(Part 1) (Part 2) (PART
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Adoption and Related Issues
TERMINATION OF PARENTAL RIGHTS
48.40Definitions.
48.41Voluntary consent to termination of parental rights.
48.415Grounds for involuntary termination of parental rights.
48.417Petition for termination of parental rights; when required.
48.42Procedure.
48.422Hearing on the petition.
48.423Rights of persons alleging paternity.
48.424Fact-finding hearing.
48.425Court report by an agency.
48.426Standard and factors.
48.427Dispositions.
48.428Sustaining care.
48.43Court orders; contents and effect; review.
48.432Access to medical information.
48.433Access to identifying information about parents.
48.434Release of identifying information by an agency when authorization is granted.
48.435Custody of children.
SUBCHAPTER IX
JURISDICTION OVER PERSON 17 OR OLDER
48.44Jurisdiction over persons 17 or older.
48.45Orders applicable to adults.
SUBCHAPTER X
REHEARING AND APPEAL
48.46New evidence; relief from judgment terminating parental rights.
SUBCHAPTER XI
AUTHORITY
48.48Authority of department.
48.485Transfer of tribal children to department for adoption.
48.52Facilities for care of children and adult expectant mothers in care of department.
48.547Alcohol and other drug abuse program.
48.548Multidisciplinary screen and assessment criteria.
48.55State adoption information exchange and state adoption center.
SUBCHAPTER XII
CHILD WELFARE SERVICES
48.56Child welfare services in counties having populations of less than 500,000.
48.561Child welfare services in a county having a population of 500,000 or more.
48.57Powers and duties of department and county departments providing child welfare services.
48.58County children's home in populous counties.
48.59Examination and records.
SUBCHAPTER XIII
CHILD WELFARE AGENCIES
48.599Definitions.
48.60Child welfare agencies licensed.
48.61Powers and duties of child welfare agencies.
48.615Child welfare agency licensing fees.
SUBCHAPTER XIV
FOSTER HOMES AND TREATMENT FOSTER HOMES
48.62Licensing of foster homes and treatment foster homes; rates.
48.625Licensing of group homes; fees.
48.627Foster, treatment foster and family-operated group home parent insurance and liability.
48.63Restrictions on placements.
48.64Placement of children in foster homes, treatment foster homes and group homes.
SUBCHAPTER XV
DAY CARE PROVIDERS
48.65Day care centers licensed; fees.
48.651Certification of day care providers.
48.653Information for day care providers.
48.655Parental access.
48.656Parent's right to know.
48.657Day care center reports.
SUBCHAPTER XVI
LICENSING PROCEDURES AND REQUIREMENTS FOR CHILD WELFARE AGENCIES, FOSTER HOMES, TREATMENT FOSTER HOMES, GROUP HOMES, DAY CARE CENTERS AND COUNTY DEPARTMENTS
48.66Licensing duties of the department.
48.67Rules governing child welfare agencies, day care centers, foster homes, treatment foster homes, group homes, shelter care facilities and county departments.
48.675Foster care education program.
48.68Investigation of applicant; issuing of license.
48.685Criminal history and child abuse record search.
48.69Probationary licenses.
48.70Provisions of licenses.
48.715Sanctions and penalties.
48.72Appeal procedure.
48.73Inspection of licensees.
48.735Immunization requirements; day care centers.
48.737Lead screening, inspection and reduction requirements; day care centers.
48.74Authority of department to investigate alleged violations.
48.745Formal complaints regarding child welfare agencies and group homes.
48.75Foster homes and treatment foster homes licensed by public licensing agencies and by child welfare agencies.
48.76Penalties.
48.77Injunction against violations.
SUBCHAPTER XVII
GENERAL PROVISIONS ON RECORDS
48.78Confidentiality of records.
SUBCHAPTER XVIII
COMMUNITY SERVICES
48.79Powers of the department.
48.80Municipalities may sponsor activities.
SUBCHAPTER XIX
ADOPTION OF MINORS; GUARDIANSHIP
48.81Who may be adopted.
48.82Who may adopt.
48.825Advertising related to adoption.
48.83Jurisdiction and venue.
48.831Appointment of guardian for child without a living parent for adoptability finding.
48.832Transfer of guardianship upon revocation of guardian's license or contract.
48.833Placement of children for adoption by the department, county departments and child welfare agencies.
48.835Placement of children with relatives for adoption.
48.837Placement of children with nonrelatives for adoption.
48.838Foreign adoption fees.
48.839Adoption of foreign children.
48.841Persons required to file recommendation as to adoption.
48.85Recommendation of guardian.
48.871Filing of recommendation by guardian.
48.88Notice of hearing; investigation.
48.89Recommendation of the department.
48.90Filing of adoption petition; preadoption residence.
48.91Hearing; order.
48.913Payments by adoptive or proposed adoptive parents to a birth parent or child or on behalf of a birth parent or child.
48.915Adoption appeals given preference.
48.92Effect of adoption.
48.925Visitation rights of certain persons.
48.93Records closed.
48.94New birth certificate.
48.95Withdrawal or denial of petition.
48.96Subsequent adoption.
48.97Adoption orders of other jurisdictions.
48.975Adoption assistance.
SUBCHAPTER VIII
TERMINATION OF PARENTAL RIGHTS
48.40
48.40 Definitions. In this subchapter:
48.40(1)
(1) Except as otherwise provided, "agency" means the department, a county department or a licensed child welfare agency.
48.40(1m)
(1m) "Kinship care relative" means a person receiving payments under s. 48.57 (3m) (am) for providing care and maintenance for a child.
48.40(2)
(2) "Termination of parental rights" means that, pursuant to a court order, all rights, powers, privileges, immunities, duties and obligations
existing between parent and child are permanently severed.
48.40 - ANNOT.
History: 1979 c. 330; 1985 a. 176; 1995 a. 289.
48.40 - ANNOT.
Parents whose rights have been terminated do not inherit from a child; the child's siblings, whether parental rights as to them have been terminated or
not, are the child's heirs. Estate of Pamanet, 46 Wis. 2d 514, 175 N.W.2d 234 (1970).
48.40 - ANNOT.
Terminating parental rights. Hayes and Ogorchok. Wis. Law. June 1989.
48.41
48.41 Voluntary consent to termination of parental rights.
48.41(1)
(1) The court may terminate the parental rights of a parent after the parent has given his or her consent as specified in this section. When such voluntary
consent is given as provided in this section, the judge may proceed immediately to a disposition of the matter after considering the standard and factors
specified in s. 48.426.
48.41(2)
(2) The court may accept a voluntary consent to termination of parental rights only as follows:
48.41(2)(a)
(a) The parent appears personally at the hearing and gives his or her consent to the termination of his or her parental rights. The judge may accept the
consent only after the judge has explained the effect of termination of parental rights and has questioned the parent, or has permitted an attorney who
represents any of the parties to question the parent, and is satisfied that the consent is informed and voluntary.
48.41(2)(b)
(b) If the court finds that it would be difficult or impossible for the parent to appear in person at the hearing, the court may accept the written consent
of the parent given before an embassy or consul official, a military judge or a judge of any court of record in another county or state or a foreign jurisdiction.
This written consent shall be accompanied by the signed findings of the embassy or consul official or judge who accepted the parent's consent. These findings
shall recite that the embassy or consul official or judge or an attorney who represents any of the parties questioned the parent and found that the consent
was informed and voluntary before the embassy or consul official or judge accepted the consent of the parent.
48.41(2)(c)
(c) A person who may be, but who has not been adjudicated as, the father of a nonmarital child may consent to the termination of any parental rights that
he may have as provided in par. (a) or (b) or by signing a written, notarized statement which recites that he has been informed of and understands the effect
of an order to terminate parental rights and that he voluntarily disclaims any rights that he may have to the child, including the right to notice of proceedings
under this subchapter.
48.41(2)(d)
(d) If the proceeding to terminate parental rights is held prior to an adoption proceeding in which the petitioner is the child's stepparent, or in which
the child's birth parent is a resident of a foreign jurisdiction, the child's birth parent may consent to the termination of any parental rights that he
or she may have as provided in par. (a) or (b) or by filing with the court an affidavit witnessed by 2 persons stating that he or she has been informed
of and understands the effect of an order to terminate parental rights and that he or she voluntarily disclaims all rights to the child, including the right
to notice of proceedings under this subchapter.
48.41(3)
(3) If in any proceeding to terminate parental rights voluntarily a guardian ad litem has reason to doubt the capacity of a parent to give informed and
voluntary consent to the termination, he or she shall so inform the court. The court shall then inquire into the capacity of that parent in any appropriate
way and shall make a finding as to whether or not the parent is capable of giving informed and voluntary consent to the termination. If the court finds
that the parent is incapable of knowingly and voluntarily consenting to the termination of parental rights, it shall dismiss the proceedings without prejudice.
That dismissal shall not preclude an involuntary termination of the parent's rights under s. 48.415.
48.41 - ANNOT.
History: 1979 c. 330; 1981 c. 384; 1983 a. 352, 447; 1987 a. 383; Sup. Ct. Order, 151 Wis. 2d xxv (1989); 1999 a. 83.
48.41 - ANNOT.
Judicial Council Note, 1990: Sub. (3) is repealed and recreated because the so-called substituted judgment permitted therein is bad public policy. New sub.
(3) deals with the situation in which there is reason to doubt the competency of a parent who wishes to consent to the termination of his or her parental
rights. Any party or guardian ad litem with reason to doubt such competency is required to so inform the court. The court must then make an inquiry in whatever
way is appropriate. This may mean a simple discussion with the person, an examination, the appointment of experts to examine the person, a hearing or whatever
seems proper in the discretion of the court. If the court finds the person incapable of making an informed and voluntary termination of parental rights,
the court must dismiss the proceeding. If appropriate, an involuntary proceeding may then be commenced. A finding that the parent is competent does not
obviate the need for a record that he or she has in fact given informed and voluntary consent prior to entry of a termination order. In Interest of D.L.S.,
112 Wis. 2d 180, 196-97 (1983). [Re Order effective Jan. 1, 1990]
48.41 - ANNOT.
The minimum information that must be found on the record to support a finding that a minor parent's consent was voluntary and informed is set forth. In
Interest of D. L. S. 112 Wis. 2d 180, 332 N.W.2d 293 (1983).
48.415
48.415 Grounds for involuntary termination of parental rights. At the fact-finding hearing the court or jury may make a finding that grounds exist for the
termination of parental rights. Grounds for termination of parental rights shall be one of the following:
48.415(1)
(1) Abandonment.
48.415(1)(a)
(a) Abandonment, which, subject to par. (c), shall be established by proving any of the following:
48.415(1)(a)1.
1. That the child has been left without provision for the child's care or support, the petitioner has investigated the circumstances surrounding the matter
and for 60 days the petitioner has been unable to find either parent.
48.415(1)(a)1m.
1m. That the child has been left by the parent without provision for the child's care or support in a place or manner that exposes the child to substantial
risk of great bodily harm, as defined in s. 939.22 (14), or death.
48.415(1)(a)1r.
1r. That 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 the child 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.
48.415(1)(a)2.
2. That the child has been placed, or continued in a placement, outside the parent's home by a court order containing the notice required by s. 48.356 (2)
or 938.356 (2) and the parent has failed to visit or communicate with the child for a period of 3 months or longer.
48.415(1)(a)3.
3. The child has been left by the parent with any person, the parent knows or could discover the whereabouts of the child and the parent has failed to visit
or communicate with the child for a period of 6 months or longer.
48.415(1)(b)
(b) Incidental contact between parent and child shall not preclude the court from finding that the parent has failed to visit or communicate with the child
under par. (a) 2. or 3. The time periods under par. (a) 2. or 3. shall not include any periods during which the parent has been prohibited by judicial order
from visiting or communicating with the child.
48.415(1)(c)
(c) Abandonment is not established under par. (a) 2. or 3. if the parent proves all of the following by a preponderance of the evidence
48.415(1)(c)1.
1. That the parent had good cause for having failed to visit with the child throughout the time period specified in par. (a) 2. or 3., whichever is applicable.
48.415(1)(c)2.
2. That the parent had good cause for having failed to communicate with the child throughout the time period specified in par. (a) 2. or 3., whichever is
applicable.
48.415(1)(c)3.
3. If the parent proves good cause under subd. 2., including good cause based on evidence that the child's age or condition would have rendered any communication
with the child meaningless, that one of the following occurred:
48.415(1)(c)3.a.
a. The parent communicated about the child with the person or persons who had physical custody of the child during the time period specified in par. (a)
2. or 3., whichever is applicable, or, if par. (a) 2. is applicable, with the agency responsible for the care of the child during the time period specified
in par. (a) 2.
48.415(1)(c)3.b.
b. The parent had good cause for having failed to communicate about the child with the person or persons who had physical custody of the child or the agency
responsible for the care of the child throughout the time period specified in par. (a) 2. or 3., whichever is applicable.
48.415(1m)
(1m) Relinquishment. Relinquishment, which shall be established by proving that a court of competent jurisdiction has found under s. 48.13 (2m) that the
parent has relinquished custody of the child under s. 48.195 (1) when the child was 72 hours old or younger.
48.415(2)
(2) Continuing need of protection or services. Continuing need of protection or services, which shall be established by proving any of the following:
48.415(2)(a)
(a)
48.415(2)(a)1.
1. That the child has been adjudged to be a child or an unborn child in need of protection or services and placed, or continued in a placement, outside
his or her home pursuant to one or more court orders under s. 48.345, 48.347, 48.357, 48.363, 48.365, 938.345, 938.357, 938.363 or 938.365 containing the
notice required by s. 48.356 (2) or 938.356 (2).
48.415(2)(a)2.
2.
48.415(2)(a)2.a.
a. In this subdivision, "reasonable effort" means an earnest and conscientious effort to take good faith steps to provide the services ordered
by the court which takes into consideration the characteristics of the parent or child or of the expectant mother or child, the level of cooperation of
the parent or expectant mother and other relevant circumstances of the case.
48.415(2)(a)2.b.
b. That the agency responsible for the care of the child and the family or of the unborn child and expectant mother has made a reasonable effort to provide
the services ordered by the court.
48.415(2)(a)3.
3. That the child has been outside the home for a cumulative total period of 6 months or longer pursuant to such orders not including time spent outside
the home as an unborn child; and that the parent has failed to meet the conditions established for the safe 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 s. 48.424.
48.415(2)(am)
(am)
48.415(2)(am)1.
1. That on 3 or more occasions the child has been adjudicated to be in need of protection or services under s. 48.13 (3), (3m), (10) or (10m) and, in connection
with each of those adjudications, has been placed outside his or her home pursuant to a court order under s. 48.345 containing the notice required by s.
48.356 (2).
48.415(2)(am)2.
2. That the conditions that led to the child's placement outside his or her home under each order specified in subd. 1. were caused by the parent.
48.415(3)
(3) Continuing parental disability. Continuing parental disability, which shall be established by proving that:
48.415(3)(a)
(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 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) or developmental disability as defined
in s. 55.01 (2) or (5);
48.415(3)(b)
(b) The condition of the parent is likely to continue indefinitely; and
48.415(3)(c)
(c) The child is not being provided with adequate care by a relative who has legal custody of the child, or by a parent or a guardian.
48.415(4)
(4) Continuing denial of periods of physical placement or visitation. Continuing denial of periods of physical placement or visitation, which shall be established
by proving all of the following:
48.415(4)(a)
(a) That the parent has been denied periods of physical placement by court order in an action affecting the family or has been denied visitation under an
order under s. 48.345, 48.363, 48.365, 938.345, 938.363 or 938.365 containing the notice required by s. 48.356 (2) or 938.356 (2).
48.415(4)(b)
(b) That at least one year has elapsed since the order denying periods of physical placement or visitation was issued and the court has not subsequently
modified its order so as to permit periods of physical placement or visitation.
48.415(5)
(5) Child abuse. 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 and proving either of the following:
48.415(5)(a)
(a) That the parent has caused death or injury to a child or children resulting in a felony conviction.
48.415(5)(b)
(b) That a child has previously been removed from the parent's home pursuant to a court order under s. 48.345 after an adjudication that the child is in
need of protection or services under s. 48.13 (3) or (3m).
48.415(6)
(6) Failure to assume parental responsibility.
48.415(6)(a)
(a) Failure to assume parental responsibility, which shall be established by proving that the parent or the person or persons who may be the parent of the
child have never had a substantial parental relationship with the child.
48.415(6)(b)
(b) In this subsection, "substantial parental relationship" means the acceptance and exercise of significant responsibility for the daily supervision,
education, protection and care of the child. In evaluating whether the person has had a substantial parental relationship with the child, the court may
consider such factors, including, but not limited to, whether the person has ever expressed concern for or interest in the support, care or well-being of
the child, whether the person has neglected or refused to provide care or support for the child and whether, with respect to a person who is or may be the
father of the child, the person has ever expressed concern for or interest in the support, care or well-being of the mother during her pregnancy.
48.415(7)
(7) Incestuous parenthood. Incestuous parenthood, which shall be established by proving that the person whose parental rights are sought to be terminated
is also related, either by blood or adoption, to the child's other parent in a degree of kinship closer than 2nd cousin.
48.415(8)
(8) Homicide or solicitation to commit homicide of parent. Homicide or solicitation to commit homicide of a parent, which shall be established by proving
that a parent of the child has been a victim of first-degree intentional homicide in violation of s. 940.01, first-degree reckless homicide in violation
of s. 940.02 or 2nd-degree intentional homicide in violation of s. 940.05 or a crime under federal law or the law of any other state that is comparable
to any of those crimes, or has been the intended victim of a solicitation to commit first-degree intentional homicide in violation of s. 939.30 or a crime
under federal law or the law of any other state that is comparable to that crime, and that the person whose parental rights are sought to be terminated
has been convicted of that intentional or reckless homicide, solicitation or crime under federal law or the law of any other state as evidenced by a final
judgment of conviction.
48.415(9)
(9) Parenthood as a result of sexual assault.
48.415(9)(a)
(a) Parenthood as a result of sexual assault, which shall be established by proving that the child was conceived as a result of a sexual assault in violation
of s. 940.225 (1), (2) or (3), 948.02 (1) or (2) or 948.025. Conception as a result of sexual assault as specified in this paragraph may be proved by a
final judgment of conviction or other evidence produced at a fact-finding hearing under s. 48.424 indicating that the person who may be the father of the
child committed, during a possible time of conception, a sexual assault as specified in this paragraph against the mother of the child.
48.415(9)(b)
(b) If the conviction or other evidence specified in par. (a) indicates that the child was conceived as a result of a sexual assault in violation of s.
948.02 (1) or (2), the mother of the child may be heard on her desire for the termination of the father's parental rights.
48.415(9m)
(9m) Commission of a serious felony against one of the person's children.
48.415(9m)(a)
(a) Commission of a serious felony against one of the person's children, which shall be established by proving that a child of the person whose parental
rights are sought to be terminated was the victim of a serious felony and that the person whose parental rights are sought to be terminated has been convicted
of that serious felony as evidenced by a final judgment of conviction.
48.415(9m)(b)
(b) In this subsection, "serious felony" means any of the following:
48.415(9m)(b)1.
1. The commission of, the aiding or abetting of, or the solicitation, conspiracy or attempt 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.
48.415(9m)(b)2.
2. The commission of 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) or (3) (a), 948.05, 948.06 or 948.08 or a violation of the law of any other state or federal law, if that violation would be 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) or (3) (a), 948.05, 948.06 or 948.08 if committed in this state.
48.415(9m)(b)3.
3. The commission of a violation of s. 948.21 or a violation of the law of any other state or federal law, if that violation would be a violation of s.
948.21 if committed in this state, that resulted in the death of the victim.
48.415(10)
(10) Prior involuntary termination of parental rights to another child. Prior involuntary termination of parental rights to another child, which shall be
established by proving all of the following:
48.415(10)(a)
(a) That the child who is the subject of the petition has been adjudged to be in need of protection or services under s. 48.13 (2), (3) or (10).
48.415(10)(b)
(b) That, within 3 years prior to the date the court adjudged the child who is the subject of the petition to be in need of protection or services as specified
in par. (a), 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.
48.415 - ANNOT.
History: 1979 c. 330; 1983 a. 189 s. 329 (5); 1983 a. 326; 1983 a. 447 ss. 8, 67; 1983 a. 488, 538; 1987 a. 355, 383; 1989 a. 86; 1993 a. 235, 395; 1995
a. 77, 108, 225, 275; 1997 a. 35, 80, 237, 292, 294; 1999 a. 9, 32; 2001 a. 2, 109.
48.415 - ANNOT.
Consent by the mother subsequent to the birth of the child to termination of her parental rights in its best interests so that the child might be placed
for adoption constituted an abandonment, and although she was permitted to withdraw that consent by a previous decision of the supreme court, the best interests
of the child require modification of the court order to effect a termination of her parental rights. Lewis v. Lutheran Social Services, 68 Wis. 2d 36, 227
N.W.2d 643 (1975).
48.415 - ANNOT.
A termination order was not supported by sufficient findings when the findings merely repeated statutory language and made no determination of the best
interests of the child. Termination of Parental Rights to T. R. M. 100 Wis. 2d 681, 303 N.W.2d 581 (1981).
48.415 - ANNOT.
A parent has constitutionally protected rights to the care, custody, and management of a child. In Interest of J. L. W. 102 Wis. 2d 118, 306 N.W.2d 46 (1981).
48.415 - ANNOT.
The dismissal of termination proceedings on grounds of abandonment because only 2 of 6 dispositional orders contained statutory warnings was inappropriate.
The warning is only required in one order. In Interest of K.K. 162 Wis. 2d 431, 469 N.W.2d 881 (Ct. App. 1991).
48.415 - ANNOT.
The abandonment period under sub. (1) (a) 3. need not immediately precede filing of the petition. If abandonment is found, termination is still discretionary.
In Interest of T.P.S. 168 Wis. 2d 259, 483 N.W.2d 591 (Ct. App. 1992).
48.415 - ANNOT.
While the CHIPS judge must notify the parents of possible termination grounds in the written dispositional order and repeat that information orally to any
parent present in court, proof that the oral notice was given is not required in later termination proceedings under sub. (2) (a). In Interest of D.P. 170
Wis. 2d 313, 488 N.W.2d 133 (Ct. App. 1992).
48.415 - ANNOT.
A developmentally disabled father's allegation that the county, in violation of the Americans with Disabilities Act, did not take into account his disability
in attempting to provide court ordered services was not a basis to attack a termination proceeding. The ADA did not place an added burden on the county
to meet the requirements of sub. (2) (b). In Interest of Torrence P. 187 Wis. 2d 10, 522 N.W.2d 243 (Ct. App. 1994).
48.415 - ANNOT.
A child "left with" another person under sub. (1) (a) 3. may have been actively placed with the other person by the parent or allowed to live
with the other person with the parent's knowledge. Interest of Christopher D. 191 Wis. 2d 681, 530 N.W.2d 34 (Ct. App. 1995).
48.415 - ANNOT.
"Disassociated" under sub. (1) (c) is not unconstitutionally vague. Disassociation means more than "failure to visit or communicate"
under sub. (1) (a). Interest of Christopher D. 191 Wis. 2d 681, 530 N.W.2d 34 (Ct. App. 1995).
48.415 - ANNOT.
The respondent in a TPR case has the right to meaningfully participate; whether physical presence is required must be determined on a case by case basis.
Telephone participation may be adequate. Interest of Christopher D. 191 Wis. 2d 681, 530 N.W.2d 34 (Ct. App. 1995).
48.415 - ANNOT.
A showing of abandonment under sub. (1) (a) 3. creates a rebuttable presumption that imposes on the parent the burden of disproving abandonment under sub.
(1) (c) by showing by a preponderance of the evidence that the parent has not disassociated himself or herself from the child. Odd S.-G v. Carolyn S.-G,
194 Wis. 2d 366, 533 N.W.2d 794 (1995).
48.415 - ANNOT.
Termination under sub. (8), due to a murder occurring prior to the adoption of sub. (8), did not violate the prohibition against ex post facto laws and
did not violate due process, equal protection, or double jeopardy protections. Winnebago County DSS v. Darrell A. 194 Wis. 2d 628, 534 N.W.2d 907 (Ct. App.
1995).
48.415 - ANNOT.
It was a denial of due process to terminate parental rights on grounds substantially different from those that the parent was warned of under s. 48.356.
State v. Patricia A.P. 195 Wis. 2d 855, 537 N.W.2d 47 (Ct. App. 1995), 95-1164.
48.415 - ANNOT.
Sub. (5) does not require an assessment of present and future behavior. The statute refers to past behavior that was a threat to the child's welfare. Jerry
M. v. Dennis L. M. 198 Wis. 2d 10, 542 N.W.2d 162 (Ct. App. 1995), 95-0075.
48.415 - ANNOT.
For all terminations under sub. (5), there must be a showing that the parent has exhibited a pattern of abusive behavior and a showing under par. (a) or
(b). A "conviction" under par. (a) is a conviction after the appeal as of right has been exhausted. Monroe County v. Jennifer V. 200 Wis. 2d 678,
548 N.W.2d 837 (Ct. App. 1996), 95-3062.
48.415 - ANNOT.
Sub. (7) is a constitutional part of a statutory scheme that is narrowly tailored to meet the state's compelling interests. State v. Allen M. 214 Wis. 2d
302, 571 N.W.2d 872 (Ct. App. 1997), 97-0852.
48.415 - ANNOT.
Venue becomes an issue only in the event that it is contested. The county where a child "resides" is the county of domicile. The county where
a child "is present" is the county where the child is present at the time a petition is filed. State v. Corey J. G. 215 Wis. 2d 395, 572 N.W.2d
845 (1998), 96-3148.
48.415 - ANNOT.
When a parent is prohibited from visitation, communication by phone and letter is not prohibited, and sub. (1) (b) does not apply. Periods in which there
has been no contact whatsoever will be counted under sub. (1) (a) 2. and 3. Carla B. v. Timothy N. 228 Wis. 2d 695, 598 N.W.2d 924 (Ct. App. 1999), 99-0853.
48.415 - ANNOT.
The rules of civil procedure apply to termination of parental rights proceedings. Directed verdicts are permissible. Door County DHFS v. Scott S. 230 Wis.
2d 460, 602 N.W.2d 167 (Ct. App. 1999), 99-0719.
48.415 - ANNOT.
A guardian ad litem's comments regarding the best interests of the child were not improper. Only when the jury is instructed that it should consider the
best interests of the child is there reversible error. Door County DHFS v. Scott S. 230 Wis. 2d 460, 602 N.W.2d 167 (Ct. App. 1999), 99-0719.
48.415 - ANNOT.
Prior to determining that grounds existed to terminate parental rights, the circuit court had the duty at the fact-finding hearing to find by clear and
convincing evidence that all of the elements of s. 48.415 (1) (a) 3. had been satisfied. By entering a default judgment against the mother on the issue
of abandonment without first taking evidence, the circuit court did not make the finding. The error was subject to a harmless error analysis. Evelyn C.R.
v. Tykila S. 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768, 00-1739.
48.415 - ANNOT.
In a case under sub. (4), a parent's right to meaningfully participate in the termination proceeding includes the right to present evidence at the fact-finding
hearing regarding efforts to meet the conditions for reestablishing visitation. It was error to restrict evidence to whether an order denying visitation
had remained in effect for a year. State v. Frederick H. 2001 WI App 141, 246 Wis. 2d 215, 630 N.W.2d 734, 00-3035.
48.415 - ANNOT.
Events occurring prior to a CHIPS dispositional order are frequently relevant at a termination proceeding. A history of parental conduct may be relevant
to predicting a parent's chances of complying with conditions in the future, despite failing to do so to date. La Crosse County Department of Human Services
v. Tara P. 2002 WI App 84, 252 Wis. 2d 179, 643 N.W.2d 194, 01-3034.
48.415 - ANNOT.
In determining whether "there is a substantial likelihood" that a parent will not meet conditions for the return of his or her children, a parent's
relevant character traits and patterns of behavior and the likelihood that any problematic traits or propensities have been or can be modified in order
to assure the safety of the children must be considered. La Crosse County Department of Human Services v. Tara P. 2002 WI App 84, 252 Wis. 2d 179, 643 N.W.2d
194, 01-3034.
48.415 - ANNOT.
A mother's criminal offenses and sentences were relevant to whether she had failed to establish a substantial parental relationship with her children under
sub. (6). State v. Quinsanna D. 2002 WI App 318, 259 Wis. 2d 429, 655 N.W.2d 752, 02-1919.
48.415 - ANNOT.
Partial summary judgment may be granted in the unfitness phase of a termination case if the moving party establishes that there is no genuine issue as to
any material fact regarding the asserted grounds for unfitness, and, taking into consideration the heightened burden of proof specified in s. 48.31 (1)
and required by due process, the moving party is entitled to judgment as a matter of law. Steven V. v. Kelley H. 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 831,
02-2860.
48.415 - ANNOT.
As applied in this case the incestuous parenthood ground under sub. (7) is not narrowly tailored to advance the compelling state interest underlying the
statute. It is fundamentally unfair to terminate parental rights based solely on a parent's status as a victim of incest. Monroe County DHS v. Kelli B.
2004 WI 48, 271 Wis. 2d 51, 678 N.W.2d 856, 03-0060.
48.415 - ANNOT.
Jennifer V.'s holding is limited to appeals based on guilt or innocence. When a parent's pending appeal does not raise issues of guilt or innocence, "final
judgment of conviction" in sub. (9m) means the judgment of conviction entered by the trial court, either after a verdict of guilty by the jury, a finding
of guilty by the court when a jury is waived, or a plea of guilty or no contest. Reynaldo F. v. Christal M. 2004 WI App 106, 272 Wis. 2d 816, 684 N.W.2d
138, 03-2687.
48.415 - ANNOT.
A parent's prior convictions are not so prejudicial as to outweigh their probative value when the information would lead the jury to an understanding of
why children are removed from the parent's home. Reynaldo F. v. Christal M. 2004 WI App 106, 272 Wis. 2d 707, 684 N.W.2d 138, 03-2687.
48.415 - ANNOT.
Sub. (4) does not violate substantive due process by not requiring any evidence of parental unfitness. There are required steps that must be taken before
reaching the application of sub. (4) in a TPR case and those steps form the foundation for the ultimate finding. At each of these steps, findings must be
made that reflect on the parent's fitness. Dane County Department of Human Services v. P. P. 2005 WI 32, 279 Wis. 2d 169, 694 N.W.2d 344, 03-2440.
48.415 - ANNOT.
The biological father of a nonmarital child satisfies the definition of parent in s. 48.02 (13), as he is a biological parent notwithstanding that he has
not officially been adjudicated as the child's biological father, and may have his parental rights terminated based on periods of abandonment that occurred
prior to his official adjudication as the child's biological father. State v. James P. 2005 WI 80, 281 Wis. 2d 654, 698 N.W.2d 95, 04-0723.
48.415 - ANNOT.
The notice requirement provision of sub. (4) (a) are a part of the clause pertaining to juvenile court orders, and are inapplicable to the clause pertaining
to family court orders. The fact that s. 767.24 (4) (d) requires a family court to provide the applicable notice does not establish that provision of the
notice is an element of proof under sub. (4). Kimberly S. S. v. Sebastian X. L. 2005 WI App 83, ___ Wis. 2d ___, 697 N.W.2d 476, 04-3220.
48.415 - ANNOT.
Process is constitutionally due a natural parent at a state-initiated parental rights termination proceeding. A 3-factor test is discussed. Santosky v.
Kramer, 455 U.S. 745 (1982).
48.415 - ANNOT.
Adoption and termination proceedings in Wisconsin: Straining the wisdom of Solomon. Hayes and Morse, 66 MLR 439 (1983).
48.417
48.417 Petition for termination of parental rights; when required.
48.417(1)
(1) Filing or joining in petition; when required. 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) to terminate the parental rights of a parent or the parents of a child, or, if a petition
under s. 48.42 (1) to terminate those parental rights has already been filed, the agency, district attorney, corporation counsel or other appropriate official
shall join in the petition, if any of the following circumstances apply:
48.417(1)(a)
(a) The child has been placed outside of his or her home, as described in s. 48.365 (1) or 938.365 (1), 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 the first 6 months of any period during which the child was returned to
his or her home for a trial home visit. If the circumstances specified in this paragraph apply, the petition 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.
48.417(1)(b)
(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 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.
48.417(1)(c)
(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 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.
48.417(1)(d)
(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, or 948.03 (2) (a) or (3) (a) or a violation of the law of any other state or federal law, if that
violation would be a violation of s. 940.19 (2), (4), or (5), 940.225 (1) or (2), 948.02 (1) or (2), 948.025, or 948.03 (2) (a) or (3) (a) 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 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.
48.417(2)
(2) Filing or joining in petition; when not required. 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) to terminate the parental rights of a parent or the parents of a child, or, if a petition under s. 48.42 (1) 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:
48.417(2)(a)
(a) The child is being cared for by a fit and willing relative of the child.
48.417(2)(b)
(b) The child's permanency plan indicates and provides documentation that termination of parental rights to the child is not in the best interests of the
child.
48.417(2)(c)
(c) The agency primarily responsible for providing services to the child and the family under a court order, if required under s. 48.355 (2) (b) 6. to make
reasonable efforts to make it possible for the child to return safely to his or her home, has not provided to the family of the child, consistent with the
time period in the child's permanency plan, the services necessary for the safe return of the child to his or her home.
48.417(2)(d)
(d) Grounds for an involuntary termination of parental rights under s. 48.415 do not exist.
48.417(3)
(3) Concurrent adoption efforts required. If a petition 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, 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.
48.417(4)
(4) Notice to department. If a petition is filed or joined in as required under sub. (1), the person who filed or joined in the petition shall notify the
department of that filing or joinder.
48.417 - ANNOT.
History: 1997 a. 237; 2001 a. 109.
48.42
48.42 Procedure.
48.42(1)
(1) Petition. 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:
48.42(1)(a)
(a) The name, birth date and address of the child.
48.42(1)(b)
(b) The names and addresses of the child's parent or parents, guardian and legal custodian.
48.42(1)(c)
(c) One of the following:
48.42(1)(c)1.
1. A statement that consent will be given to termination of parental rights as provided in s. 48.41.
48.42(1)(c)2.
2. A statement of the grounds for involuntary termination of parental rights under s. 48.415 and a statement of the facts and circumstances which the petitioner
alleges establish these grounds.
48.42(1)(d)
(d) A statement of whether the child may be subject to the federal Indian child welfare act, 25 USC 1911 to 1963.
48.42(1m)
(1m) Visitation or contact rights.
48.42(1m)(a)
(a) If the petition filed under sub. (1) includes a statement of the grounds for involuntary termination of parental rights under sub. (1) (c) 2., the petitioner
may, at the time the petition under sub. (1) is filed, also petition the court for a temporary order and an injunction prohibiting the person whose parental
rights are sought to be terminated from visiting or contacting the child who is the subject of the petition under sub. (1). Any petition under this paragraph
shall allege facts sufficient to show that prohibiting visitation or contact would be in the best interests of the child.
48.42(1m)(b)
(b) Subject to par. (e), the court may issue the temporary order ex parte or may refuse to issue the temporary order and hold a hearing on whether to issue
an injunction. The temporary order is in effect until a hearing is held on the issuance of an injunction. The court shall hold a hearing on the issuance
of an injunction on or before the date of the hearing on the petition to terminate parental rights under s. 48.422 (1).
48.42(1m)(c)
(c) Notwithstanding any other order under s. 48.355 (3), the court, subject to par. (e), may grant an injunction prohibiting the respondent from visiting
or contacting the child if the court determines that the prohibition would be in the best interests of the child. An injunction under this subsection is
effective according to its terms but may not remain in effect beyond the date the court dismisses the petition for termination of parental rights under
s. 48.427 (2) or issues an order terminating parental rights under s. 48.427 (3).
48.42(1m)(d)
(d) A temporary order under par. (b) or an injunction under par. (c) suspends the portion of any order under s. 48.345, 48.363, 48.365, 938.345, 938.363
or 938.365 setting rules of parental visitation until the termination of the temporary order under par. (b) or injunction under par. (c).
48.42(1m)(e)
(e)
48.42(1m)(e)1.
1. Except as provided in subd. 2., the court shall issue a temporary order and injunction prohibiting a parent of a child from visitation or contact with
the child if the parent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide,
of the child's other parent, and the conviction has not been reversed, set aside or vacated.
48.42(1m)(e)2.
2. Subdivision 1. does not apply if the court determines by clear and convincing evidence that the visitation or contact would be in the best interests
of the child. The court shall consider the wishes of the child in making that determination.
48.42(2)
(2) Who must be summoned. Except as provided in sub. (2m), the petitioner shall cause the summons and petition to be served upon the following persons:
48.42(2)(a)
(a) The parent or parents of the child, unless the child's parent has waived the right to notice under s. 48.41 (2) (d).
48.42(2)(b)
(b) If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60 and paternity has not been established:
48.42(2)(b)1.
1. A person who has filed a declaration of interest under s. 48.025.
48.42(2)(b)2.
2. A person or persons alleged to the court to be the father of the child or who may, based upon the statements of the mother or other information presented
to the court, be the father of the child unless that person has waived the right to notice under s. 48.41 (2) (c).
48.42(2)(b)3.
3. A person who has lived in a familial relationship with the child and who may be the father of the child.
48.42(2)(c)
(c) The guardian, guardian ad litem and legal custodian of the child.
48.42(2)(d)
(d) Any other person to whom notice is required to be given by ch. 822, excluding foster parents and treatment foster parents who shall be provided notice
as required under sub. (2g).
48.42(2)(e)
(e) To the child if the child is 12 years of age or older.
48.42(2g)
(2g) Notice required.
48.42(2g)(a)
(a) In addition to causing the summons and petition to be served as required under sub. (2), the petitioner shall also notify any foster parent, treatment
foster parent or other physical custodian described in s. 48.62 (2) of the child of all hearings on the petition. The first notice to any foster parent,
treatment foster parent or other physical custodian described in s. 48.62 (2) shall be written, shall have a copy of the petition attached to it, shall
state the nature, location, date and time of the initial hearing and shall be mailed to the last-known address of the foster parent, treatment foster parent
or other physical custodian described in s. 48.62 (2). Thereafter, notice of hearings may be given by telephone at least 72 hours before the time of the
hearing. The person giving telephone notice shall place in the case file a signed statement of the time notice was given and the person to whom he or she
spoke.
48.42(2g)(am)
(am) The court shall give a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) who is notified of a hearing under
par. (a) an opportunity to be heard at the hearing by permitting the foster parent, treatment foster parent or other physical custodian to make a written
or oral statement during the hearing, or to submit a written statement prior to the hearing, relevant to the issues to be determined at the hearing. A foster
parent, treatment foster parent or other physical custodian described in s. 48.62 (2) who receives a notice of a hearing under par. (a) and an opportunity
to be heard under this paragraph does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and
opportunity to be heard.
48.42(2g)(b)
(b) Failure to give notice under par. (a) to a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) does not deprive
the court of jurisdiction in the proceeding. If a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) is not given
notice of a hearing under par. (a), that person may request a rehearing on the matter at any time prior to the entry of an order under s. 48.427 (2) or
(3). If the request is made, the court shall order a rehearing.
48.42(2m)
(2m) Notice not required. Except as provided in this subsection, notice is not required to be given to a person who may be the father of a child conceived
as a result of a sexual assault in violation of s. 940.225 (1), (2) or (3), 948.02 (1) or (2) or 948.025 if a physician attests to his or her belief that
a sexual assault as specified in this subsection has occurred or if the person who may be the father of the child has been convicted of sexual assault as
specified in this subsection for conduct which may have led to the child's conception. A person who under this subsection is not given notice does not have
standing to appear and contest a petition for the termination of his parental rights. This subsection does not apply to a person who may be the father of
a child conceived as a result of a sexual assault in violation of s. 948.02 (1) or (2) if that person was under 18 years of age at the time of the sexual
assault.
48.42(3)
(3) Contents of summons. The summons shall:
48.42(3)(a)
(a) Contain the name and birth date of the child, and the nature, location, date and time of the initial hearing.
48.42(3)(b)
(b) Advise the party, if applicable, of his or her right to legal counsel, regardless of ability to pay under s. 48.23 and ch. 977.
48.42(3)(c)
(c) Advise the parties of the possible result of the hearing and the consequences of failure to appear or respond.
48.42(3)(d)
(d) Advise the parties that if the court terminates parental rights, a notice of intent to pursue relief from the judgment must be filed in the trial court
within 30 days after the judgment is entered for the right to pursue such relief to be preserved.
48.42(4)
(4) Manner of serving summons and petition.
48.42(4)(a)
(a) Personal service. A copy of the summons and petition shall be served personally upon the parties specified in sub. (2), if known, at least 7 days before
the date of the hearing, except that service of summons is not required if the party submits to the jurisdiction of the court. Service upon parties who
are not natural persons and upon persons under a disability shall be as prescribed in s. 801.11.
48.42(4)(b)
(b) Constructive notice.
48.42(4)(b)1.
1. If with reasonable diligence a party specified in sub. (2) cannot be served under par. (a), service shall be made by publication of the notice under
subd. 4.
48.42(4)(b)2.
2. If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60 and paternity has not been acknowledged
under s. 767.62 (1) or a substantially similar law of another state or adjudicated, the court may, as provided in s. 48.422 (6) (b), order publication of
a notice under subd. 4.
48.42(4)(b)3.
3. At the time the petition is filed, the petitioner may move the court for an order waiving the requirement of constructive notice to a person who, although
his identity is unknown, may be the father of a nonmarital child.
48.42(4)(b)4.
4. A notice published under this subsection shall be published as a class 1 notice under ch. 985. In determining which newspaper is likely to give notice
as required under s. 985.02 (1), the petitioner or court shall consider the residence of the party, if known, or the residence of the relatives of the party,
if known, or the last-known location of the party. If the party's post-office address is known or can, with due diligence, be ascertained, a copy of the
summons and petition shall be mailed to the party upon or immediately prior to the first publication. The mailing may be omitted if the petitioner shows
that the post-office address cannot be obtained with due diligence. Except as provided in subd. 5., the notice shall include the date, place and circuit
court branch for the hearing, the court file number, the name, address and telephone number of the petitioner's attorney and information the court determines
to be necessary to give effective notice to the party or parties. Such information shall include the following, if known:
48.42(4)(b)4.a.
a. The name of the party or parties to whom notice is being given;
48.42(4)(b)4.b.
b. A description of the party or parties;
48.42(4)(b)4.c.
c. The former address of the party or parties;
48.42(4)(b)4.d.
d. The approximate date and place of conception of the child; and
48.42(4)(b)4.e.
e. The date and place of birth of the child.
48.42(4)(b)5.
5. The notice shall not include the name of the mother unless the mother consents. The notice shall not include the name of the child unless the court finds
that inclusion of the child's name is essential to give effective notice to the father.
48.42(4)(c)
(c) The notice under par. (a) or (b) shall also inform the parties:
48.42(4)(c)1.
1. That the parental rights of a parent or alleged parent who fails to appear may be terminated;
48.42(4)(c)2.
2. Of the party's right to have an attorney present and that if a person desires to contest termination of parental rights and believes that he or she cannot
afford an attorney, the person may ask the state public defender to represent him or her; and
48.42(4)(c)3.
3. That if the court terminates parental rights, a notice of intent to pursue relief from the judgment must be filed in the trial court within 30 days after
judgment is entered for the right to pursue such relief to be preserved.
48.42 - ANNOT.
History: 1973 c. 263; 1977 c. 354; 1979 c. 330; 1981 c. 81 s. 33; 1981 c. 391; 1983 a. 447; 1985 a. 94; Sup. Ct. Order, 136 Wis. 2d xxv (1987); 1987 a.
383; 1989 a. 86; 1993 a. 395, 446; 1995 a. 108, 225, 275, 352; 1997 a. 35, 80, 191, 237; 1999 a. 9, 83.
48.42 - ANNOT.
Judicial Council Note, 1986: Subs. (3) (d) and (4) (c) are amended to require notice to the parties of the time and manner for initiating an appeal from
a judgment terminating parental rights. [Re Order eff. 7-1-87]
48.42 - ANNOT.
Guardianship and TPR proceedings are custody proceedings, guardianship and TPR determinations are custody determinations, and guardianship and TPR determinations
are custody decrees, all governed by ch. 822. In Interest of A.E.H. 161 Wis. 2d 277, 468 N.W.2d 190 (1991).
48.42 - ANNOT.
Sub. (2m) denies a putative father standing to contest the alleged grounds for termination when the child was conceived as the result of sexual assault.
Termination of Parental Rights to A. M. 176 Wis. 2d 673, 500 N.W.2d 649 (1993).
48.42 - ANNOT.
Sub. (2) (d) requires consideration in each case of whether ch. 822 applies but does not require the application of ch. 822 to intrastate cases. In Interest
of Brandon S.S. 179 Wis. 2d 114, 507 N.W.2d 94 (1993).
48.42 - ANNOT.
Sub. (2) is the exclusive statute for determining what parties may be summoned; intervention under s. 803.09 does not apply. In Interest of Brandon S.S.
179 Wis. 2d 114, 507 N.W.2d 94 (1993).
48.42 - ANNOT.
Sexual assault under sub. (2m) does not include a violation of s. 948.09, sexual intercourse with a child age 16 or older. Paternity of Michael A.T. 182
Wis. 2d 395, 513 N.W.2d 669 (Ct. App. 1994).
48.42 - ANNOT.
The doctrines of claims and issue preclusion may apply in TPR cases. Brown County Department of Human Services v. Terrance M. 2005 WI App 57, 280 Wis. 2d
396, 694 N.W.2d 458, 04-2379.
48.422
48.422 Hearing on the petition.
48.422(1)
(1) The hearing on the petition to terminate parental rights shall be held within 30 days after the petition is filed. At the hearing on the petition to
terminate parental rights the court shall determine whether any party wishes to contest the petition and inform the parties of their rights under sub. (4)
and s. 48.423.
48.422(2)
(2) If the petition is contested the court shall set a date for a fact-finding hearing to be held within 45 days of the hearing on the petition, unless
all of the necessary parties agree to commence with the hearing on the merits immediately.
48.422(3)
(3) If the petition is not contested the court shall hear testimony in support of the allegations in the petition, including testimony as required in sub.
(7).
48.422(4)
(4) Any party who is necessary to the proceeding or whose rights may be affected by an order terminating parental rights shall be granted a jury trial upon
request if the request is made before the end of the initial hearing on the petition.
48.422(5)
(5) Any nonpetitioning party, including the child, shall be granted a continuance of the hearing for the purpose of consulting with an attorney on the request
for a jury trial or concerning a request for the substitution of a judge.
48.422(6)
(6)
48.422(6)(a)
(a) If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60 and paternity has not been established,
the court shall hear testimony concerning the paternity of the child. Based on the testimony, the court shall determine whether all interested parties who
are known have been notified under s. 48.42 (2). If not, the court shall adjourn the hearing and order appropriate notice to be given.
48.422(6)(b)
(b) If the court determines that an unknown person may be the father of the child and notice to that person has not been waived under s. 48.42 (4) (b) 3.,
the court shall determine whether constructive notice will substantially increase the likelihood of notice to that person. If the court does determine that
it would substantially increase the likelihood of notice and the petitioner has not already caused the notice to be published or the court determines that
the publication used was not sufficient, the court shall adjourn the hearing for a period not to exceed 30 days and shall order constructive notice under
s. 48.42 (4) (b). If the court determines that constructive notice will not substantially increase the likelihood of notice to that person, the court shall
order that the hearing proceed.
48.422(6)(c)
(c) If paternity is adjudicated under this subchapter and parental rights are not terminated, the court may make and enforce such orders for the suitable
care, custody and support of the child as a court having jurisdiction over actions affecting the family may make under ch. 767. If there is a finding by
the court that the child is in need of protection or services, the court may make dispositional orders under s. 48.345.
48.422(7)
(7) Before accepting an admission of the alleged facts in a petition, the court shall:
48.422(7)(a)
(a) Address the parties present and determine that the admission is made voluntarily with understanding of the nature of the acts alleged in the petition
and the potential dispositions.
48.422(7)(b)
(b) Establish whether any promises or threats were made to elicit an admission and alert all unrepresented parties to the possibility that a lawyer may
discover defenses or mitigating circumstances which would not be apparent to them.
48.422(7)(bm)
(bm) Establish whether a proposed adoptive parent of the child has been identified. If a proposed adoptive parent of the child has been identified and the
proposed adoptive parent is not a relative of the child, the court shall order the petitioner to submit a report to the court containing the information
specified in s. 48.913 (7). The court shall review the report to determine whether any payments or agreement to make payments set forth in the report are
coercive to the birth parent of the child or to an alleged to presumed father of the child or are impermissible under s. 48.913 (4). Making any payment
to or on behalf of the birth parent of the child, an alleged or presumed father of the child or the child conditional in any part upon transfer or surrender
of the child or the termination of parental rights or the finalization of the adoption creates a rebuttable presumption of coercion. Upon a finding of coercion,
the court shall dismiss the petition or amend the agreement to delete any coercive conditions, if the parties agree to the amendment. Upon a finding that
payments which are impermissible under s. 48.913 (4) have been made, the court may dismiss the petition and may refer the matter to the district attorney
for prosecution under s. 948.24 (1). This paragraph does not apply if the petition was filed with a petition for adoptive placement under s. 48.837 (2).
48.422(7)(c)
(c) Make such inquiries as satisfactorily establish that there is a factual basis for the admission.
48.422(8)
(8) If the petition for termination of parental rights is filed by an agency enumerated in s. 48.069 (1) or (2), the court shall order the agency to submit
a report to the court as provided in s. 48.425.
48.422(9)
(9)
48.422(9)(a)
(a) If a petition for termination of the rights of a birth parent, as defined under s. 48.432 (1) (am), is filed by a person other than an agency enumerated
under s. 48.069 (1) or (2) or if the court waives the report required under s. 48.425, the court shall order any parent whose rights may be terminated to
file with the court the information specified under s. 48.425 (1) (am).
48.422(9)(b)
(b) If a birth parent does not comply with par. (a), the court shall order any health care provider as defined under s. 146.81 (1) known to have provided
care to the birth parent or parents to provide the court with any health care records of the birth parent or parents that are relevant to the child's medical
condition or genetic history. A court order for the release of alcohol or drug abuse treatment records subject to 21 USC 1175 or 42 USC 4582 shall comply
with 42 CFR 2.
48.422 - ANNOT.
History: 1979 c. 330; 1981 c. 359; 1983 a. 326; 1983 a. 447 ss. 10, 67; 1985 a. 176; 1997 a. 104.
48.422 - ANNOT.
The court erred by failing to inform parents of the right to jury trial and to representation by counsel. In re Termination of Parental Rights to M. A.
M. 116 Wis. 2d 432, 342 N.W.2d 410 (1984).
48.422 - ANNOT.
Concurrent TPR/adoption proceedings under s. 48.835 are subject to the requirement under s. 48.422 that the initial hearing be held within 30 days of filing
the petition. In re J.L.F. 168 Wis. 2d 634, 484 N.W.2d 359 (Ct. App. 1992).
48.422 - ANNOT.
A court's failure to inform parents of their rights under this section is not reversible error absent prejudice to the parents. Interest of Robert D. 181
Wis. 2d 887, 512 N.W.2d 227 (Ct. App. 1994).
48.422 - ANNOT.
The general time requirements of s. 48.315 (2) control extensions of the time limit under sub. (1). There are no provisions for waiver of time limits, and
the only provisions for delays, continuances, and extensions are under s. 48.315. State v. April O. 2000 WI App 70, 233 Wis. 2d 663, 607 N.W.2d 927, 99-2487.
48.422 - ANNOT.
This section does not require the circuit court to advise nonpetitioning parties of the right under sub. (5) to a continuance to consult with counsel regarding
judicial substitution. Steven V. v. Kelley H. 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 831, 02-2860.
48.422 - ANNOT.
A competency challenge based on the violation of the statutory time limitation of sub. (2) cannot be waived, even though it was not raised in the circuit
court. Sheboygan County Department of Social Services v. Matthew S. 2005 WI 84, 282 Wis. 2d 150, 698 N.W.2d 631, 04-0901.
48.422 - ANNOT.
Due process does not require appointment of counsel for indigent parents in every parental status termination proceeding. Lassiter v. Dept. of Social Services,
452 U.S. 18 (1981).
48.423
48.423 Rights of persons alleging paternity. If a man who alleges that he is the father of the child appears at the hearing and wishes to contest the termination
of his parental rights, the court shall set a date for a hearing on the issue of paternity or, if all parties agree, the court may immediately commence
hearing testimony concerning the issue of paternity. The court shall inform the man claiming to be the father of the child of any right to counsel under
s. 48.23. The man claiming to be the father of the child must prove paternity by clear and convincing evidence.
48.423 - ANNOT.
History: 1979 c. 330.
48.423 - ANNOT.
Putative father's right to custody of his child. 1971 WLR 1262.
48.424
48.424 Fact-finding hearing.
48.424(1)
(1) The purpose of the fact-finding hearing is to determine whether grounds exist for the termination of parental rights in those cases where the termination
was contested at the hearing on the petition under s. 48.422.
48.424(2)
(2) The fact-finding hearing shall be conducted according to the procedure specified in s. 48.31 except that:
48.424(2)(a)
(a) The court may exclude the child from the hearing; and
48.424(2)(b)
(b) The hearing shall be closed to the public.
48.424(3)
(3) If the facts are determined by a jury, the jury may only decide whether any grounds for the termination of parental rights have been proven. The court
shall decide what disposition is in the best interest of the child.
48.424(4)
(4) If grounds for the termination of parental rights are found by the court or jury, the court shall find the parent unfit. A finding of unfitness shall
not preclude a dismissal of a petition under s. 48.427 (2). The court shall then proceed immediately to hear evidence and motions related to the dispositions
enumerated in s. 48.427. The court may delay making the disposition and set a date for a dispositional hearing no later than 45 days after the fact-finding
hearing if:
48.424(4)(a)
(a) All parties to the proceeding agree; or
48.424(4)(b)
(b) The court has not yet received a report to the court on the history of the child as provided in s. 48.425 from an agency enumerated in s. 48.069 (1)
or (2) and the court now directs the agency to prepare this report to be considered before the court makes the disposition on the petition.
48.424(5)
(5) If the court delays making a permanent disposition under sub. (4), it may transfer temporary custody of the child to an agency for placement of the
child until the dispositional hearing.
48.424 - ANNOT.
History: 1979 c. 330; 1987 a. 383.
48.424 - ANNOT.
Although the best interests of the child standard does not apply to the fact-finding hearing, the guardian ad litem can represent the interests of the child
to develop the facts as they relate to whether the grounds for termination exist. When a jury is the fact-finder, the guardian ad litem should be permitted
to exercise peremptory challenges in jury selection. Interest of C.E.W. 124 Wis. 2d 47, 368 N.W.2d 47 (1985).
48.424 - ANNOT.
Despite jury findings that grounds for termination exist, the court may dismiss a termination petition if evidence does not support the jury's finding or
if the evidence of unfitness is not so egregious as to warrant termination; whether the evidence supports termination is a matter of discretion. In Interest
of K.D.J. 163 Wis. 2d 90, 470 N.W.2d 914 (1991).
48.424 - ANNOT.
The general time requirements of s. 48.315 (2) control extensions of the time limit under sub. (4). There are no provisions for waiver of time limits, and
the only provisions for delays, continuances and extensions are under s. 48.315. State v. April O. 2000 WI App 70, 233 Wis. 2d 663, 607 N.W.2d 927, 99-2487.
48.425
48.425 Court report by an agency.
48.425(1)
(1) If the petition for the termination of parental rights is filed by an agency, or if the court orders a report under s. 48.424 (4) (b), the agency shall
file a report with the court which shall include:
48.425(1)(a)
(a) The social history of the child.
48.425(1)(am)
(am) A medical record of the child on a form provided by the department which shall include:
48.425(1)(am)1.
1. The medical and genetic history of the birth parents and any medical and genetic information furnished by the birth parents about the child's grandparents,
aunts, uncles, brothers and sisters.
48.425(1)(am)2.
2. A report of any medical examination which either birth parent had within one year before the date of the petition.
48.425(1)(am)3.
3. A report describing the child's prenatal care and medical condition at birth.
48.425(1)(am)4.
4. The medical and genetic history of the child and any other relevant medical and genetic information.
48.425(1)(b)
(b) A statement of the facts supporting the need for termination.
48.425(1)(c)
(c) If the child has been previously adjudicated to be in need of protection and services, a statement of the steps the agency or person responsible for
provision of services has taken to remedy the conditions responsible for court intervention and the parent's response to and cooperation with these services.
If the child has been removed from the home, the report should also include a statement of the reasons why the child cannot be returned safely to the family,
and the steps the person or agency has taken to effect this return.
48.425(1)(d)
(d) A statement of other appropriate services, if any, which might allow the child to return safely to the home of the parent.
48.425(1)(e)
(e) A statement applying the standards and factors enumerated in s. 48.426 (2) and (3) to the case before the court.
48.425(1)(f)
(f) If the report recommends that the parental rights of both of the child's parents or the child's only living or known parent are to be terminated, the
report shall contain a statement of the likelihood that the child will be adopted. This statement shall be prepared by an agency designated in s. 48.427
(3m) (a) 1. to 4. and include a presentation of the factors which might prevent adoption, those which would facilitate it, and the agency which would be
responsible for accomplishing the adoption.
48.425(1)(g)
(g) If an agency designated under s. 48.427 (3m) (a) 1. to 4. determines that it is unlikely that the child will be adopted, or if adoption would not be
in the best interests of the child, the report shall include a plan for placing the child in a permanent family setting. The plan shall include a recommendation
as to the agency to be named guardian of the child, a recommendation that the person appointed as the guardian of the child under s. 48.977 (2) continue
to be the guardian of the child, or a recommendation that a guardian be appointed for the child under s. 48.977 (2).
48.425(1m)
(1m) The agency required under sub. (1) to file the report shall prepare the medical record within 60 days after the date of the petition for the termination
of parental rights.
48.425(2)
(2) The court may waive the report required under this section if consent is given under s. 48.41, but shall order the birth parent or parents to provide
the department with the information specified under sub. (1) (am).
48.425(3)
(3) The court may order a report as specified under this section to be prepared by an agency in those cases where the petition is filed by someone other
than an agency.
48.425 - ANNOT.
History: 1979 c. 330; 1981 c. 81 s. 33; 1981 c. 359; 1983 a. 471; 1985 a. 176; 1995 a. 275; 1997 a. 237; 2005 a. 25.
48.426
48.426 Standard and factors.
48.426(1)
(1) Court considerations. In making a decision about the appropriate disposition under s. 48.427, the court shall consider the standard and factors enumerated
in this section and any report submitted by an agency under s. 48.425.
48.426(2)
(2) Standard. The best interests of the child shall be the prevailing factor considered by the court in determining the disposition of all proceedings under
this subchapter.
48.426(3)
(3) Factors. In considering the best interests of the child under this section the court shall consider but not be limited to the following:
48.426(3)(a)
(a) The likelihood of the child's adoption after termination.
48.426(3)(b)
(b) The age and health of the child, both at the time of the disposition and, if applicable, at the time the child was removed from the home.
48.426(3)(c)
(c) Whether the child has substantial relationships with the parent or other family members, and whether it would be harmful to the child to sever these
relationships.
48.426(3)(d)
(d) The wishes of the child.
48.426(3)(e)
(e) The duration of the separation of the parent from the child.
48.426(3)(f)
(f) Whether the child will be able to enter into a more stable and permanent family relationship as a result of the termination, taking into account the
conditions of the child's current placement, the likelihood of future placements and the results of prior placements.
48.426 - ANNOT.
History: 1979 c. 330.
48.426 - ANNOT.
When grandparents opposing termination had a substantial relationship with the child and wished to participate in the proceedings, it was error to exclude
their testimony in determining the child's best interest. In Interest of Brandon S.S. 179 Wis. 2d 114, 507 N.W.2d 94 (1993).
48.426 - ANNOT.
A termination of parental rights works a legal severance of the relationship between the child and the child's birth family. Sub. (3) (c) requires an examination
of the harmful effect of the legal severance on the child's relationships with the birth family. The court may consider an adoptive parent's promise to
continue the relationship, but it is not bound to hinge its determination on that legally unenforceable promise. State v. Margaret H. 2000 WI 42, 234 Wis.
2d 606, 610 N.W.2d 475, 99-1441.
48.427
48.427 Dispositions.
48.427(1)
(1) Any party may present evidence relevant to the issue of disposition, including expert testimony, and may make alternative dispositional recommendations
to the court. After receiving any evidence related to the disposition, the court shall enter one of the dispositions specified under subs. (2) to (4) within
10 days.
48.427(1m)
(1m) In addition to any evidence presented under sub. (1), the court shall give the foster parent, treatment foster parent or other physical custodian described
in s. 48.62 (2) of the child an opportunity to be heard at the dispositional hearing by permitting the foster parent, treatment foster parent or other physical
custodian to make a written or oral statement during the dispositional hearing, or to submit a written statement prior to disposition, relevant to the issue
of disposition. A foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) who receives notice of a hearing under s.
48.42 (2g) (a) and an opportunity to be heard under this subsection does not become a party to the proceeding on which the hearing is held solely on the
basis of receiving that notice and opportunity to be heard.
48.427(2)
(2) The court may dismiss the petition if it finds that the evidence does not warrant the termination of parental rights.
48.427(3)
(3) The court may enter an order terminating the parental rights of one or both parents.
48.427(3m)
(3m) If the rights of both parents or of the only living parent are terminated under sub. (3) and if a guardian has not been appointed under s. 48.977,
the court shall do one of the following:
48.427(3m)(a)
(a) Transfer guardianship and custody of the child pending adoptive placement to:
48.427(3m)(a)1.
1. A county department authorized to accept guardianship under s. 48.57 (1) (e) or (hm).
48.427(3m)(a)3.
3. A child welfare agency licensed under s. 48.61 (5) to accept guardianship.
48.427(3m)(a)4.
4. The department.
48.427(3m)(a)5.
5. A relative with whom the child resides, if the relative has filed a petition to adopt the child or if the relative is a kinship care relative.
48.427(3m)(a)6.
6. An individual who has been appointed guardian of the child by a court of a foreign jurisdiction.
48.427(3m)(b)
(b) Transfer guardianship of the child to one of the agencies specified under par. (a) 1. to 4. and custody of the child to an individual in whose home
the child has resided for at least 12 consecutive months immediately prior to the termination of parental rights or to a relative.
48.427(3m)(c)
(c) Appoint a guardian under s. 48.977 and transfer guardianship and custody of the child to the guardian.
48.427(3p)
(3p) If the rights of both parents or of the only living parent are terminated under sub. (3) and if a guardian has been appointed under s. 48.977, the
court may enter one of the orders specified in sub. (3m) (a) or (b). If the court enters an order under this subsection, the court shall terminate the guardianship
under s. 48.977.
48.427(4)
(4) If the rights of one or both parents are terminated under sub. (3), the court may enter an order placing the child in sustaining care under s. 48.428.
48.427(6)
(6) If an order is entered under sub. (3), the court shall:
48.427(6)(a)
(a) Inform each birth parent, as defined under s. 48.432 (1) (am), whose rights have been terminated of the provisions of ss. 48.432, 48.433 and 48.434.
48.427(6)(b)
(b) Forward to the department:
48.427(6)(b)1.
1. The name and date of birth of the child whose birth parent's rights have been terminated.
48.427(6)(b)2.
2. The names and current addresses of the child's birth parents, guardian and legal custodian.
48.427(6)(b)3.
3. The medical and genetic information obtained under s. 48.422 (9) or 48.425 (1) (am) or (2).
48.427(7)
(7)
48.427(7)(a)
(a) If an order is entered under sub. (3), the court may orally inform the parent or parents who appear in court of the ground for termination of parental
rights specified in s. 48.415 (10).
48.427(7)(b)
(b) In addition to the notice permitted under par. (a), any written order under sub. (3) may notify the parent or parents of the information specified in
par. (a).
48.427 - ANNOT.
History: 1979 c. 330; 1981 c. 81, 359; 1985 a. 70, 176; 1995 a. 275, 289; 1997 a. 80, 104, 237; 2005 a. 25.
48.427 - ANNOT.
Once a basis for termination has been found by the jury and confirmed with a finding of unfitness by the court, the court must move to the dispositional
hearing in which the prevailing factor is the best interests of the child. A court should not dismiss a petition for termination at a dispositional hearing
unless it can reconcile dismissal with the best interests of the child. Sheboygan County D.H.S.S. v. Julie A.B. 2002 WI 95, 255 Wis. 2d 170, 648 N.W.2d
402, 01-1692.
48.428
48.428 Sustaining care.
48.428(1)
(1) A court may place a child in sustaining care if the court has terminated the parental rights of the parent or parents of the child or has appointed
a guardian for the child under s. 48.831 and the court finds that the child is unlikely to be adopted or that adoption is not in the best interest of the
child.
48.428(2)
(2)
48.428(2)(a)
(a) Except as provided in par. (b), when a court places a child in sustaining care after an order under s. 48.427 (4), the court shall transfer legal custody
of the child to the county department, the department, in a county having a population of 500,000 or more, or a licensed child welfare agency, transfer
guardianship of the child to an agency listed in s. 48.427 (3m) (a) 1. to 4. and place the child in the home of a licensed foster parent, licensed treatment
foster parent or kinship care relative with whom the child has resided for 6 months or longer. Pursuant to such a placement, this licensed foster parent,
licensed treatment foster parent or kinship care relative shall be a sustaining parent with the powers and duties specified in sub. (3).
48.428(2)(b)
(b) When a court places a child in sustaining care after an order under s. 48.427 (4) with a person who has been appointed as the guardian of the child
under s. 48.977 (2), the court may transfer legal custody of the child to the county department, the department, in a county having a population of 500,000
or more, or a licensed child welfare agency, transfer guardianship of the child to an agency listed in s. 48.427 (3m) (a) 1. to 4. and place the child in
the home of a licensed foster parent, licensed treatment foster parent or kinship care relative with whom the child has resided for 6 months or longer.
Pursuant to such a placement, that licensed foster parent, licensed treatment foster parent or kinship care relative shall be a sustaining parent with the
powers and duties specified in sub. (3). If the court transfers guardianship of the child to an agency listed in s. 48.427 (3m) (a) 1. to 4., the court
shall terminate the guardianship under s. 48.977.
48.428(3)
(3) Subject to the authority of the guardian and legal custodian of the child and to any treatment or dispositional plans for the child established by the
court, the sustaining parent has the rights and responsibilities necessary for the day-to-day care of the child, including but not limited to:
48.428(3)(a)
(a) The authority to consent to routine and emergency health care for the child.
48.428(3)(b)
(b) The authority to sign the child's application for a license under s. 343.15.
48.428(3)(c)
(c) The authority to approve the child's participation in school and youth group activities.
48.428(3)(d)
(d) The authority to travel out of state with the child and consent to the child's travel out of state.
48.428(3)(e)
(e) The authority to act as the child's parent under subch. V of ch. 115 and s. 118.125.
48.428(4)
(4) Before a licensed foster parent, licensed treatment foster parent or kinship care relative may be appointed as a sustaining parent, the foster parent,
treatment foster parent or kinship care relative shall execute a contract with the agency responsible for providing services to the child, in which the
foster parent, treatment foster parent or kinship care relative agrees to provide care for the child until the child's 18th birthday unless the placement
order is changed by the court because the court finds that the sustaining parents are no longer able or willing to provide the sustaining care or the court
finds that the behavior of the sustaining parents toward the child would constitute grounds for the termination of parental rights if the sustaining parent
was the birth parent of the child.
48.428(6)
(6)
48.428(6)(a)
(a) Except as provided in par. (b), the court may order or prohibit visitation by a birth parent of a child placed in sustaining care.
48.428(6)(b)
(b)
48.428(6)(b)1.
1. Except as provided in subd. 2., the court may not grant visitation under par. (a) to a birth parent of a child who has been placed in sustaining care
if the birth parent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide,
of the child's other birth parent, and the conviction has not been reversed, set aside or vacated
48.428(6)(b)1m.
1m. Except as provided in subd. 2., if a birth parent who is granted visitation rights with a child under par. (a) is convicted under s. 940.01 of the first-degree
intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of the child's other birth parent, and the conviction has not been reversed,
set aside or vacated, the court shall issue an order prohibiting the birth parent from having visitation with the child on petition of the child, the guardian
or legal custodian of the child, or the district attorney or corporation counsel of the county in which the dispositional order was entered, or on the court's
own motion, and on notice to the birth parent.
48.428(6)(b)2.
2. Subdivisions 1. and 1m. do not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the
child. The court shall consider the wishes of the child in making that determination.
48.428 - ANNOT.
History: 1979 c. 330; 1981 c. 81 s. 33; 1981 c. 359 s. 16; 1985 a. 70; 1985 a. 176; 1989 a. 161; 1993 a. 446; 1995 a. 275, 289; 1997 a. 27, 164; 1999 a.
9.
48.43
48.43 Court orders; contents and effect; review.
48.43(1)
(1) The court shall enter a judgment setting forth its findings and disposition in accordance with s. 48.426 in an order implementing the disposition chosen.
If the court dismisses the petition under s. 48.427 (2), the order shall contain the reasons for dismissal. If the disposition is for the termination of
parental rights under s. 48.427 (3), the order shall contain all of the following:
48.43(1)(a)
(a) The identity of any agency or individual that has received guardianship of the child or will receive guardianship or custody of the child upon termination
and the identity of the agency which will be responsible for securing the adoption of the child or establishing the child in a permanent family setting.
48.43(1)(b)
(b) If the child will be in need of continued care and treatment after termination, the agencies and persons responsible.
48.43(1)(c)
(c) If an agency receives custody of the child under par. (a), the child's permanency plan prepared under s. 48.38 by the agency. If a permanency plan has
not been prepared at the time the order is entered, or if the court enters an order that is not consistent with the permanency plan, the agency shall prepare
a permanency plan that is consistent with the order or revise the permanency plan to conform to the order and shall file the plan with the court within
60 days from the date of the order.
48.43(1)(d)
(d) A finding that the termination of parental rights is in the best interests of the child.
48.43(2)
(2) An order terminating parental rights permanently severs all legal rights and duties between the parent and the child.
48.43(3)
(3) If only one parent consents under s. 48.41 or if the grounds specified in s. 48.415 are found to exist as to only one parent, the rights of only that
parent may be terminated without affecting the rights of the other parent.
48.43(4)
(4) A certified copy of the order terminating parental rights shall be furnished by the court to the agency given guardianship for placement for adoption
of the child or to the person or agency given custodianship or guardianship for placement of the child in sustaining care and to the person appointed as
the guardian of the child under s. 48.977 (2). The court shall, upon request, furnish a certified copy of the child's birth certificate and a transcript
of the testimony in the termination of parental rights hearing to the same person or agency.
48.43(5)
(5)
48.43(5)(a)
(a) If the custodian specified in sub. (1) (a) is an agency, the agency shall report to the court on the status of the child at least once each year until
the child is adopted or reaches 18 years of age, whichever is sooner. The agency shall file an annual report no less than 30 days before the anniversary
of the date of the order. An agency may file an additional report at any time if it determines that more frequent reporting is appropriate. A report shall
summarize the child's permanency plan and the recommendations of the review panel under s. 48.38 (5), if any, and shall describe any progress that has been
made in finding a permanent placement for the child.
48.43(5)(b)
(b) The court shall hold a hearing to review the permanency plan within 30 days after receiving a report under par. (a). At least 10 days before the date
of the hearing, the court shall provide notice of the time, date and purpose of the hearing to the agency that prepared the report, the child's guardian,
the child, if he or she is 12 years of age or over, and the child's foster parent, treatment foster parent, other physical custodian described in s. 48.62
(2) or the operator of the facility in which the child is living.
48.43(5)(c)
(c) Following the hearing, the court shall make all of the determinations specified under s. 48.38 (5) (c), except the determinations relating to the child's
parents. The court may amend the order under sub. (1) to transfer the child's guardianship and custody to any agency specified under s. 48.427 (3m) (a)
1. to 4. which consents to the transfer, if the court determines that the transfer is in the child's best interest. If an order is amended, the agency that
prepared the permanency plan shall revise the plan to conform to the order and shall file a copy of the revised plan with the court. Each plan filed under
this paragraph shall be made a part of the court order.
48.43(5m)
(5m) Either the court or the agency that prepared the permanency plan shall furnish a copy of the original plan and each revised plan to the child, if he
or she is 12 years of age or over, and to the child's foster parent, the child's treatment foster parent or the operator of the facility in which the child
is living.
48.43(6)
(6) Judgments under this subchapter terminating parental rights are final and are appealable under s. 808.03 (1) according to the procedure specified in
s. 809.107.
48.43(7)
(7) If the agency specified under sub. (1) (a) is the department and a permanent adoptive placement is not in progress 2 years after entry of the order,
the department may petition the court to transfer legal custody of the child to a county department. The court shall transfer the child's custody to the
county department specified in the petition. The department shall remain the child's guardian.
48.43 - ANNOT.
History: 1979 c. 330; 1983 a. 27, 219, 286; 1985 a. 70, 176, 332; Sup. Ct. Order, 136 Wis. 2d xxv (1987); 1987 a. 383; 1993 a. 395, 446; 1995 a. 275; 1997
a. 237.
48.43 - ANNOT.
The appeal process in a termination case must be commenced within 30 days after the order is entered. In Interest of J.D. 106 Wis. 2d 126, 315 N.W.2d 365
(1982).
48.43 - ANNOT.
Termination has the same effect on relationships between members of the biological parents' families and the child as it has on the parent-child relationship.
Equitable considerations did not form a basis to allow biological grandparents to obtain visitation rights after termination and adoption. Elgin and Carol
W. v. DHFS, 221 Wis. 2d 36, 584 N.W.2d 195 (Ct. App. 1998), 97-3595.
48.432
48.432 Access to medical information.
48.432(1)
(1) In this section:
48.432(1)(a)
(a) "Adoptee" means a person who has been adopted in this state with the consent of his or her birth parent or parents before February 1, 1982.
48.432(1)(ag)
(ag) "Agency" means a county department or a licensed child welfare agency.
48.432(1)(am)
(am) "Birth parent" means either:
48.432(1)(am)1.
1. The mother designated on the individual's or adoptee's original birth certificate.
48.432(1)(am)2.
2. One of the following:
48.432(1)(am)2.a.
a. The adjudicated father.
48.432(1)(am)2.b.
b. If there is no adjudicated father, the husband of the mother at the time the individual or adoptee is conceived or born, or when the parents intermarry
under s. 767.60.
48.432(1)(b)
(b) "Individual" means a person whose birth parent's rights have been terminated in this state at any time.
48.432(2)
(2)
48.432(2)(a)
(a) The department, or agency contracted with under sub. (9), shall maintain all information obtained under s. 48.427 (6) (b) in a centralized birth record
file.
48.432(2)(b)
(b) Any birth parent whose rights to a child have been terminated in this state at any time, or who consented to the adoption of a child before February
1, 1982, may file with the department, or agency contracted with under sub. (9), any relevant medical or genetic information about the child or the child's
birth parents, and the department or agency shall maintain the information in the centralized birth record file.
48.432(3)
(3)
48.432(3)(a)
(a) The department, or agency contracted with under sub, (9), shall release the medical information under sub. (2) to any of the following persons upon
request:
48.432(3)(a)1.
1. An individual or adoptee 18 years of age or older.
48.432(3)(a)2.
2. An adoptive parent of an adoptee.
48.432(3)(a)3.
3. The guardian or legal custodian of an individual or adoptee.
48.432(3)(a)4.
4. The offspring of an individual or adoptee if the requester is 18 years of age or older.
48.432(3)(a)5.
5. An agency or social worker assigned to provide services to the individual or adoptee or place the individual for adoption.
48.432(3)(b)
(b) Before releasing the information under par. (a), the department, or agency contracted with under sub. (9), shall delete the name and address of the
birth parent and the identity of any provider of health care to the individual or adoptee or to the birth parent.
48.432(3)(c)
(c) The person making a request under this subsection shall pay a fee for the cost of locating, verifying, purging, summarizing, copying and mailing the
medical or genetic information according to a fee schedule established by the department, or agency contracted with under sub. (9), based on ability to
pay. The fee may not be more than $150 and may be waived by the department or agency.
48.432(4)
(4)
48.432(4)(a)
(a) Whenever any person specified under sub. (3) wishes to obtain medical and genetic information about an individual whose birth parent's rights have been
terminated in this state at any time, or whose birth parent consented to his or her adoption before February 1, 1982, or medical and genetic information
about the birth parents of such an individual or adoptee, and the information is not on file with the department, or agency contracted with under sub. (9),
the person may request that the department or agency conduct a search for the birth parents to obtain the information. The request shall be accompanied
by a statement from a physician certifying either that the individual or adoptee has or may have acquired a genetically transferable disease or that the
individual's or adoptee's medical condition requires access to the information.
48.432(4)(b)
(b) Upon receipt of a request under par. (a), the department, or agency contracted with under sub. (9), shall undertake a diligent search for the individual's
or adoptee's parents.
48.432(4)(c)
(c) Employees of the department and any agency conducting a search under this subsection may not inform any person other than the birth parents of the purpose
of the search.
48.432(4)(d)
(d) The department, or agency contracted with under sub. (9), shall charge the requester a reasonable fee for the cost of the search. When the department
or agency determines that the fee will exceed $100 for either birth parent, it shall notify the requester. No fee in excess of $100 per birth parent may
be charged unless the requester, after receiving notification under this paragraph, has given consent to proceed with the search.
48.432(4)(e)
(e) The department or agency conducting the search shall, upon locating a birth parent, notify him or her of the request and of the need for medical and
genetic information.
48.432(4)(f)
(f) The department, or agency contracted with under sub. (9), shall release to the requester any medical or genetic information provided by a birth parent
under this subsection without disclosing the birth parent's identity or location.
48.432(4)(g)
(g) If a birth parent is located but refuses to provide the information requested, the department, or agency contracted with under sub. (9), shall notify
the requester, without disclosing the birth parent's identity or location, and the requester may petition the circuit court to order the birth parent to
disclose the information. The court shall grant the motion for good cause shown.
48.432(7)
(7)
48.432(7)(a)
(a) If the department or another agency that maintains records relating to the adoption of an adoptee or the termination of parental rights receives a report
from a physician stating that a birth parent or another offspring of the birth parent has acquired or may have a genetically transferable disease, the department
or agency shall notify the individual or adoptee of the existence of the disease, if he or she is 18 years of age or over, or notify the individual's or
adoptee's guardian, custodian or adoptive parent if the individual or adoptee is under age 18.
48.432(7)(b)
(b) If the department or agency receives a report from a physician that an individual or adoptee has acquired or may have a genetically transferable disease,
the department or agency shall notify the individual's or adoptee's birth parent of the existence of the disease.
48.432(7)(c)
(c) Notice under par. (a) or (b) shall be sent to the most recent address on file with the agency or the department.
48.432(8)
(8) Any person, including this state or any political subdivision of this state, who participates in good faith in any requirement of this section shall
have immunity from any liability, civil or criminal, that results from his or her actions. In any proceeding, civil or criminal, the good faith of any person
participating in the requirements of this section shall be presumed.
48.432(8m)
(8m) The department, or agency contracted with under sub. (9), shall give priority to all of the following:
48.432(8m)(a)
(a) Reports filed by physicians under sub. (7).
48.432(8m)(b)
(b) A request or a court order for medical or genetic information under subs. (3) and (4) if it is accompanied by a statement from a physician certifying
that a child has acquired or may have a genetically transferable disease.
48.432(8m)(c)
(c) Any reports and requests specified by the department by rule.
48.432(9)
(9) The department shall promulgate rules to implement this section and may contract with an agency to administer this section.
48.432 - ANNOT.
History: 1981 c. 359; 1983 a. 447, 471; 1985 a. 176; 1985 a. 332 s. 251 (1); 1989 a. 31; 1995 a. 27.
48.432 - ANNOT.
Cross Reference: See also ch. HFS 53, Wis. adm. code.
48.433
48.433 Access to identifying information about parents.
48.433(1)
(1) In this section:
48.433(1)(a)
(a) "Agency" has the meaning given under s. 48.432 (1) (ag).
48.433(1)(b)
(b) "Birth parent" has the meaning given under s. 48.432 (1) (am).
48.433(2)
(2) Any birth parent whose rights have been terminated in this state at any time, or who has consented to the adoption of his or her child in this state
before February 1, 1982, may file with the department, or agency contracted with under sub. (11), an affidavit authorizing the department or agency to provide
the child with his or her original birth certificate and with any other available information about the birth parent's identity and location. An affidavit
filed under this subsection may be revoked at any time by notifying the department or agency in writing.
48.433(3)
(3) Any person 21 years of age or over whose birth parent's rights have been terminated in this state or who has been adopted in this state with the consent
of his or her birth parent or parents before February 1, 1982, may request the department, or agency contracted with under sub. (11), to provide the person
with the following:
48.433(3)(a)
(a) The person's original birth certificate.
48.433(3)(b)
(b) Any available information regarding the identity and location of his or her birth parents.
48.433(4)
(4) Before acting on the request, the department, or agency contracted with under sub. (11), shall require the requester to provide adequate identification.
48.433(5)
(5) The department, or agency contracted with under sub. (11), shall disclose the requested information in either of the following circumstances:
48.433(5)(a)
(a) The department, or agency contracted with under sub. (11), has on file unrevoked affidavits filed under sub. (2) from both birth parents.
48.433(5)(b)
(b) One of the birth parents was unknown at the time of the proceeding for termination of parental rights or consent adoption and the known birth parent
has filed an unrevoked affidavit under sub. (2).
48.433(6)
(6)
48.433(6)(a)
(a) If the department, or agency contracted with under sub. (11), does not have on file an affidavit from each known birth parent, it shall, within 3 months
after the date of the original request, undertake a diligent search for each birth parent who has not filed an affidavit. The search shall be completed
within 6 months after the date of the request, unless the search falls within one of the exceptions established by the department by rule. If any information
has been provided under sub. (5), the department or agency is not required to conduct a search.
48.433(6)(c)
(c) Employees of the department and any agency conducting a search under this subsection may not inform any person other than the birth parents of the purpose
of the search.
48.433(6)(d)
(d) The department, or agency contracted with under sub. (11), shall charge the requester a reasonable fee for the cost of the search. When the department
or agency determines that the fee will exceed $100 for either birth parent, it shall notify the requester. No fee in excess of $100 per birth parent may
be charged unless the requester, after receiving notification under this paragraph, has given consent to proceed with the search.
48.433(7)
(7)
48.433(7)(a)
(a) The department or agency conducting the search shall, upon locating a birth parent, make at least one verbal contact and notify him or her of the following:
48.433(7)(a)1.
1. The nature of the information requested.
48.433(7)(a)2.
2. The date of the request.
48.433(7)(a)3.
3. The fact that the birth parent has the right to file with the department the affidavit under sub. (2).
48.433(7)(b)
(b) Within 3 working days after contacting a birth parent, the department, or agency contracted with under sub. (11), shall send the birth parent a written
copy of the information specified under par. (a) and a blank copy of the affidavit.
48.433(7)(c)
(c) If the birth parent files the affidavit, the department, or agency contracted with under sub. (11), shall disclose the requested information if permitted
under sub. (5).
48.433(7)(d)
(d) If the department or an agency has contacted a birth parent under this subsection, and the birth parent does not file the affidavit, the department
may not disclose the requested information.
48.433(7)(e)
(e) If, after a search under this subsection, a known birth parent cannot be located, the department, or agency contracted with under sub. (11), may disclose
the requested information if the other birth parent has filed an unrevoked affidavit under sub. (2).
48.433(7)(f)
(f) The department or agency conducting a search under this subsection may not contact a birth parent again on behalf of the same requester until at least
12 months after the date of the previous contact. Further contacts with a birth parent under this subsection on behalf of the same requester may be made
only if 5 years have elapsed since the date of the last contact.
48.433(8)
(8)
48.433(8)(a)
(a) If a birth parent is known to be dead and has not filed an unrevoked affidavit under sub. (2), the department, or agency contracted with under sub.
(11), shall so inform the requester. The department or agency may not provide the requester with his or her original birth certificate or with the identity
of that parent, but shall provide the requester with any available information it has on file regarding the identity and location of the other birth parent
if both of the following conditions exist:
48.433(8)(a)1.
1. The other birth parent has filed an unrevoked affidavit under sub. (2).
48.433(8)(a)2.
2. One year has elapsed since the death of the deceased birth parent.
48.433(8)(b)
(b) If a birth parent is known to be dead, the department, or agency contracted with under sub. (11), in addition to the information provided under par.
(a), shall provide the requester with any nonidentifying social history information about the deceased parent on file with the department or agency.
48.433(8m)
(8m) If the department, or agency contracted with under sub. (11), may not disclose the information requested under this section, it shall provide the requester
with any nonidentifying social history information about either of the birth parents that it has on file.
48.433(9)
(9) The requester may petition the circuit court to order the department or agency designated by the department to disclose any information that may not
be disclosed under this section. The court shall grant the petition for good cause shown.
48.433(10)
(10) Any person, including this state or any political subdivision of this state, who participates in good faith in any requirement of this section shall
have immunity from any liability, civil or criminal, that results from his or her actions. In any proceeding, civil or criminal, the good faith of any person
participating in the requirements of this section shall be presumed.
48.433(11)
(11) The department shall promulgate rules to implement this section and may contract with an agency to administer this section.
48.433 - ANNOT.
History: 1981 c. 359, 391; 1983 a. 471; 1985 a. 176; 1985 a. 332 s. 251 (1); 1989 a. 31; 1995 a. 27.
48.433 - ANNOT.
Cross Reference: See also ch. HFS 53, Wis. adm. code.
48.434
48.434 Release of identifying information by an agency when authorization is granted.
48.434(1)
(1) Definitions. In this section:
48.434(1)(a)
(a) "Adoptive parent" means a person who has adopted a child in this state or who has adopted in another state a child who was placed for adoption
with that person in this state.
48.434(1)(b)
(b) "Birth parent" has the meaning given under s. 48.432 (1) (am).
48.434(2)
(2) Any birth parent of a child may file with the agency that placed the child for adoption under s. 48.833 or that was appointed the guardian of the child
under s. 48.837 (6) (d) a written authorization for the agency to release any available information about the birth parent's identity and location to one
or both adoptive parents of the child.
48.434(3)
(3) Any adoptive parent of a child may file with the agency that placed the child for adoption under s. 48.833 or that was appointed the guardian of the
child under s. 48.837 (6) (d) a written authorization for the agency to release any available information about the adoptive parent's identity and location
to one or both birth parents of the child.
48.434(4)
(4) A written authorization filed under sub. (2) or (3) may be revoked at any time by notifying the agency in writing.
48.434(5)
(5) Upon the request of an adoptive parent of a child, the agency receiving the request shall provide to the adoptive parent any available information about
the identity and location of a birth parent of the child if the agency has on file an unrevoked written authorization filed by that birth parent under sub.
(2) authorizing the release of that information to the adoptive parent.
48.434(6)
(6) Upon the request of a birth parent of a child, the agency receiving the request shall provide to the birth parent any available information about the
identity and location of an adoptive parent of the child if the agency has on file an unrevoked written authorization filed by that adoptive parent under
sub. (3) authorizing the release of that information to the birth parent.
48.434(7)
(7) This section does not apply if the adopted child is 21 years of age or over.
48.434(8)
(8) Any person, including this state or any political subdivision of this state, who participates in good faith in any requirement of this section shall
have immunity from any liability, civil or criminal, that results from his or her actions. In any proceeding, civil or criminal, the good faith of any person
participating in the requirements of this section shall be presumed.
48.434(9)
(9) An agency may assess a reasonable fee for responding to a request for information or a request to file a written authorization under this section.
48.434(10)
(10) No agency may contact any person for the purpose of determining whether the person wishes to authorize the agency to release information under this
section. An agency may contact the birth parent or adoptive parent of a child who was adopted before April 29, 1998, one time, by mail, to inform them of
the procedure by which identifying information may be released under this section.
48.434(11)
(11) A written authorization filed with an agency under this section shall be notarized.
48.434 - ANNOT.
History: 1997 a. 104.
48.434 - ANNOT.
NOTE: 1997 Wis. Act 104, which affected this section, contains explanatory notes.
48.435
48.435 Custody of children. The mother of a nonmarital child has legal custody of the child unless the court grants legal custody to another person or transfers
legal custody to an agency.
48.435 - ANNOT.
History: 1979 c. 330; 1983 a. 447.
Subch. IX of Ch. 48
SUBCHAPTER IX
JURISDICTION OVER PERSON 17 OR OLDER
48.44
48.44 Jurisdiction over persons 17 or older.
48.44(1)
(1) The court has jurisdiction over persons 17 years of age or older as provided under ss. 48.133, 48.355 (4) and 48.45 and as otherwise specifically provided
in this chapter.
48.44(2)
(2) The court has jurisdiction over a person subject to an order under s. 48.366 for all matters relating to that order.
48.44 - ANNOT.
History: 1971 c. 213 s. 5; 1975 c. 39; 1977 c. 354; 1987 a. 27; 1989 a. 121; 1995 a. 27; 1997 a. 35, 292.
48.45
48.45 Orders applicable to adults.
48.45(1)
(1)
48.45(1)(a)
(a) If in the hearing of a case of a child alleged to be in a condition described in s. 48.13 it appears that any person 17 years of age or older has been
guilty of contributing to, encouraging, or tending to cause by any act or omission, such condition of the child, the judge may make orders with respect
to the conduct of such person in his or her relationship to the child, including orders determining the ability of the person to provide for the maintenance
or care of the child and directing when, how and where funds for the maintenance or care shall be paid.
48.45(1)(am)
(am) If in the hearing of a case of an unborn child and the unborn child's expectant mother alleged to be in a condition described in s. 48.133 it appears
that any person 17 years of age or over has been guilty of contributing to, encouraging, or tending to cause by any act or omission, such condition of the
unborn child and expectant mother, the judge may make orders with respect to the conduct of such person in his or her relationship to the unborn child and
expectant mother.
48.45(1)(b)
(b) An act or failure to act contributes to a condition of a child as described in s. 48.13 or an unborn child and the unborn child's expectant mother as
described in s. 48.133, although the child is not actually adjudicated to come within the provisions of s. 48.13 or the unborn child and expectant mother
are not actually adjudicated to come within the provisions of s. 48.133, if the natural and probable consequences of that act or failure to act would be
to cause the child to come within the provisions of s. 48.13 or the unborn child and expectant mother to come within the provisions of s. 48.133.
48.45(1m)
(1m)
48.45(1m)(a)
(a) In a proceeding in which a child has been found to be in need of protection or services under s. 48.13, the judge may order the child's parent, guardian
or legal custodian to comply with any conditions determined by the judge to be necessary for the child's welfare. An order under this paragraph may include
an order to participate in mental health treatment, anger management, individual or family counseling or parent training and education and to make a reasonable
contribution, based on ability to pay, toward the cost of those services.
48.45(1m)(b)
(b) A judge may not order inpatient treatment under par. (a) for a child's parent, guardian or legal custodian. All inpatient treatment commitments or admissions
must be conducted in accordance with ch. 51.
48.45(1r)
(1r) In a proceeding in which an unborn child has been found to be in need of protection or services under s. 48.133, the judge may impose on the expectant
mother any disposition permitted under s. 48.347 (1) to (6).
48.45(2)
(2) No order under sub. (1) (a) or (am) or (1m) (a) may be entered until the person who is the subject of the contemplated order is given an opportunity
to be heard on the contemplated order. The court shall cause notice of the time, place and purpose of the hearing to be served on the person personally
at least 10 days before the date of hearing. The procedure in these cases shall, as far as practicable, be the same as in other cases in the court. At the
hearing the person may be represented by counsel and may produce and cross-examine witnesses. Any person who fails to comply with any order issued by a
court under sub. (1) (a) or (am) or (1m) (a) may be proceeded against for contempt of court. If the person's conduct involves a crime, the person may be
proceeded against under the criminal law.
48.45(3)
(3) If it appears at a court hearing that any person 17 years of age or older has violated s. 948.40, the judge shall refer the record to the district attorney
for criminal proceedings as may be warranted in the district attorney's judgment. This subsection does not prevent prosecution of violations of s. 948.40
without the prior reference by the judge to the district attorney, as in other criminal cases.
48.45 - ANNOT.
History: 1977 c. 354, 449; 1987 a. 332 s. 64; 1989 a. 121; 1993 a. 118, 377; 1995 a. 27, 77; 1997 a. 35, 292.
48.45 - ANNOT.
Involuntary commitment was not authorized by this section. Contempt In Interest of J. S., 137 Wis. 2d 217, 404 N.W.2d 79 (Ct. App. 1987).
Subch. X of Ch. 48
SUBCHAPTER X
REHEARING AND APPEAL
(Part 1) (Part 2) (PART
3) (PART 4) (PART 5)
