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LRB-5285/1
EAW:wlj&cdc
2019 - 2020 LEGISLATURE
January 29, 2020 - Introduced by Senators Stroebel and Olsen, cosponsored by
Representatives Dittrich, Murphy, Felzkowski, James, Kulp, Kurtz,
Magnafici, Milroy, Ramthun, Tusler, Tranel, Thiesfeldt, Tittl, Edming and
Snyder. Referred to Committee on Insurance, Financial Services,
Government Oversight and Courts.
SB729,1,7 1An Act to repeal 48.422 (4); to amend 48.31 (2), 48.31 (4), 48.356 (2), 48.38 (5)
2(a), 48.38 (5m) (a), 48.415 (intro.), 48.415 (4) (a), 48.422 (1), 48.422 (5), 48.424
3(3), 48.424 (4) (intro.), 938.356 (2), 938.38 (5) (a) and 938.38 (5m) (a); and to
4create
48.02 (5e), 48.13 (15), 48.356 (1m), 48.415 (3m), 48.415 (11) and 938.356
5(1m) of the statutes; relating to: grounds for finding a child in need of
6protection or services or for terminating parental rights, right to a jury trial in
7a termination of parental rights proceeding, and permanency 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 the Juvenile
Justice Code.
Grounds for CHIPS
Under current law, the juvenile court is assigned to exercise jurisdiction under
the Children's Code and has exclusive original jurisdiction over a child who is alleged
to be in need of protection or services (CHIPS) if certain grounds relating to the child
or his or her circumstances are met. The bill creates a new ground for CHIPS when
a child is found to be a drug-affected child. Under the bill, a drug-affected child is

a child who suffered prenatal exposure to a controlled substance or alcohol 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 for TPR exist. Current law grounds for TPR include 1)
continuing need of protection or services if a child is placed outside 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 the bill, the timeline for these
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 when the child is a
drug-affected child, which is established by showing all of the following:
1. That the child has been found to be a drug-affected child in a CHIPS
proceeding.
2. That the parent has not made reasonable efforts to enroll in a substance use
disorder treatment or recovery program within 90 days of the placement of the child
outside the home under a CHIPS order, or, if the parent enrolled in a substance use
disorder treatment or recovery program, that the parent has not maintained
substantial compliance with the program.
3. That the parent is not participating in a drug court program.
4. That there is a substantial likelihood that the parent will not meet the
conditions for the safe return of the child to the home by the date established at the
child's most recent permanency review panel or hearing.
The 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 and the conditions necessary for the child to be returned to the home; 2) that
the parent is incarcerated at the time of the fact-finding hearing; and 3) that the
parent is likely to continue 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 grounds for 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. The 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, 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, the permanency plan is
reviewed in a hearing before the juvenile court. Under the bill, the initial six-month
review and the reviews done every 12 months after 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:
SB729,1 1Section 1 . 48.02 (5e) of the statutes is created to read:
SB729,3,22 48.02 (5e) “Drug-affected child” means any of the following:
SB729,3,83 (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
6the time of the child's birth, or developmental delays or other symptoms during the
7child's first year of life that have been diagnosed as a fetal alcohol spectrum disorder
8or as caused by prenatal exposure to a controlled substance.
SB729,3,119 (b) A child whose basic needs, as described in s. 48.01 (1) (ag), and safety have
10been adversely affected by a parent's or guardian's chronic and severe use of alcohol
11or a controlled substance.
SB729,2 12Section 2 . 48.13 (15) of the statutes is created to read:
SB729,3,1413 48.13 (15) (a) The child is a drug-affected child, as defined in s. 48.02 (5e) (a),
14and the petition is filed within 18 months of the child's birth.
SB729,3,1515 (b) The child is a drug-affected child, as defined in s. 48.02 (5e) (b).
SB729,3
1Section 3. 48.31 (2) of the statutes is amended to read:
SB729,4,252 48.31 (2) The A hearing on a termination of parental rights petition shall be
3to the court. A hearing on a petition under s. 48.13 or 48.133 shall be to the court
4unless the child, the child's parent, guardian, or legal custodian, the unborn child's
5guardian ad litem, or the expectant mother of the unborn child exercises the right
6to a jury trial by demanding a jury trial at any time before or during the plea hearing.
7If a jury trial is demanded in a proceeding under s. 48.13 or 48.133, the jury shall
8consist of 6 persons. If a jury trial is demanded in a proceeding under s. 48.42, the
9jury shall consist of 12 persons unless the parties agree to a lesser number.
Chapters
10756 and 805 shall govern the selection of jurors. If the hearing involves a child victim
11or witness, as defined in s. 950.02, the court may order that a deposition be taken by
12audiovisual means and allow the use of a recorded deposition under s. 967.04 (7) to
13(10) and, with the district attorney, shall comply with s. 971.105. At the conclusion
14of the a hearing on a termination of parental rights petition, the court shall make a
15determination of the facts. At the conclusion of a hearing on a petition under s. 48.13
16or 48.133, the court
or jury shall make a determination of the facts, except that in a
17case alleging a child or an unborn child to be in need of protection or services under
18s. 48.13 or 48.133, the court shall make the determination under s. 48.13 (intro.) or
1948.133 relating to whether the child or unborn child is in need of protection or
20services that can be ordered by the court. If the court finds that the child or unborn
21child is not within the jurisdiction of the court or, in a case alleging a child or an
22unborn child to be in need of protection or services under s. 48.13 or 48.133, that the
23child or unborn child is not in need of protection or services that can be ordered by
24the court, or if the court or jury finds that the facts alleged in the petition have not
25been proved, the court shall dismiss the petition with prejudice.
SB729,4
1Section 4. 48.31 (4) of the statutes is amended to read:
SB729,5,232 48.31 (4) The court shall make findings of fact and conclusions of law relating
3to the allegations of a petition filed under s. 48.42. The court
or jury shall make
4findings of fact and the court shall make conclusions of law relating to the allegations
5of a petition filed under s. 48.13, or 48.133 or 48.42, except that the court shall make
6findings of fact relating to whether the child or unborn child is in need of protection
7or services which that can be ordered by the court. In cases alleging a child to be in
8need of protection or services under s. 48.13 (11), the court may not find that the child
9is suffering emotional damage unless a licensed physician specializing in psychiatry
10or a licensed psychologist appointed by the court to examine the child has testified
11at the hearing that in his or her opinion the condition exists, and adequate
12opportunity for the cross-examination of the physician or psychologist has been
13afforded. The judge may use the written reports if the right to have testimony
14presented is voluntarily, knowingly, and intelligently waived by the guardian ad
15litem or legal counsel for the child and the parent or guardian. In cases alleging a
16child to be in need of protection or services under s. 48.13 (11m) or an unborn child
17to be in need of protection or services under s. 48.133, the court may not find that the
18child or the expectant mother of the unborn child is in need of treatment and
19education for needs and problems related to the use or abuse of alcohol beverages,
20controlled substances, or controlled substance analogs and its medical, personal,
21family, or social effects unless an assessment for alcohol and other drug abuse that
22conforms to the criteria specified under s. 48.547 (4) has been conducted by an
23approved treatment facility.
SB729,5 24Section 5 . 48.356 (1m) of the statutes is created to read:
SB729,6,7
148.356 (1m) Whenever the court orders a child or expectant mother of an
2unborn child to be placed outside his or her home or denies a parent visitation in an
3order under s. 48.21 (4) or 48.32, the court shall orally inform the parent or parents
4who appear in court or the expectant mother who appears in court of any grounds for
5termination of parental rights under s. 48.415 that may be applicable and, if any
6conditions are established for the parent or parents to be granted visitation with the
7child, the court shall orally inform the parent or parents of those conditions.
SB729,6 8Section 6. 48.356 (2) of the statutes is amended to read:
SB729,6,129 48.356 (2) In addition to the notice required under sub. (1) or (1m), any written
10order which places a child or an expectant mother outside the home or denies
11visitation under sub. (1) or (1m) shall notify the parent or parents or expectant
12mother of the information specified under sub. (1) or (1m).
SB729,7 13Section 7 . 48.38 (5) (a) of the statutes is amended to read:
SB729,7,214 48.38 (5) (a) Except as provided in s. 48.63 (5) (d), the court or a panel appointed
15under par. (ag) shall review the permanency plan for each child for whom a
16permanency plan is required under sub. (2) in the manner provided in this subsection
17not later than 6 months after the date on which the child was first removed from his
18or her home
of a hearing held under sub. (5m) and every 6 months after a previous
19review under this subsection for as long as the child is placed outside the home,
20except that for the review that is required to be conducted not later than 12 months
21after the child was first removed from his or her home and the
reviews that are
22required to be conducted every 12 months after that review the initial hearing under
23sub. (5m),
the court shall hold a hearing under sub. (5m) to review the permanency
24plan, which. The hearing may be instead of or in addition to the review under this

1subsection. The 6-month and 12-month periods referred to in this paragraph
2include trial reunifications under s. 48.358.
SB729,8 3Section 8 . 48.38 (5m) (a) of the statutes is amended to read:
SB729,7,104 48.38 (5m) (a) The court shall hold a hearing to review the permanency plan
5and to make the determinations specified in sub. (5) (c) for each child for whom a
6permanency plan is required under sub. (2) no later than 12 6 months after the date
7on which the child was first removed from the home and every 12 months after a
8previous hearing under this subsection for as long as the child is placed outside the
9home. The 6-month and 12-month periods referred to in this paragraph include
10trial reunifications under s. 48.358.
SB729,9 11Section 9 . 48.415 (intro.) of the statutes is amended to read:
SB729,7,23 1248.415 Grounds for involuntary termination of parental rights. (intro.)
13At the fact-finding hearing the court or jury shall determine whether grounds exist
14for the termination of parental rights. If the child is an Indian child, the court or jury
15shall also determine at the fact-finding hearing whether continued custody of the
16Indian child by the Indian child's parent or Indian custodian is likely to result in
17serious emotional or physical damage to the Indian child under s. 48.028 (4) (e) 1. and
18whether active efforts under s. 48.028 (4) (e) 2. have been made to prevent the
19breakup of the Indian child's family and whether those efforts have proved
20unsuccessful, unless partial summary judgment on the grounds for termination of
21parental rights is granted, in which case the court shall make those determinations
22at the dispositional hearing. Grounds for termination of parental rights shall be one
23of the following:
SB729,10 24Section 10 . 48.415 (3m) of the statutes is created to read:
SB729,8,2
148.415 (3m) Parental incarceration. Parental incarceration, which shall be
2established by proving all of the following:
SB729,8,63 (a) That the child has been adjudged to be in need of protection or services and,
4while the parent is incarcerated, has been placed, or continued in a placement,
5outside his or her home pursuant to one or more court orders under s. 48.345, 48.357,
648.363, or 48.365 containing the notice required under s. 48.356 (2).
SB729,8,87 (b) That the parent is incarcerated at the time of the fact-finding hearing under
8s. 48.424.
SB729,8,129 (c) That the parent is likely to continue to be incarcerated for a substantial
10period of the child's minority. In determining whether the parent is likely to continue
11to be incarcerated for a substantial period of the child's minority, the court may
12consider whether the parent has a history of repeated incarceration.
SB729,11 13Section 11. 48.415 (4) (a) of the statutes is amended to read:
SB729,8,1814 48.415 (4) (a) That the parent has been denied periods of physical placement
15by court order in an action affecting the family or has been denied visitation under
16an order under s. 48.21 (4), 48.32, 48.345, 48.355 (3), 48.363, 48.365, 48.38, 938.21
17(4), 938.32,
938.345, 938.355 (3), 938.363 or, 938.365, or 938.38 containing the notice
18required by s. 48.356 (2) or 938.356 (2).
SB729,12 19Section 12 . 48.415 (11) of the statutes is created to read:
SB729,8,2120 48.415 (11) Drug-affected child. The child is a drug-affected child, which
21shall be established by proving all of the following:
SB729,8,2422 (a) That the child has been adjudged to be a child in need of protection or
23services under s. 48.13 (15) (b) and placed outside the home pursuant to one or more
24court orders under s. 48.345, 48.347, 48.357, 48.363, or 48.365.
SB729,8,2525 (b) That one of the following applies:
SB729,9,4
11. The parent has not made reasonable efforts to enroll in a substance use
2disorder treatment or recovery program within 90 days of the placement of the child
3outside the home pursuant to one or more court orders under s. 48.345, 48.347,
448.357, 48.363, or 48.365.
SB729,9,85 2. The parent enrolled in a substance use disorder treatment or recovery
6program after placement of the child outside the home pursuant to one or more court
7orders under s. 48.345, 48.347, 48.357, 48.363, or 48.365 but has not maintained
8substantial compliance with the program.
SB729,9,109 (c) That the parent is not participating in a drug court program as described
10in s. 165.955 (1).
SB729,9,1511 (d) That there is a substantial likelihood that the parent will not meet the
12conditions for the safe return of the child to the home by the date established by the
13court or a review panel under s. 48.38 (5) (c) 5. or by the court under s. 48.38 (5m) (e)
14at the child's most recent permanency review or permanency hearing prior to the
15filing of the petition for termination of parental rights.
SB729,13 16Section 13 . 48.422 (1) of the statutes is amended to read:
SB729,9,2117 48.422 (1) Except as provided in s. 48.42 (2g) (ag), the hearing on the petition
18to terminate parental rights shall be held within 30 days after the petition is filed.
19At the hearing on the petition to terminate parental rights the court shall determine
20whether any party wishes to contest the petition and inform the parties of their
21rights under sub. (4) and s. 48.423.
SB729,14 22Section 14 . 48.422 (4) of the statutes is repealed.
SB729,15 23Section 15 . 48.422 (5) of the statutes is amended to read:
SB729,10,3
148.422 (5) Any nonpetitioning party, including the child, shall be granted a
2continuance of the hearing for the purpose of consulting with an attorney on the
3request for a jury trial or
concerning a request for the substitution of a judge.
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