LRB-0568/2
GMM&PJK:jld&kjf:rs
2011 - 2012 LEGISLATURE
February 10, 2012 - Introduced by Law Revision Committee. Referred to
Committee on Judiciary, Utilities, Commerce, and Government Operations.
SB460,2,5
1An Act to repeal 48.675; and
to amend 20.437 (2) (r), 48.20 (8) (b), 48.203 (7),
248.21 (3) (b), 48.213 (2) (c), 48.213 (2) (d), 48.245 (3), 48.245 (8), 48.255 (4), 48.27
3(3) (a) 1., 48.27 (3) (c), 48.29 (1), 48.293 (2), 48.293 (3), 48.297 (6), 48.299 (1) (a),
448.30 (2), 48.31 (2), 48.315 (1) (b), 48.32 (1) (a), 48.32 (2) (c), 48.355 (2) (b) 1m.,
548.355 (2) (d), 48.357 (1) (am) 1., 48.357 (1) (am) 2. b., 48.357 (1) (am) 2. c., 48.357
6(2m) (a), 48.357 (2m) (b), 48.363 (1) (a), 48.363 (1) (b), 48.365 (1m), 48.365 (2),
748.396 (1b), 48.396 (1d), 48.396 (2) (aj), 48.396 (2) (ap), 48.396 (5) (b), 48.46 (1),
848.78 (2) (aj), 48.78 (2) (ap), 48.981 (3) (c) 1. a., 49.854 (5) (f), 69.15 (3) (b) 3.,
9767.813 (5) (a) 4. and 767.865 (1) (a) of the statutes;
relating to: the provision
10of notices to, and the exercise of rights by, an unborn child's guardian ad litem
11in unborn child in need of protection or services proceedings investigations
12when the individual who is suspected of the abuse or neglect cannot be
13identified; eliminating a voluntary foster care education program developed by
14the Department of Children and Families; releasing a frozen bank account of
1a support obligor; deleting a reference to minors acknowledging paternity;
2parties on whom the summons and petition must be served in a paternity action
3when the respondent is deceased; and the maximum prison term length stated
4in the form for a paternity action summons (suggested as remedial legislation
5by the Department of Children and Families).
Analysis by the Legislative Reference Bureau
Under current law, the court assigned to exercise jurisdiction under the
Children's Code (juvenile court) has exclusive original jurisdiction over an unborn
child who is alleged to be in need of protection or services on the grounds that the
unborn child's expectant mother habitually lacks self-control in the use of alcohol
beverages, controlled substances, or controlled substance analogs, exhibited to a
severe degree, to the extent that there is a substantial risk that the physical health
of the unborn child will be seriously affected or endangered unless the expectant
mother receives prompt and adequate treatment for that habitual lack of self-control
(commonly referred to as a "UCHIPS proceeding").
In a UCHIPS proceeding, the unborn child, by or through the unborn child's
guardian ad litem (GAL), is entitled to receive notice of all hearings involving the
unborn child, including specifically hearings involving the temporary physical
custody and changes in placement of the expectant mother and revisions to or
extensions of the dispositional order. The unborn child, by or through the unborn
child's GAL, is also entitled to exercise certain rights as a party to the proceeding,
including the right to request a substitution of judge, to inspect records relevant to
the proceeding, to demand a public fact-finding hearing or a jury trial, or to request
a change in placement or revision or extension of the dispositional order. In addition,
an unborn child, by or through the unborn child's GAL, may request or authorize the
disclosure of law enforcement, juvenile court, or social services records relating to the
expectant mother of the unborn child.
This bill eliminates the provision of those notices to, and the exercise of those
rights by, an unborn child, by or through the unborn child's GAL. Rather, the bill
requires those notices to be provided to, and permits those rights to be exercised by,
the unborn child's GAL.
Under current law, if a county department of human services or social services
(county department), the Department of Children and Families in a county having
a population of 500,000 or more (DCF), or a licensed child welfare agency under
contract with a county department or DCF to perform child abuse and neglect
investigations (collectively "agency"), after evaluating a report of suspected or
threatened child abuse or neglect, cannot determine who abused or neglected the
child, the agency must initiate a diligent investigation to determine if the child is in
need of protection or services. This bill instead requires an agency to initiate such
an investigation if the agency cannot identify an individual who is suspected of abuse
or neglect or of threatened abuse or neglect of the child.
Current law requires DCF to promulgate rules establishing minimum
requirements for the issuance of foster home licenses, including rules requiring all
foster parents to successfully complete training in the care and support needs of
children who have been placed in foster care. That training must be completed before
the first child is placed with the foster parent and on an ongoing basis. Current law
also requires DCF to develop a voluntary foster care education program to provide
specialized training for foster parents who provide care for children with special
treatment needs. This bill eliminates that voluntary foster care education program.
Under current law, if a person who has been ordered by a court to pay child
support (obligor) is delinquent in the payments, the amount of the delinquency
becomes a lien in favor of DCF. To enforce the lien, DCF may levy against one or more
accounts that the obligor has at a financial institution by sending a notice of levy to
the financial institution instructing the financial institution to prohibit the closing
of or withdrawals from the account, up to the amount that is sufficient to pay the
amount of the delinquency. If the obligor requests a hearing and at the hearing the
court orders an alternative payment arrangement or determines that the obligor
does not owe the support, or owes less than the amount claimed by DCF, the court
must, under current law, order DCF to return the seized funds or the excess of the
seized funds over the delinquent amount. Since DCF has not actually seized the
funds, this bill requires the court to order DCF to instruct the financial institution
to release the account, or funds in the account that exceed the delinquent amount,
to the obligor.
Under current law, a court may order child support, legal custody, and periods
of physical placement on the basis of a statement acknowledging paternity that is
signed by both parents and filed with the state registrar. The state registrar may
insert the name of the father on a child's birth certificate on the basis of a statement
acknowledging paternity. Since January 1, 2007, a minor has been prohibited from
signing a statement acknowledging paternity. Current law, however, authorizes the
state registrar to insert the father's name on a child's birth certificate on the basis
of a statement acknowledging paternity that is signed by a minor parent as long as
the minor parent's parent or legal guardian signs, too. This bill harmonizes the
prohibition against a minor parent signing a statement acknowledging paternity
with the statutes related to requirements for when the state registrar may change
facts on birth certificates.
Under current law, a personal representative for a deceased respondent in a
paternity action may appear for the respondent whenever an appearance is required.
If the deceased respondent does not have a personal representative, the court may
appoint a guardian ad litem, and the guardian ad litem may appear for the deceased
respondent. Current law requires that the summons and petition in the paternity
action be served on the personal representative and the guardian ad litem of a
deceased respondent. This bill changes the "and" to an "or." Since the court appoints
a guardian ad litem only if there is no personal representative, a deceased
respondent in a paternity action would not have both a personal representative and
a guardian ad litem.
Under current law, the form for a summons in a paternity action provides notice
that interfering with the custody of a child, which is a Class I felony, is punishable
by imprisonment for up to five years. A Class I felony actually is punishable under
current law by imprisonment for up to three years and six months. This bill corrects
the maximum length of time for imprisonment for interfering with the custody of a
child that is stated in the form for a paternity action summons.
For further information, see the Notes provided by the Law Revision
Committee of the Joint Legislative Council.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Law Revision Committee prefatory note: This bill is a remedial legislation
proposal, requested by the Department of Children and Families and introduced by the
Law Revision Committee under s. 13.83 (1) (c) 4. and 5., stats. After careful consideration
of the various provisions of the bill, the Law Revision Committee has determined that this
bill makes minor substantive changes in the statutes, and that these changes are
desirable as a matter of public policy.
SB460, s. 1
1Section
1. 20.437 (2) (r) of the statutes is amended to read:
SB460,5,32
20.437
(2) (r)
Support receipt and disbursement program; payments. From the
3support collections trust fund, except as provided in par. (qm), all moneys received
4under s. 49.854, except for moneys received under s. 49.854 (11) (b), all moneys
5received under ss. 767.57 and 767.75 for child or family support, maintenance,
6spousal support, health care expenses, or birth expenses, all other moneys received
7under judgments or orders in actions affecting the family, as defined in s. 767.001 (1),
8and all moneys received under s. 49.855 (4) from the department of revenue or the
9department of administration that were withheld by the department of revenue or
10the internal revenue service for delinquent child support, family support, or
11maintenance or outstanding court-ordered amounts for past support, medical
12expenses, or birth expenses, for disbursement to the persons for whom the payments
13are awarded,
for returning seized funds under s. 49.854 (5) (f), and, if assigned under
14s. 48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), 49.145 (2) (s), 49.19 (4) (h) 1. b., or 49.775
1(2) (bm), for transfer to the appropriation account under par. (k). Estimated
2disbursements under this paragraph shall not be included in the schedule under s.
320.005.
Note: Removes as a purpose of the support collections trust fund returning funds
seized from a financial institution. This reflects that a financial institution freezes
accounts at the request of the Department of Children and Families upon notice of levy
but the department does not seize the funds until an opportunity for a hearing is afforded.
SB460, s. 2
4Section
2
. 48.20 (8) (b) of the statutes is amended to read:
SB460,5,125
48.20
(8) (b) If the child is an expectant mother who has been taken into custody
6under s. 48.19 (1) (cm) or (d) 8.,
the unborn child, through the unborn child's guardian
7ad litem
, shall receive the same notice about the whereabouts of the child expectant
8mother, about the reasons for holding the child expectant mother in custody
, and
9about the detention hearing as the child expectant mother and her parent, guardian,
10legal custodian, or Indian custodian. The intake worker shall notify the child
11expectant mother, her parent, guardian, legal custodian, or Indian custodian
, and
12the unborn child, by the unborn child's guardian ad litem.
SB460, s. 3
13Section
3. 48.203 (7) of the statutes is amended to read:
SB460,5,1914
48.203
(7) If an adult expectant mother is held in custody, the intake worker
15shall notify the adult expectant mother and
the unborn child, through the unborn
16child's guardian ad litem
, of the reasons for holding the adult expectant mother in
17custody, the time and place of the detention hearing required under s. 48.213, the
18nature and possible consequences of that hearing, and the right to present and
19cross-examine witnesses at the hearing.
SB460, s. 4
20Section
4. 48.21 (3) (b) of the statutes is amended to read:
SB460,6,721
48.21
(3) (b) If present at the hearing, a copy of the petition or request shall be
22given to the parent, guardian, legal custodian, or Indian custodian, and to the child
23if he or she is 12 years of age or older, before the hearing begins. If the child is an
1expectant mother who has been taken into custody under s. 48.19 (1) (cm) or (d) 8.,
2a copy of the petition shall also be given to
the unborn child, through the unborn
3child's guardian ad litem
, before the hearing begins. Prior notice of the hearing shall
4be given to the child's parent, guardian, legal custodian, and Indian custodian, to the
5child if he or she is 12 years of age or older and, if the child is an expectant mother
6who has been taken into custody under s. 48.19 (1) (cm) or (d) 8., to
the unborn child,
7through the unborn child's guardian ad litem
, under s. 48.20 (8).
SB460, s. 5
8Section
5. 48.213 (2) (c) of the statutes is amended to read:
SB460,6,129
48.213
(2) (c) A copy of the petition shall be given to the adult expectant mother
, 10and to
the unborn child, through the unborn child's guardian ad litem
, before the
11hearing begins. Prior notice of the hearing shall be given to the adult expectant
12mother and unborn
child child's guardian ad litem in accordance with s. 48.203 (7).
SB460, s. 6
13Section
6. 48.213 (2) (d) of the statutes is amended to read:
SB460,6,1914
48.213
(2) (d) Prior to the commencement of the hearing, the adult expectant
15mother and
the unborn child, through the unborn child's guardian ad litem
, shall be
16informed by the court of the allegations that have been made or may be made, the
17nature and possible consequences of this hearing as compared to possible future
18hearings, the right to confront and cross-examine witnesses
, and the right to present
19witnesses.
SB460, s. 7
20Section
7. 48.245 (3) of the statutes is amended to read:
SB460,7,221
48.245
(3) The obligations imposed under an informal disposition and its
22effective date shall be set forth in writing. The child and a parent, guardian
, and
23legal custodian
,; the child expectant mother, her parent, guardian
, and legal
24custodian
, and
the unborn child by the unborn child's guardian ad litem
,; or the adult
1expectant mother and
the unborn child by the unborn child's guardian ad litem, shall
2receive a copy, as shall any agency providing services under the agreement.
SB460, s. 8
3Section
8. 48.245 (8) of the statutes is amended to read:
SB460,7,104
48.245
(8) If the obligations imposed under the informal disposition are met,
5the intake worker shall so inform the child and a parent, guardian
, and legal
6custodian
,; the child expectant mother, her parent, guardian
, and legal custodian
, 7and
the unborn child by the unborn child's guardian ad litem
,; or the adult expectant
8mother and
the unborn child by the unborn child's guardian ad litem, in writing, and
9no petition may be filed on the charges that brought about the informal disposition
10nor may the charges be the sole basis for a petition under ss. 48.13 to 48.14.
SB460, s. 9
11Section
9. 48.255 (4) of the statutes is amended to read:
SB460,7,2312
48.255
(4) A copy of a petition under sub. (1) shall be given to the child if the
13child is 12 years of age or over and to the parents, guardian, legal custodian
, and
14physical custodian. A copy of a petition under sub. (1m) shall be given to the child
15expectant mother, if 12 years of age or over, her parents, guardian, legal custodian
, 16and physical custodian
, and
the unborn child by the unborn child's guardian ad litem
17or to the adult expectant mother,
the unborn child through the unborn child's
18guardian ad litem
, and the physical custodian of the expectant mother, if any. If the
19child is an Indian child who has been removed from the home of his or her parent or
20Indian custodian or the unborn child will be an Indian child when born, a copy of a
21petition under sub. (1) or (1m) shall also be given to the Indian child's Indian
22custodian and tribe or the Indian tribe with which the unborn child may be eligible
23for affiliation when born.
SB460, s. 10
24Section
10. 48.27 (3) (a) 1. of the statutes is amended to read:
SB460,8,15
148.27
(3) (a) 1. If the petition that was filed relates to facts concerning a
2situation under s. 48.13 or a situation under s. 48.133 involving an expectant mother
3who is a child, the court shall notify, under s. 48.273, the child, any parent, guardian,
4and legal custodian of the child, any foster parent or other physical custodian
5described in s. 48.62 (2) of the child,
the unborn child by the unborn child's guardian
6ad litem, if applicable, and any person specified in par. (b), (d), or (e), if applicable,
7of all hearings involving the child except hearings on motions for which notice must
8be provided only to the child and his or her counsel
and, if applicable, to the unborn
9child's guardian ad litem. If parents who are entitled to notice have the same place
10of residence, notice to one constitutes notice to the other. The first notice to any
11interested party, foster parent, or other physical custodian described in s. 48.62 (2)
12shall be in writing and may have a copy of the petition attached to it. Notices of
13subsequent hearings may be given by telephone at least 72 hours before the time of
14the hearing. The person giving telephone notice shall place in the case file a signed
15statement of the time notice was given and the person to whom he or she spoke.
SB460, s. 11
16Section
11. 48.27 (3) (c) of the statutes is amended to read:
SB460,9,317
48.27
(3) (c) If the petition that was filed relates to facts concerning a situation
18under s. 48.133 involving an expectant mother who is an adult, the court shall notify,
19under s. 48.273,
the unborn child by the unborn child's guardian ad litem, the
20expectant mother, the physical custodian of the expectant mother, if any, and any
21person specified in par. (d), if applicable, of all hearings involving the unborn child
22and expectant mother except hearings on motions for which notice need only be
23provided to the expectant mother and her counsel and
the unborn child through the
24unborn child's guardian ad litem. The first notice to any interested party shall be
25written and may have a copy of the petition attached to it. Thereafter, notice of
1hearings may be given by telephone at least 72 hours before the time of the hearing.
2The person giving telephone notice shall place in the case file a signed statement of
3the time notice was given and the person to whom he or she spoke.
SB460, s. 12
4Section
12. 48.29 (1) of the statutes is amended to read:
SB460,9,145
48.29
(1) The child, the child's parent, guardian or legal custodian, the
6expectant mother
, or
the unborn child by the unborn child's guardian ad litem, either
7before or during the plea hearing, may file a written request with the clerk of the
8court or other person acting as the clerk for a substitution of the judge assigned to
9the proceeding. Upon filing the written request, the filing party shall immediately
10mail or deliver a copy of the request to the judge named in the request. When any
11person has the right to request a substitution of judge, that person's counsel or
12guardian ad litem may file the request. Not more than one such written request may
13be filed in any one proceeding, nor may any single request name more than one judge.
14This section does not apply to proceedings under s. 48.21 or 48.213.
SB460, s. 13
15Section
13. 48.293 (2) of the statutes is amended to read:
SB460,9,2516
48.293
(2) All records relating to a child, or to an unborn child and the unborn
17child's expectant mother,
which that are relevant to the subject matter of a
18proceeding under this chapter shall be open to inspection by a guardian ad litem or
19counsel for any party and to inspection by the court-appointed special advocate for
20the child, upon demand and upon presentation of releases when necessary, at least
2148 hours before the proceeding. Persons
and unborn children, by their guardians ad
22litem, entitled to inspect the records may obtain copies of the records with the
23permission of the custodian of the records or with permission of the court. The court
24may instruct counsel, a guardian ad litem
, or a court-appointed special advocate not
25to disclose specified items in the materials to the child or the parent, or to the
1expectant mother, if the court reasonably believes that the disclosure would be
2harmful to the interests of the child or the unborn child.
SB460, s. 14
3Section
14. 48.293 (3) of the statutes is amended to read:
SB460,10,134
48.293
(3) Upon request prior to the fact-finding hearing, counsel for the
5interests of the public shall disclose to the child, through his or her counsel or
6guardian ad litem, or to
the unborn child, through the unborn child's guardian ad
7litem, the existence of any audiovisual recording of an oral statement of a child under
8s. 908.08
which that is within the possession, custody
, or control of the state and shall
9make reasonable arrangements for the requesting person to view the statement. If,
10after compliance with this subsection, the state obtains possession, custody
, or
11control of such a statement, counsel for the interests of the public shall promptly
12notify the requesting person of that fact and make reasonable arrangements for the
13requesting person to view the statement.
SB460, s. 15
14Section
15. 48.297 (6) of the statutes is amended to read:
