• The responsible social services agency has made reasonable efforts to provide the
services ordered by the court.
• The child has been placed outside the home for a cumulative total period of six
months or longer pursuant to the CHIPS order.
• The parent has failed to meet the conditions established for the safe return of the
child to the home.
• There is a substantial likelihood that the parent will not meet the conditions
established for the safe return of the child to the home within the next nine months after
the TPR fact-finding hearing.
This bill deletes from the TPR ground of continuing CHIPS the showing that there
is a substantial likelihood that the parent will continue to fail for the next nine months
to meet the conditions for the safe return of the child to the home. However, the bill
provides that if the child has been placed outside the home for less than 15 of the last 22
months, the petitioner must show that there is a substantial likelihood that the parent
will not meet the conditions at the time the child will reach the 15th of the last 22 months
of placement outside the home.
TPR -- Continuing Parental Disability
Under current law, a parent's continuing disability is a ground for involuntary
TPR. This ground requires all of the following findings: 1) the parent is currently
receiving inpatient treatment in a hospital or treatment facility for mental illness,
developmental disability, or other like incapacity; 2) the parent has received inpatient
treatment in one or more hospitals or treatment facilities for a cumulative total period
of at least two of the last five years immediately prior to the filing of the TPR petition; 3)
the parent's condition is likely to continue indefinitely; and 4) the child is not being
provided with adequate care by a relative, parent, or guardian.
This bill revises the TPR ground of a continuing parental disability to require a
parent to have had an inpatient treatment history for at least 15 of the last 22 months
prior to the filing of the TPR petition, rather than an inpatient treatment history for at
least two of the last five years.
TPR -- Parenthood as a Result of Sexual Assault
Under current law, a parent's commission of sexual assault that results in
conception of a child is a ground for TPR. Conception as a result of sexual assault may
be proven by a final judgment of conviction or other evidence produced at a fact-finding
hearing showing that the person who may be the father committed sexual assault against
the mother during a possible time of conception. The mother of the child must be afforded
an opportunity to be heard on her desire for the termination of the father's parental
rights.
This bill revises the TPR ground of conception as a result of sexual assault to apply
that ground equally to a mother, as well as a father, who commits a sexual assault leading
to the conception of a child. The bill, however, specifies that the ground is inapplicable
to a person who committed a nonviolent sexual assault of a minor, if the person was also
a minor at the time of the assault and the age difference between the person and the
victim is four years or less.
In addition, under current law, a juvenile court is not required to provide notice of
a CHIPS or TPR action to a person who may be the father of a child conceived as a result
of a sexual assault, if a physician attests to a belief that there was a sexual assault of the
child's mother that may have resulted in the child's conception.
This bill eliminates that physician attestation requirement from those notice
exceptions and instead requires proof of a sexual assault by a final judgment of conviction
or other evidence. Under the bill, that notice exception does not apply to a father who was
under age 18 at the time of a nonviolent sexual assault of a minor, if the age difference
between the father and the victim is four years or less.
TPR -- Pattern of Child Abuse; Homicide of Parent; and Felony Against a Child
Under current law, a parent's commission of certain egregious crimes is a ground
for TPR. These crimes include: 1) exhibiting a pattern of physically or sexually abusive
behavior that is a substantial threat to the health of the child (child abuse); 2) committing
homicide or soliciting the homicide of the other parent (homicide of a parent); or 3)
committing a serious felony against the person's own child or committing child trafficking
against any child (felony against a child).
Each of these grounds requires evidence of a final judgment of conviction for the
crime. In order for a judgment of conviction to be considered as final under the law, the
time for appeal must have expired, or, if appealed, all appeals directly challenging the
parent's guilt must be exhausted.
This bill revises the TPR grounds of child abuse, homicide of a parent, and felony
against a child to allow evidence of the criminal conduct itself to be proven, as an
alternative to allowing proof by a final judgment of conviction.
Reasonable Efforts to Return a Child Safely Home
The federal Adoption and Safe Families Act of 1997 (ASFA) requires that
reasonable efforts be made to preserve and reunify a family prior to a child's removal from
the home, and, if a child is removed from the home, that reasonable efforts be made to
make it possible for the child's safe return to the home or to achieve any other goal of the
child's permanency plan (reasonable efforts).
ASFA specifies that reasonable efforts "shall not be required" under certain
egregious circumstances. These circumstances have been codified in Wisconsin law to
specify that a juvenile court is not required to include a finding as to whether an agency
has made reasonable efforts if a parent:
• Has subjected the child to aggravated circumstances, including torture, chronic
abuse, sexual abuse, or felony abandonment of the child.
• Committed or attempted murder of the child's other parent.
• Committed an assault crime that resulted in great or substantial bodily harm to
the child or another child of the parent.
• Had parental rights to another child involuntarily terminated.
• Has relinquished custody of the child within 72 hours of the child's birth.
Wisconsin law does not expressly prohibit a juvenile court from requiring a social
service agency to make reasonable efforts in these circumstances, nor does the law specify
a standard to evaluate when reasonable efforts may be required under these
circumstances.
In addition, under Wisconsin law, when considering a TPR petition on the ground
of continuing CHIPS, a number of elements must be found, including that a social
services agency has made reasonable efforts to provide the services ordered by the
juvenile court. No exception is made for the egregious circumstances under which
reasonable efforts are not required under ASFA, as codified in Wisconsin law.
This bill revises the requirements relating to reasonable efforts as follows:
• The bill specifies that a juvenile court must determine that an agency is not
required to make reasonable efforts if there are egregious circumstances under which
reasonable efforts are not required, unless the court determines that such efforts would
be in the best interests of the child.
• The bill specifies in the TPR ground based on continuing CHIPS that the
requirement for an agency to have made reasonable efforts to reunify the family is
inapplicable for any period when reasonable efforts were not required due to the
egregious circumstances specified in statute.
Because the Juvenile Justice Code contains parallel provisions to the Children's
Code for holding a child or juvenile in custody, the bill revises the parallel provisions
relating to reasonable efforts in both the Children's Code and the Juvenile Justice Code
to make both codes consistent.
Waiver of Counsel; Parent's Signature
Under current law, in a proceeding involving TPR, or a contested adoption, a parent
who appears before the juvenile court must be represented by counsel. A parent 18 years
of age or over may waive counsel if the juvenile court is satisfied that the waiver is
knowingly and voluntarily made. However, a parent under age 18 may not waive counsel.
Current law also provides that if an attorney represented a parent during a TPR
proceeding, and has not been discharged, the representation continues during a TPR
appeal.
The Wisconsin Supreme Court has strictly construed the statute requiring
representation during an involuntary TPR proceeding in holding that an attorney may
not be discharged from representing a parent who fails to cooperate with the court and
the attorney. [State v. Shirley E., 2006 WI 129; State v. Darrell K., 2010 AP 1910 (Wis.
Ct. App., Oct. 19, 2010, unpublished).]
This bill specifies that a parent 18 years of age or over who was ordered to appear
in person at hearings for an involuntary TPR or contested adoption proceeding, but who
has failed to appear, is considered to have waived the right to counsel. A failure to appear
by an adult parent must be egregious and without clear and justifiable excuse, which may
be presumed from a parent's failure to appear at consecutive hearings.
This bill also requires a parent's signature, in addition to counsel's signature, on
a notice of intent to appeal or notice of appeal from a TPR judgment, petition for rehearing
from a CHIPS adjudication or TPR judgment, or motion for postdisposition relief from a
CHIPS adjudication or TPR judgment.
TPR Participation by Alleged Father
Under current law, an alleged father must be served with a TPR summons and
petition. If paternity is then established during the TPR proceedings, the father may
further participate in the proceedings.
In order for an alleged father to participate in the TPR proceedings after paternity
has been established, at least one of the following must have occurred:
• The alleged father has filed a declaration of paternal interest upon the child's
birth or upon receipt of the TPR petition, and the declaration has not been revoked.
• The mother (or other source) alleges the man to be the father.
• The man has lived in a familial relationship with the child and may be the father
of the child.
This bill removes the right of an alleged father who is determined in the TPR
proceedings to be the father, but who has not otherwise declared or established a
relationship with the child, to further participate in the proceedings. Specifically, under
the bill, a man determined to be the father may further participate in a TPR proceeding
only if the man: 1) filed a declaration of paternal interest upon the child's birth or upon
receipt of the TPR petition and the declaration has not been revoked; 2) established and
maintained a familial relationship with the child; or 3) establishes that he has been
deprived of the opportunity to assume parental responsibility for the child.
The bill retains the requirement that an alleged father be served with a TPR
summons and petition, regardless of whether the alleged father has declared or
established and maintained a familial relationship with the child.
AB152,1
1Section
1
. 48.13 (14) of the statutes is created to read:
AB152,6,82
48.13
(14) Who is less than 3 years of age and whose parent, within 3 years
3prior to the date of birth of the child, had his or her parental rights to another child
4involuntarily terminated by a court, if a judge or circuit court commissioner has
5found that the child should be continued in custody under s. 48.21 (4) and if that
6parent has the right to counsel under s. 48.23 and had that right during the
7proceeding under s. 48.21, unless this right has been knowingly and voluntarily
8waived.
Note: This Section creates a new ground on which the juvenile court has
jurisdiction over a child in need of protection or services. The ground grants the juvenile
court jurisdiction over a child who is under three years of age and whose parent has had
his or her parental rights to another child involuntarily terminated within three years
prior to the child's birth, if the juvenile court found at a TPC hearing that the child should
be continued in custody and if the parent has the right to counsel and had that right
during the TPC hearing, unless that right has been knowingly and voluntarily waived.
AB152,2
9Section
2. 48.21 (5) (b) 3. of the statutes is amended to read:
AB152,7,8
148.21
(5) (b) 3. If the judge or circuit court commissioner finds that any of the
2circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies with respect to a parent,
3a determination that the county department, department, in a county having a
4population of 500,000 or more, or agency primarily responsible for providing services
5under the custody order is not required to make reasonable efforts with respect to the
6parent to make it possible for the child to return safely to his or her home
, unless the
7judge or circuit court commissioner determines or has determined under a prior
8order that such efforts would be in the best interests of the child.
Note: This Section specifies that at a TPC hearing for a child alleged to be in need
of protection or services, the juvenile court must determine that an agency is not required
to make reasonable efforts to return a child safely home when the statutorily defined
egregious circumstances are found to exist, unless the court determines that such efforts
would be in the best interests of the child.
AB152,3
9Section
3. 48.23 (2) of the statutes is renumbered 48.23 (2) (a) and amended
10to read:
AB152,7,1611
48.23
(2) Right of parents parent to counsel. (a) Whenever a child is the
12subject of a proceeding involving a contested adoption or
the an involuntary
13termination of parental rights, any parent under 18 years of age who appears before
14the court shall be represented by counsel
; but and no such parent may waive counsel.
15Except as provided in sub. (2g), a minor parent petitioning for the voluntary
16termination of parental rights shall be represented by a guardian ad litem.
If
AB152,7,21
17(b) In a proceeding
involves involving a contested adoption or
the an 18involuntary termination of parental rights, any parent 18 years
old of age or older
19who appears before the court shall be represented by counsel
; but the parent may
20waive counsel provided the court is satisfied such waiver is knowingly and
21voluntarily made, except as provided in par. (c).
Note: This Section separates the current language governing the right to counsel
between a minor parent and a parent 18 years of age or over, and makes the right to
counsel for an adult parent subject to a waiver by an egregious and unjustifiable failure
to appear.
AB152,4
1Section
4. 48.23 (2) (c) and (d) of the statutes are created to read:
AB152,8,22
48.23
(2) (c) Counsel under this subsection may be waived as follows:
AB152,8,43
1. A parent 18 years of age or over may waive counsel if the court is satisfied
4that the waiver is knowingly and voluntarily made.
AB152,8,115
2. A parent 18 years of age or over is presumed to have waived his or her right
6to counsel and to appear by counsel if the court has ordered the parent to appear in
7person at any or all subsequent hearings in the proceeding, the parent fails to appear
8in person as ordered, and the court finds that the parent's conduct in failing to appear
9was egregious and without clear and justifiable excuse. Failure by a parent 18 years
10of age or over to appear in person at consecutive hearings as ordered by the court is
11presumed to be egregious and without clear and justifiable excuse.
AB152,8,1312
3. If a parent 18 years of age or over waives counsel under subd. 1. or 2., the
13court may discharge counsel.
AB152,8,1614
(d) In a proceeding to vacate a default judgment or for reconsideration of a
15default judgment terminating parental rights, a parent who had waived counsel
16shall be represented by counsel, except as provided in par. (c) 1. or 2.
Note: This Section provides that a parent 18 years of age or over who was ordered
to appear in person at hearings for an involuntary TPR or contested adoption proceeding,
but who has failed to appear, is considered to have waived the right to counsel, if the
juvenile court finds that the parent's conduct in failing to appear was egregious and
without clear and justifiable excuse. The bill provides that consecutive failures by an
adult parent to appear are presumed to be egregious and without clear and justifiable
excuse. The bill also provides that a right to counsel is reinstated for a motion to vacate
or reconsider a default TPR judgment, if counsel was waived during the TPR proceeding
in which the default judgement was entered.
AB152,5
17Section
5. 48.27 (3) (b) 2. of the statutes is amended to read:
AB152,9,1018
48.27
(3) (b) 2. A court is not required to provide notice, under subd. 1., to any
19person who may be the father of a child
conceived as a result of a sexual assault if
1a physician attests to his or her belief that there was
if a sexual assault of the child's
2mother that may have resulted in the child's conception
is proved by a final judgment
3of conviction or other evidence. A person who is not given notice under this
4subdivision does not have standing to appear and contest a petition under s. 48.13
5or 48.133, present evidence relevant to the issue of disposition, or make alternative
6dispositional recommendations. This subdivision does not apply to a person who may
7be the father of a child conceived as a result of a sexual assault under s. 948.02 (1)
8(b) or (e) or (2) or 948.09, if that person was under 18 years of age at the time of the
9sexual assault and was not more than 4 years older or not more than 4 years younger
10than the victim and if the assault did not involve the use or threat of force or violence.
Note: This Section removes the requirement that a physician attest to a belief
that there was a sexual assault from the exception from providing notice of a CHIPS
proceeding to a person who may be the father of the child, and instead requires proof of
a sexual assault by a final judgment of conviction or other evidence. This Section,
however, requires notice of a CHIPS proceeding to be given to a father who was under age
18 at the time of a nonviolent sexual assault of a minor, if the age difference between the
father and the victim is four years or less.
AB152,6
11Section
6. 48.32 (1) (b) 2. of the statutes is amended to read:
AB152,9,2012
48.32
(1) (b) 2. If the judge or circuit court commissioner finds that any of the
13circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies with respect to a parent,
14the consent decree shall include a determination that the county department,
15department, in a county having a population of 500,000 or more, or agency primarily
16responsible for providing services under the consent decree is not required to make
17reasonable efforts with respect to the parent to make it possible for the child to return
18safely to his or her home
, unless the judge or circuit court commissioner determines
19or has determined under a prior order that such efforts would be in the best interests
20of the child.
Note: This Section specifies that in a CHIPS consent decree the juvenile court
must determine that an agency is not required to make reasonable efforts to return a child
safely home when the statutorily defined egregious circumstances are found to exist,
unless the court determines that such efforts would be in the best interests of the child.
AB152,7
1Section
7. 48.355 (2) (b) 6r. of the statutes is amended to read:
AB152,10,92
48.355
(2) (b) 6r. If the court finds that any of the circumstances specified in
3sub. (2d) (b) 1. to 5. applies with respect to a parent, a determination that the county
4department, department, in a county having a population of 500,000 or more, or
5agency primarily responsible for providing services under the court order is not
6required to make reasonable efforts with respect to the parent to make it possible for
7the child to return safely to his or her home
, unless the court determines or has
8determined under a prior order that such efforts would be in the best interests of the
9child.
Note: This Section requires the juvenile court to include in a CHIPS dispositional
order a determination that an agency is not required to make reasonable efforts to return
a child safely home when the statutorily defined egregious circumstances are found to
exist, unless the court determines that such efforts would be in the best interests of the
child.
AB152,8
10Section
8. 48.355 (2d) (b) (intro.) of the statutes is amended to read:
AB152,11,211
48.355
(2d) (b) (intro.)
Notwithstanding sub. (2) (b) 6., the The court
is not 12required to shall include in a dispositional order a
finding as to whether 13determination that the county department, the department, in a county having a
14population of 500,000 or more, or the agency primarily responsible for providing
15services under a court order
has made is not required to make reasonable efforts with
16respect to a parent of a child to prevent the removal of the child from the home
, while
17assuring that the child's health and safety are the paramount concerns, or a finding
18as to whether the county department, department, or agency has made reasonable
19efforts with respect to a parent of a child or to achieve the permanency goal of
20returning the child safely to his or her home
, unless the court determines or has
1determined under a prior order that such efforts would be in the best interests of the
2child, if the court finds any of the following:
Note: This Section requires the juvenile court to include in a CHIPS dispositional
order a determination that an agency is not required to make reasonable efforts to
prevent a child's removal or return a child safely home when the statutorily defined
egregious circumstances are found to exist, unless the court determines that such efforts
would be in the best interests of the child.
AB152,9
3Section
9
. 48.355 (2d) (c) of the statutes is renumbered 48.355 (2d) (c) (intro.)
4and amended to read:
AB152,11,65
48.355
(2d) (c) If the court finds that any of the circumstances specified in par.
6(b) 1. to 5. applies with respect to a parent, the court shall
hold do all of the following:
AB152,11,9
72. Hold a hearing under s. 48.38 (4m) within 30 days after the date of that
8finding to determine the permanency goal and, if applicable, any concurrent
9permanency goals for the child.
AB152,10
10Section
10
. 48.355 (2d) (c) 1. of the statutes is created to read:
AB152,11,1511
48.355
(2d) (c) 1. Include in the order a determination that the person or agency
12primarily responsible for providing services to the child is not required to make
13reasonable efforts with respect to the parent to make it possible for the child to return
14safely to his or her home, unless the court determines that such efforts would be in
15the best interests of the child.
Note: Sections 9 and 10 require the juvenile court to include in a CHIPS
dispositional order a determination that an agency is not required to make reasonable
efforts to return a child safely home when the statutorily defined egregious circumstances
are found to exist, unless the court determines that such efforts would be in the best
interests of the child.
AB152,11
16Section
11. 48.357 (2v) (a) 3. of the statutes is amended to read:
AB152,12,317
48.357
(2v) (a) 3. If the court finds that any of the circumstances specified in
18s. 48.355 (2d) (b) 1. to 5. applies with respect to a parent, a determination that the
19agency primarily responsible for providing services under the change in placement
20order is not required to make reasonable efforts with respect to the parent to make
1it possible for the child to return safely to his or her home
, unless the court
2determines or has determined under a prior order that such efforts would be in the
3best interests of the child.
Note: This Section specifies that in a CHIPS change-in-placement order the
juvenile court must determine that an agency is not required to make reasonable efforts
to return a child safely home when the statutorily defined egregious circumstances are
found to exist, unless the court determines that such efforts would be in the best interests
of the child.
AB152,12
4Section
12. 48.365 (2m) (a) 2. of the statutes is amended to read:
AB152,12,115
48.365
(2m) (a) 2. If the judge finds that any of the circumstances specified in
6s. 48.355 (2d) (b) 1. to 5. applies with respect to a parent, the order shall include a
7determination that the person or agency primarily responsible for providing services
8to the child is not required to make reasonable efforts with respect to the parent to
9make it possible for the child to return safely to his or her home
, unless the judge
10determines or has determined under a prior order that such efforts would be in the
11best interests of the child.
Note: This Section specifies that in a CHIPS extension order, the juvenile court
must determine that an agency is not required to make reasonable efforts to return a child
safely home when the statutorily defined egregious circumstances are found to exist,
unless the court determines that such efforts would be in the best interests of the child.
AB152,13
12Section
13. 48.415 (2) (a) 2. b. of the statutes is amended to read:
AB152,12,1913
48.415
(2) (a) 2. b. That the agency responsible for the care of the child and the
14family or of the unborn child and expectant mother has made a reasonable effort to
15provide the services ordered by the court
, excluding any period during which the
16responsible agency was not required under s. 48.355 (2) (b) 6r., 48.357 (2v) (a) 3.,
1748.365 (2m) (a) 2., 938.355 (2) (b) 6r., 938.357 (2v) (a) 3., or 938.365 (2m) (a) 2. to make
18reasonable efforts with respect to a parent to make it possible for the child to return
19safely to his or her home.
Note: This Section specifies that, for the TPR ground of continuing CHIPS, the
requirement that reasonable efforts have been made to provide the services ordered by
the juvenile court does not apply to any period when reasonable efforts for reunification
were not required by the juvenile court.
