LRB-1267/1
EAW:kjf
2021 - 2022 LEGISLATURE
October 21, 2021 - Introduced by Representatives Dittrich, Penterman, Gundrum,
Mursau, Tusler, Snyder and Doyle. Referred to Committee on Family Law.
AB630,2,2
1An Act to amend 48.195 (2) (d) 6., 48.235 (4) (a) 3., 48.235 (4m) (a) 3., 48.29 (1),
248.29 (3), 48.30 (2), 48.31 (1), 48.31 (2), 48.31 (4), 48.368 (1), 48.38 (5) (c) 6. b.,
348.40 (1r), 48.415 (1) (a) 1., 48.415 (3) (a), 48.415 (5) (intro.), 48.415 (10) (a),
448.415 (10) (b), 48.417 (1) (intro.), 48.417 (1) (a), 48.417 (1) (b), 48.417 (1) (c),
548.417 (1) (d), 48.417 (2) (intro.), 48.417 (3), 48.417 (4), 48.42 (1) (intro.), 48.42
6(1g) (a) (intro.), 48.42 (1g) (b), 48.42 (1g) (c), 48.42 (1m) (a), 48.42 (1m) (b), 48.42
7(1m) (c), 48.42 (2) (intro.), 48.42 (2) (bm) (intro.), 48.42 (2g) (a), 48.42 (2g) (ag),
848.42 (2m), 48.42 (4) (title), 48.42 (4) (a), 48.42 (4) (b) 3., 48.42 (4) (b) 4. (intro.),
948.422 (title), 48.422 (1), 48.422 (2), 48.422 (3), 48.422 (4), 48.422 (6) (b), 48.422
10(7) (intro.), 48.422 (7) (a), 48.422 (7) (bm), 48.422 (7) (br), 48.422 (8), 48.422 (9)
11(a), 48.423 (2) (intro.), 48.424 (1) (intro.), 48.424 (4) (intro.), 48.424 (4) (b),
1248.425 (1) (am) 2., 48.425 (1) (cm), 48.425 (1m), 48.425 (3), 48.427 (2), 48.43 (1)
13(intro.), 48.46 (2), 48.46 (3) and 48.83 (1); and
to create 48.23 (2) (bm), 48.29
1(1d) and 48.42 (1d) of the statutes;
relating to: termination of parental rights
2by motion in CHIPS proceeding.
Analysis by the Legislative Reference Bureau
This bill allows a motion for termination of parental rights (TPR) to be filed in
a proceeding in which it is alleged that a child is in need of protection or services
(CHIPS).
Under current law, a TPR proceeding may be initiated only by filing a petition
with the juvenile court. A TPR petition initiates a new proceeding that is unrelated
to any other ongoing proceedings concerning the child in the juvenile court. This bill
allows a county department of human or social services, the child's parent, and other
specified entities and individuals to initiate a TPR proceeding by filing a motion for
TPR in an ongoing CHIPS proceeding.
Also, under current law, with certain exceptions, a parent does not have a right
to legal representation in a CHIPS proceeding, but does have a statutory right to
legal representation in a TPR proceeding, including the right to be represented by
a public defender if indigent. Under this bill, beginning when a TPR motion is filed
in a CHIPS proceeding as described above, the parent has a statutory right to legal
representation in the CHIPS proceeding, including the right to be represented by a
public defender if indigent.
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:
AB630,1
3Section 1
. 48.195 (2) (d) 6. of the statutes is amended to read:
AB630,2,94
48.195
(2) (d) 6. A court conducting proceedings under s. 48.21, proceedings
5relating to a petition under s. 48.13 (2m) or 48.42
(1) or a motion under s. 48.42 (1d),
6or dispositional proceedings under subch. VI or VIII relating to the child, the county
7corporation counsel, district attorney, or agency legal counsel representing the
8interests of the public in those proceedings, or the guardian ad litem representing
9the interests of the child in those proceedings.
AB630,2
10Section 2
. 48.23 (2) (bm) of the statutes is created to read:
AB630,3,5
148.23
(2) (bm) If a motion to terminate parental rights is filed under s. 48.42
2(1d) in a proceeding involving a child alleged to be in need of protection or services
3under s. 48.13, any parent who appears before the court shall be represented by
4counsel as provided under par. (b), beginning with the filing of the motion under s.
548.42 (1d).
AB630,3
6Section 3
. 48.235 (4) (a) 3. of the statutes is amended to read:
AB630,3,87
48.235
(4) (a) 3. Petition
or file a motion for termination of parental rights or
8any other matter specified under s. 48.14.
AB630,4
9Section 4
. 48.235 (4m) (a) 3. of the statutes is amended to read:
AB630,3,1110
48.235
(4m) (a) 3. Petition
or file a motion for termination of parental rights
11or any other matter specified under s. 48.14 after the child is born.
AB630,5
12Section 5
. 48.29 (1) of the statutes is amended to read:
AB630,3,2213
48.29
(1) The Except as provided under sub. (1d), the child, the child's parent,
14guardian or legal custodian, the expectant mother, or the unborn child's guardian ad
15litem, either before or during the plea hearing, may file a written request with the
16clerk of the court or other person acting as the clerk for a substitution of the judge
17assigned to the proceeding. Upon filing the written request, the filing party shall
18immediately mail or deliver a copy of the request to the judge named in the request.
19When any person has the right to request a substitution of judge, that person's
20counsel or guardian ad litem may file the request. Not more than one such written
21request may be filed in any one proceeding, nor may any single request name more
22than one judge. This section does not apply to proceedings under s. 48.21 or 48.213.
AB630,6
23Section 6
. 48.29 (1d) of the statutes is created to read:
AB630,4,224
48.29
(1d) The child, the child's parent, guardian or legal custodian, the
25expectant mother, or the unborn child's guardian ad litem may request substitution
1of the judge under sub. (1) after the plea hearing in a proceeding if all of the following
2apply:
AB630,4,43
(a) A motion to terminate parental rights is filed under s. 48.42 (1d) in the
4proceeding.
AB630,4,65
(b) There has not been a prior request for substitution under sub. (1) in the
6proceeding.
AB630,4,87
(c) The request is filed before or during the hearing on the motion to terminate
8parental rights under s. 48.422 (1).
AB630,7
9Section 7
. 48.29 (3) of the statutes is amended to read:
AB630,4,1310
48.29
(3) Subsections (1)
and
to (1m) do not apply in any proceeding under s.
1148.375 (7). For proceedings under s. 48.375 (7), the minor may select the judge whom
12she wishes to be assigned to the proceeding and that judge shall be assigned to the
13proceeding.
AB630,8
14Section 8
. 48.30 (2) of the statutes is amended to read:
AB630,4,2415
48.30
(2) At the commencement of the hearing under this section the child and
16the parent, guardian, legal custodian, or Indian custodian; the child expectant
17mother, her parent, guardian, legal custodian, or Indian custodian, and the unborn
18child's guardian ad litem; or the adult expectant mother and the unborn child's
19guardian ad litem; shall be advised of the rights specified in s. 48.243 and shall be
20informed that a request for a jury trial or for a substitution of judge under s. 48.29
21must be made before the end of the plea hearing or is waived
, except as provided in
22s. 48.29 (1d). Nonpetitioning parties, including the child, shall be granted a
23continuance of the plea hearing if they wish to consult with an attorney on the
24request for a jury trial or substitution of a judge.
AB630,9
25Section 9
. 48.31 (1) of the statutes is amended to read:
AB630,5,10
148.31
(1) In this section, “fact-finding hearing" means a hearing to determine
2if the allegations in a petition under s. 48.13 or 48.133 or a petition
or motion to
3terminate parental rights are proved by clear and convincing evidence. In the case
4of a petition
or motion to terminate parental rights to an Indian child, “fact-finding
5hearing" means a hearing to determine if the allegations in the petition, other than
6the allegations under s. 48.42 (1) (e) relating to serious emotional or physical
7damage, are proved by clear and convincing evidence and if the allegations under s.
848.42 (1) (e) relating to serious emotional or physical damage are proved beyond a
9reasonable doubt as provided in s. 48.028 (4) (e) 1., unless partial summary judgment
10on the grounds for termination of parental rights is granted.
AB630,10
11Section 10
. 48.31 (2) of the statutes is amended to read:
AB630,6,912
48.31
(2) The hearing shall be to the court unless the child, the child's parent,
13guardian, or legal custodian, the unborn child's guardian ad litem, or the expectant
14mother of the unborn child exercises the right to a jury trial by demanding a jury trial
15at any time before or during the plea hearing. If a jury trial is demanded in a
16proceeding under s. 48.13 or 48.133, the jury shall consist of 6 persons
, unless a
17motion is filed under s. 48.42 (1d). If a jury trial is demanded in a proceeding under
18s. 48.42,
including on a motion filed under s. 48.42 (1d), the jury shall consist of 12
19persons unless the parties agree to a lesser number. Chapters 756 and 805 shall
20govern the selection of jurors. If the hearing involves a child victim or witness, as
21defined in s. 950.02, the court may order that a deposition be taken by audiovisual
22means and allow the use of a recorded deposition under s. 967.04 (7) to (10) and, with
23the district attorney, shall comply with s. 971.105. At the conclusion of the hearing,
24the court or jury shall make a determination of the facts, except that in a case alleging
25a child or an unborn child to be in need of protection or services under s. 48.13 or
148.133, the court shall make the determination under s. 48.13 (intro.) or 48.133
2relating to whether the child or unborn child is in need of protection or services that
3can be ordered by the court. If the court finds that the child or unborn child is not
4within the jurisdiction of the court or, in a case alleging a child or an unborn child
5to be in need of protection or services under s. 48.13 or 48.133, that the child or
6unborn child is not in need of protection or services that can be ordered by the court,
7or if the court or jury finds that the facts alleged in the petition
, or in a motion to
8terminate parental rights under s. 48.42 (1d), have not been proved, the court shall
9dismiss the petition
or motion with prejudice.
AB630,11
10Section 11
. 48.31 (4) of the statutes is amended to read:
AB630,7,611
48.31
(4) The court or jury shall make findings of fact and the court shall make
12conclusions of law relating to the allegations of a petition filed under s. 48.13, 48.133
13or 48.42
(1) or a motion to terminate parental rights under s. 48.42 (1d), except that
14the court shall make findings of fact relating to whether the child or unborn child is
15in need of protection or services which can be ordered by the court. In cases alleging
16a child to be in need of protection or services under s. 48.13 (11), the court may not
17find that the child is suffering emotional damage unless a licensed physician
18specializing in psychiatry or a licensed psychologist appointed by the court to
19examine the child has testified at the hearing that in his or her opinion the condition
20exists, and adequate opportunity for the cross-examination of the physician or
21psychologist has been afforded. The judge may use the written reports if the right
22to have testimony presented is voluntarily, knowingly and intelligently waived by
23the guardian ad litem or legal counsel for the child and the parent or guardian. In
24cases alleging a child to be in need of protection or services under s. 48.13 (11m) or
25an unborn child to be in need of protection or services under s. 48.133, the court may
1not find that the child or the expectant mother of the unborn child is in need of
2treatment and education for needs and problems related to the use or abuse of alcohol
3beverages, controlled substances or controlled substance analogs and its medical,
4personal, family or social effects unless an assessment for alcohol and other drug
5abuse that conforms to the criteria specified under s. 48.547 (4) has been conducted
6by an approved treatment facility.
AB630,12
7Section 12
. 48.368 (1) of the statutes is amended to read:
AB630,7,168
48.368
(1) If a petition
or motion for termination of parental rights is filed
9under s.
48.41 or 48.415 48.42 or an appeal from a judgment terminating or denying
10termination of parental rights is filed during the year in which a dispositional order
11under s. 48.355, an extension order under s. 48.365, a voluntary agreement for
12placement of the child under s. 48.63, or a guardianship order under s. 48.977 or
1348.9795, ch. 54, 2017 stats., or ch. 880, 2003 stats., is in effect, the dispositional or
14extension order, voluntary agreement, or guardianship order shall remain in effect
15until all proceedings related to the filing of the petition
or motion for termination of
16parental rights or an appeal are concluded.
AB630,13
17Section 13
. 48.38 (5) (c) 6. b. of the statutes is amended to read:
AB630,7,1918
48.38
(5) (c) 6. b. Having a petition
or motion for the involuntary termination
19of parental rights filed on behalf of the child.
AB630,14
20Section 14
. 48.40 (1r) of the statutes is amended to read:
AB630,8,321
48.40
(1r) “Parent" has the meaning given in s. 48.02 (13), except that for
22purposes of filing a petition
or motion seeking the involuntary termination of
23parental rights under s. 48.415 to a nonmarital child who is not adopted or whose
24parents do not subsequently intermarry under s. 767.803 and whose paternity has
25not been established, of finding grounds under s. 48.415 for the involuntary
1termination of parental rights to such a child, and of terminating the parental rights
2to such a child on a ground specified in s. 48.415, “parent" includes a person who may
3be the parent of such a child.
AB630,15
4Section 15
. 48.415 (1) (a) 1. of the statutes is amended to read:
AB630,8,85
48.415
(1) (a) 1. That the child has been left without provision for the child's
6care or support, the petitioner
or movant has investigated the circumstances
7surrounding the matter and for 60 days the petitioner
or movant has been unable to
8find either parent.
AB630,16
9Section 16
. 48.415 (3) (a) of the statutes is amended to read:
AB630,8,1610
48.415
(3) (a) The parent is presently, and for a cumulative total period of at
11least 2 years within the 5 years immediately prior to the filing of the petition
or
12motion to terminate parental rights has been, an inpatient at one or more hospitals
13as defined in s. 50.33 (2) (a), (b) or (c), licensed treatment facilities as defined in s.
1451.01 (2) or state treatment facilities as defined in s. 51.01 (15) on account of mental
15illness as defined in s. 51.01 (13) (a) or (b), developmental disability as defined in s.
1655.01 (2), or other like incapacities, as defined in s. 55.01 (5);
AB630,17
17Section 17
. 48.415 (5) (intro.) of the statutes is amended to read:
AB630,8,2218
48.415
(5) Child abuse. (intro.) Child abuse, which shall be established by
19proving that the parent has exhibited a pattern of physically or sexually abusive
20behavior which is a substantial threat to the health of the child who is the subject
21of the petition
or motion to terminate parental rights and proving either of the
22following:
AB630,18
23Section 18
. 48.415 (10) (a) of the statutes is amended to read:
AB630,9,324
48.415
(10) (a) That the child who is the subject of the petition
or motion to
25terminate parental rights has been adjudged to be in need of protection or services
1under s. 48.13 (2), (3) or (10); or that the child who is the subject of the petition
or
2motion was born after the filing of a petition
or motion under this subsection whose
3subject is a sibling of the child.
AB630,19
4Section 19
. 48.415 (10) (b) of the statutes is amended to read:
AB630,9,115
48.415
(10) (b) That, within 3 years prior to the date the court adjudged the
6child to be in need of protection or services as specified in par. (a) or, in the case of
7a child born after the filing of a petition
or motion to terminate parental rights as
8specified in par. (a), within 3 years prior to the date of birth of the child, a court has
9ordered the termination of parental rights with respect to another child of the person
10whose parental rights are sought to be terminated on one or more of the grounds
11specified in this section.
AB630,20
12Section 20
. 48.417 (1) (intro.) of the statutes is amended to read:
AB630,9,2013
48.417
(1) Filing or joining in petition or motion; when required. (intro.)
14Subject to sub. (2), an agency or the district attorney, corporation counsel
, or other
15appropriate official designated under s. 48.09 shall file a petition under s. 48.42 (1)
16or a motion under s. 48.42 (1d) to terminate the parental rights of a parent or the
17parents of a child, or, if a petition under s. 48.42 (1)
or motion under s. 48.42 (1d) to
18terminate those parental rights has already been filed, the agency, district attorney,
19corporation counsel or other appropriate official shall join in the petition
or motion,
20if any of the following circumstances apply:
AB630,21
21Section 21
. 48.417 (1) (a) of the statutes is amended to read:
AB630,9,2522
48.417
(1) (a) The child has been placed outside of his or her home, as described
23in s. 48.365 (1) or 938.365 (1), in a foster home, group home, nonsecured residential
24care center for children and youth, or shelter care facility for 15 of the most recent
2522 months, not including any period during which the child was a runaway from the
1out-of-home placement or was residing in a trial reunification home. If the
2circumstances specified in this paragraph apply, the petition
or motion to terminate
3parental rights shall be filed or joined in by the last day of the 15th month, as
4described in this paragraph, for which the child was placed outside of his or her home.
AB630,22
5Section 22
. 48.417 (1) (b) of the statutes is amended to read:
AB630,10,156
48.417
(1) (b) A court of competent jurisdiction has found under s. 48.13 (2) or
7under a law of any other state or a federal law that is comparable to s. 48.13 (2) that
8the child was abandoned when he or she was under one year of age or has found that
9the parent abandoned the child when the child was under one year of age in violation
10of s. 948.20 or in violation of the law of any other state or federal law, if that violation
11would be a violation of s. 948.20 if committed in this state. If the circumstances
12specified in this paragraph apply, the petition
or motion to terminate parental rights 13shall be filed or joined in within 60 days after the date on which the court of
14competent jurisdiction found that the child was abandoned as described in this
15paragraph.