AB630: Bill Text

LRB-1267/1

EAW:kjf

2021 - 2022 LEGISLATURE

2021 Assembly BILL 630

October 21, 2021 - Introduced by Representatives Dittrich, Penterman, Gundrum, Mursau, Tusler, Snyder and Doyle. Referred to Committee on Family Law.

AB630,2,2 An Act to amend 48.195 (2) (d) 6., 48.235 (4) (a) 3., 48.235 (4m) (a) 3., 48.29 (1), 48.29 (3), 48.30 (2), 48.31 (1), 48.31 (2), 48.31 (4), 48.368 (1), 48.38 (5) (c) 6. b., 48.40 (1r), 48.415 (1) (a) 1., 48.415 (3) (a), 48.415 (5) (intro.), 48.415 (10) (a), 48.415 (10) (b), 48.417 (1) (intro.), 48.417 (1) (a), 48.417 (1) (b), 48.417 (1) (c), 48.417 (1) (d), 48.417 (2) (intro.), 48.417 (3), 48.417 (4), 48.42 (1) (intro.), 48.42 (1g) (a) (intro.), 48.42 (1g) (b), 48.42 (1g) (c), 48.42 (1m) (a), 48.42 (1m) (b), 48.42 (1m) (c), 48.42 (2) (intro.), 48.42 (2) (bm) (intro.), 48.42 (2g) (a), 48.42 (2g) (ag), 48.42 (2m), 48.42 (4) (title), 48.42 (4) (a), 48.42 (4) (b) 3., 48.42 (4) (b) 4. (intro.), 48.422 (title), 48.422 (1), 48.422 (2), 48.422 (3), 48.422 (4), 48.422 (6) (b), 48.422 (7) (intro.), 48.422 (7) (a), 48.422 (7) (bm), 48.422 (7) (br), 48.422 (8), 48.422 (9) (a), 48.423 (2) (intro.), 48.424 (1) (intro.), 48.424 (4) (intro.), 48.424 (4) (b), 48.425 (1) (am) 2., 48.425 (1) (cm), 48.425 (1m), 48.425 (3), 48.427 (2), 48.43 (1) (intro.), 48.46 (2), 48.46 (3) and 48.83 (1); and to create 48.23 (2) (bm), 48.29 (1d) and 48.42 (1d) of the statutes; relating to: termination of parental rights by 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 Section 1 . 48.195 (2) (d) 6. of the statutes is amended to read:

AB630,2,9 48.195 (2) (d) 6. A court conducting proceedings under s. 48.21, proceedings relating to a petition under s. 48.13 (2m) or 48.42 (1) or a motion under s. 48.42 (1d), or dispositional proceedings under subch. VI or VIII relating to the child, the county corporation counsel, district attorney, or agency legal counsel representing the interests of the public in those proceedings, or the guardian ad litem representing the interests of the child in those proceedings.

AB630,2 Section 2 . 48.23 (2) (bm) of the statutes is created to read:

AB630,3,5 48.23 (2) (bm) If a motion to terminate parental rights is filed under s. 48.42 (1d) in a proceeding involving a child alleged to be in need of protection or services under s. 48.13, any parent who appears before the court shall be represented by counsel as provided under par. (b), beginning with the filing of the motion under s. 48.42 (1d).

AB630,3 Section 3 . 48.235 (4) (a) 3. of the statutes is amended to read:

AB630,3,8 48.235 (4) (a) 3. Petition or file a motion for termination of parental rights or any other matter specified under s. 48.14.

AB630,4 Section 4 . 48.235 (4m) (a) 3. of the statutes is amended to read:

AB630,3,11 48.235 (4m) (a) 3. Petition or file a motion for termination of parental rights or any other matter specified under s. 48.14 after the child is born.

AB630,5 Section 5 . 48.29 (1) of the statutes is amended to read:

AB630,3,22 48.29 (1) The Except as provided under sub. (1d), the child, the child's parent, guardian or legal custodian, the expectant mother, or the unborn child's guardian ad litem, either before or during the plea hearing, may file a written request with the clerk of the court or other person acting as the clerk for a substitution of the judge assigned to the proceeding. Upon filing the written request, the filing party shall immediately mail or deliver a copy of the request to the judge named in the request. When any person has the right to request a substitution of judge, that person's counsel or guardian ad litem may file the request. Not more than one such written request may be filed in any one proceeding, nor may any single request name more than one judge. This section does not apply to proceedings under s. 48.21 or 48.213.

AB630,6 Section 6 . 48.29 (1d) of the statutes is created to read:

AB630,4,2 48.29 (1d) The child, the child's parent, guardian or legal custodian, the expectant mother, or the unborn child's guardian ad litem may request substitution of the judge under sub. (1) after the plea hearing in a proceeding if all of the following apply:

AB630,4,4 (a) A motion to terminate parental rights is filed under s. 48.42 (1d) in the proceeding.

AB630,4,6 (b) There has not been a prior request for substitution under sub. (1) in the proceeding.

AB630,4,8 (c) The request is filed before or during the hearing on the motion to terminate parental rights under s. 48.422 (1).

AB630,7 Section 7 . 48.29 (3) of the statutes is amended to read:

AB630,4,13 48.29 (3) Subsections (1) and to (1m) do not apply in any proceeding under s. 48.375 (7). For proceedings under s. 48.375 (7), the minor may select the judge whom she wishes to be assigned to the proceeding and that judge shall be assigned to the proceeding.

AB630,8 Section 8 . 48.30 (2) of the statutes is amended to read:

AB630,4,24 48.30 (2) At the commencement of the hearing under this section the child and the parent, guardian, legal custodian, or Indian custodian; the child expectant mother, her parent, guardian, legal custodian, or Indian custodian, and the unborn child's guardian ad litem; or the adult expectant mother and the unborn child's guardian ad litem; shall be advised of the rights specified in s. 48.243 and shall be informed that a request for a jury trial or for a substitution of judge under s. 48.29 must be made before the end of the plea hearing or is waived, except as provided in s. 48.29 (1d). Nonpetitioning parties, including the child, shall be granted a continuance of the plea hearing if they wish to consult with an attorney on the request for a jury trial or substitution of a judge.

AB630,9 Section 9 . 48.31 (1) of the statutes is amended to read:

AB630,5,10 48.31 (1) In this section, “fact-finding hearing" means a hearing to determine if the allegations in a petition under s. 48.13 or 48.133 or a petition or motion to terminate parental rights are proved by clear and convincing evidence. In the case of a petition or motion to terminate parental rights to an Indian child, “fact-finding hearing" means a hearing to determine if the allegations in the petition, other than the allegations under s. 48.42 (1) (e) relating to serious emotional or physical damage, are proved by clear and convincing evidence and if the allegations under s. 48.42 (1) (e) relating to serious emotional or physical damage are proved beyond a reasonable doubt as provided in s. 48.028 (4) (e) 1., unless partial summary judgment on the grounds for termination of parental rights is granted.

AB630,10 Section 10 . 48.31 (2) of the statutes is amended to read:

AB630,6,9 48.31 (2) The hearing 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 , unless a motion is filed under s. 48.42 (1d). If a jury trial is demanded in a proceeding under s. 48.42, including on a motion filed under s. 48.42 (1d), 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 hearing, 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 , or in a motion to terminate parental rights under s. 48.42 (1d), have not been proved, the court shall dismiss the petition or motion with prejudice.

AB630,11 Section 11 . 48.31 (4) of the statutes is amended to read:

AB630,7,6 48.31 (4) 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, 48.133 or 48.42 (1) or a motion to terminate parental rights under s. 48.42 (1d), 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 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.

AB630,12 Section 12 . 48.368 (1) of the statutes is amended to read:

AB630,7,16 48.368 (1) If a petition or motion for termination of parental rights is filed under s. 48.41 or 48.415 48.42 or an appeal from a judgment terminating or denying termination of parental rights is filed during the year in which a dispositional order under s. 48.355, an extension order under s. 48.365, a voluntary agreement for placement of the child under s. 48.63, or a guardianship order under s. 48.977 or 48.9795, ch. 54, 2017 stats., or ch. 880, 2003 stats., is in effect, the dispositional or extension order, voluntary agreement, or guardianship order shall remain in effect until all proceedings related to the filing of the petition or motion for termination of parental rights or an appeal are concluded.

AB630,13 Section 13 . 48.38 (5) (c) 6. b. of the statutes is amended to read:

AB630,7,19 48.38 (5) (c) 6. b. Having a petition or motion for the involuntary termination of parental rights filed on behalf of the child.

AB630,14 Section 14 . 48.40 (1r) of the statutes is amended to read:

AB630,8,3 48.40 (1r) “Parent" has the meaning given in s. 48.02 (13), except that for purposes of filing a petition or motion seeking the involuntary termination of parental rights under s. 48.415 to a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803 and whose paternity has not been established, of finding grounds under s. 48.415 for the involuntary termination of parental rights to such a child, and of terminating the parental rights to such a child on a ground specified in s. 48.415, “parent" includes a person who may be the parent of such a child.

AB630,15 Section 15 . 48.415 (1) (a) 1. of the statutes is amended to read:

AB630,8,8 48.415 (1) (a) 1. That the child has been left without provision for the child's care or support, the petitioner or movant has investigated the circumstances surrounding the matter and for 60 days the petitioner or movant has been unable to find either parent.

AB630,16 Section 16 . 48.415 (3) (a) of the statutes is amended to read:

AB630,8,16 48.415 (3) (a) The parent is presently, and for a cumulative total period of at least 2 years within the 5 years immediately prior to the filing of the petition or motion to terminate parental rights has been, an inpatient at one or more hospitals as defined in s. 50.33 (2) (a), (b) or (c), licensed treatment facilities as defined in s. 51.01 (2) or state treatment facilities as defined in s. 51.01 (15) on account of mental illness as defined in s. 51.01 (13) (a) or (b), developmental disability as defined in s. 55.01 (2), or other like incapacities, as defined in s. 55.01 (5);

AB630,17 Section 17 . 48.415 (5) (intro.) of the statutes is amended to read:

AB630,8,22 48.415 (5) Child abuse. (intro.) Child abuse, which shall be established by proving that the parent has exhibited a pattern of physically or sexually abusive behavior which is a substantial threat to the health of the child who is the subject of the petition or motion to terminate parental rights and proving either of the following:

AB630,18 Section 18 . 48.415 (10) (a) of the statutes is amended to read:

AB630,9,3 48.415 (10) (a) That the child who is the subject of the petition or motion to terminate parental rights has been adjudged to be in need of protection or services under s. 48.13 (2), (3) or (10); or that the child who is the subject of the petition or motion was born after the filing of a petition or motion under this subsection whose subject is a sibling of the child.

AB630,19 Section 19 . 48.415 (10) (b) of the statutes is amended to read:

AB630,9,11 48.415 (10) (b) That, within 3 years prior to the date the court adjudged the child to be in need of protection or services as specified in par. (a) or, in the case of a child born after the filing of a petition or motion to terminate parental rights as specified in par. (a), within 3 years prior to the date of birth of the child, a court has ordered the termination of parental rights with respect to another child of the person whose parental rights are sought to be terminated on one or more of the grounds specified in this section.

AB630,20 Section 20 . 48.417 (1) (intro.) of the statutes is amended to read:

AB630,9,20 48.417 (1) Filing or joining in petition or motion; when required. (intro.) Subject to sub. (2), an agency or the district attorney, corporation counsel, or other appropriate official designated under s. 48.09 shall file a petition under s. 48.42 (1) or a motion under s. 48.42 (1d) to terminate the parental rights of a parent or the parents of a child, or, if a petition under s. 48.42 (1) or motion under s. 48.42 (1d) to terminate those parental rights has already been filed, the agency, district attorney, corporation counsel or other appropriate official shall join in the petition or motion, if any of the following circumstances apply:

AB630,21 Section 21 . 48.417 (1) (a) of the statutes is amended to read:

AB630,9,25 48.417 (1) (a) The child has been placed outside of his or her home, as described in s. 48.365 (1) or 938.365 (1), in a foster home, group home, nonsecured residential care center for children and youth, or shelter care facility for 15 of the most recent 22 months, not including any period during which the child was a runaway from the out-of-home placement or was residing in a trial reunification home. If the circumstances specified in this paragraph apply, the petition or motion to terminate parental rights shall be filed or joined in by the last day of the 15th month, as described in this paragraph, for which the child was placed outside of his or her home.

AB630,22 Section 22 . 48.417 (1) (b) of the statutes is amended to read:

AB630,10,15 48.417 (1) (b) A court of competent jurisdiction has found under s. 48.13 (2) or under a law of any other state or a federal law that is comparable to s. 48.13 (2) that the child was abandoned when he or she was under one year of age or has found that the parent abandoned the child when the child was under one year of age in violation of s. 948.20 or in violation of the law of any other state or federal law, if that violation would be a violation of s. 948.20 if committed in this state. If the circumstances specified in this paragraph apply, the petition or motion to terminate parental rights shall be filed or joined in within 60 days after the date on which the court of competent jurisdiction found that the child was abandoned as described in this paragraph.

AB630,23 Section 23 . 48.417 (1) (c) of the statutes is amended to read:

AB630,11,2 48.417 (1) (c) A court of competent jurisdiction has found that the parent has committed, has aided or abetted the commission of, or has solicited, conspired, or attempted to commit, a violation of s. 940.01, 940.02, 940.03, or 940.05 or a violation of the law of any other state or federal law, if that violation would be a violation of s. 940.01, 940.02, 940.03, or 940.05 if committed in this state, and that the victim of that violation is a child of the parent. If the circumstances specified in this paragraph apply, the petition or motion to terminate parental rights shall be filed or joined in within 60 days after the date on which the court assigned to exercise jurisdiction under this chapter determines, based on a finding that a circumstance specified in this paragraph applies, that reasonable efforts to make it possible for the child to return safely to his or her home are not required.

AB630,24 Section 24 . 48.417 (1) (d) of the statutes is amended to read:

AB630,11,17 48.417 (1) (d) A court of competent jurisdiction has found that the parent has committed a violation of s. 940.19 (3), 1999 stats., a violation of s. 940.19 (2), (4), or (5), 940.225 (1) or (2), 948.02 (1) or (2), 948.025, 948.03 (2) (a), (3) (a), or (5) (a) 1., 2., or 3., 948.051, or 948.085, a violation of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies, or a violation of the law of any other state or federal law, if that violation would be a violation listed under this paragraph if committed in this state, and that the violation resulted in great bodily harm, as defined in s. 939.22 (14), or in substantial bodily harm, as defined in s. 939.22 (38), to the child or another child of the parent. If the circumstances specified in this paragraph apply, the petition or motion to terminate parental rights shall be filed or joined in within 60 days after the date on which the court assigned to exercise jurisdiction under this chapter determines, based on a finding that a circumstance specified in this paragraph applies, that reasonable efforts to make it possible for the child to return safely to his or her home are not required.

AB630,25 Section 25 . 48.417 (2) (intro.) of the statutes is amended to read:

AB630,12,2 48.417 (2) Filing or joining in petition or motion; when not required. (intro.) Notwithstanding that any of the circumstances specified in sub. (1) (a), (b), (c) or (d) may apply, an agency or the district attorney, corporation counsel or other appropriate official designated under s. 48.09 need not file a petition under s. 48.42 (1) or motion under s. 48.42 (1d) to terminate the parental rights of a parent or the parents of a child, or, if a petition under s. 48.42 (1) or motion to terminate those parental rights has already been filed, the agency, district attorney, corporation counsel or other appropriate official need not join in the petition, if any of the following circumstances apply:

AB630,26 Section 26 . 48.417 (3) of the statutes is amended to read:

AB630,12,10 48.417 (3) Concurrent adoption efforts required. If a petition or motion to terminate parental rights is filed or joined in as required under sub. (1), the agency primarily responsible for providing services to the child under a court order shall, during the pendency of the proceeding on the petition or motion, work with the agency identified in the report under s. 48.425 (1) (f) that would be responsible for accomplishing the adoption of the child in processing and approving a qualified family for the adoption of the child.

AB630,27 Section 27 . 48.417 (4) of the statutes is amended to read:

AB630,12,14 48.417 (4) Notice to department. If a petition or motion to terminate parental rights is filed or joined in as required under sub. (1), the person who filed or joined in the petition or motion shall notify the department of that filing or joinder.

AB630,28 Section 28 . 48.42 (1) (intro.) of the statutes is amended to read:

AB630,12,20 48.42 (1) Petition. (intro.) A Except as provided under sub. (1d), a proceeding for the termination of parental rights shall be initiated by petition which may be filed by the child's parent, an agency or a person authorized to file a petition under s. 48.25 or 48.835. The petition shall be entitled “In the interest of .......... (child's name), a person under the age of 18" and shall set forth with specificity:

AB630,29 Section 29 . 48.42 (1d) of the statutes is created to read:

AB630,13,4 48.42 (1d) Motion to terminate parental rights of a child alleged to be in need of protection or services. If there is an open proceeding under s. 48.13 for the child, the termination of parental rights may be initiated by filing a motion in that open proceeding. A motion under this subsection may be filed by the child's parent, an agency, or a person authorized to file a petition under s. 48.25, who is a party to the open proceeding, and shall set forth with specificity the information required in sub. (1) (c) and (e). A motion filed under this subsection is subject to the procedures of this subchapter.

AB630,30 Section 30 . 48.42 (1g) (a) (intro.) of the statutes is amended to read:

AB630,13,16 48.42 (1g) (a) (intro.) Except as provided in par. (c), if the petition or motion to terminate parental rights is filed by a person or agency other than the district attorney, corporation counsel, or other appropriate official under s. 48.09; if the petition or motion seeks to terminate the parental rights of a person who may be the father of a nonmarital child who is under one year of age at the time the petition or motion is filed, who is not adopted or whose parents do not subsequently intermarry under s. 767.803, and whose paternity has not been established; and if the mother of the child has voluntarily consented to or seeks to voluntarily consent to the termination of her parental rights to the child, the petitioner or movant may file with the petition or motion an affidavit signed by the mother that includes all of the following:

AB630,31 Section 31 . 48.42 (1g) (b) of the statutes is amended to read:

AB630,14,2 48.42 (1g) (b) The petitioner or movant shall notify any man identified in the affidavit under par. (a) as an alleged father of his right to file a declaration of paternal interest under s. 48.025 before the birth of the child, within 14 days after the birth of the child, or within 21 days after the date on which the notice is mailed, whichever is later; of the birth date or anticipated birth date of the child; and of the consequences of filing or not filing a declaration of paternal interest. The petitioner or movant shall include with the notice a copy of the form required to file a declaration of paternal interest under s. 48.025. The notice shall be sent by certified mail to the last-known address of the alleged father.