SB729: Bill Text

LRB-5285/1

EAW:wlj&cdc

2019 - 2020 LEGISLATURE

2019 Senate BILL 729

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 An Act to repeal 48.422 (4); to amend 48.31 (2), 48.31 (4), 48.356 (2), 48.38 (5) (a), 48.38 (5m) (a), 48.415 (intro.), 48.415 (4) (a), 48.422 (1), 48.422 (5), 48.424 (3), 48.424 (4) (intro.), 938.356 (2), 938.38 (5) (a) and 938.38 (5m) (a); and to create 48.02 (5e), 48.13 (15), 48.356 (1m), 48.415 (3m), 48.415 (11) and 938.356 (1m) of the statutes; relating to: grounds for finding a child in need of protection or services or for terminating parental rights, right to a jury trial in a 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 Section 1 . 48.02 (5e) of the statutes is created to read:

SB729,3,2 48.02 (5e) “Drug-affected child” means any of the following:

SB729,3,8 (a) A child who suffered prenatal exposure to a controlled substance or alcohol, used by the mother for a nonmedical purpose, as evidenced by withdrawal symptoms in the child at birth, a positive result from a toxicology test of the mother or child at the time of the child's birth, or developmental delays or other symptoms during the child's first year of life that have been diagnosed as a fetal alcohol spectrum disorder or as caused by prenatal exposure to a controlled substance.

SB729,3,11 (b) A child whose basic needs, as described in s. 48.01 (1) (ag), and safety have been adversely affected by a parent's or guardian's chronic and severe use of alcohol or a controlled substance.

SB729,2 Section 2 . 48.13 (15) of the statutes is created to read:

SB729,3,14 48.13 (15) (a) The child is a drug-affected child, as defined in s. 48.02 (5e) (a), and the petition is filed within 18 months of the child's birth.

SB729,3,15 (b) The child is a drug-affected child, as defined in s. 48.02 (5e) (b).

SB729,3 Section 3. 48.31 (2) of the statutes is amended to read:

SB729,4,25 48.31 (2) The A hearing on a termination of parental rights petition shall be to the court. A hearing on a petition under s. 48.13 or 48.133 shall be to the court unless the child, the child's parent, guardian, or legal custodian, 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 a hearing on a termination of parental rights petition, the court shall make a determination of the facts. At the conclusion of a hearing on a petition under s. 48.13 or 48.133, the court or jury shall make a determination of the facts, except that 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.

SB729,4 Section 4. 48.31 (4) of the statutes is amended to read:

SB729,5,23 48.31 (4) The court shall make findings of fact and conclusions of law relating to the allegations of a petition filed under s. 48.42. 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, or 48.133 or 48.42, except that the court 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.

SB729,5 Section 5 . 48.356 (1m) of the statutes is created to read:

SB729,6,7 48.356 (1m) Whenever the court orders a child or expectant mother of an unborn child to be placed outside his or her home or denies a parent visitation in an order under s. 48.21 (4) or 48.32, the court shall orally inform the parent or parents who appear in court or the expectant mother who appears in court of any grounds for termination of parental rights under s. 48.415 that may be applicable and, if any conditions are established for the parent or parents to be granted visitation with the child, the court shall orally inform the parent or parents of those conditions.

SB729,6 Section 6. 48.356 (2) of the statutes is amended to read:

SB729,6,12 48.356 (2) In addition to the notice required under sub. (1) or (1m), any written order which places a child or an expectant mother outside the home or denies visitation under sub. (1) or (1m) shall notify the parent or parents or expectant mother of the information specified under sub. (1) or (1m).

SB729,7 Section 7 . 48.38 (5) (a) of the statutes is amended to read:

SB729,7,2 48.38 (5) (a) Except as provided in s. 48.63 (5) (d), the court or a panel appointed under par. (ag) shall review the permanency plan for each child for whom a permanency plan is required under sub. (2) in the manner provided in this subsection not later than 6 months after the date on which the child was first removed from his or her home of a hearing held under sub. (5m) and every 6 months after a previous review under this subsection for as long as the child is placed outside the home, except that for the review that is required to be conducted not later than 12 months after the child was first removed from his or her home and the reviews that are required to be conducted every 12 months after that review the initial hearing under sub. (5m), the court shall hold a hearing under sub. (5m) to review the permanency plan, which. The hearing may be instead of or in addition to the review under this subsection. The 6-month and 12-month periods referred to in this paragraph include trial reunifications under s. 48.358.

SB729,8 Section 8 . 48.38 (5m) (a) of the statutes is amended to read:

SB729,7,10 48.38 (5m) (a) The court shall hold a hearing to review the permanency plan and to make the determinations specified in sub. (5) (c) for each child for whom a permanency plan is required under sub. (2) no later than 12 6 months after the date on which the child was first removed from the home and every 12 months after a previous hearing under this subsection for as long as the child is placed outside the home. The 6-month and 12-month periods referred to in this paragraph include trial reunifications under s. 48.358.

SB729,9 Section 9 . 48.415 (intro.) of the statutes is amended to read:

SB729,7,23 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:

SB729,10 Section 10 . 48.415 (3m) of the statutes is created to read:

SB729,8,2 48.415 (3m) Parental incarceration. Parental incarceration, which shall be established by proving all of the following:

SB729,8,6 (a) That the child has been adjudged to be in need of protection or services and, while the parent is incarcerated, has been placed, or continued in a placement, outside his or her home pursuant to one or more court orders under s. 48.345, 48.357, 48.363, or 48.365 containing the notice required under s. 48.356 (2).

SB729,8,8 (b) That the parent is incarcerated at the time of the fact-finding hearing under s. 48.424.

SB729,8,12 (c) 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 continue to be incarcerated for a substantial period of the child's minority, the court may consider whether the parent has a history of repeated incarceration.

SB729,11 Section 11. 48.415 (4) (a) of the statutes is amended to read:

SB729,8,18 48.415 (4) (a) That the parent has been denied periods of physical placement by court order in an action affecting the family or has been denied visitation under an order under s. 48.21 (4), 48.32, 48.345, 48.355 (3), 48.363, 48.365, 48.38, 938.21 (4), 938.32, 938.345, 938.355 (3), 938.363 or, 938.365, or 938.38 containing the notice required by s. 48.356 (2) or 938.356 (2).

SB729,12 Section 12 . 48.415 (11) of the statutes is created to read:

SB729,8,21 48.415 (11) Drug-affected child. The child is a drug-affected child, which shall be established by proving all of the following:

SB729,8,24 (a) That the child has been adjudged to be a child in need of protection or services under s. 48.13 (15) (b) and placed outside the home pursuant to one or more court orders under s. 48.345, 48.347, 48.357, 48.363, or 48.365.

SB729,8,25 (b) That one of the following applies:

SB729,9,4 1. 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 pursuant to one or more court orders under s. 48.345, 48.347, 48.357, 48.363, or 48.365.

SB729,9,8 2. The parent enrolled in a substance use disorder treatment or recovery program after placement of the child outside the home pursuant to one or more court orders under s. 48.345, 48.347, 48.357, 48.363, or 48.365 but has not maintained substantial compliance with the program.

SB729,9,10 (c) That the parent is not participating in a drug court program as described in s. 165.955 (1).

SB729,9,15 (d) 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 by the court or a review panel under s. 48.38 (5) (c) 5. or by the court under s. 48.38 (5m) (e) at the child's most recent permanency review or permanency hearing prior to the filing of the petition for termination of parental rights.

SB729,13 Section 13 . 48.422 (1) of the statutes is amended to read:

SB729,9,21 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.

SB729,14 Section 14 . 48.422 (4) of the statutes is repealed.

SB729,15 Section 15 . 48.422 (5) of the statutes is amended to read:

SB729,10,3 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.