December 6, 2019 - Offered by Representative Kulp.
AB566-ASA1,2,3
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), 48.83 (1), 48.835 (3) (title), 48.835 (3) (a), 48.837 (3),
148.837 (4) (e), 48.837 (5), 48.837 (6) (a), 48.837 (6) (b), 48.837 (6) (br), 48.837 (6)
2(d), 938.23 (3) and 938.23 (4); and
to create 48.23 (2) (bm), 48.29 (1d) and 48.42
3(1d) of the statutes;
relating to: a motion to terminate parental rights.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB566-ASA1,1
4Section
1. 48.195 (2) (d) 6. of the statutes is amended to read:
AB566-ASA1,2,105
48.195
(2) (d) 6. A court conducting proceedings under s. 48.21, proceedings
6relating to a petition under s. 48.13 (2m) or 48.42
(1) or a motion under s. 48.42 (1d),
7or dispositional proceedings under subch. VI or VIII relating to the child, the county
8corporation counsel, district attorney, or agency legal counsel representing the
9interests of the public in those proceedings, or the guardian ad litem representing
10the interests of the child in those proceedings.
AB566-ASA1,2
11Section 2
. 48.23 (2) (bm) of the statutes is created to read:
AB566-ASA1,2,1612
48.23
(2) (bm) If a motion to terminate parental rights is filed under s. 48.42
13(1d) in a proceeding involving a child or juvenile alleged to be in need of protection
14or services under s. 48.13 or 938.13, any parent who appears before the court shall
15be represented by counsel as provided under par. (b), beginning with the filing of the
16motion under s. 48.42 (1d).
AB566-ASA1,3
17Section
3. 48.235 (4) (a) 3. of the statutes is amended to read:
AB566-ASA1,2,1918
48.235
(4) (a) 3. Petition
or file a motion for termination of parental rights or
19any other matter specified under s. 48.14.
AB566-ASA1,4
20Section
4. 48.235 (4m) (a) 3. of the statutes is amended to read:
AB566-ASA1,2,2221
48.235
(4m) (a) 3. Petition
or file a motion for termination of parental rights
22or any other matter specified under s. 48.14 after the child is born.
AB566-ASA1,5
23Section 5
. 48.29 (1) of the statutes is amended to read:
AB566-ASA1,3,10
148.29
(1) The Except as provided under sub. (1d), the child, the child's parent,
2guardian or legal custodian, the expectant mother, or the unborn child's guardian ad
3litem, either before or during the plea hearing, may file a written request with the
4clerk of the court or other person acting as the clerk for a substitution of the judge
5assigned to the proceeding. Upon filing the written request, the filing party shall
6immediately mail or deliver a copy of the request to the judge named in the request.
7When any person has the right to request a substitution of judge, that person's
8counsel or guardian ad litem may file the request. Not more than one such written
9request may be filed in any one proceeding, nor may any single request name more
10than one judge. This section does not apply to proceedings under s. 48.21 or 48.213.
AB566-ASA1,6
11Section 6
. 48.29 (1d) of the statutes is created to read:
AB566-ASA1,3,1512
48.29
(1d) The child, the child's parent, guardian or legal custodian, the
13expectant mother, or the unborn child's guardian ad litem may request substitution
14of the judge under sub. (1) after the plea hearing in a proceeding if all of the following
15apply:
AB566-ASA1,3,1716
(a) A motion to terminate parental rights is filed under s. 48.42 (1d) in the
17proceeding.
AB566-ASA1,3,1918
(b) There has not been a prior request for substitution under sub. (1) in the
19proceeding.
AB566-ASA1,3,2120
(c) The request is filed before or during the hearing on the motion to terminate
21parental rights under s. 48.422 (1).
AB566-ASA1,7
22Section 7
. 48.29 (3) of the statutes is amended to read:
AB566-ASA1,4,223
48.29
(3) Subsections (1)
and
to (1m) do not apply in any proceeding under s.
2448.375 (7). For proceedings under s. 48.375 (7), the minor may select the judge whom
1she wishes to be assigned to the proceeding and that judge shall be assigned to the
2proceeding.
AB566-ASA1,8
3Section 8
. 48.30 (2) of the statutes is amended to read:
AB566-ASA1,4,134
48.30
(2) At the commencement of the hearing under this section the child and
5the parent, guardian, legal custodian, or Indian custodian; the child expectant
6mother, her parent, guardian, legal custodian, or Indian custodian, and the unborn
7child's guardian ad litem; or the adult expectant mother and the unborn child's
8guardian ad litem; shall be advised of the rights specified in s. 48.243 and shall be
9informed that a request for a jury trial or for a substitution of judge under s. 48.29
10must be made before the end of the plea hearing or is waived
, except as provided in
11s. 48.29 (1d). Nonpetitioning parties, including the child, shall be granted a
12continuance of the plea hearing if they wish to consult with an attorney on the
13request for a jury trial or substitution of a judge.
AB566-ASA1,9
14Section
9. 48.31 (1) of the statutes is amended to read:
AB566-ASA1,4,2415
48.31
(1) In this section, “fact-finding hearing" means a hearing to determine
16if the allegations in a petition under s. 48.13 or 48.133 or a petition
or motion to
17terminate parental rights are proved by clear and convincing evidence. In the case
18of a petition
or motion to terminate parental rights to an Indian child, “fact-finding
19hearing" means a hearing to determine if the allegations in the petition, other than
20the allegations under s. 48.42 (1) (e) relating to serious emotional or physical
21damage, are proved by clear and convincing evidence and if the allegations under s.
2248.42 (1) (e) relating to serious emotional or physical damage are proved beyond a
23reasonable doubt as provided in s. 48.028 (4) (e) 1., unless partial summary judgment
24on the grounds for termination of parental rights is granted.
AB566-ASA1,10
25Section
10. 48.31 (2) of the statutes is amended to read:
AB566-ASA1,5,23
148.31
(2) The hearing shall be to the court unless the child, the child's parent,
2guardian, or legal custodian, the unborn child's guardian ad litem, or the expectant
3mother of the unborn child exercises the right to a jury trial by demanding a jury trial
4at any time before or during the plea hearing. If a jury trial is demanded in a
5proceeding under s. 48.13 or 48.133, the jury shall consist of 6 persons
, unless a
6motion is filed under s. 48.42 (1d). If a jury trial is demanded in a proceeding under
7s. 48.42,
including on a motion filed under s. 48.42 (1d), the jury shall consist of 12
8persons unless the parties agree to a lesser number. Chapters 756 and 805 shall
9govern the selection of jurors. If the hearing involves a child victim or witness, as
10defined in s. 950.02, the court may order that a deposition be taken by audiovisual
11means and allow the use of a recorded deposition under s. 967.04 (7) to (10) and, with
12the district attorney, shall comply with s. 971.105. At the conclusion of the hearing,
13the court or jury shall make a determination of the facts, except that in a case alleging
14a child or an unborn child to be in need of protection or services under s. 48.13 or
1548.133, the court shall make the determination under s. 48.13 (intro.) or 48.133
16relating to whether the child or unborn child is in need of protection or services that
17can be ordered by the court. If the court finds that the child or unborn child is not
18within the jurisdiction of the court or, in a case alleging a child or an unborn child
19to be in need of protection or services under s. 48.13 or 48.133, that the child or
20unborn child is not in need of protection or services that can be ordered by the court,
21or if the court or jury finds that the facts alleged in the petition
, or in a motion to
22terminate parental rights under s. 48.42 (1d), have not been proved, the court shall
23dismiss the petition
or motion with prejudice.
AB566-ASA1,11
24Section
11. 48.31 (4) of the statutes is amended to read:
AB566-ASA1,6,21
148.31
(4) The court or jury shall make findings of fact and the court shall make
2conclusions of law relating to the allegations of a petition filed under s. 48.13, 48.133
3or 48.42
(1) or a motion to terminate parental rights under s. 48.42 (1d), except that
4the court shall make findings of fact relating to whether the child or unborn child is
5in need of protection or services which can be ordered by the court. In cases alleging
6a child to be in need of protection or services under s. 48.13 (11), the court may not
7find that the child is suffering emotional damage unless a licensed physician
8specializing in psychiatry or a licensed psychologist appointed by the court to
9examine the child has testified at the hearing that in his or her opinion the condition
10exists, and adequate opportunity for the cross-examination of the physician or
11psychologist has been afforded. The judge may use the written reports if the right
12to have testimony presented is voluntarily, knowingly and intelligently waived by
13the guardian ad litem or legal counsel for the child and the parent or guardian. In
14cases alleging a child to be in need of protection or services under s. 48.13 (11m) or
15an unborn child to be in need of protection or services under s. 48.133, the court may
16not find that the child or the expectant mother of the unborn child is in need of
17treatment and education for needs and problems related to the use or abuse of alcohol
18beverages, controlled substances or controlled substance analogs and its medical,
19personal, family or social effects unless an assessment for alcohol and other drug
20abuse that conforms to the criteria specified under s. 48.547 (4) has been conducted
21by an approved treatment facility.