Wis JI-Children SM-1

SPECIAL MATERIALS: ANALYSIS OF EFFECTIVE DATES OF JUVENILE

LEGISLATION AND JURY INSTRUCTIONS ON THE

NEW ELEMENTS

Contents

I. TPR Jurisdiction B ' 48.415.................................................................................. 1

A. Relevant case law on statutory changes in TPR grounds and trial.............. 1

B. Abandonment on court ordered placement B TPR ' 48.415(1)(a)2........... 3

C. Continuing need of protection or services B TPR ' 48.415(2)(c).............. 4

D. Child left by parent B TPR ' 48.415(1)(a)3................................................. 4

E. Revised TPR for continued denial of visitation B TPR ' 48.415(4)........... 5

F. Reckless homicide of other parent, ' 48.415(8), and commission of

serious felony against another child B TPR ' 48.415(9m)......................... 5

G. Prior involuntary TPR as to another child B TPR ' 48.415(10)................. 6

H. Other TPR provisions effective on July 1, 1996.......................................... 6

II. CHIPS Jurisdiction B ' 48.13................................................................................ 7

III. JIPS (juveniles in need of protection or services) Jurisdiction B ' 938.13............. 7

I. TPR Jurisdiction B ' 48.415

The majority of the current grounds for termination of parental rights under ' 48.415

were either amended or created by 1995 Wisconsin Act 275, enacted in spring 1996.

A. Relevant case law on statutory changes in TPR grounds and trial

While considering Act 275, the legislature was aware of the published decision of the

Wisconsin Court of Appeals in the case In re Jason P.S., 195 Wis.2d 855, 537 N.W.2d 47

(Ct. App. 1995). The court of appeals indicated that there are constitutional issues insofar as

determining which law the jury should be instructed on when one of the elements is a TPR

warning and where that warning advised the parent of statutory grounds which have since

been amended.

In that case, Jason's mother had been given a TPR warning under an earlier version of

' 48.415(2)(c) which described one of the elements for continuing need of protection or

services as that the "parent has substantially neglected, willfully refused, or been unable to

meet the conditions established for the return of the child to the home and there is a

substantial likelihood that the parent will not meet these conditions in the future." Subsequent

to that warning, and prior to the TPR action, the legislature enacted 1993 Wisconsin Act 395

which, effective May 5, 1994, amended the relevant part of ' 48.415(2)(c) to read that: "The

parent has failed to demonstrate substantial progress toward meeting the conditions

established for the return of the child to the home and there is a substantial likelihood that the

parent will not meet these conditions within the 12-month period following the fact-finding

hearing under ' 48.425."

The trial court denied the motion filed by the parent to dismiss on grounds that the

petition alleged grounds other than those on which the mother had received the TPR warning.

The trial court was reversed by the court of appeals. In relevant part, the court of appeals

indicated that:

When the State warned the parent that his or her rights to a child may be lost

because of the parent's future conduct, if the State substantially changes the

type of conduct that may lead to the loss of rights without notice to the parent,

the State applies a fundamentally unfair procedure. Jason P.S., supra at 863.

The court of appeals determined that the parent had been deprived of her parental

rights without due process of law and the order was reversed.

Jason P.S. was followed by an unpublished court of appeals case In re Termination of

Parental Rights of Matthew A.H., Case No. 96-1224, decided June 21, 1996. The court of

appeals acknowledged the law as established in Jason P.S. and attempted to go further in

answering the question as to whether or not a termination of parental rights could go forward

where the parent is advised under a given statute and the statute is subsequently amended by

the legislature. The court of appeals answered that question in the affirmative but seemed to

indicate that the jury should be instructed under both the old and new grounds in the

particular statute. The court gave directions as follows:

The petition should allege as conduct supporting termination that the parent

has failed to demonstrate substantial progress toward meeting the conditions

established for returning the child to the home. . . because the parent either

substantially neglected, willfully refused or was unable to meet the conditions

established for the return of the child to the home. . . . The jury should be

instructed about the conduct required for termination under the former version

of ' 48.415(2)(c), Stats. 1991-92. Then, the jury should be instructed that if it

finds the conduct described in the former statute has been established, it may

find the conduct supporting termination has been established under the new

statute. Using this procedure, the jury will have found the parent satisfied both

the conduct about which he or she was warned, and the conduct described in

the new statute which was implicitly present in the former statute. Id. at 1996

WL 339817, *4(Wis. App.).

With these things in mind, let's take a look at how the legislature dealt with the

implementation of the various amendments and additions to ' 48.415, all of which are

otherwise in effect as of July 1, 1996.

B. Abandonment on court ordered placement B TPR ' 48.415(1)(a)2

Subsection 48.415(1)(a)2 was revised to shorten the period for abandonment on a

court ordered out-of-home placement from six months to three months. This is generally

effective July 1, 1996. However '' 9110 and 9310 of Act 275 prohibit the filing of a

termination of parental rights petition on this ground unless the parent has received the

appropriate notice under ' 48.356(2) or ' 938.356(2) of this ground for termination, as

affected by this act, and three months or longer have elapsed since the date of the notice. It

should be noted, however, that ' 9110 of Act 275 specifically indicates that it "does not

preclude a person from filing a petition" under ' 48.415(1)(a)2, 1993 Stats., against a parent

who received appropriate notice under the then-existing statute and if six months or longer

have elapsed since the date of that notice.

C. Continuing need of protection or services B TPR ' 48.415(2)(c)

This ground was amended by shortening the time period from 12 months to 6 months.

An appropriate TPR warning is an element under this subsection. This is generally effective

July 1, 1996. However, '' 9110(2) and 9310(5)(b) of Act 275 indicate that with regard to

this revised TPR ground, "no person may file a petition" under such section, as affected by

this act, unless the parent has received appropriate notice (TPR warning) under ' 48.356(2)

or ' 938.356(2) of the revised statute with the shortened time period. Notwithstanding this

provision, ' 9110(2)(c) goes on to indicate "this subsection does not preclude a person from

filing a petition under" ' 48.415(2)(c), 1993 Stats., against a parent who has received

appropriate notice under ' 48.356(2) or ' 938.356(2) of the grounds for termination under

the previous statute and if one year or longer has elapsed since the date of that notice. (This

last provision only applies to children who had attained the age of 3 at the time of the initial

order. For children under the age of 3, the old law already provided a time period of only 6

months.)

D. Child left by parent B TPR ' 48.415(1)(a)3

Wis. Stat. ' 48.415(1)(a)3 shortened the time period on a child who had been left by

the parent from a period of one year to six months. This statute does not have as an element

that there was any type of TPR warning. However, the legislature determined that this

particular part of the act would not apply until six months after the effective date of the act.

In other words, it first applies to petitions filed on January 1, 1997, or thereafter.

E. Revised TPR for continued denial of visitation B TPR ' 48.415(4)

Wis. Stat. ' 48.415(4) provided a ground for termination of rights in cases where there

has been a continual denial of periods of physical placement. Act 275 amended that to add

continuing denial of periods of "visitation." One of the elements is that one year has elapsed

from the date of the order denying visitation. Section 9310(5)(d) of Act 275 indicates that the

revised language of ' 48.415(4) as well as the revisions in the language and treatment of

'' 48.356 and 938.356 shall first apply to court orders denying a parent visitation under

'' 48.345, 48.357, 48.363, or 48.365 entered on or after July 1, 1996. Therefore, TPR

petitions based on a continued denial of visitation cannot be filed until at least July 1, 1997.

F. Reckless homicide of other parent, ' 48.415(8), and commission of serious

felony against another child B TPR ' 48.415(9m)

Wis. Stat. ' 48.415(8) was amended to indicate that termination of rights may occur

not only where a parent has committed a first or second degree intentional homicide of the

other parent but may also be established by evidence that the parent committed first degree

reckless homicide of the other parent in violation of ' 940.02. Wis. Stat. ' 48.415(9m)

creates a new ground of termination of parental rights for commission of a serious felony

against one of the person's children. Under ' 9310(5)(e) and (f) of Act 275, the new

provisions for termination of rights for reason of first degree reckless homicide of a parent

and commission of a serious felony against one of the person's children both apply as of

July 1, 1996, but both statutes preclude consideration of a conviction obtained prior to that

date. In other words, the conviction for first degree reckless homicide and/or the serious

felony against the child must be obtained on or after July 1, 1996, in order for the statute to

be used as a TPR ground. Note that based on the wording of ' 9310 of Act 275, the incident

giving rise to the conviction may occur prior to July 1, 1996.

G. Prior involuntary TPR as to another child B TPR ' 48.415(10)

Wis. Stat. ' 48.415(10) is a new ground for termination of parental rights. What must

be established is that the child who is the subject of the current TPR petition has been found

to be in need of protection under ' 48.13(2), (3), or (10), and that within three years previous

to the CHIPS determination, that there was an involuntary TPR as to another child. Section

9310(5)(g) of Act 275 indicates that this new ground first applies to petitions filed on or after

July 1, 1996. Section 9310(5)(g) of Act 275 goes on to indicate that this "does not preclude

consideration of prior orders of a court terminating parental rights." However, it is required

that the previous order be entered within three years prior to the date that the court adjudged

the other child to be CHIPS under Wis. Stat. ' 48.13(2), (3), or (10). Please note that ' 9310

of Act 275 is silent as to whether the court is precluded from considering orders entered prior

to the effective date of the act finding the second child to be in need of protection or services

under ' 48.13(2), (3), or (10).

H. Other TPR provisions effective on July 1, 1996

The following subsections of ' 48.415 first apply to petitions filed on or after

July 1, 1996:

(1)(a)1m (child left without care that exposes child to substantial risk of

great bodily harm or death)

(1)(c) (language changing the standards to rebut presumption of

abandonment. Does away with "did not disassociate" and

establishes "good cause" standards)

(5) (revised child abuse TPR statute)

(6) (revised failure to assume parental responsibility TPR statute)

For these new or revised sections, it would not matter generally when the events

occurred giving rise to the petition as long as it is filed on or after July 1, 1996. Please note,

however, that if an element includes a warning as to TPR for abandonment, and if all of the

warnings were using the old "did not disassociate" language of ' 48.415(1)(c), the jury

should presumably be instructed using the old standard.

II. CHIPS Jurisdiction B ' 48.13

In 1995 Wisconsin Act 275, the legislature amended the following grounds for CHIPS

jurisdiction under ' 48.13:

(3) (a victim of abuse)

(3m) (at substantial risk of becoming a victim of abuse)

(4) (parent unable to provide care or special treatment)

(9) (child signs petition for special treatment or care)

(11) (child suffering emotional damage)

(11m) (child suffering from alcohol and other drug abuse in family)

Subsection 9310(6) of 1995 Wisconsin Act 275 indicates that as to these amended

grounds for CHIPS, they first apply to a petition under ' 48.255 filed on the effective date of

the act, which was July 1, 1996.

III. JIPS (juveniles in need of protection or services) Jurisdiction B ' 938.13

In 1995 Wisconsin Act 77, the new juvenile justice code legislation, the legislature

transferred the following CHIPS grounds out of ' 48.13 and moved them into the following

subsections of ' 938.13:

(6) (habitually truant from school)

(6m) (a school dropout)

(7) (habitually truant from home)

(12) (juvenile under age 10 alleged to have committed a delinquent

act)

(14) (juvenile not responsible by reason of mental disease or defect)

The Juvenile Justice Act and trailer bill contain no specific provisions as to the

effective date for the grounds under Wis. Stat. ' 938.13. Therefore, the general effective date

provision of ' 9300(1g) would apply. The act reads that "this act first applies to violations

committed on the effective date of this subsection." The effective date of the subsection is

July 1, 1996. Note, however, that no jury trials are available to juveniles alleged to be JIPS

under ' 938.13.

In 1995 Wisconsin Act 275, the legislature amended JIPS jurisdiction under

' 938.13(4), which allows for jurisdiction where a parent is unable or needs assistance to

control the juvenile. Section 9310(6) of 1995 Wisconsin Act 275 indicates that this amended

ground first applies to a petition filed on the effective date of the act, which is July 1, 1996.