.38, 938.21 (4), 938.32, 938.345, 938.357,
15938.363 or, 938.365, or 938.38 containing the notice required by s. 48.356 (2) or
16938.356 (2).
AB559,12 17Section 12 . 48.415 (3m) of the statutes is created to read:
AB559,8,1918 48.415 (3m) Parental incarceration. Parental incarceration, which shall be
19established by proving all of the following:
AB559,8,2320 (a) That the child has been adjudged to be in need of protection or services and
21placed, or continued in a placement, outside his or her home pursuant to one or more
22court orders under s. 48.345, 48.357, 48.363, or 48.365 containing the notice required
23under s. 48.356 (2).
AB559,8,2424 (b) That the parent is incarcerated at the time of the fact-finding hearing.
AB559,9,4
1(c) That the parent is likely to continue to be incarcerated for a substantial
2period of the child's minority. In determining whether the parent is likely to continue
3to be incarcerated for a substantial period of the child's minority, the court may
4consider whether the parent has a history of repeated incarceration.
AB559,13 5Section 13 . 48.415 (4) (a) of the statutes is amended to read:
AB559,9,106 48.415 (4) (a) That the parent has been denied periods of physical placement
7by court order in an action affecting the family or has been denied visitation under
8an order under s. 48.21 (4), 48.32, 48.345, 48.355 (3), 48.363, 48.365, 48.38, 938.21
9(4), 938.32,
938.345, 938.363 or, 938.365, or 938.38 containing the notice required by
10s. 48.356 (2) or 938.356 (2).
AB559,14 11Section 14 . 48.415 (6) (b) of the statutes is amended to read:
AB559,9,2112 48.415 (6) (b) In this subsection, “substantial parental relationship" means the
13acceptance and exercise of significant responsibility for the daily supervision,
14education, protection, and care of the child. In evaluating whether the person has
15had a substantial parental relationship with the child, the court may consider such
16factors, including, but not limited to, whether the person has expressed concern for
17or interest in the
provided care or support , care or well-being of for the child, and
18whether the person has neglected or refused to provide care or support for the child
19and whether, with respect to a person who is or may be the father of the child, the
20person has expressed concern for or interest in the support, care or well-being of the
21mother during her pregnancy
.
AB559,15 22Section 15 . 48.415 (11) of the statutes is created to read:
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