Child Adoption Laws
Wisconsin

Wisconsin Adoption Statute and Law
Chapter 48: Children's Code
Subchapter VIII: Termination of Parental Rights
Sections: 40-435
and
Subchapter XIX: Adoption of Minors; Guardianship
Sections: 81-979

(This page was last updated on (10/10/13.)

Subchapter VIII: Termination of Parental Rights

48.40 Definitions. In this subchapter:
(1) Except as otherwise provided, “agency” means the department,
a county department or a licensed child welfare agency.
(1m) “Kinship care relative” means a person receiving payments
under s. 48.57 (3m) (am) for providing care and maintenance
for a child.
(1r) “Parent” has the meaning given in s. 48.02 (13), except
that for purposes of filing a petition seeking the involuntary termination
of parental rights under s. 48.415 to a nonmarital child
who is not adopted or whose parents do not subsequently intermarry
under s. 767.803 and whose paternity has not been established,
of finding grounds under s. 48.415 for the involuntary termination
of parental rights to such a child, and of terminating the
parental rights to such a child on a ground specified in s. 48.415,
“parent” includes a person who may be the parent of such a child.
(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.  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).
Terminating parental rights. Hayes and Ogorchok. Wis. Law. June 1989.

48.41 Voluntary consent to termination of parental
rights.
(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.
(2) The court may accept a voluntary consent to termination
of parental rights only as follows:
(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.
(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 do any
of the following:
1. 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.
2. On request of the parent, unless good cause to the contrary
is shown, admit testimony on the record by telephone or live
audiovisual means as prescribed in s. 807.13 (2).
(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.
(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.
(e) In the case of an Indian child, the consent is given as provided
in s. 48.028 (5) (b).
(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 an involuntary termination of the parent’s rights under s. 48.415.
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; 2005 a. 293; 2009 a. 94.
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]
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).
Enforcement of surrogacy agreements promotes stability and permanence in
family relationships because it allows the intended parents to plan for the arrival of
their child, reinforces the expectations of all parties to the agreement, and reduces
contentious litigation. The surrogacy agreement in this case was enforceable except
for the portions of the agreement requiring a voluntary termination of parental rights
(TPR). The TPR provisions did not comply with the procedural safeguards set forth
in s. 48.41 for a voluntary TPR because the biological mother would not consent to
the TPR and there was no legal basis for involuntary termination. The TPR provisions were severable. Rosecky v. Schissel, 2013 WI 66, ___ Wis. 2d ___, ___ N.W.2d ___, 11−2166.

48.415 Grounds for involuntary termination of parental
rights. At the fact−finding hearing the court or jury shall
determine whether grounds exist for the termination of parental
rights. If the child is an Indian child, the court or jury shall also
determine at the fact−finding hearing whether continued custody
of the Indian child by the Indian child’s parent or Indian custodian
is likely to result in serious emotional or physical damage to the
Indian child under s. 48.028 (4) (e) 1. and whether active efforts
under s. 48.028 (4) (e) 2. have been made to prevent the breakup
of the Indian child’s family and whether those efforts have proved
unsuccessful, unless partial summary judgment on the grounds for
termination of parental rights is granted, in which case the court
shall make those determinations at the dispositional hearing.
Grounds for termination of parental rights shall be one of the following:
(1) ABANDONMENT. (a) Abandonment, which, subject to par.
(c), shall be established by proving any of the following:
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.
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.
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.
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.
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.
(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 periperiods
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.
(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:
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.
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.
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:
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.
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.
(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.
(2) CONTINUING NEED OF PROTECTION OR SERVICES. Continuing
need of protection or services, which shall be established by proving
any of the following:
(a) 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).
2. 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.
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.
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 9−month
period following the fact−finding hearing under s. 48.424.
(am) 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).
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.
(3) CONTINUING PARENTAL DISABILITY. Continuing parental
disability, which shall be established by proving that:
(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), developmental disability as defined in s. 55.01 (2),
or other like incapacities, as defined in s. 55.01 (5);
(b) The condition of the parent is likely to continue indefinitely;
and
(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.
(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:
(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).
(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.
(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:
(a) That the parent has caused death or injury to a child or children
resulting in a felony conviction.
(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).
(6) FAILURE TO ASSUME PARENTAL RESPONSIBILITY. (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 not had a substantial parental relationship
with the child.
(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
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
expressed concern for or interest in the support, care or well−being
of the mother during her pregnancy.
(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.
(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.
(9) PARENTHOOD AS A RESULT OF SEXUAL ASSAULT. (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), 948.025,
or 948.085. 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.
(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) or 948.085, the mother of the child
may be heard on her desire for the termination of the father’s
parental rights.
(9m) COMMISSION OF A FELONY AGAINST A CHILD. (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.
(am) Commission of a violation of s. 948.051 involving any
child or a violation of the law of any other state or federal law, if
that violation would be a violation of s. 948.051 involving any
child if committed in this state.
(b) In this subsection, “serious felony” means any of the following:
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.
2. a. 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,
948.051, 948.06 or 948.08, or a violation of s. 940.302 (2) if s.
940.302 (2) (a) 1. b. applies.
b. A violation of the law of any other state or federal law, if
that violation would be a violation listed under subd. 2. a. if committed
in this state.
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.
(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:
(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); or that the child who is the subject of the petition was
born after the filing of a petition under this subsection whose subject
is a sibling of the child.
(b) That, within 3 years prior to the date the court adjudged the
child to be in need of protection or services as specified in par. (a)
or, in the case of a child born after the filing of a petition as specified
in par. (a), within 3 years prior to the date of birth of the child,
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.
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; 2005 a. 277,
293; 2007 a. 45, 116; 2009 a. 94; 2011 a. 257 s. 56; 2011 a. 271.
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).
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).
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).
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).
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).
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).
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).
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).
“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).
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).
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).
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 685, 698 N.W.2d 95, 04−0723.
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) [now s. 767.41 (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,
281 Wis. 2d 261, 697 N.W.2d 476, 04−3220.
When a parent is incarcerated and the only ground for parental termination is that
the child continues to be in need of protection or services solely because of the parent’s incarceration, sub. (2) requires that the court−ordered conditions of return are tailored to the particular needs of the parent and child. A parent’s incarceration is not a sufficient basis to terminate parental rights. Other factors must be considered, such as the parent’s relationship with the child both prior to and while the parent is incarcerated, the nature of the crime committed, the length and type of sentence imposed, the parent’s level of cooperation with the responsible agency and the department of corrections, and the best interests of the child. Kenosha County Department of Human Services v. Jodie W. 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, 05−0002. Sub. (10) (b) requires that within the 3 years prior a court has terminated the parent’s rights to another child in an involuntary termination proceeding, but does not require proof of which of the available 12 grounds set out in this section was the basis for the involuntary termination. Oneida County Department of Social Services v. Nicole W. 2007 WI 30, 299 Wis. 2d 637, 728 N.W.2d 652, 05−2656. In determining whether a party seeking termination of parental rights has proven
by clear and convincing evidence that a biological father has failed to assume parental responsibility under sub. (6), a circuit court must consider the biological father’s efforts undertaken after he discovers that he is the father but before the circuit court adjudicates the grounds of the termination proceeding. State v. Bobby G. 2007 WI 77, 301 Wis. 2d 531, 734 N.W.2d 81, 06−0066.
The 3−month abandonment ground under sub. (1) (a) 2. is effectively an exception
to the more general requirement of 6 months of abandonment under sub. (1) (a) 3.
The 3−month provision is a special scenario justifying a shorter abandonment period. When there is an active CHIPS order, it is a given that the child has been facing some kind of peril, and a shorter abandonment period is therefore appropriate and in the child’s best interests. When a CHIPS order has been terminated or allowed to lapse,
it is reasonable to assume that the parental situation has changed and the reason for
the shorter abandonment period is no longer present. Heather B. v. Jennifer B. 2011
WI App 26, 331 Wis. 2d 666, 794 N.W.2d 800, 10−2528.
Sub. (1) (a) 2. requires that the 3−month abandonment period fall within the duration
of a CHIPS−based placement of the child outside the parent’s home. Heather B.
v. Jennifer B. 2011 WI App 26, 331 Wis. 2d 666, 794 N.W.2d 800, 10−2528.
Under sub. (6) (a), a fact−finder must look to the totality−of−the−circumstances to
determine if a parent has assumed parental responsibility. The phrase “have not had,” does not direct the fact−finder to consider only a limited time period. Rather, the statute gives latitude to the fact−finder to consider the entirety of the child’s life and determine if the parent’s actions have been sufficient to find that he or she has assumed parental responsibility. Under the totality−of−the−circumstances test, a fact−finder may consider whether, during the time the parent was caring for his or her child, the parent exposed the child to a hazardous living environment. Tammy W−G. v. Jacob T. 2011 WI 30, 333 Wis. 2d 273, 797 N.W.2d 854, 09−2973.
Even though there is no restraint of the petitioner’s liberty, the writ of habeas corpus
may be used in the court of appeals to seek relief from a termination of parental
rights (TPR) when appellate counsel fails to appeal before the deadline. Under s.
809.82 (2) (b), the time for filing an appeal of a TPR may not be enlarged when the
petition is filed by someone other than a representative of the public. If the court is
not able to recognize the petitioner’s right to raise ineffectiveness of counsel, the petitioner will never have an appeal through no fault of his or her own. Amy W. v. David G., 2013 WI App 83, ___ Wis. 2d ___, ___ N.W.2d ___, 13−0731.
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). Adoption and termination proceedings in Wisconsin: Straining the wisdom of Solomon. Hayes and Morse, 66 MLR 439 (1983).

48.417 Petition for termination of parental rights;
when required. (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:
(a) The child has been placed outside of his or her home, as
described in s. 48.365 (1) or 938.365 (1), in a foster home, group
home, nonsecured residential care center for children and youth,
or shelter care facility 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 was residing in a trial reunification
home. 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.
(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.
(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.
(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, 948.03 (2) (a) or (3) (a), 948.051, or 948.085, a violation
of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies, or a violation
of the law of any other state or federal law, if that violation would
be a violation listed under this paragraph 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.
(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:
(a) The child is being cared for by a fit and willing relative of
the child.
(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.
(c) The agency primarily responsible for providing services to
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.
(cm) In the case of an Indian child, the agency primarily
responsible for providing services to the Indian child and the
family under a court order, if required under s. 48.355 (2) (b) 6v.
to make active efforts under s. 48.028 (4) (d) 2. to prevent the
breakup of the Indian child’s family, has not provided to the Indian
child’s family, consistent with the child’s permanency plan, the
services necessary to prevent the breakup of the Indian child’s
family.
(d) Grounds for an involuntary termination of parental rights
under s. 48.415 do not exist.
(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.
(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.
History: 1997 a. 237; 2001 a. 109; 2005 a. 277; 2007 a. 20, 116; 2009 a. 79, 94;
2011 a. 181.

48.42 Procedure. (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:
(a) The name, birth date or anticipated birth date, and address
of the child.
(b) The names and addresses of the child’s parent or parents,
guardian and legal custodian.
(c) One of the following:
1. A statement that consent will be given to termination of
parental rights as provided in s. 48.41.
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.
(d) A statement of whether the child may be subject to the federal
Indian Child Welfare Act, 25 USC 1901 to 1963, and, if the child may be subject to that act, the names of the child’s Indian custodian, if any, and tribe, if known.
(e) If the petition is seeking the involuntary termination of
parental rights to an Indian child, reliable and credible information
showing that continued custody of the Indian child by the
Indian child’s parent or Indian custodian is likely to result in serious
emotional or physical damage to the Indian child under s.
48.028 (4) (e) 1. and reliable and credible information showing
that active efforts under s. 48.028 (4) (e) 2. have been made to prevent
the breakup of the Indian child’s family and that those efforts
have proved unsuccessful.
(1g) AFFIDAVIT. (a) Except as provided in par. (c), if the petition
is filed by a person or agency other than the district attorney,
corporation counsel, or other appropriate official under s. 48.09;
if the petition seeks to terminate the parental rights of a person
who may be the father of a nonmarital child who is under one year
of age at the time the petition is filed, who is not adopted or whose
parents do not subsequently intermarry under s. 767.803, and
whose paternity has not been established; and if the mother of the
child has voluntarily consented to or seeks to voluntarily consent
to the termination of her parental rights to the child, the petitioner
may file with the petition an affidavit signed by the mother that
includes all of the following:
1. A statement that the mother has voluntarily consented to
or seeks to voluntarily consent to the termination of her parental
rights to the child.
2. A statement acknowledging that the mother has been asked
to identify the father of the child.
3. A statement that the mother knows and is identifying the
father or that she does not know the identity of the father.
4. A statement identifying any man who has lived in a familial
relationship with the child and who may be the father of the child.
5. If the mother states that she knows and is identifying the
father under subd. 3. or 4., the father’s name, age, and last−known
mailing address, and the last−known mailing address of the
father’s employer.
6. If the mother states that she does not know the identity of
the father, an explanation of why she is unable to identify him and
a physical description of the father.
7. A statement that the mother has been informed and understands
that if she misidentifies the father, she is permanently
barred from attacking the termination of the father’s or her parental
rights on the basis that the father was not correctly identified.
8. A statement that the mother understands that she may be
prosecuted under s. 946.32 (2) for false swearing if she makes a
false statement that she does not believe is true in the affidavit
under this paragraph.
9. A statement that the mother has reviewed and understands
the affidavit, the name of the person who explained the affidavit
and the consequences of signing the affidavit to her, and a statement
that the mother is signing the affidavit voluntarily.
(b) The petitioner shall notify any man identified in the affidavit
under par. (a) as an alleged father of his right to file a declaration
of paternal interest under s. 48.025 before the birth of the
child, within 14 days after the birth of the child, or within 21 days
after the date on which the notice is mailed, whichever is later; of
the birth date or anticipated birth date of the child; and of the consequences
of filing or not filing a declaration of paternal interest.
The petitioner shall include with the notice a copy of the form
required to file a declaration of paternal interest under s. 48.025.
The notice shall be sent by certified mail to the last−known
address of the alleged father.
(c) If an affidavit under par. (a) is not filed with the petition,
notice shall be given to an alleged father under sub. (2).
(1m) VISITATION OR CONTACT RIGHTS. (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.
(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).
(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).
(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).
(e) 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.
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.
(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:
(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).
(b) Except as provided in par. (bm), if the child is a nonmarital
child who is not adopted or whose parents do not subsequently
intermarry under s. 767.803 and whose paternity has not been
established:
1. A person who has filed an unrevoked declaration of paternal
interest under s. 48.025 before the birth of the child or within
14 days after the birth of the child.
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).
3. A person who has lived in a familial relationship with the
child and who may be the father of the child.
(bm) If the child is a nonmarital child who is under one year
of age at the time the petition is filed and who is not adopted or
whose parents do not subsequently intermarry under s. 767.803
and whose paternity has not been established and if an affidavit
under sub. (1g) (a) is filed with the petition:
1. A person who has filed an unrevoked declaration of paternal
interest under s. 48.025 before the birth of the child, within 14
days after the birth of the child, or within 21 days after a notice
under sub. (1g) (b) is mailed, whichever is later. 2. A person who has lived in a familial relationship with the
child and who may be the father of the child.
(c) The guardian, guardian ad litem, legal custodian, and
Indian custodian of the child.
(d) Any other person to whom notice is required to be given
by ch. 822, excluding foster parents who shall be provided notice
as required under sub. (2g).
(e) To the child if the child is 12 years of age or older.
(2g) NOTICE REQUIRED. (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 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 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 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.
(ag) In the case of an involuntary termination of parental rights
to a child whom the petitioner knows or has reason to know is an
Indian child, the petitioner shall cause the summons and petition
to be served on the Indian child’s parent and Indian custodian in
the manner specified in s. 48.028 (4) (a). In like manner, the petitioner
shall also notify the Indian child’s tribe of all hearings on
the petition. The first notice to an Indian child’s tribe shall be written,
shall have a copy of the petition attached to it, and shall state
the nature, location, date, and time of the initial hearing. No hearing
may be held on the petition until at least 10 days after receipt
of notice of the hearing by the Indian child’s parent, Indian custodian,
and tribe or, if the identity or location of the Indian child’s
parent, Indian custodian, or tribe cannot be determined, until at
least 15 days after receipt of the notice by the U.S. secretary of the
interior. On request of the Indian child’s parent, Indian custodian,
or tribe, the court shall grant a continuance of up to 20 additional
days to enable the requester to prepare for the hearing.
(am) The court shall give a foster parent or other physical custodian
described in s. 48.62 (2) who is notified of a hearing under
par. (a) a right to be heard at the hearing by permitting the 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 or other physical custodian described in s. 48.62
(2) who receives a notice of a hearing under par. (a) and a right 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 right to be heard.
(b) Failure to give notice under par. (a) to a 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 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.
(2m) NOTICE NOT REQUIRED. (a) Parent as a result of sexual
assault. Except as provided in this paragraph, 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), 948.025, or 948.085 if a physician
attests to his or her belief that a sexual assault as specified in this
paragraph has occurred or if the person who may be the father of
the child has been convicted of sexual assault as specified in this
paragraph for conduct which may have led to the child’s conception.
A person who under this paragraph is not given notice does
not have standing to appear and contest a petition for the termination
of his parental rights, present evidence relevant to the issue
of disposition, or make alternative dispositional recommendations.
This paragraph 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.
(b) Parent of nonmarital child. A person who may be the
father of a nonmarital child who is not adopted or whose parents
do not subsequently intermarry under s. 767.803 and whose paternity
has not been established, by virtue of the fact that he has
engaged in sexual intercourse with the mother of the child, is considered
to be on notice that a pregnancy and a termination of
parental rights proceeding concerning the child may occur, and
has the duty to protect his own rights and interests. He is therefore
entitled to actual notice of such a proceeding only as provided in
sub. (2) (b) or (bm). A person who is not entitled to notice under
sub. (2) (b) or (bm) does not have standing to appear and contest
a petition for the termination of his parental rights, present evidence
relevant to the issue of disposition, or make alternative dispositional
recommendations.
(3) CONTENTS OF SUMMONS. The summons shall:
(a) Contain the name and birth date or anticipated birth date of
the child, and the nature, location, date and time of the initial hearing.
(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.
(c) Advise the parties of the possible result of the hearing and
the consequences of failure to appear or respond.
(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.
(4) MANNER OF SERVING SUMMONS AND PETITION. (a) Personal
service. Except as provided in this paragraph, par. (b), and sub.
(2g) (ag), 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. 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.
(b) Constructive notice. 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.
1m. If the child’s custody was relinquished under s. 48.195,
service to the parents of the child may be made by publication of
the notice under subd. 4.
2. If the child is a nonmarital child who is not adopted or
whose parents do not subsequently intermarry under s. 767.803
and paternity has not been acknowledged under s. 767.805 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.
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.
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:
a. The name of the party or parties to whom notice is being
given;
b. A description of the party or parties;
c. The former address of the party or parties;
d. The approximate date and place of conception of the child;
and
e. The date and place of birth of the child.
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.
(c) The notice under par. (a) or (b) shall also inform the parties:
1. That the parental rights of a parent or alleged parent who
fails to appear may be terminated;
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
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.
(5) PENALTY. Any person who knowingly and willfully makes
or causes to be made any false statement or representation of a
material fact in the course of a proceeding under this section with
an intent to deceive or mislead the court for the purpose of preventing
a person who is entitled to receive notice of a proceeding
under this section from receiving notice may be fined not more
than $10,000 or imprisoned for not more than 9 months, or both.
It is not a violation of this subsection for a person to refuse to make
a statement or representation of material fact in the course of a proceeding
under this section for the purpose of preventing a person
who is entitled to receive notice of a proceeding under this section
from receiving notice if, at the time of the refusal, the person stated
that he or she feared that making such a statement or representation
would place the person or another person at risk of domestic
abuse, as defined in s. 813.12 (1) (am), or abuse, as defined in s.
813.122 (1) (a), and if the person proves that he or she refused to
make such a statement or representation because of a recent overt
act, attempt, or threat that caused him or her reasonably to believe
that refusing to make such a statement or representation was the
only means of preventing domestic abuse, as defined in s. 813.12
(1) (am), or abuse, as defined in s. 813.122 (1) (a), to himself or
herself or to another.
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; 2005 a. 277, 293; 2005 a. 443 s. 265; 2007 a. 96, 97; 2009 a. 28, 79, 94; 2011 a. 257 s. 56.
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]
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).
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).
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).
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).
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).
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 Hearing on the petition. (1) Except as provided in
s. 48.42 (2g) (ag), 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.
(2) Except as provided in s. 48.42 (2g) (ag), if the petition is
contested the court shall set a date for a fact−finding hearing to be
held within 45 days after the hearing on the petition, unless all of
the necessary parties agree to commence with the hearing on the
merits immediately.
(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).
(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.
(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.
(6) (a) In the case of a nonmarital child who is not adopted or
whose parents do not subsequently intermarry under s. 767.803
and for whom paternity has not been established, or for whom a
declaration of paternal interest has not been filed under s. 48.025
within 14 days after the date of birth of the child or, if s. 48.42 (1g)
(b) applies, within 21 days after the date on which the notice under
s. 48.42 (1g) (b) is mailed, 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) and (2g) (ag). If not, the court shall
adjourn the hearing and order appropriate notice to be given.
(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.
(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.
(7) Before accepting an admission of the alleged facts in a
petition, the court shall:
(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.
(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.
(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).
(br) Establish whether any person has coerced a birth parent
or any alleged or presumed father of the child in violation of s.
48.63 (3) (b) 5. Upon a finding of coercion, the court shall dismiss
the petition.
(c) Make such inquiries as satisfactorily establish that there is
a factual basis for the admission.
(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 file a report with the court as provided in s. 48.425
(1), except that, if the child is an Indian child, the court may order
the agency or request the tribal child welfare department of the
Indian child’s tribe to file that report.
(9) (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).
(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)
(a) to (p), 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.
History: 1979 c. 330; 1981 c. 359; 1983 a. 326; 1983 a. 447 ss. 10, 67; 1985 a.
176; 1997 a. 104; 2005 a. 293; 2005 a. 443 s. 265; 2007 a. 186; 2009 a. 28, 94.
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).
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).
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).
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.
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.
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.
Any alternative to a parent’s personal presence at a proceeding to terminate his or
her parental rights must, unless the parent knowingly waives the right or the ministerial nature of the proceedings make personal−presence unnecessary, be functionally equivalent to personal presence. The parent must be able to assess the witnesses, confer with his or her lawyer, and, of course, hear everything that is going on. State v. Lavelle W. 2005 WI App 266, 288 Wis. 2d 504, 708 N.W.2d 698, 05−1604. When every option to secure the physical presence in the courtroom of a deported father failed and a webcam system was used by which the father could see and hear the proceedings in the courtroom and be seen and heard by the local participants, the father was offered meaningful participation in termination proceedings, unlike the telephone connection used in Lavelle W. Waukesha County Dept. of Health & Human Services v. Teodoro E. 2008 WI App 16, 307 Wis. 2d 372, 745 N.W.2d 701, 07−2283. While not required, circuit courts in TPR proceedings are urged to consider personally engaging the parent in a colloquy explaining that a stipulation to an element withdraws that element from the jury’s consideration and determining that the withdrawal of that element from the jury is knowing and voluntary. Walworth County DH&HS
v. Andrea L. O. 2008 WI 46, 309 Wis. 2d 161, 749 N.W.2d 168, 07−0008.
A parent was deprived of the right to a jury trial when the court, rather than the jury,
answered one of the verdict questions on an element of parental unfitness. Although
counsel had stipulated that the element was satisfied, the parent had not agreed to the
stipulation in open court, the required documentary evidence of the element was
missing from the record, and the evidence adduced was not so “ample” as to make
the element “undisputed and undisputable.” Manitowoc County Human Services
Department v. Allen J. 2008 WI App 137, 314 Wis. 2d 100, 757 N.W.2d 842,
07−1494. In order for no contest pleas at the grounds stage to be entered knowingly and intelligently, parents must understand that acceptance of their plea will result in a finding of parental unfitness. Sub. (7) requires, at the very least, that a court must inform the parent that at the 2nd step of the process, the court will hear evidence related to the disposition and then will either terminate the parent’s rights or dismiss the petition if the evidence does not warrant termination. Additionally, the court must inform the parent that the best interests of the child shall be the prevailing factor considered by the court in determining the disposition. Oneida County Department of Social Services v. Therese S. 2008 WI App 159, 314 Wis. 2d 493, 762 N.W.2d 122, 08−1126.
No provision of the federal or state constitutions nor this section mandates that a
parent’s waiver of the right to a jury trial on the grounds for termination must be on
the record during a personal colloquy with the judge. Here, although the court did
not personally ask the mother whether she wished to waive her right to a jury trial,
the record made clear that she did knowingly, intelligently, and voluntarily waive that right. That is the benchmark. Racine County Human Services Department v. Latanya
D. K. 2013 WI App 28, 346 Wis. 2d 75, 828 N.W.2d 251, 12−1121.
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 Rights of persons alleging paternity. (1) RIGHTS
TO PATERNITY DETERMINATION. If a person appears at the hearing
and claims that he is the father of the child, 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 person claiming
to be the father of the child of any right to counsel under s. 48.23.
The person claiming to be the father of the child must prove paternity
by clear and convincing evidence. A person who establishes
his paternity of the child under this section may further participate
in the termination of parental rights proceeding only if the person
meets the conditions specified in sub. (2) or meets a condition
specified in s. 48.42 (2) (b) or (bm).
(2) RIGHTS OF OUT−OF−STATE FATHERS. A person who may be
the father of a nonmarital child who is not adopted or whose parents
do not subsequently intermarry under s. 767.803 and whose
paternity has not been established may contest the petition, present
evidence relevant to the issue of disposition, and make alternative
dispositional recommendations if the person appears at the
hearing, establishes paternity under sub. (1), and proves all of the
following by a preponderance of the evidence:
(a) That the person resides and has resided in another state
where the mother of the child resided or was located at the time
of or after the conception of the child.
(b) That the mother left that state without notifying or informing
that person that she could be located in this state.
(c) That the person attempted to locate the mother through
every reasonable means, but did not know or have reason to know
that the mother was residing or located in this state.
(d) That the person has complied with the requirements of the
state where the mother previously resided or was located to protect
and preserve his paternal interests in matters affecting the
child.
History: 1979 c. 330; 2005 a. 293; 2007 a. 96, 97.
Putative father’s right to custody of his child. 1971 WLR 1262.

48.424 Fact−finding hearing. (1) The purpose of the fact−
finding hearing is to determine in cases in which the petition was
contested at the hearing on the petition under s. 48.422 all of the
following:
(a) Whether grounds exist for the termination of parental
rights.
(b) Whether the allegations specified in s. 48.42 (1) (e) have
been proved in cases involving the involuntary termination of
parental rights to an Indian child.
(2) The fact−finding hearing shall be conducted according to
the procedure specified in s. 48.31 except as follows:
(a) The court may exclude the child from the hearing.
(b) The hearing shall be closed to the public.
(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 proved and whether the allegations specified in s. 48.42
(1) (e) have been proved in cases involving the involuntary termination
of parental rights to an Indian child. The court shall
decide what disposition is in the best interest of the child.
(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. Except as provided in s. 48.42 (2g) (ag), 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 any
of the following apply:
(a) All parties to the proceeding agree.
(b) The court has not yet received a report to the court on the
history of the child as provided in s. 48.425 and the court now
orders an agency enumerated in s. 48.069 (1) or (2) to file that
report with the court, or, in the case of an Indian child, now orders
that agency or requests the tribal child welfare department of the
Indian child’s tribe to file such a report, before the court makes the
disposition on the petition.
(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.
Placement of an Indian child under this subsection shall comply
with the order of placement preference under s. 48.028 (7) (b) or,
if applicable, s. 48.028 (7) (c), unless the agency finds good cause,
as described in s. 48.028 (7) (e), for departing from that order.
History: 1979 c. 330; 1987 a. 383; 2009 a. 94.
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).
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).
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.
While not required, circuit courts in TPR proceedings are urged to consider personally engaging the parent in a colloquy explaining that a stipulation to an element withdraws that element from the jury’s consideration and determining that the withdrawal of that element from the jury is knowing and voluntary. Walworth County DH&HS v. Andrea L. O. 2008 WI 46, 309 Wis. 2d 161, 749 N.W.2d 168, 07−0008.
A parent was deprived of the right to a jury trial when the court, rather than the jury,
answered one of the verdict questions on an element of parental unfitness. Although
counsel had stipulated that the element was satisfied, the parent had not agreed to the
stipulation in open court, the required documentary evidence of the element was
missing from the record, and the evidence adduced was not so “ample” as to make
the element “undisputed and undisputable.” Manitowoc County Human Services
Department v. Allen J. 2008 WI App 137, 314 Wis. 2d 100, 757 N.W.2d 842,
07−1494.
The circuit court is not obligated to inform the parent that by pleading no contest
to grounds for termination the parent is waiving the constitutional right to parent or
that the right to parent is a constitutional right. What is important is that the parent
understands the import of the rights at stake rather than the sources from which they
are derived. For a knowing, voluntary, and intelligent plea, the parent must be
informed of the two independent dispositions available to the circuit court, dismissing the petition and terminating parental rights. Brown County Department of
Human Services v. Brenda B. 2011 WI 6, 331 Wis. 2d 310, 795 N.W.2d 730, 10−0321.
Contrary to the Child’s Best Interest: Children’s Court Proceedings. Sowinski and
Wiensch. Wis. Law. Apr. 2013.

48.425 Court report by an agency. (1) If the court orders
an agency enumerated under s. 48.069 (1) or (2) to file a report
under s. 48.422 (8) or 48.424 (4) (b) or requests the tribal child
welfare department of an Indian child’s tribe to file such a report,
the agency or tribal child welfare department, if that department
consents, shall file a report with the court which shall include:
(a) The social history of the child.
(am) A medical record of the child on a form provided by the
department which shall include:
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.
2. A report of any medical examination which either birth parent
had within one year before the date of the petition.
3. A report describing the child’s prenatal care and medical
condition at birth.
4. The medical and genetic history of the child and any other
relevant medical and genetic information.
(b) A statement of the facts supporting the need for termination.
(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 shall 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. If a permanency plan has previously been prepared for the
child, the report shall also include specific information showing
that the agency primarily responsible for providing services to the
child has made reasonable efforts to achieve the goal of the child’s
permanency plan, including, if appropriate, through an out−
of−state placement.
(cm) If the petition is seeking the involuntary termination of
parental rights to an Indian child, specific information showing
that continued custody of the child by the parent or Indian custodian
is likely to result in serious emotional or physical damage to
the child under s. 48.028 (4) (e) 1. and, if the Indian child has previously
been adjudged to be in need of protection or services, specific
information showing that active efforts under s. 48.028 (4)
(e) 2. have been made to prevent the breakup of the Indian child’s
family and that those efforts have proved unsuccessful.
(d) A statement of other appropriate services, if any, which
might allow the child to return safely to the home of the parent.
(e) A statement applying the standards and factors enumerated
in s. 48.426 (2) and (3) to the case before the court.
(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. or (am)
and include a presentation of the factors that might prevent adoption,
those that would facilitate adoption, and the agency that
would be responsible for accomplishing the adoption.
(g) If an agency designated under s. 48.427 (3m) (a) 1. to 4. or
(am) 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).
(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.
(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).
(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.
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, 232; 2007 a. 20; 2009 a. 79, 94.

48.426 Standard and factors. (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.
(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.
(3) FACTORS. In considering the best interests of the child
under this section the court shall consider but not be limited to the
following:
(a) The likelihood of the child’s adoption after termination.
(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.
(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.
(d) The wishes of the child.
(e) The duration of the separation of the parent from the child.
(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.
History: 1979 c. 330.
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).
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 Dispositions. (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.
(1m) In addition to any evidence presented under sub. (1), the
court shall give the foster parent or other physical custodian
described in s. 48.62 (2) of the child a right to be heard at the dispositional
hearing by permitting the 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 or
other physical custodian described in s. 48.62 (2) who receives
notice of a hearing under s. 48.42 (2g) (a) and a right 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 right to be heard.
(2) The court may dismiss the petition if it finds that the evidence
does not warrant the termination of parental rights.
(3) The court may enter an order terminating the parental
rights of one or both parents.
(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:
(a) Transfer guardianship and custody of the child pending
adoptive placement to:
1. A county department authorized to accept guardianship
under s. 48.57 (1) (e).
3. A child welfare agency licensed under s. 48.61 (5) to accept
guardianship.
4. The department.
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 or is receiving payments under s. 48.62 (4) for providing
care and maintenance for the child.
6. An individual who has been appointed guardian of the child
by a court of a foreign jurisdiction.
(am) Transfer guardianship and custody of the child to a
county department authorized to accept guardianship under s.
48.57 (1) (hm) for placement of the child for adoption by the
child’s foster parent, if the county department has agreed to accept
guardianship and custody of the child and the foster parent has
agreed to adopt the child.
(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.
(c) Appoint a guardian under s. 48.977 and transfer guardianship
and custody of the child to the guardian.
(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.
(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.
(5) In placing an Indian child in a preadoptive placement following
a transfer of guardianship and custody under sub. (3m) or
(3p) or in placing an Indian child in sustaining care under sub. (4),
the court or an agency specified in sub. (3m) (a) 1. to 4. or (am)
shall comply with the order of placement preference under s.
48.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless the court
or agency finds good cause, as described in s. 48.028 (7) (e), for
departing from that order.
(6) If an order is entered under sub. (3), the court shall:
(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.
(b) Forward to the department:
1. The name and date of birth of the child whose birth parent’s
rights have been terminated.
2. The names and current addresses of the child’s birth parents,
guardian and legal custodian.
3. The medical and genetic information obtained under s.
48.422 (9) or 48.425 (1) (am) or (2).
4. If the court knows or has reason to know that the child is
an Indian child, information relating to the child’s membership or
eligibility for membership in an Indian tribe.
(7) (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).
(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).
History: 1979 c. 330; 1981 c. 81, 359; 1985 a. 70, 176; 1995 a. 275, 289; 1997
a. 80, 104, 237; 2005 a. 25, 232; 2009 a. 28, 79, 94.
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.
The 10−day time limit in sub. (1) addressed a period after the circuit court made
the final decisions that served to terminate parental rights of the child and put the child in a position to be adopted. There was no reason why, after all critical stages within the adjudication process are complete, and the court had made the required rulings, failure to enter a written order implicated the court’s competency. Dane Co. DHS v. Dyanne M. 2007 WI App 129, 06−2919.
Sub. (1) provides that a court must enter one of the dispositions specified under
subs. (2) to (4). Nevertheless, the court cannot simply enter one of the dispositions
set forth in sub. (3m), (3p), or (4). Rather, it must first enter a disposition terminating
parental rights under sub. (3). Brown County Department of Human Services v.
Brenda B. 2011 WI 6, 331 Wis. 2d 310, 795 N.W.2d 730, 10−0321
.
48.428 Sustaining care. (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.
(2) (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. or (am),
and place the child in the home of a licensed foster parent or kinship
care relative with whom the child has resided for 6 months or
longer. In placing an Indian child in sustaining care, the court shall
comply with the order of placement preference under s. 48.028 (7)
(b) or, if applicable, s. 48.028 (7) (c), unless the court finds good
cause, as described in s. 48.028 (7) (e), for departing from that
order. Pursuant to the placement, that licensed foster parent or
kinship care relative shall be a sustaining parent with the powers
and duties specified in sub. (3).
(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. or (am), and place
the child in the home of a licensed foster parent or kinship care relative
with whom the child has resided for 6 months or longer. In
placing an Indian child in sustaining care, the court shall comply
with the order of placement preference under s. 48.028 (7) (b) or,
if applicable, s. 48.028 (7) (c), unless the court finds good cause,
as described in s. 48.028 (7) (e), for departing from that order. Pursuant
to the placement, that licensed 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. or (am), the
court shall terminate the guardianship under s. 48.977.
(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:
(a) The authority to consent to routine and emergency health
care for the child.
(b) The authority to sign the child’s application for a license
under s. 343.15.
(c) The authority to approve the child’s participation in school
and youth group activities.
(d) The authority to travel out of state with the child and consent
to the child’s travel out of state.
(e) The authority to act as the child’s parent under subch. V of
ch. 115 and s. 118.125.
(4) Before a licensed foster parent or kinship care relative may
be appointed as a sustaining parent, the 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 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.
(6) (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.
(b) 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.
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.
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.
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; 2005 a. 232;
2009 a. 28, 94.    

48.43 Court orders; contents and effect; review.
(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:
(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.
(am) If the department or a county department receives guardianship
or custody of the child under par. (a), an order ordering the
child into the placement and care responsibility of the department
or county department as required under 42 USC 672 (a) (2) and
assigning the department or county department primary responsibility
for providing services to the child.
(b) If the child will be in need of continued care and treatment
after termination, the agencies and persons responsible.
(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.
(cm) If a permanency plan has previously been prepared for
the child, a finding as to whether the agency primarily responsible
for providing services to the child has made reasonable efforts to
achieve the permanency goal of the child’s permanency plan,
including, if appropriate, through an out−of−state placement. The
court shall make the findings specified in this paragraph on a case−
by−case basis based on circumstances specific to the child and
shall document or reference the specific information on which
those findings are based in the order. An order that merely references
this paragraph without documenting or referencing that specific information in the order or an amended order that retroactively
corrects an earlier order that does not comply with this
paragraph is not sufficient to comply with this paragraph.
(d) A finding that the termination of parental rights is in the
best interests of the child.
(2) An order terminating parental rights permanently severs
all legal rights and duties between the parent whose parental rights
are terminated and the child and between the child and all persons
whose relationship to the child is derived through that parent,
except as follows:
(a) The relationship between the child and his or her siblings
is not severed until that relationship is extinguished by an order of
adoption as provided in s. 48.92 (2).
(b) A relative whose relationship to the child is derived
through the parent whose parental rights are terminated is considered
to be a relative of the child for purposes of placement of, and
permanency planning for, the child until that relationship is extinguished
by an order of adoption as provided in s. 48.92 (2).
(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.
(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.
(5) (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.
(b) 1. 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, place, and purpose of the hearing to the agency
that prepared the report, the child’s guardian, the child, and the
child’s foster parent, the operator of the facility in which the child
is living, or the relative with whom the child is living.
2. If the child’s permanency plan includes a statement under
s. 48.38 (4) (i) indicating that the child’s age and developmental
level are sufficient for the court to consult with the child regarding
the child’s permanency plan or if, notwithstanding a decision
under s. 48.38 (4) (i) that it would not be appropriate for the court
to consult with the child, the court determines that consultation
with the child would be in the best interests of the child, the court
shall consult with the child, in an age−appropriate and developmentally
appropriate manner, regarding the child’s permanency
plan and any other matters the court finds appropriate. If none of
those circumstances apply, the court may permit the child’s caseworker,
the child’s counsel, or, subject to s. 48.235 (3) (a), the
child’s guardian ad litem to make a written or oral statement during
the hearing, or to submit a written statement prior to the hearing,
expressing the child’s wishes, goals, and concerns regarding
the permanency plan and those matters. If the court permits such
a written or oral statement to be made or submitted, the court may
nonetheless require the child’s presence at the hearing.
3. The court shall give a foster parent, operator of a facility,
or relative who is notified of a hearing under subd. 1. a right to be
heard at the hearing by permitting the foster parent, operator, or
relative 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. The foster parent, operator
of a facility, or relative does not become a party to the proceeding
on which the hearing is held solely on the basis of receiving that
notice and right to be heard.
(bm) If the order under sub. (1) involuntarily terminated parental
rights to an Indian child, the court shall also provide notice of
the hearing under par. (b) to the Indian child’s tribe in the manner
specified in s. 48.028 (4) (a). No hearing may be held under par.
(b) until at least 10 days after receipt of notice of the hearing by
the Indian child’s tribe or, if the identity or location of the Indian
child’s tribe cannot be determined, until at least 15 days after
receipt of notice of the hearing by the U.S. secretary of the interior.
On request of the Indian child’s tribe, the court shall grant a continuance
of up to 20 additional days to enable the tribe to prepare for
the hearing.
(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. or
(am) that consents to the transfer, if the court determines that the
transfer is in the child’s best interest. If an Indian child’s guardianship
and custody are transferred under this paragraph, the agency
consenting to the transfer shall comply with the order of placement
preference under s. 48.028 (7) (b) or, if applicable, s. 48.028
(7) (c) in placing the child, unless the agency finds good cause, as
described in s. 48.028 (7) (e), for departing from that order. 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.
(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, to
the child’s guardian, to the child’s foster parent, the operator of the
facility in which the child is living, or the relative with whom the
child is living, and, if the order under sub. (1) involuntarily terminated
parental rights to an Indian child, to the Indian child’s tribe.
NOTE: Sub. (5m) is shown as affected by 2011 Wis. Acts 181 and 258 and as
merged by the legislative reference bureau under s. 13.92 (2) (i).
(6) (a) 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 and are subject to a petition
for rehearing or a motion for relief only as provided in s. 48.46
(1m) and (2) and, in the case of an Indian child, s. 48.028 (5) (c)
and (6). The attorney representing a person during a proceeding
under this subchapter shall continue representation of that person
by filing a notice of intent to appeal under s. 809.107 (2), unless
the attorney has been previously discharged during the proceeding
by the person or by the trial court.
(b) The mother of a child who completes an affidavit under s.
48.42 (1g) may not collaterally attack a judgment terminating
parental rights on the basis that the father of the child was not correctly
identified.
(c) Except as provided in s. 48.028 (5) (c) and (6), in no event
may any person, for any reason, collaterally attack a judgment terminating
parental rights more than one year after the date on
which the period for filing an appeal from the judgment has
expired, or more than one year after the date on which all appeals
from the judgment, if any were filed, have been decided, whichever
is later.
(6m) If a person whose parental rights are terminated is present
in court when the court grants the order terminating those
rights, the court shall provide written notification to the person of
the time periods for appeal of the judgment. The person shall sign
the written notification, indicating that he or she has been notified
of the time periods for filing an appeal under ss. 808.04 (7m) and
809.107. The person’s counsel shall file a copy of the signed, written
notification with the court on the date on which the judgment
is granted.
(7) (a) If the agency specified under sub. (1) (a) is the department,
the department shall seek a permanent adoptive placement
for the child or seek to enter into a subsidized guardianship agreement
under s. 48.623 (2) with a proposed guardian of the child and
petition the court for the appointment of that individual as the
guardian of the child under s. 48.977 (2).
(b) If a permanent adoptive or subsidized guardianship 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, except that the department may not petition
the court to transfer to a county department legal custody of
a child who was initially taken into custody under s. 48.195 (1).
The court shall transfer the child’s legal custody to the county
department specified in the petition. The department shall remain
the child’s guardian.
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; 2005
a. 232, 293, 296; 2007 a. 20, 199; 2009 a. 28, 79, 94; 2011 a. 181, 258; 2013 a. 20;
s. 13.92 (2) (i).
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).
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 Access to medical information. (1) In this section:
(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.
(ag) “Agency” means a county department or a licensed child
welfare agency.
(am) “Birth parent” means either:
1. The mother designated on the individual’s or adoptee’s
original birth certificate.
2. One of the following:
a. The adjudicated father.
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. 767.803.
(b) “Individual” means a person whose birth parent’s rights
have been terminated in this state at any time.
(2) (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.
(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.
(3) (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:
1. An individual or adoptee 18 years of age or older.
2. An adoptive parent of an adoptee.
3. The guardian or legal custodian of an individual or adoptee.
4. The offspring of an individual or adoptee if the requester
is 18 years of age or older.
5. An agency or social worker assigned to provide services to
the individual or adoptee or place the individual for adoption.
(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.
(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.
(4) (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.
(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.
(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.
(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.
(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.
(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.
(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.
(7) (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.
(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.
(c) Notice under par. (a) or (b) shall be sent to the most recent
address on file with the agency or the department.
(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.
(8m) The department, or agency contracted with under sub.
(9), shall give priority to all of the following:
(a) Reports filed by physicians under sub. (7).
(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.
(c) Any reports and requests specified by the department by
rule.
(9) The department shall promulgate rules to implement this
section and may contract with an agency to administer this section.
History: 1981 c. 359; 1983 a. 447, 471; 1985 a. 176; 1985 a. 332 s. 251 (1); 1989
a. 31; 1995 a. 27; 2005 a. 443 s. 265.
Cross−reference: See also ch. DCF 53, Wis. adm. code.

48.433 Access to identifying information about parents.
(1) In this section:
(a) “Agency” has the meaning given under s. 48.432 (1) (ag).
(b) “Birth parent” has the meaning given under s. 48.432 (1)
(am).
(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.
(3) Any person 18 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:
(a) The person’s original birth certificate.
(b) Any available information regarding the identity and location
of his or her birth parents.
(4) Before acting on the request, the department, or agency
contracted with under sub. (11), shall require the requester to provide
adequate identification.
(5) The department, or agency contracted with under sub.
(11), shall disclose the requested information in either of the following
circumstances:
(a) The department, or agency contracted with under sub. (11),
has on file unrevoked affidavits filed under sub. (2) from both
birth parents.
(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).
(6) (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.
(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.
(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.
(7) (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:
1. The nature of the information requested.
2. The date of the request.
3. The fact that the birth parent has the right to file with the
department the affidavit under sub. (2).
(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.
(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).
(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.
(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).
(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.
(8) (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:
1. The other birth parent has filed an unrevoked affidavit
under sub. (2).
2. One year has elapsed since the death of the deceased birth
parent.
(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.
(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.
(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.
(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.
(11) The department shall promulgate rules to implement this
section and may contract with an agency to administer this section.
History: 1981 c. 359, 391; 1983 a. 471; 1985 a. 176; 1985 a. 332 s. 251 (1); 1989
a. 31; 1995 a. 27; 2005 a. 343.
Cross−reference: See also ch. DCF 53, Wis. adm. code.

48.434 Release of identifying information by an
agency when authorization is granted. (1) DEFINITIONS.
In this section:
(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.
(b) “Birth parent” has the meaning given under s. 48.432 (1)
(am).
(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.
(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.
(4) A written authorization filed under sub. (2) or (3) may be
revoked at any time by notifying the agency in writing.
(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.
(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.
(7) This section does not apply if the adopted child is 21 years
of age or over.
(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.
(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.
(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.
(11) A written authorization filed with an agency under this
section shall be notarized.
History: 1997 a. 104.
NOTE: 1997 Wis. Act 104, which affected this section, contains explanatory
notes.

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.
History: 1979 c. 330; 1983 a. 447.

 

Subchapter XIX: Adoption of Minors; Guardianship

48.81 Who may be adopted. Any child who is present in
this state at the time the petition for adoption is filed may be
adopted if any of the following criteria are met:
(1) Both of the child’s parents are deceased.
(2) The parental rights of both of the child’s parents with
respect to the child have been terminated under subch. VIII or in
another state or a foreign jurisdiction.
48.81 Who may be adopted. Any child who is present in
this state at the time the petition for adoption is filed may be
adopted if any of the following criteria are met:
(1) Both of the child’s parents are deceased.
(2) The parental rights of both of the child’s parents with
respect to the child have been terminated under subch. VIII or in
another state or a foreign jurisdiction.  48.81 Who may be adopted. Any child who is present in
this state at the time the petition for adoption is filed may be
adopted if any of the following criteria are met:
(1) Both of the child’s parents are deceased.
(2) The parental rights of both of the child’s parents with
respect to the child have been terminated under subch. VIII or in
another state or a foreign jurisdiction.
(3) The parental rights of one of the child’s parents with
respect to the child have been terminated under subch. VIII or in
another state or a foreign jurisdiction and the child’s other parent
is deceased.
(4) The person filing the petition for adoption is the spouse of
the child’s parent with whom the child and the child’s parent reside
and either of the following applies:
(a) The child’s other parent is deceased.
(b) The parental rights of the child’s other parent with respect
to the child have been terminated under subch. VIII or in another
state or a foreign jurisdiction.
(5) Section 48.839 (3) (b) applies.
(6) The child is being readopted under s. 48.97.
History: 1987 a. 383; 1989 a. 161; 1997 a. 104.
NOTE: 1997 Wis. Act 104, which affected this section, contains explanatory
notes.

48.82 Who may adopt. (1) The following persons are eligible
to adopt a minor if they are residents of this state:
(a) A husband and wife jointly, or either the husband or wife
if the other spouse is a parent of the minor.
(b) An unmarried adult.
(3) When practicable and if requested by the birth parent, the
adoptive parents shall be of the same religious faith as the birth
parents of the person to be adopted.
(4) No person may be denied the benefits of this subchapter
because of a religious belief in the use of spiritual means through
prayer for healing.
(5) Although otherwise qualified, no person shall be denied
the benefits of this section because the person is deaf, blind or has
other physical handicaps.
(6) No otherwise qualified person may be denied the benefits
of this subchapter because of his or her race, color, ancestry or
national origin.
History: 1981 c. 359 s. 16; 1983 a. 350; 1989 a. 161; 1991 a. 316.
Standing to object to adoption proceedings turns on the right to petition for adoption;
grandparents excluded from petitioning under s. 48.90 (1) (a) had no standing
to object to the adoption of their grandchildren. Adoption of J.C.G. 177 Wis. 2d 424,
501 N.W.2d 908 (Ct. App. 1993).

48.825 Advertising related to adoption. (1) In this section:
(a) “Advertise” means to communicate by any public medium
that originates within this state, including by newspaper, periodical,
telephone book listing, outdoor advertising sign, radio or television.
(b) “Another jurisdiction” means a state of the United States
other than Wisconsin, the District of Columbia, the Commonwealth
of Puerto Rico, any territory or insular possession subject
to the jurisdiction of the United States or an Indian tribe.
(2) Except as provided in sub. (3), no person may do any of the
following:
(a) Advertise for the purpose of finding a child to adopt.
(b) Advertise that the person will find an adoptive home for a
child or arrange for or assist in the adoption or adoptive placement
of a child.
(c) Advertise that the person will place a child for adoption.
(3) This section does not apply to any of the following:
(a) The department, a county department or a child welfare
agency licensed under s. 48.60 to place children for adoption.
(b) An individual or agency providing adoption information
under s. 48.55.
(c) A foster care and adoption resource center funded by this
state or a postadoption resource center funded by this state.
(d) An individual who has received a favorable recommendation
regarding his or her fitness to be an adoptive parent in this
state from the department, a county department or a child welfare
agency licensed under s. 48.60 or in another jurisdiction from an
entity authorized by that jurisdiction to conduct studies of potential
adoptive homes.
(e) An individual seeking to place his or her child for adoption.
(3m) No person may publish by a public medium an advertisement
that violates this section. If the owner, agent, or
employee of the public medium receives a copy of the license of
the person or agency requesting the advertisement that indicates
that the person or agency is licensed to provide adoption services
in this state, there is a rebuttable presumption that the advertisement
does not violate this section.
(4) Nothing in this section prohibits an attorney licensed to
practice in this state from advertising his or her availability to
practice or provide services relating to the adoption of children.
(5) Any person who violates sub. (2) or (3m) may be fined not
more than $10,000 or imprisoned not more than 9 months or both.
History: 1997 a. 104; 1999 a. 9; 2005 a. 293; 2009 a. 94.
NOTE: 1997 Wis. Act 104, which affected this section, contains explanatory
notes.

48.83 Jurisdiction and venue. (1) Except as provided in
s. 48.028 (3) (b), the court of the county where the proposed adoptive
parent or child resides, upon the filing of a petition for adoption
or for the adoptive placement of a child, has jurisdiction over
the child until the petition is withdrawn, denied, or granted. Venue
shall be in the county where the proposed adoptive parent or child
resides at the time the petition is filed. The court may transfer the
case to a court in the county in which the proposed adoptive parents
reside.
(2) If the adoption is denied, jurisdiction over the child shall
immediately revert to the court which appointed the guardian,
unless the appointing court is a court of another state or foreign
jurisdiction, in which case the court of the county where the child
is shall have jurisdiction.
History: 1975 c. 39; 1977 c. 449 s. 497; 1981 c. 81, 391; 1989 a. 161; 2009 a. 94.

48.831 Appointment of guardian for child without a living
parent for adoptability finding. (1) TYPE OF GUARDIANSHIP.
This section may be used for the appointment of a guardian
of a child who does not have a living parent if a finding as to the
adoptability of a child is sought. Except as provided in ss. 48.977
and 48.978, ch. 54 applies to the appointment of a guardian for a
child who does not have a living parent for all other purposes. An
appointment of a guardian of the estate of a child who does not
have a living parent shall be conducted in accordance with the procedures
specified in ch. 54.
(1m) PETITION. Any of the following may file a petition for
appointment of a guardian for a child who is believed to be in need
of protection or services because he or she is without a living parent
as described under s. 48.13 (1):
(a) The department.
(b) A county department.
(c) A child welfare agency licensed under s. 48.61 (5) to accept
guardianship.
(d) A relative or family member of the child or a person whom
the child has resided with and who has also acted as a parent of the
child.
(e) A guardian appointed under ch. 54 or ch. 880, 2003 stats.,
whose resignation as guardian has been accepted by a court under
s. 54.54 (1) or s. 880.17 (1), 2003 stats.
(1r) NOTICE. When a petition is filed under sub. (1m), the
court shall provide notice of the fact−finding hearing under sub.
(3) to all interested parties as provided in s. 48.27 (6). If the court
knows or has reason to know that the child is an Indian child, the
court shall provide notice to the Indian child’s Indian custodian,
if any, and tribe, if known, in the manner specified in s. 48.028 (4)
(a). No hearing may be held under sub. (3) until at least 10 days
after receipt of the notice by the Indian child’s Indian custodian
and tribe or, if the identity or location of the Indian child’s Indian
custodian or tribe cannot be determined, until at least 15 days after
receipt of the notice by the U.S. secretary of the interior. On request of the Indian child’s Indian custodian or tribe, the court
shall grant a continuance of up to 20 additional days to enable the
requester to prepare for the hearing.
(2) REPORT. If the department, county department, or child
welfare agency files a petition, the court shall order the department,
county department, or child welfare agency to file a report
with the court containing as much of the information specified
under s. 48.425 (1) (a) and (am) as is reasonably ascertainable and,
if applicable, the information specified under s. 48.425 (1) (g). If
the petition is filed by a relative or other person specified under
sub. (1m) (d), the court shall order the department or a child welfare
agency, if the department or agency consents, or a county
department to file a report containing the information specified in
this subsection. If the child is an Indian child, the court may order
the department, county department, or child welfare agency, or
request the tribal child welfare department of the Indian child’s
tribe, if that department consents, to file a report containing the
information specified in this subsection. The department, county
department, child welfare agency, or tribal child welfare department,
if that department consents, shall file the report at least 5
days before the date of the fact−finding hearing on the petition.
(3) FACT−FINDING HEARING. The court shall hold a fact−
finding hearing on the petition, at which any party may present
evidence relevant to the issue of whether the child has a living parent.
If the court finds that the child has a living parent, the court
shall dismiss the petition or grant the petitioner leave to amend the
petition to a petition under s. 48.42 (1).
(4) DISPOSITIONAL HEARING. (a) If the court, at the conclusion
of the fact−finding hearing, finds that the child has no living parent,
the court shall proceed to a dispositional hearing. Any party
may present evidence, including expert testimony, relevant to the
issue of disposition. In determining the appropriate disposition,
the court shall consider any factors under s. 48.426 (3) (a) to (d)
that are applicable.
(b) If the court finds that adoption is in the child’s best interest,
the court shall order that the child be placed in the guardianship
and custody of one of the following:
1. A county department authorized to accept guardianship
under s. 48.57 (1) (e) or (hm).
2. A child welfare agency licensed under s. 48.61 (5) to accept
guardianship.
3. The department.
(c) If the court finds that adoption is not in the child’s best interest,
the court shall order that the child be placed in the guardianship
of the department and place the child in the custody of a
county department or, in a county having a population of 500,000
or more, the department or an agency under contract with the
department.
(cm) If the child is an Indian child who is in the custody of an
Indian custodian, the court may not remove the child from the custody
of the Indian custodian under par. (c) unless the court finds
by clear and convincing evidence, including the testimony of one
or more qualified expert witnesses, that continued custody of the
Indian child by the Indian custodian is likely to result in serious
emotional or physical damage to the child under s. 48.028 (4) (d)
1. and the court finds that active efforts under s. 48.028 (4) (d) 2.
have been made to prevent the breakup of the Indian child’s family
and that those efforts have proved unsuccessful. In placing an
Indian child following a transfer of guardianship and custody
under par. (b) or (c), the custodian appointed under par. (b) or (c)
shall comply with the order of placement preference under s.
48.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless there is
good cause, as described in s. 48.028 (7) (e), for departing from
that order.
(d) Section 48.43 (5), (5m) and (7) applies to orders under pars.
(b) and (c).
(e) The court shall order the custodian appointed under par. (b)
or (c) to prepare a permanency plan under s. 48.38 for the child
within 60 days after the date of the order. A permanency plan
ordered under this paragraph is subject to review under s. 48.38
(5). In preparing a permanency plan, the department, county
department or child welfare agency need not include any information
specified in s. 48.38 (4) that relates to the child’s parents or
returning the child to his or her home. In reviewing a permanency
plan, a court or panel need not make any determination under s.
48.38 (5) (c) that relates to the child’s parents or returning the child
to his or her home.
History: 1989 a. 161; 1995 a. 73, 275; 1997 a. 27, 334; 2005 a. 387; 2009 a. 94.

48.832 Transfer of guardianship upon revocation of
guardian’s license or contract. If the department revokes the
license of a county department licensed under s. 48.57 (1) (hm) to
accept guardianship, or of a child welfare agency licensed under
s. 48.61 (5) to accept guardianship, or if the department terminates
the contract of a county department licensed under s. 48.57 (1) (e)
to accept guardianship, the department shall file a motion in the
court that appointed the guardian for each child in the guardianship
of the county department or agency, requesting that the court
transfer guardianship and custody of the child. The motion may
specify a county department or child welfare agency that has consented
to accept guardianship of the child. The court shall transfer
guardianship and custody of the child either to the county department
or child welfare agency specified in the motion or to another
county department under s. 48.57 (1) (e) or (hm) or a child welfare
agency under s. 48.61 (5) which consents to the transfer. If no
county department or child welfare agency consents, the court
shall transfer guardianship and custody of the child to the department.
History: 1989 a. 161; 1997 a. 27.

48.833 Placement of children for adoption by the
department, county departments, and child welfare
agencies. (1) PLACEMENT BY DEPARTMENT OR COUNTY DEPARTMENT.
The department or a county department under s. 48.57 (1)
(e) or (hm) may place a child for adoption in a licensed foster home
without a court order under s. 48.63 (3) (b) or if the department or
county department is the guardian of the child or makes the placement
at the request of another agency that is the guardian of the
child and if the proposed adoptive parents have completed the preadoption
preparation required under s. 48.84 (1) or the department
or county department determines that the proposed adoptive parents
are not required to complete that preparation. When a child
is placed under this subsection in a licensed foster home for adoption,
the department or county department making the placement
shall enter into a written agreement with the proposed adoptive
parent, which shall state the date on which the child is placed in
the licensed foster home for adoption by the proposed adoptive
parent.
(2) PLACEMENT BY CHILD WELFARE AGENCY. A child welfare
agency licensed under s. 48.60 may place a child for adoption in
a licensed foster home without a court order under s. 48.63 (3) (b)
or if the child welfare agency is the guardian of the child or makes
the placement at the request of another agency that is the guardian
of the child and if the proposed adoptive parents have completed
the preadoption preparation required under s. 48.84 (1) or the
child welfare agency determines that the proposed adoptive parents
are not required to complete that preparation. When a child
is placed under this subsection in a licensed foster home for adoption,
the child welfare agency making the placement shall enter
into a written agreement with the proposed adoptive parent, which
shall state the date on which the child is placed in the licensed foster
home for adoption by the proposed adoptive parent.
(3) INDIAN CHILD; PLACEMENT PREFERENCES. In placing an
Indian child for adoption under sub. (1) or (2), the department, county department, or child welfare agency shall comply with the
order of placement preference under s. 48.028 (7) (a) or, if applicable,
s. 48.028 (7) (c), unless the department, county department,
or child welfare agency finds good cause, as described in s. 48.028
(7) (e), for departing from that order.
History: 1981 c. 81, 384; 1985 a. 176; 1989 a. 336; 1993 a. 446; 1995 a. 275; 2005
a. 293, 448; 2007 a. 96, 186; 2009 a. 28, 94.

48.834 Placement of children with relatives or siblings
for adoption by the department, county departments,
and child welfare agencies. (1) PLACEMENTWITH RELATIVES.
Before placing a child for adoption under s. 48.833, the department,
county department under s. 48.57 (1) (e) or (hm), or child
welfare agency making the placement shall consider the availability
of a placement for adoption with a relative of the child who is
identified in the child’s permanency plan under s. 48.38 or 938.38
or who is otherwise known by the department, county department,
or child welfare agency.
(2) PLACEMENT WITH SIBLINGS. If a child who is being placed
for adoption under s. 48.833 has one or more siblings, as defined
in s. 48.38 (4) (br) 1., who have been adopted or who have been
placed for adoption, the department, county department under s.
48.57 (1) (e) or (hm), or child welfare agency making the placement
shall make reasonable efforts to place the child for adoption
with an adoptive parent or proposed adoptive parent of such a sibling
who is identified in the child’s permanency plan under s.
48.38 or 938.38 or who is otherwise known by the department,
county department, or child welfare agency, unless the department,
county department, or child welfare agency determines that
a joint placement would be contrary to the safety or well−being of
the child or any of those siblings, in which case the department,
county department, or child welfare agency shall make reasonable
efforts to provide for frequent visitation or other ongoing interaction
between the child and the siblings, unless the department,
county department, or child welfare agency determines that such
visitation or interaction would be contrary to the safety or well−
being of the child or any of those siblings.
History: 2005 a. 448; 2009 a. 79.

48.835 Placement of children with relatives for adoption.
(1) DEFINITION. In this section and s. 48.837, “custody”
means physical custody of a child by the child’s parent not in
violation of a custody order issued by a court. “Custody” does not
include physical custody of a child during a period of physical
placement with a parent who does not have legal custody of the
child.
(2) ADOPTIVE PLACEMENT. A parent having custody of a child
may place the child for adoption in the home of a relative of the
child without a court order.
(3) PETITION FOR TERMINATION OF PARENTAL RIGHTS REQUIRED;
EXCEPTION. (a) If the child’s parent has not filed a petition for the
termination of parental rights under s. 48.42, the relative with
whom the child is placed shall file a petition for the termination
of the parents’ rights at the same time the petition for adoption is
filed, except as provided under par. (b).
(b) If the person filing the adoption petition is a stepparent with
whom the child and the child’s parent reside, the stepparent shall
file only a petition to terminate the parental rights of the parent
who does not have custody of the child.
(4) HEARINGS. Notwithstanding s. 48.90 (1) (a), the court may
hold the hearing on the adoption petition immediately after entering
the order to terminate parental rights under s. 48.427 (3).
History: 1981 c. 81; 1987 a. 355; 1997 a. 104.
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).
Grandparents excluded from petitioning under s. 48.90 (1) (a) had no standing
under this section to object to the adoption of their grandchildren. Adoption of J.C.G.
177 Wis. 2d 424, 501 N.W.2d 908 (Ct. App. 1993).

48.837 Placement of children with nonrelatives for
adoption. (1) IN−STATE ADOPTIVE PLACEMENT. When the proposed
adoptive parent or parents of a child reside in this state and
are not relatives of the child, a parent having custody of a child and
the proposed adoptive parent or parents of the child may petition
the court for placement of the child for adoption in the home of the
proposed adoptive parent or parents if the home is licensed as a
foster home under s. 48.62.
(1m) OUT−OF−STATE ADOPTIVE PLACEMENT. Subject to ss.
48.98, 48.988, and 48.99, when the proposed adoptive parent or
parents of a child reside outside this state and are not relatives of
the child, a parent having custody of a child and the proposed
adoptive parent or parents of the child may petition the court for
placement of the child for adoption in the home of the proposed
adoptive parent or parents, if the home meets the criteria established
by the laws of the other state for a preadoptive placement
of a child in the home of a nonrelative.
(1r) PLACEMENT PRIOR TO PETITION. (a) At the request of a parent
having custody of a child and the proposed adoptive parent or
parents of the child, the department, a county department under s.
48.57 (1) (e) or (hm), or a child welfare agency licensed under s.
48.60 may place the child in the home of the proposed adoptive
parent or parents prior to the filing of a petition under sub. (2) as
provided in par. (b) or (c), whichever is applicable, and par. (d).
In placing an Indian child for adoption under this paragraph, the
department, county department, or child welfare agency shall
comply with the order of placement preference under s. 48.028 (7)
(a) or, if applicable, s. 48.028 (7) (c), unless the department,
county department, or child welfare agency finds good cause, as
described in s. 48.028 (7) (e), for departing from that order.
(b) The department, a county department under s. 48.57 (1) (e)
or (hm), or a child welfare agency licensed under s. 48.60 may
place a child under par. (a) in the home of a proposed adoptive parent
or parents who reside in this state if that home is licensed as
a foster home under s. 48.62.
(c) The department, a county department under s. 48.57 (1) (e)
or (hm), or a child welfare agency licensed under s. 48.60 may
place a child under par. (a) in the home of a proposed adoptive parent
or parents who reside outside this state if the placement is
made in compliance with s. 48.98, 48.988, or 48.99, whichever is
applicable, if the home meets the criteria established by the laws
of the state where the proposed adoptive parent or parents reside
for a preadoptive placement of a child in the home of a nonrelative,
and if an appropriate agency in that state has completed an investigation
of the home and filed a report and recommendation concerning
the home with the department, county department, or
licensed child welfare agency.
(d) Before a child may be placed under par. (a), the department,
county department, or child welfare agency making the placement
and the proposed adoptive parent or parents shall enter into a written
agreement that specifies who is financially responsible for the
cost of providing care for the child prior to the finalization of the
adoption and for the cost of returning the child to the parent who
has custody of the child if the adoption is not finalized. Under the
agreement, the department, county department, or child welfare
agency or the proposed adoptive parent or parents, but not the
birth parent of the child or any alleged or presumed father of the
child, shall be financially responsible for those costs.
(e) Prior to termination of parental rights to the child, no person
may coerce a birth parent of the child or any alleged or presumed
father of the child into refraining from exercising his or her right
to withdraw consent to the transfer or surrender of the child or to
termination of his or her parental rights to the child, to have reasonable
visitation or contact with the child, or to otherwise exercise
his or her parental rights to the child.
(2) PETITION FOR PLACEMENT. The petition for adoptive placement
shall be verified and shall allege all of the following:
(a) The name, address and age of the child or the expected birth
date of the child.
(b) The name, address and age of the birth parents and the proposed
adoptive parents.
(c) The identity of any person or agency which solicited, negotiated
or arranged the placement of the child with the proposed
adoptive parents.
(d) That the proposed adoptive parents have completed the
preadoption preparation required under s. 48.84 (1) or are not
required to complete that preparation.
(e) If the child is an Indian child, the names and addresses of
the Indian child’s Indian custodian, if any, and tribe, if known.
(3) PETITION FOR TERMINATION OF PARENTAL RIGHTS REQUIRED.
The petition under sub. (2) shall be filed with a petition under s.
48.42 for the voluntary consent to the termination of any existing
rights of the petitioning parent or parents.
(4) RESPONSIBILITIES OF COURT. On the filing of the petitions
under this section the court:
(a) Shall hold a hearing within 30 days after the date of filing
of the petitions, except that the hearing may not be held before the
birth of the child.
(b) Shall appoint counsel or guardians ad litem when required
under s. 48.23.
(c) Shall, when the petition has been filed under sub. (1), order
the department or a county department under s. 48.57 (1) (e) or
(hm) to investigate the proposed adoptive placement, to interview
each petitioner, to provide counseling if requested, and to report
its recommendation to the court at least 5 days before the hearing
on the petition. If a licensed child welfare agency or, in the case
of an Indian child, the tribal child welfare department of the Indian
child’s tribe has investigated the proposed adoptive placement
and interviewed the petitioners, the court may accept a report and
recommendation from the child welfare agency or tribal child
welfare department in place of the court−ordered report required
under this paragraph. In reporting its recommendations under this
paragraph with respect to an Indian child, the department, a
county department, or a child welfare agency shall comply with
the order of placement preference under s. 48.028 (7) (a) or, if
applicable, s. 48.028 (7) (c), unless the department, county department,
or child welfare agency finds good cause, as described in s.
48.028 (7) (e), for departing from that order.
(cm) Shall, when the petition has been filed under sub. (1m),
request the appropriate agency in the state where the proposed
adoptive parent or parents reside to follow the procedure established
by the laws of that state to ensure that the proposed adoptive
home meets the criteria for a preadoptive placement of the child
in the home of a nonrelative.
(d) May, in the case of a child who has not been placed under
sub. (1r), order the department or a county department under s.
48.57 (1) (e) or (hm), at the request of a petitioning parent or on
its own motion after ordering the child taken into custody under
s. 48.19 (1) (c), to place the child, pending the hearing on the petition,
in any home in this state that is licensed under s. 48.62 or in
any home outside this state if the conditions under sub. (1r) (c) are
met. In placing an Indian child for adoption under this paragraph,
the department or county department shall comply with the order
of placement preference under s. 48.028 (7) (a) or, if applicable,
s. 48.028 (7) (c), unless the department, county department, or
child welfare agency finds good cause, as described in s. 48.028
(7) (e), for departing from that order.
(dm) May, in the case of a child who has been placed under sub.
(1r), order the child to be maintained in the placement pending the
hearing on the petition or order the department or a county department
under s. 48.57 (1) (e) or (hm), at the request of a petitioning
parent or on its own motion after ordering the child taken into custody
under s. 48.19 (1) (c), to place the child, pending the hearing
on the petition, in any home licensed under s. 48.62 except the
home of the proposed adoptive parents or a relative of the proposed
adoptive parents.
(e) Shall, before hearing the petitions under subs. (2) and (3),
ascertain whether the paternity of a nonmarital child who is not
adopted or whose parents do not subsequently intermarry under
s. 767.803 has been acknowledged under s. 767.805 or a substantially
similar law of another state or adjudicated in this state or
another jurisdiction. If the child’s paternity has not been acknowledged
or adjudicated, the court shall attempt to ascertain the paternity
of the child and shall determine the rights of any person who
may be the father of the child as provided under s. 48.423. The
court may not proceed with the hearing on the petitions under this
section unless the parental rights of the nonpetitioning parent,
whether known or unknown, have been terminated.
(5) ATTENDANCE AT HEARING. The child, if he or she is 12 years
of age or over, and each petitioner shall attend the hearing on the
petition under sub. (2). The child, if he or she is 12 years of age
or over, and each parent having custody of the child shall attend
the hearing on the petition under sub. (3). If the parent who has
custody of the child consents and the court approves, the proposed
adoptive parents may be present at the hearing on the petition
under sub. (3). The court may, for good cause, waive the requirement
that the child attend either of the hearings.
(6) ORDER OF HEARINGS. (a) The court shall hold the hearing
on the petition under sub. (2) before the hearing on the petition
required under sub. (3).
(b) At the beginning of the hearing held under sub. (2), the
court shall review the report that is submitted under s. 48.913 (6).
The court shall determine whether any payments or the conditions
specified in any agreement to make payments are coercive to the
birth parent of the child or to an alleged or 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 petitions under subs. (2) and (3) 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).
(br) At the hearing on the petition under sub. (2), the court shall
determine whether any person has coerced a birth parent or any
alleged or presumed father of the child in violation of sub. (1r) (e).
Upon a finding of coercion, the court shall dismiss the petitions
under subs. (2) and (3).
(c) After the hearing on the petition under sub. (2), the court
shall make findings on the allegations of the petition and the report
ordered under sub. (4) (c) and make a conclusion as to whether
placement in the home is in the best interest of the child. In determining
whether placement of an Indian child in the home is in the
best interest of the Indian child, the court shall comply with the
order of placement preference under s. 48.028 (7) (a) or, if applicable,
s. 48.028 (7) (c), unless the court finds good cause, as
described in s. 48.028 (7) (e), for departing from that order.
(d) If the proposed placement is approved, the court shall proceed
immediately to a hearing on the petition required under sub.
(3). If the parental rights of the parent are terminated, the court
shall appoint as guardian of the child the department, a county
department under s. 48.57 (1) (e) or (hm), or a child welfare
agency licensed to accept guardianship under s. 48.61 (5). If the
child has not been placed with the proposed adoptive parent or
parents under sub. (1r) or (4) (d), the court shall order the child to
be placed with the proposed adoptive parent or parents. If the
child has been placed with the proposed adoptive parent or parents
under sub. (1r) or (4) (d), the court shall order the child to be maintained
in that placement.
(7) INVESTIGATION AND CARE COSTS. The proposed adoptive
parents shall pay the cost of any investigation ordered under sub.
(4) (c), according to a fee schedule established by the department
based on ability to pay, and shall also, if the adoption is completed,
pay the cost of any care provided for the child under sub. (4) (d)
or (dm).
(8) ATTORNEY REPRESENTATION. The same attorney may not
represent the adoptive parents and the birth mother or birth father.
History: 1981 c. 81; 1985 a. 176; 1989 a. 161; 1993 a. 446; 1997 a. 27, 104, 191;
2005 a. 293; 2005 a. 443 s. 265; 2007 a. 96, 186; 2009 a. 28, 94, 339.
NOTE: 1997 Wis. Act 104, which affected this section, contains explanatory
notes.
Grandparents are not parties under this section. However, grandparent testimony
may be necessary to determine the child’s best interest. In Interest of Brandon S.S.
179 Wis. 2d 114, 507 N.W.2d 94 (1993).
Adoption and termination proceedings in Wisconsin: A reply proposing limiting
judicial discretion. Cooper and Nelson, 66 MLR 641 (1983).

48.838 Foreign adoption fees. (1) In this section, “foreign
adoption” means the adoption of a child, who is a citizen of a foreign
country, in accordance with any of the types of adoption procedures
specified under this subchapter.
(2) The department may charge a fee of not more than $75 to
the adoptive parents for reviewing foreign adoption documents
and for providing necessary certifications and approvals required
by state and federal law.
(3) The department may also charge a fee of not more than $75
to the adoptive parents for the review and certification of adoption
documents, and for the provision of departmental approval of
placements as specified in s. 48.97, for adoptions that occur in a
foreign country.
History: 1989 a. 31.

48.839 Adoption of foreign children. (1) BOND
REQUIRED. (a) Any resident of this state who has been appointed
by a court of a foreign jurisdiction as guardian of a child who is
a citizen of that jurisdiction, before bringing the child into this
state for the purpose of adopting the child, shall file with the
department a $1,000 noncancelable bond in favor of this state, furnished
by a surety company licensed to do business in this state.
The condition of the bond shall be that the child will not become
dependent on public funds for his or her primary support before
he or she is adopted.
(b) By filing the bond required under par. (a), the child’s guardian
and the surety submit to the jurisdiction of the court in the
county in which the guardian resides for purposes of liability on
the bond, and appoint the clerk of the court as their agent upon
whom any papers affecting their bond liability may be served.
Their liability on the bond may be enforced without the commencement
of an independent action.
(c) If upon affidavit of the department it appears to the court
that the condition of the bond has been violated, the court shall
order the guardian and the surety to show cause why judgment on
the bond should not be entered for the department. If neither the
guardian nor the surety appear for the hearing on the order to show
cause, or if the court concludes after the hearing that the condition
of the bond has been violated, the court shall enter judgment on
the bond for the department against the guardian and the surety.
(d) If custody of the child is transferred under sub. (4) (b) to
a county department or child welfare agency before the child is
adopted, the department shall periodically bill the guardian and
the surety under s. 49.32 (1) (b) or 49.345 for the cost of care and
maintenance of the child until the child is adopted or becomes age
18, whichever is earlier. The guardian and surety shall also be
liable under the bond for costs incurred by the department in
enforcing the bond against the guardian and surety.
(e) This section does not preclude the department or any other
agency given custody of a child under sub. (4) (b) from collecting
under s. 49.32 (1) (b) or 49.345 from the former guardian for costs
in excess of the amount recovered under the bond incurred in
enforcing the bond and providing care and maintenance for the
child until he or she reaches age 18 or is adopted.
(f) The department may waive the bond requirement under this
subsection.
(2) EVIDENCE OF AVAILABILITY FOR ADOPTION REQUIRED. (a)
Any resident of this state who has been appointed by a court of a
foreign jurisdiction as guardian of a child who is a citizen of that
jurisdiction and who intends to bring the child into this state for
the purpose of adopting the child shall file with the department a
certified copy of the judgment or order of a court of the foreign
jurisdiction or other instrument having the effect under the laws
of the foreign jurisdiction of freeing the child for adoption. If the
instrument is not a judgment or order of a court, the guardian shall
also file with the department a copy of the law under which the
instrument was issued, unless the department waives this requirement.
The guardian shall also file English translations of the court
judgment or order or other instrument and of the law. The department
shall return the originals to the guardian and keep on file a
copy of each document.
(b) If the guardian files a judgment or order of a court under
par. (a), the department shall review the judgment or order. If the
department determines that the judgment or order has the effect of
freeing the child for adoption, if the department has been furnished
with a copy of a home study recommending the guardian
as an adoptive parent, if a licensed child welfare agency has been
identified to provide the services required under sub. (5), if the
guardian has filed the bond required under sub. (1), and if the
guardian has completed the preadoption preparation required
under s. 48.84 (1) or the department has determined that the guardian
is not required to complete that preparation, the department
shall certify to the U.S. immigration and naturalization service
that all preadoptive requirements of this state that can be met
before the child’s arrival in the United States have been met.
(c) If the guardian files an instrument other than a judgment or
order of a court under par. (a), the department shall review the
instrument. If the department determines that the instrument has
the effect under the laws of the foreign jurisdiction of freeing the
child for adoption, if the department has been furnished with a
copy of a home study recommending the adoptive parents, if a
licensed child welfare agency has been identified to provide the
services required under sub. (5), if the guardian has filed the bond
required under sub. (1), and if the guardian has completed the preadoption
preparation required under s. 48.84 (1) or the department
has determined that the guardian is not required to complete that
preparation, the department shall certify to the U.S. immigration
and naturalization service that all preadoptive requirements of this
state that can be met prior to the child’s arrival in the United States
have been met.
(3) PETITION FOR ADOPTION OR TERMINATION OF PARENTAL
RIGHTS REQUIRED. (a) Within 60 days after the arrival of a child
brought into this state from a foreign jurisdiction for the purpose
of adoption, the individual who is the child’s guardian shall file a
petition to adopt the child, a petition to terminate parental rights
to the child, or both. If only a petition to terminate parental rights
to the child is filed under this paragraph, the individual guardian
shall file a petition for adoption within 60 days of the order terminating
parental rights. The individual guardian shall file with the
court the documents filed with the department under sub. (2) (a).
(b) Except as provided in par. (a) and sub. (4) (a), the termination
of a parent’s parental rights to a child who is a citizen of a foreign
jurisdiction is not required prior to the child’s adoption by his
or her guardian.
(c) If a petition for adoption is filed under par. (a), the individual
guardian filing the petition shall file a copy of the petition with
the department at the time the petition is filed with the court. If
the individual guardian filed an instrument other than a court order
or judgment under sub. (2) (a), the department may make a recommendation
to the court as to whether the instrument filed has the
effect under the laws of the foreign jurisdiction of freeing the child
for adoption.
(d) If a petition for adoption is filed under par. (a) and the individual
guardian filing the petition filed an instrument other than
a court order or judgment under sub. (2) (a), the court shall determine
whether the instrument filed has the effect under the laws of
the foreign jurisdiction of freeing the child for adoption. The court
shall presume that the instrument has that effect unless there are
substantial irregularities on the face of the document or unless the department shows good cause for believing that the instrument
does not have that effect. If the court determines that the instrument
does not have the effect of freeing the child for adoption, the
court shall order the petitioner to file a petition to terminate parental
rights under s. 48.42 within 10 days.
(e) If a petition for adoption is filed under par. (a) and the individual
guardian filing the petition filed a court order or judgment
under sub. (2) (a), the court order or judgment shall be legally sufficient
evidence that the child is free for adoption.
(4) TRANSFER OF GUARDIANSHIP; FORFEITURE OF BOND. If a
guardian does not file a petition as required under sub. (3) (a) or
(d), or if the petition for adoption under sub. (3) is withdrawn or
denied, the court:
(a) Shall transfer guardianship of the child to the department,
to a county department under s. 48.57 (1) (e) or (hm) or to a child
welfare agency under s. 48.61 (5) and order the guardian to file a
petition for termination of parental rights under s. 48.42 within 10
days.
(b) Shall transfer legal custody of the child to the department,
in a county having a population of 500,000 or more, to a county
department or to a child welfare agency licensed under s. 48.60.
(c) Shall order the guardian who filed the bond under sub. (1)
(a) to show cause why the bond should not be forfeited.
(d) May order that physical custody of the child remain with
a suitable individual with whom the child has been living.
(5) CHILD WELFARE SERVICES REQUIRED. Any child welfare
agency licensed under s. 48.60 that negotiates or arranges the
placement of a child for adoption under this section shall provide
services to the child and to the proposed adoptive parents until the
child’s adoption is final.
History: 1981 c. 81; 1985 a. 176; 1997 a. 27; 2005 a. 293; 2007 a. 20.

48.84 Preadoption preparation for proposed adoptive
parents. (1) Before a child may be placed under s. 48.833 for
adoption by a proposed adoptive parent who has not previously
adopted a child, before a proposed adoptive parent who has not
previously adopted a child may petition for placement of a child
for adoption under s. 48.837, and before a proposed adoptive parent
who has not previously adopted a child may bring a child into
this state for adoption under s. 48.839, the proposed adoptive parent
shall complete the preadoption preparation required under this
section. The preparation shall be provided by a licensed child welfare
agency, a licensed private adoption agency, the state adoption
information exchange under s. 48.55, the state adoption center
under s. 48.55, a state−funded foster care and adoption resource
center, a state−funded postadoption resource center, a technical
college district school, or an institution or college campus within
the University of Wisconsin System. If the proposed adoptive parent
does not reside in this state, he or she may meet this requirement
by obtaining equivalent preparation in his or her state of residence.
(2) The department shall promulgate rules establishing the
number of hours of preadoption preparation that is required under
sub. (1) and the topics covered under that preparation. The preparation
shall include training on issues that may confront adoptive
parents, in general, and that may confront adoptive parents of special
needs children or foreign children.
(3) A proposed adoptive parent who petitions to adopt a child
under s. 48.837 or 48.839 or with whom a child is placed under s.
48.833 (2) shall pay the costs of the preadoption preparation
required under sub. (1). The department shall pay the costs of the
preadoption preparation required under sub. (1) for a proposed
adoptive parent with whom a child is placed under s. 48.833 (1).
History: 2005 a. 293; 2007 a. 20, 186.
Cross−reference: See also s. DCF 51.10, Wis. adm. code.

48.841 Persons required to file recommendation as to
adoption. (1) No adoption of a minor may be ordered without
the written recommendation, favorable or unfavorable, of the
guardian of the minor, if there is one, as set forth in s. 48.85.
(2) If the guardian refuses or neglects to file its recommendation
within the time specified in s. 48.85, the court may proceed
as though the guardian had filed a favorable recommendation.
48.85 Recommendation of guardian. (1) At least 10 days
prior to the hearing, the guardian shall file its recommendation
with the court. In making a recommendation under this subsection
with respect to an Indian child, the guardian shall comply with the
order of placement preference under s. 48.028 (7) (a) or, if applicable,
s. 48.028 (7) (c).
(2) The guardian’s recommendation shall be presumed to be
in the best interests of the child unless the fair preponderance of
the credible evidence is to the contrary. If the guardian’s recommendation
is in opposition to the granting of the petition, the court
shall take testimony as to whether or not the proposed adoption is
in the best interests of the child.
(3) At the conclusion of the hearing, the court shall enter its
order in accordance with s. 48.91 (3).
History: 1973 c. 263; 2009 a. 94.

48.871 Filing of recommendation by guardian. In the
case of a recommendation by a guardian, the guardian shall file
with its recommendation satisfactory evidence of its authority to
file such recommendation relative to the adoption of the minor.
In the case where the parents’ rights have been judicially terminated,
this evidence shall be a certified copy of the order terminating
their rights and appointing the guardian. In other cases of a
guardian appointed by a court, this evidence shall be a certified
copy of the order appointing it guardian. In the case of a guardian
having the authority to consent or file its recommendation under
an instrument other than a court order, valid under the laws of
another state, that instrument shall serve as evidence of the authority
to consent or file its recommendation.

48.88 Notice of hearing; investigation. (1) In this section,
unless otherwise qualified, “agency” means any public or
private entity except an individual.
(1m) Upon the filing of a petition for adoption, the court shall
schedule a hearing within 90 days of the filing. Notice of the hearing
shall be mailed, not later than 3 days from the date of the order
for hearing and investigation, to the guardian of the child, if any,
to the agency making the investigation under sub. (2), to the
department when its recommendation is required by s. 48.89 and
to the child if the child is 12 years of age or over.
(2) (a) Except as provided under pars. (ag) and (c), when a
petition to adopt a child is filed, the court shall order an investigation
to determine whether the child is a proper subject for adoption
and whether the petitioner’s home is suitable for the child. The
court shall order one of the following to conduct the investigation:
1. If an agency has guardianship of the child, the guardianship
agency, unless the agency has already filed its recommendation
under s. 48.85 and has filed with the recommendation a report of
an investigation as required under this paragraph.
2. If no agency has guardianship of the child and a relative
other than a stepparent has filed the petition for adoption, the
department, a county department under s. 48.57 (1) (e) or (hm) or
a licensed child welfare agency.
4. If the child is a citizen of a foreign jurisdiction and is under
the guardianship of an individual, the agency which conducted the
home study required under federal law prior to the child’s entry
into the United States.
(ag) If the child is an Indian child, the court may request the
tribal child welfare department of the Indian child’s tribe to conduct
the investigation. If the tribal child welfare department
agrees to conduct the investigation, that investigation may be
accepted in lieu of the investigation under par. (a).
(am) 1. If the petitioner was required to obtain an initial license
to operate a foster home before placement of the child for adoption
or relicensure after a break in licensure, the agency making the
investigation shall obtain a criminal history search from the records maintained by the department of justice and request under
42 USC 16962 (b) a fingerprint−based check of the national crime
information databases, as defined in 28 USC 534 (f) (3) (A), with
respect to the petitioner. The agency may release any information
obtained under this subdivision only as permitted under 42 USC
16962 (e). In the case of a child on whose behalf adoption assistance
payments will be provided under s. 48.975, if the petitioner
has been convicted of any of the offenses specified in s. 48.685 (5)
(bm) 1. to 4., the agency may not report that the petitioner’s home
is suitable for the child.
2. If the petitioner was required to obtain a license to operate
a foster home before placement of the child for adoption, the
agency making the investigation shall obtain information maintained
by the department regarding any substantiated reports of
child abuse or neglect against the petitioner and any other adult
residing in the petitioner’s home. If the petitioner or other adult
residing in the petitioner’s home is not, or at any time within the
5 years preceding the date of the search has not been, a resident
of this state, the agency shall check any child abuse or neglect registry
maintained by any state or other U.S. jurisdiction in which
the petitioner or other adult is a resident or was a resident within
those 5 years for information that is equivalent to the information
maintained by the department regarding substantiated reports of
child abuse or neglect. The agency may not use any information
obtained under this subdivision for any purpose other than a background
search under this subdivision.
(b) The agency or tribal child welfare department making the
investigation shall file its report with the court at least 10 days
before the hearing unless the time is reduced for good cause shown
by the petitioner. In reporting on an investigation of the proposed
adoptive home of an Indian child, the agency shall comply with
the order of placement preference under s. 48.028 (7) (a) or, if
applicable, s. 48.028 (7) (c), unless the agency finds good cause,
as described in s. 48.028 (7) (e), for departing from that order. The
report shall be part of the record of the proceedings.
(c) If a stepparent has filed a petition for adoption and no
agency has guardianship of the child, the court shall order the
department, in a county having a population of 500,000 or more,
or a county department or, with the consent of the department in
a county having a population of less than 500,000 or a licensed
child welfare agency, order the department or the child welfare
agency to conduct a screening, consisting of no more than one
interview with the petitioner and a check of the petitioner’s background
through public records, including records maintained by
the department or any county department under s. 48.981. The
department, county department or child welfare agency that conducts
the screening shall file a report of the screening with the
court within 30 days. After reviewing the report, the court may
proceed to act on the petition, may order the department in a
county having a population of 500,000 or more or the county
department to conduct an investigation as described under par. (a)
(intro.) or may order the department in a county having a population
of less than 500,000 or a licensed child welfare agency to
make the investigation if the department or child welfare agency
consents.
(3) If the report of the investigation is unfavorable or if it discloses
a situation which, in the opinion of the court, raises a serious
question as to the suitability of the proposed adoption, the
court may appoint a guardian ad litem for the minor whose adoption
is proposed. The guardian ad litem may have witnesses subpoenaed
and present proof at the hearing.
History: 1975 c. 39, 199, 307; 1977 c. 271; 1981 c. 81, 384; 1983 a. 190; 1985
a. 176; 1997 a. 27; 2007 a. 20; 2009 a. 28, 94.

48.89 Recommendation of the department. (1) The recommendation
of the department is required for the adoption of a
child if the child is not under the guardianship of a county department
under s. 48.57 (1) (e) or (hm) or a child welfare agency under
s. 48.61 (5). In making a recommendation under this subsection
with respect to an Indian child, the department shall comply with
the order of placement preference under s. 48.028 (7) (a) or, if
applicable, s. 48.028 (7) (c), unless the department finds good
cause, as described in s. 48.028 (7) (e), for departing from that
order.
(2) The department shall make its recommendation to the
court at least 10 days before the hearing unless the time is
extended by the court. The recommendation shall be part of the
record of the proceedings.
(3) The recommendation of the department shall not be
required if the recommendation of the department, a licensed
child welfare agency or a county department under s. 48.57 (1) (e)
or (hm) is required by s. 48.841, if a report of an investigation by
the department, a county department under s. 48.57 (1) (e) or (hm)
or a licensed child welfare agency is required by s. 48.88 (2) (a)
2. or if one of the petitioners is a relative of the child.
History: 1973 c. 263; 1977 c. 271; 1981 c. 81; 1983 a. 447; 1985 a. 176; 1995 a.
443; 2009 a. 94.

48.90 Filing of adoption petition; preadoption residence.
(1) A petition for adoption may be filed at any time if:
(a) One of the petitioners is a relative of the child by blood or
by adoption, excluding parents whose parental rights have been
terminated and persons whose relationship to the child is derived
through such parents.
(b) The petitioner is the child’s stepparent.
(c) The petition is accompanied by a written approval of the
guardian.
(d) The petitioner is the proposed adoptive parent with whom
the child has been placed under s. 48.839.
(2) Except as provided under sub. (1), no petition for adoption
may be filed unless the child has been in the home of the petitioners
for 6 months or more.
(3) No petition for adoption may be filed unless the petitioners
have complied with all applicable provisions of this chapter relating
to adoptive placements.
History: 1973 c. 263; 1977 c. 354; 1977 c. 418 s. 929 (18); 1981 c. 81; 1997 a.
104.
Once administrative proceedings have commenced under s. 48.64 and the person
with whom the child had been placed is seeking a review of the removal order, a children’s
court has no jurisdiction of an attempted adoption. Adoption of Shawn, 65
Wis. 2d 190, 222 N.W.2d 139 (1974).
Standing to object to adoption proceedings turns on the right to petition for adoption;
grandparents excluded from petitioning under sub. (1) (a) had no standing to
object to the adoption of their grandchildren. Adoption of J.C.G. 177 Wis. 2d 424,
501 N.W.2d 908 (Ct. App. 1993).

48.91 Hearing; order. (1) The hearing may be in chambers
unless an interested person objects. The petitioner and the minor
to be adopted, if 14 or older, shall attend unless the court orders
otherwise.
(2) In an adoption proceeding for a nonmarital child who is not
adopted or whose parents do not subsequently intermarry under
s. 767.803, the court shall establish whether the child’s paternity
has been acknowledged under s. 767.805 or a substantially similar
law of another state or adjudicated in this state or in another jurisdiction.
If the child’s paternity has not been acknowledged or
adjudicated, the court shall attempt to ascertain the paternity of the
child and shall determine the rights of any person who may be the
father of the child as provided under s. 48.423. The court may not
proceed with the hearing on the petition for adoption unless the
parental rights of the nonpetitioning parent, whether known or
unknown, have been terminated.
(3) If after the hearing and a study of the report required by s.
48.88 and the recommendation required by s. 48.841 or 48.89, the
court is satisfied that the necessary consents or recommendations
have been filed and that the adoption is in the best interests of the
child, the court shall make an order granting the adoption. In
determining whether the adoption is in the best interests of an
Indian child, the court shall comply with the order of placement
preference under s. 48.028 (7) (a) or, if applicable, s. 48.028 (7)
(c), unless the court finds good cause, as described in s. 48.028 (7) of the minor to that requested by petitioners.
History: 1973 c. 263; 1979 c. 330; 1981 c. 81; 1983 a. 447; 1987 a. 383; 1995 a.
443; 1997 a. 191; 2005 a. 293; 2005 a. 443 s. 265; 2009 a. 94.
Meaning of “best interests of the child” is discussed. Adoption of Tachick, 60 Wis.
2d 540, 210 N.W.2d 865.

48.913 Payments by adoptive or proposed adoptive
parents to a birth parent or child or on behalf of a birth
parent or child. (1) PAYMENTS ALLOWED. The proposed adoptive
parents of a child, or a person acting on behalf of the proposed
adoptive parents, may pay the actual cost of any of the following:
(a) Preadoptive counseling for a birth parent of the child or an
alleged or presumed father of the child.
(b) Post−adoptive counseling for a birth parent of the child or
an alleged or presumed father of the child.
(c) Maternity clothes for the child’s birth mother, in an amount
not to exceed $300.
(d) Local transportation expenses of a birth parent of the child
that are related to the pregnancy or adoption.
(e) Services provided by a licensed child welfare agency in
connection with the adoption.
(f) Medical and hospital care received by the child’s birth
mother in connection with the pregnancy or birth of the child.
Medical and hospital care does not include lost wages or living
expenses.
(g) Medical and hospital care received by the child.
(h) Legal and other services received by a birth parent of the
child, an alleged or presumed father of the child or the child in connection
with the adoption.
(i) Living expenses of the child’s birth mother, in an amount
not to exceed $5,000, if payment of the expenses by the proposed
adoptive parents or a person acting on their behalf is necessary to
protect the health and welfare of the birth mother or the fetus.
(j) Any investigation ordered under s. 48.837 (4) (c), according
to a fee schedule established by the department based on ability
to pay.
(k) If the adoption is completed, the cost of any care provided
for the child under s. 48.837 (4) (d) or (dm).
(L) Birthing classes.
(m) A gift to the child’s birth mother from the proposed adoptive
parents, of no greater than $100 in value.
(2) PAYMENT OF EXPENSES WHEN BIRTH PARENT IS RESIDING IN
ANOTHER STATE. Notwithstanding sub. (1), the proposed adoptive
parents of a child or a person acting on behalf of the proposed
adoptive parents of a child may pay for an expense of a birth parent
of the child or an alleged or presumed father of the child if the birth
parent or the alleged or presumed father was residing in another
state when the payment was made and when the expense was
incurred and if all of the following apply:
(a) The child was placed for adoption in this state in accordance
with s. 48.988 or 48.99.
(b) The state in which the birth parent or the alleged or presumed
father was residing when the payment was made permits
the payment of that expense by the proposed adoptive parents of
the child.
(c) A listing of all payments made under this subsection, a copy
of the statutory provisions of the state in which the birth parent or
the alleged or presumed father was residing when the payments
were made that permit those payments to be made by the proposed
adoptive parents of the child and a copy of all orders entered in the
state in which the birth parent or the alleged or presumed father
was residing when the payments were made that relate to the payment
of expenses of the birth parent or the alleged or presumed
father by the proposed adoptive parents of the child is submitted
to the court as follows:
1. With the report under sub. (6), if the parental rights of either
birth parent of the child are terminated in this state.
2. With a petition under s. 48.837 (2), if the parental rights of
both birth parents of the child are terminated in another state and
the child is placed for adoption under s. 48.837 (2).
3. With a petition under s. 48.90, if the parental rights of both
parents of the child are terminated in another state and the child
is placed for adoption under s. 48.833.
(3) METHOD OF PAYMENT. Any payment under sub. (1) or (2)
shall be made directly to the provider of a good or service except
that a payment under sub. (1) or (2) may be made to a birth parent
of the child or to an alleged or presumed father of the child as reimbursement
of an amount previously paid by the birth parent or by
the alleged or presumed father if documentation is provided showing
that the birth parent or alleged or presumed father has made the
previous payment.
(4) OTHER PAYMENTS PROHIBITED. The proposed adoptive parents
of a child or a person acting on behalf of the proposed adoptive
parents may not make any payments to or on behalf of a birth
parent of the child, an alleged or presumed father of the child or
the child except as provided in subs. (1) and (2).
(5) PAYMENTS AFTER FINALIZATION OF ADOPTION. The adoptive
parents of a child or a person acting on behalf of the proposed
adoptive parents may make a payment that is authorized under
subs. (1) and (2) after finalization of the adoption, if the payment
is included in the report under sub. (6) or an amendment to that
report filed with the court.
(6) REPORT TO THE COURT; WHEN REQUIRED. A report containing
the information specified in sub. (7) shall be provided to the
court at the time of the hearing on the petition for adoptive placement
under s. 48.837 (2) or upon the order of the court under s.
48.422 (7) (bm).
(7) REPORT TO THE COURT; CONTENTS REQUIRED. The report
required under sub. (6) shall include a list of all transfers of anything
of value made or agreed to be made by the proposed adoptive
parents or by a person acting on their behalf to a birth parent of the
child, an alleged or presumed father of the child or the child, on
behalf of a birth parent of the child, an alleged or presumed father
of the child or the child, or to any other person in connection with
the pregnancy, the birth of the child, the placement of the child
with the proposed adoptive parents or the adoption of the child by
the proposed adoptive parents. The report shall be itemized and
shall show the goods or services for which payment was made or
agreed to be made. The report shall include the dates of each payment,
the names and addresses of each attorney, doctor, hospital,
agency or other person or organization receiving any payment
from the proposed adoptive parents or a person acting on behalf
of the proposed adoptive parents in connection with the pregnancy,
the birth of the child, the placement of the child with the
proposed adoptive parents or the adoption of the child by the proposed
adoptive parents.
(8) ADOPTION OF FOREIGN CHILDREN AND ADOPTION BY RELATIVES
OF THE CHILD. This section does not apply to an adoptive or
proposed adoptive parent of a child with whom the child has been
placed under s. 48.839 or to an adoptive or proposed adoptive parent
of a child who is a relative of the child.
History: 1997 a. 104; 2005 a. 293; 2007 a. 186; 2009 a. 339.
NOTE: 1997 Wis. Act 104, which affected this section, contains explanatory
notes.

48.915 Adoption appeals given preference. An appeal
from a judgment granting or denying an adoption shall be given
preference.
History: 1987 a. 383; 1993 a. 395 s. 30; Stats. 1993 s. 48.915.

48.92 Effect of adoption. (1) After the order of adoption is
entered the relation of parent and child and all the rights, duties
and other legal consequences of the natural relation of child and
parent thereafter exists between the adopted person and the adoptive
parents.
(2) After the order of adoption is entered the relationship of
parent and child between the adopted person and the adopted person’s birth parents and the relationship between the adopted person
and all persons whose relationship to the adopted person is
derived through those birth parents shall be completely altered
and all the rights, duties, and other legal consequences of those
relationships shall cease to exist, unless the birth parent is the
spouse of the adoptive parent, in which case those relationships
shall be completely altered and those rights, duties, and other legal
consequences shall cease to exist only with respect to the birth parent
who is not the spouse of the adoptive parent and all persons
whose relationship to the adopted person is derived through that
birth parent. Notwithstanding the extinction of all parental rights
under this subsection, a court may order reasonable visitation
under s. 48.925.
(3) Rights of inheritance by, from and through an adopted
child are governed by ss. 854.20 and 854.21.
(4) Nothing in this section shall be construed to abrogate the
right of the department to make payments to adoptive families
under s. 48.48 (12).
History: 1973 c. 90; 1981 c. 359 s. 16; 1991 a. 191, 316; 1997 a. 35, 188; 2005
a. 232.
A valid adoption of the petitioner by his aunt would preclude his right to inherit as
the son of his natural mother, although he would be entitled to inherit as a nephew.
Estate of Komarr, 68 Wis. 2d 473, 228 N.W.2d 681 (1975).
Biological grandparents had no right to visitation following termination of their
son’s parental rights and adoption by the child’s stepfather. In re Marriage of Soergel,
154 Wis. 2d 564, 453 N.W.2d 624 (1990).
Adoption of the child of a deceased parent does not terminate the decedent’s parents’
grandparental visitation rights under s. 880.155 [now s. 54.56]. Grandparental
Visitation of C.G.F., 168 Wis. 2d 62, 483 N.W.2d 803 (1992).
Except in the case of stepparent adoption, the parental rights of both birth parents
are terminated, effectively preventing a birth parent’s nonmarital partner from adopting
the birth parent’s child. This provision does not violate the constitutional rights
of either the child or nonmarital partner. Interest of Angel Lace M. 184 Wis. 2d 492,
516 N.W.2d 678 (1994).
Adoption proceedings confer all parental rights on the adoptive parents and therefore
resolve all issues relating to the biological grandparents’ rights to assert claims
for custody and guardianship. Following adoption, a change requires a showing of
unfitness in the adoptive parents. Elgin and Carol W. v. DHFS, 221 Wis. 2d 36, 584
N.W.2d 195 (Ct. App. 1998), 97−3595.
Sub. (2) does not nullify prior support arrearage obligations for which a natural parent
became liable before that parent’s parental rights were terminated. Hernandez v.
Allen, 2005 WI App 247, 288 Wis. 2d 111, 707 N.W.2d 557, 04−2696
.
48.925 Visitation rights of certain persons. (1) Upon
petition by a relative who has maintained a relationship similar to
a parent−child relationship with a child who has been adopted by
a stepparent or relative, the court, subject to subs. (1m) and (2),
may grant reasonable visitation rights to that person if the petitioner
has maintained such a relationship within 2 years prior to
the filing of the petition, if the adoptive parent or parents, or, if a
birth parent is the spouse of an adoptive parent, the adoptive parent
and birth parent, have notice of the hearing and if the court
determines all of the following:
(a) That visitation is in the best interest of the child.
(b) That the petitioner will not undermine the adoptive parent’s
or parents’ relationship with the child or, if a birth parent is the
spouse of an adoptive parent, the adoptive parent’s and birth parent’s
relationship with the child.
(c) That the petitioner will not act in a manner that is contrary
to parenting decisions that are related to the child’s physical, emotional,
educational or spiritual welfare and that are made by the
adoptive parent or parents or, if a birth parent is the spouse of an
adoptive parent, by the adoptive parent and birth parent.
(1m) (a) Except as provided in par. (b), the court may not
grant visitation rights under sub. (1) to a relative who has maintained
a relationship similar to a parent−child relationship with a
child if the relative 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 a parent of the child, and the conviction
has not been reversed, set aside or vacated.
(am) Except as provided in par. (b), if a relative who is granted
visitation rights with a child under sub. (1) is convicted under s.
940.01 of the first−degree intentional homicide, or under s. 940.05
of the 2nd−degree intentional homicide, of a parent of the child,
and the conviction has not been reversed, set aside or vacated, the
court shall issue an order prohibiting the relative from having visitation
with the child on petition of the child or the parent, guardian
or legal custodian of the child, or on the court’s own motion, and
on notice to the relative.
(b) Paragraphs (a) and (am) 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.
(2) Whenever possible, in making a determination under sub.
(1), the court shall consider the wishes of the adopted child.
(3) This section applies to every child in this state who has
been adopted, by a stepparent or relative, regardless of the date of
the adoption.
(4) Any person who interferes with visitation rights granted
under sub. (1) may be proceeded against for contempt of court
under ch. 785, except that a court may impose only the remedial
sanctions specified in s. 785.04 (1) (a) and (c) against that person.
History: 1991 a. 191; 1999 a. 9.
Grandparents’ Visitation Rights Following Adoption: Expanding Traditional
Boundaries in Wisconsin. Hintz. 1994 WLR 484.
Grandparent Visitation Rights. Rothstein. Wis. Law. Nov. 1992.
The Effect of C.G.F. and Section 48.925 on Grandparental Visitation Petitions.
Hughes. Wis. Law. Nov. 1992.

48.93 Records closed. (1) In this section, “adoptee” has the
meaning given in s. 48.432 (1) (a).
(1d) All records and papers pertaining to an adoption proceeding
shall be kept in a separate locked file and may not be disclosed
except under sub. (1g), (1r), or (1v), s. 48.432, 48.433,
48.434, 48.48 (17) (a) 9. or 48.57 (1) (j), or by order of the court
for good cause shown.
(1g) At the time a court enters an order granting an adoption,
it shall provide the adoptive parents with a copy of the child’s
medical record under s. 48.425 (1) (am) or with any information
provided to the court under s. 48.422 (9) or 48.425 (2), after deleting
the names and addresses of the child’s birth parents and the
identity of any provider of health care to the child or the child’s
birth parents.
(1r) Any agency which has placed a child for adoption shall,
at the request of an adoptive parent or of the adoptee, after he or
she has reached age 18, provide the requester without charge,
except for the actual cost of reproduction, with medical or genetic
information about the adoptee or about the adoptee’s birth parents
which it has on file and with nonidentifying social history information
about the adoptee’s family which it has on file, after deleting
the names and addresses of the birth parents and any provider
of health care to the adoptee or the adoptee’s birth parents. The
agency may charge a requester a fee for the cost of verifying, purging,
summarizing, copying and mailing the information according
to the fee schedule established by the department under s. 48.432
(3) (c). The fee may not be more than $150 and may be waived
by the agency.
(1v) (a) At the time a court enters an order granting adoption
of an Indian child, the court shall provide the U.S. secretary of the
interior with the information specified in s. 48.028 (9) (a) and (b).
(b) At the request of an Indian adoptee who is 18 years of age
or older, the court that entered the order granting adoption of the
adoptee shall provide or arrange to provide the adoptee with the
information specified in s. 48.028 (9) (c).
(2) All correspondence and papers, relating to the investigation,
which are not a part of the court record, except those in the
custody of agencies authorized to place children for adoption shall
be transferred to the department and placed in its closed files.
History: 1979 c. 34; 1981 c. 359; 1983 a. 471; 1989 a. 31; 1997 a. 27, 104, 252;
2007 a. 20; 2009 a. 94.
Adoption records reform: Impact on adoptees. 67 MLR 110 (1983).

48.94 New birth certificate. After entry of the order granting
the adoption the clerk of the court shall promptly mail a copy
thereof to the state bureau of vital statistics and furnish any additional
data needed for the new birth certificate. Whenever the parents by adoption, or the adopting parent and a birth parent who is
the spouse of the adopting parent, request, that the birth certificate
for the person adopted be not changed, then the court shall so
order. In such event no new birth certificate shall be filed by the
state registrar of vital statistics, notwithstanding the provisions of
s. 69.15 (2) or any other law of this state.
History: 1981 c. 359 s. 16; 1985 a. 315 s. 22; 1991 a. 316.
Fundamental Rights Debate: Should Wisconsin Allow Adult Adoptees Unconditional
Access to Adoption Records and Original Birth Certificates? Racine. 2002
WLR 1437.

48.95 Withdrawal or denial of petition. Except as provided
under s. 48.839 (3) (b), if the petition is withdrawn or
denied, the circuit court shall order the case transferred to the court
assigned to exercise jurisdiction under this chapter and ch. 938 for
appropriate action, except that if parental rights have been terminated
and the guardian of the minor is the department, a licensed
child welfare agency or a county department under s. 48.57 (1) (e)
or (hm), the minor shall remain in the legal custody of the guardian.
History: 1977 c. 271, 449; 1981 c. 81; 1985 a. 176; 1995 a. 77.

48.96 Subsequent adoption. The adoption of an adopted
person is authorized and, in that case, the references to parent and
birth parent are to adoptive parent.
History: 1981 c. 359 s. 16.

48.97 Adoption orders of other jurisdictions. When the
relationship of parent and child has been created by an order of
adoption of a court of any other state or nation, the rights and
obligations of the parties as to matters within the jurisdiction of
this state shall be determined by s. 48.92. If the adoptive parents
were residents of this state at the time of the foreign adoption, the
preceding sentence applies only if the department has approved
the placement. A child whose adoption would otherwise be valid
under this section may be readopted in accordance with this chapter.
History: 1971 c. 187; 1981 c. 81; 1995 a. 443.

48.975 Adoption assistance. (1) DEFINITION. In this section,
“adoption assistance” means payments by the department to
the adoptive or proposed adoptive parents of a child which are
designed to assist in the cost of care of that child after an agreement
under sub. (4) has been signed and the child has been placed
for adoption with the adoptive or proposed adoptive parents.
(2) APPLICABILITY. The department may provide adoption
assistance only for a child with special needs and only when the
department has determined that such assistance is necessary to
assure the child’s adoption.
(3) TYPES. The department may provide adoption assistance
for maintenance, medical care or nonrecurring adoption expenses,
or for any combination of those types of adoption assistance,
according to the following criteria:
(a) Maintenance. 1. Except as provided in subd. 3., for support
of a child who was in foster care or subsidized guardianship care
immediately prior to placement for adoption, the department shall
determine the initial amount of adoption assistance for maintenance
based on the circumstances of the adoptive family and the
needs of the child. That amount may not exceed the amount of the
child’s foster care or subsidized guardianship care payment at the
time that the agreement under sub. (4) (a) is signed.
2. Except as provided in subd. 3., for support of a child not in
foster care or subsidized guardianship care immediately prior to
placement for adoption, the department shall determine the initial
amount of adoption assistance for maintenance based on the circumstances
of the adoptive family and the needs of the child. That
amount may not exceed the uniform foster care rate applicable to
the child that is in effect at the time that the agreement under sub.
(4) (a) is signed.
3. For support of a child who is defined under rules promulgated
by the department under sub. (5) (b) as a child with special
needs based solely on being at high risk of developing moderate
or intensive difficulty−of−care problems, the initial amount of
adoption assistance for maintenance shall be $0.
4. The amount of adoption assistance for maintenance may
be changed under an amended agreement under sub. (4) (b) or (c).
If an agreement is amended under sub. (4) (b) or (c), the amount
of adoption assistance for maintenance shall be the amount specified
in the amended agreement but may not exceed the uniform
foster care rate that would be applicable to the child if the child
were in foster care during the time for which the adoption assistance
for maintenance is paid.
(b) Medical. The adoption assistance for medical care shall be
sufficient to pay expenses due to a physical, mental or emotional
condition of the child which is not covered by a health insurance
policy insuring the child or the parent.
(c) Nonrecurring adoption expenses. Subject to any maximum
amount provided by the department by rule promulgated
under sub. (5), the adoption assistance for nonrecurring adoption
expenses shall be sufficient to pay the reasonable and necessary
adoption fees, court costs, legal fees and other expenses that are
directly related to the adoption of the child and that are not
incurred in violation of any state or federal law.
(3m) DURATION. The adoption assistance may be continued
after the adoptee reaches the age of 18 if that adoptee is a full−time
high school student.
(4) PROCEDURE. (a) Except in extenuating circumstances, as
defined by the department by rule promulgated under sub. (5) (a),
a written agreement to provide adoption assistance shall be made
prior to adoption. An agreement to provide adoption assistance
may be made only for a child who, at the time of placement for
adoption, is in the guardianship of the department or other agency
authorized to place children for adoption, in the guardianship of
an American Indian tribal agency in this state, or in a subsidized
guardianship under s. 48.623.
(b) If an agreement to provide adoption assistance is in effect
and if the adoptive or proposed adoptive parents of the child who
is the subject of the agreement believe there has been a substantial
change in circumstances, as defined by the department by rule
promulgated under sub. (5) (c), the adoptive or proposed adoptive
parents may request that the agreement be amended to increase the
amount of adoption assistance for maintenance. If a request is
received under this paragraph, the department shall do all of the
following:
1. Determine whether there has been a substantial change in
circumstances, as defined by the department by rule promulgated
under sub. (5) (c) and whether there has been a substantiated
report of abuse or neglect of the child by the adoptive or proposed
adoptive parents.
2. If there has been a substantial change in circumstances and
if there has been no substantiated report of abuse or neglect of the
child by the adoptive or proposed adoptive parents, offer to
increase the amount of adoption assistance for maintenance based
on criteria established by the department by rule promulgated
under sub. (5) (d).
3. If an increased amount of adoption assistance for maintenance
is agreed to by the adoptive or proposed adoptive parents,
amend the agreement in writing to specify the increased amount
of adoption assistance for maintenance.
(bm) Annually, the department shall review an agreement that
has been amended under par. (b) to determine whether the substantial
change in circumstances that was the basis for amending
the agreement continues to exist. If that substantial change in circumstances
continues to exist, the agreement, as amended, shall
remain in effect. If that substantial change in circumstances no
longer exists, the department shall offer to decrease the amount of
adoption assistance for maintenance based on criteria established
by the department under sub. (5) (dm). If the decreased amount
of adoption assistance for maintenance is agreed to by the adoptive
or proposed adoptive parents, the department shall amend the
agreement in writing to specify the decreased amount of adoption assistance for maintenance. If the decreased amount of adoption
assistance for maintenance is not agreed to by the adoptive or proposed
adoptive parents, the adoptive or proposed adoptive parents
may appeal the decision of the department regarding the decrease
under the procedure established by the department under sub. (5)
(dm).
(c) The department may propose to the adoptive or proposed
adoptive parents that an agreement to provide adoption assistance
be amended to adjust the amount of adoption assistance for maintenance.
If an adjustment in the amount of adoption assistance for
maintenance is agreed to by the adoptive or proposed adoptive
parents, the agreement shall be amended in writing to specify the
adjusted amount of adoption assistance for maintenance.
(d) An agreement to provide adoption assistance may be
amended more than once under par. (b) or (c).
(4m) RECOVERY OF INCORRECT PAYMENTS. The department
may recover an overpayment of adoption assistance from an adoptive
parent who continues to receive adoption assistance for maintenance
by reducing the amount of the adoptive parent’s monthly
payment of adoption assistance for maintenance. The department
may by rule specify other methods for recovering overpayments
of adoption assistance.
(5) RULES. The department shall promulgate rules necessary
to implement this section, which shall include all of the following:
(a) A rule defining the extenuating circumstances under which
an initial agreement to provide adoption assistance under sub. (4)
(a) may be made after adoption. This definition shall include all
circumstances under which federal statutes, regulations or guidelines
provide that federal matching funds for adoption assistance
are available to the state if an initial agreement is made after adoption,
but may not include circumstances under which federal statutes,
regulations or guidelines provide that federal matching funds
for adoption assistance are not available if an initial agreement is
made after adoption.
(b) A rule defining a child with special needs, which shall
include a child who the department determines has, at the time of
placement for adoption, moderate or intensive difficulty−of−care
problems, as defined by the department, or who the department
determines is, at the time of placement for adoption, at high risk
of developing those problems.
(c) A rule defining the substantial change in circumstances
under which adoptive or proposed adoptive parents may request
that an agreement made under sub. (4) be amended to increase the
amount of adoption assistance for maintenance. The definition
shall include all of the following:
1. Situations in which a child who was defined as a child with
special needs based solely on being at high risk of developing
moderate or intensive difficulty−of−care problems has developed
those problems.
2. Situations in which a child’s difficulty−of−care problems
have increased from the moderate level to the intensive level as set
forth in the department’s schedule of difficulty−of−care levels
promulgated by rule.
(d) Rules establishing requirements for submitting a request
under sub. (4) (b), criteria for determining the amount of the
increase in adoption assistance for maintenance that the department
shall offer if there has been a substantial change in circumstances
and if there has been no substantiated report of abuse or
neglect of the child by the adoptive or proposed adoptive parents,
and the procedure to appeal the decision of the department regarding
the request.
(dm) Rules establishing the criteria for determining the
amount of the decrease in adoption assistance for maintenance
that the department shall offer under sub. (4) (bm) if a substantial
change in circumstances no longer exists and the procedure to
appeal the decision of the department regarding the decrease. The
criteria shall provide that the amount of the decrease offered by the
department under sub. (4) (bm) may not result in an amount of
adoption assistance for maintenance that is less than the initial
amount of adoption assistance for maintenance provided for the
child under sub. (3) (a) 1., 2. or 3.
(e) A rule regarding when a child must be photolisted with the
adoption information exchange under s. 48.55 in order to be eligible
for adoption assistance. The rule may not require photolisting
under any circumstances in which photolisting is not required by
federal statutes, regulations or guidelines as a prerequisite for the
state to receive federal matching funds for adoption assistance.
History: 1977 c. 418; 1985 a. 308; 1989 a. 31; 1993 a. 16, 446; 1997 a. 308; 2005
a. 25; 2009 a. 28; 2011 a. 32; 2013 a. 20.
Cross−reference: See also ch. DCF 50, Wis. adm. code.

48.977 Appointment of guardians for certain children
in need of protection or services. (2) TYPE OF GUARDIANSHIP.
This section may be used for the appointment of a guardian
of the person for a child if the court finds all of the following:
(a) That the child has been adjudged to be in need of protection
or services under s. 48.13 (1), (2), (3), (3m), (4), (4m), (5), (8), (9),
(10), (10m), (11), or (11m) or 938.13 (4) and been placed, or continued
in a placement, outside of his or her home pursuant to one
or more court orders under s. 48.345, 48.357, 48.363, 48.365,
938.345, 938.357, 938.363, or 938.365 or that the child has been
so adjudged and placement of the child in the home of a guardian
under this section has been recommended under s. 48.33 (1) or
938.33 (1).
(b) That the person nominated as the guardian of the child is
a person with whom the child has been placed or in whose home
placement of the child is recommended under par. (a) and that it
is likely that the child will continue to be placed with that person
for an extended period of time or until the child attains the age of
18 years.
(c) That, if appointed, it is likely that the person would be willing
and able to serve as the child’s guardian for an extended period
of time or until the child attains the age of 18 years.
(d) That it is not in the best interests of the child that a petition
to terminate parental rights be filed with respect to the child.
(e) That the child’s parent is neglecting, refusing or unable to
carry out the duties of a guardian or, if the child has 2 parents, both
parents are neglecting, refusing or unable to carry out the duties
of a guardian.
(f) That the agency primarily responsible for providing services
to the child under a court order has made reasonable efforts
to make it possible for the child to return to his or her home, while
assuring that the child’s health and safety are the paramount concerns,
but that reunification of the child with the child’s parent or
parents is unlikely or contrary to the best interests of the child and
that further reunification efforts are unlikely to be made or are
contrary to the best interests of the child or that the agency primarily
responsible for providing services to the child under a court
order has made reasonable efforts to prevent the removal of the
child from his or her home, while assuring the child’s health and
safety, but that continued placement of the child in the home
would be contrary to the welfare of the child, except that the court
is not required to find that the agency has made those reasonable
efforts with respect to a parent of the child if any of the circumstances
specified in s. 48.355 (2d) (b) 1. to 5. applies to that parent.
The court shall make the findings specified in this paragraph on
a case−by−case basis based on circumstances specific to the child
and shall document or reference the specific information on which
those findings are based in the guardianship order. A guardianship
order that merely references this paragraph without documenting
or referencing that specific information in the order or an amended
guardianship order that retroactively corrects an earlier guardianship
order that does not comply with this paragraph is not sufficient
to comply with this paragraph.
(3) DESIGNATION AS A PERMANENT PLACEMENT. If a court
appoints a guardian for a child under sub. (2), the court may designate
the child’s placement with that guardian as the child’s permanent
foster placement, but only for purposes of s. 48.368 (2) or
938.368 (2).
(3r) SUBSIDIZED GUARDIANSHIP. Subsidized guardianship payments
under s. 48.623 (1) may not be made to a guardian of a child
unless a subsidized guardianship agreement under s. 48.623 (2) is
entered into before the guardianship order is granted and the court
either terminates any order specified in sub. (2) (a) or dismisses
any proceeding in which the child has been adjudicated in need of
protection or services as specified in sub. (2) (a). If a child’s permanency
plan calls for placement of the child in the home of a
guardian and the provision of monthly subsidized guardianship
payments to the guardian, the petitioner under sub. (4) (a) shall
include in the petition under sub. (4) (b) a statement of the determinations
made under s. 48.623 (1) and a request for the court to
include in the court’s findings under sub. (4) (d) a finding confirming
those determinations. If the court confirms those determinations,
appoints a guardian for the child under sub. (2), and either
terminates any order specified in sub. (2) (a) or dismisses any proceeding
in which the child is adjudicated to be in need of protection
or services as specified in sub. (2) (a), the county department
or, as provided in s. 48.623 (3) (a), the department shall provide
monthly subsidized guardianship payments to the guardian under
s. 48.623 (1).
(4) PROCEDURE AND DISPOSITION. (a) Who may file petition.
Any of the following persons may file a petition for the appointment
of a guardian for a child under sub. (2):
1. The child or the child’s guardian, legal custodian, or Indian
custodian.
2. The child’s guardian ad litem.
3. The child’s parent.
4. The person with whom the child is placed or in whose home
placement of the child is recommended as described in sub. (2) (a),
if the person is nominated as the guardian of the child in the petition.
5. The department.
6. A county department under s. 46.22 or 46.23 or, if the child
has been placed pursuant to an order under ch. 938 or the child’s
placement with the guardian is recommended under ch. 938, a
county department under s. 46.215, 46.22, or 46.23.
7. A licensed child welfare agency that has been assigned primary
responsibility for providing services to the child under a
court order.
8. The person representing the interests of the public under s.
48.09.
(b) Contents of petition. A proceeding for the appointment of
a guardian for a child under sub. (2) shall be initiated by a petition
which shall be entitled “In the interest of .... (child’s name), a person
under the age of 18” and shall set forth all of the following with
specificity:
1. The name, birth date and address of the child.
2. The names and addresses of the child’s parent or parents,
guardian and legal custodian.
3. The date on which the child was adjudged in need of protection
or services under s. 48.13 (1), (2), (3), (3m), (4), (4m), (5), (8),
(9), (10), (10m), (11), or (11m) or 938.13 (4) and the dates on
which the child has been placed, or continued in a placement, outside
of his or her home pursuant to one or more court orders under
s. 48.345, 48.357, 48.363, 48.365, 938.345, 938.357, 938.363, or
938.365 or, if the child has been so adjudged, but not so placed,
the date of the report under s. 48.33 (1) or 938.33 (1) in which
placement of the child in the home of the person is recommended.
4. A statement of the facts and circumstances which the petition
alleges establish that the conditions specified in sub. (2) (b)
to (f) are met.
5. A statement of whether the proceedings are subject to the
Uniform Child Custody Jurisdiction and Enforcement Act under
ch. 822.
6. A statement of whether the child may be subject to the federal
Indian Child Welfare Act, 25 USC 1901 to 1963, and, if the
child may be subject to that act, the names and addresses of the
child’s Indian custodian, if any, and Indian tribe, if known.
(c) Service of petition and notice. 1. The petitioner shall cause
the petition and notice of the time and place of the hearing under
par. (cm) to be served upon all of the following persons:
a. The child if the child is 12 years of age or older.
b. The child’s guardian and legal custodian.
c. The child’s guardian ad litem.
d. The child’s counsel.
e. The child’s parent.
f. The persons to whom notice is required to be given under
s. 48.27 (3) (b) 1.
g. The person with whom the child is placed or in whose home
placement of the child is recommended as described in sub. (2) (a),
if the person is nominated as the guardian of the child in the petition.
h. The person representing the interests of the public under s.
48.09.
i. The agency primarily responsible for providing services to
the child under a court order.
j. If the child is an Indian child, the Indian child’s Indian custodian,
if any, and tribe, if known.
2. Except as provided in subd. 2m., service shall be made by
1st class mail at least 7 days before the hearing or by personal service
at least 7 days before the hearing or, if with reasonable diligence
a party specified in subd. 1. cannot be served by mail or personal
service, service shall be made by publication of a notice
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 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.
2m. If the petitioner knows or has reason to know that the
child is an Indian child, service under subd. 2. to the Indian child’s
parent, Indian custodian, and tribe shall be provided in the manner
specified in s. 48.028 (4) (a). No hearing may be held under par.
(cm) until at least 10 days after receipt of service by the Indian
child’s parent, Indian custodian, and tribe or, if the identity or location
of the Indian child’s parent, Indian custodian, or tribe cannot
be determined, until at least 15 days after receipt of service by the
U.S. secretary of the interior. On request of the Indian child’s parent,
Indian custodian, or tribe, the court shall grant a continuance
of up to 20 additional days to enable the requester to prepare for
the hearing.
(cm) Plea hearing. 1. A hearing to determine whether any
party wishes to contest a petition filed under par. (a) shall take
place on a date which allows reasonable time for the parties to prepare
but is no more than 30 days after the filing of the petition. At
the hearing, the nonpetitioning parties and the child, if he or she
is 12 years of age or over or is otherwise competent to do so, shall
state whether they wish to contest the petition. Before accepting
a plea of no contest to the allegations in the petition, the court shall
do all of the following:
a. Address the parties present and determine that the plea is
made voluntarily and with understanding of the nature of the facts
alleged in the petition, the nature of the potential disposition and
the nature of the legal consequences of that disposition.
b. Establish whether any promises or threats were made to
elicit the plea of no contest and alert all unrepresented parties to
the possibility that an attorney may discover grounds to contest
the petition that would not be apparent to those parties.
c. Make inquiries to establish to the satisfaction of the court
that there is a factual basis for the plea of no contest.
2. If the petition is not contested and if the court accepts the
plea of no contest, the court may immediately proceed to a dispositional
hearing under par. (fm), unless an adjournment is
requested. If a party requests an adjournment, the court shall set a date for the dispositional hearing which allows reasonable time
for the parties to prepare but is no more than 30 days after the plea
hearing.
3. If the petition is contested or if the court does not accept the
plea of no contest, the court shall set a date for a fact−finding hearing
under par. (d) which allows reasonable time for the parties to
prepare but is not more than 30 days after the plea hearing.
(d) Fact−finding hearing. The court shall hold a fact−finding
hearing on the petition on the date set by the court under par. (cm)
3., at which any party may present evidence relevant to the issue
of whether the conditions specified in sub. (2) (a) to (f) have been
met. If the court, at the conclusion of the fact−finding hearing,
finds by clear and convincing evidence that the conditions specified
in sub. (2) (a) to (f) have been met, the court shall immediately
proceed to a dispositional hearing unless an adjournment is
requested. If a party requests an adjournment, the court shall set
a date for the dispositional hearing which allows reasonable time
for the parties to prepare but is no more than 30 days after the fact−
finding hearing.
(e) Court report. For a child who has been placed, or continued
in a placement, outside of his or her home for 6 months or longer,
the court shall order the person or agency primarily responsible
for providing services to the child under a court order to file with
the court a report containing the written summary under s. 48.38
(5) (e) and as much information relating to the appointment of a
guardian as is reasonably ascertainable. For a child who has been
placed, or continued in a placement, outside of his or her home for
less than 6 months, the court shall order the person or agency primarily
responsible for providing services to the child under a court
order to file with the court the report submitted under s. 48.33 (1)
or 938.33 (1), the permanency plan prepared under s. 48.38 or
938.38, if one has been prepared, and as much information relating
to the appointment of a guardian as is reasonably ascertainable.
The agency shall file the report at least 48 hours before the
date of the dispositional hearing under par. (fm).
(fm) Dispositional hearing. The court shall hold a dispositional
hearing on the petition at the time specified or set by the
court under par. (cm) 2. or (d), at which any party may present evidence,
including expert testimony, relevant to the disposition.
(g) Dispositional factors. In determining the appropriate disposition
under this section, the best interests of the child shall be
the prevailing factor to be considered by the court. In making a
decision about the appropriate disposition, the court shall consider
any report submitted under par. (e) and shall consider, but not be
limited to, all of the following:
1. Whether the person would be a suitable guardian of the
child.
2. The willingness and ability of the person to serve as the
child’s guardian for an extended period of time or until the child
attains the age of 18 years.
3. The wishes of the child.
4. If the child is an Indian child, the order of placement preference
under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c),
unless the court finds good cause, as described in s. 48.028 (7) (e),
for departing from that order. A strong attachment of the child to
the person or a strong commitment of the person to caring permanently
for the child does not, in itself, constitute good cause for
departing from that order.
(h) Disposition. After receiving any evidence relating to the
disposition, the court shall enter one of the following dispositions
within 10 days after the dispositional hearing:
1. A disposition dismissing the petition if the court determines
that appointment of the person as the child’s guardian is not
in the best interests of the child.
2. A disposition ordering that the person with whom the child
has been placed or in whose home placement of the child is recommended
as described in sub. (2) (a) be appointed as the child’s
guardian under sub. (5) (a) or limited guardian under sub. (5) (b),
if the court determines that such an appointment is in the best
interests of the child.
(i) Effect of disposition on permanency review process. After
a disposition under par. (h), the child’s permanency plan shall continue
to be reviewed under s. 48.38 (5), if applicable.
(5) DUTIES AND AUTHORITY OF GUARDIAN. (a) Full guardianship.
Unless limited under par. (b), a guardian appointed under
sub. (2) shall have all of the duties and authority specified in s.
48.023.
(b) Limited guardianship. The court may order that the duties
and authority of a guardian appointed under sub. (2) be limited.
The duties and authority of a limited guardian shall be as specified
by the order of appointment under sub. (4) (h) 2. or any revised
order under sub. (6). All provisions of the statutes concerning the
duties and authority of a guardian shall apply to a limited guardian
appointed under sub. (2) to the extent those provisions are relevant
to the duties or authority of the limited guardian, except as limited
by the order of appointment.
(6) REVISION OF GUARDIANSHIP ORDER. (a) Any person authorized
to file a petition under sub. (4) (a) may request a revision in
a guardianship order entered under this subsection or sub. (4) (h)
2., or the court may, on its own motion, propose such a revision.
The request or court proposal shall set forth in detail the nature of
the proposed revision, shall allege facts sufficient to show that
there has been a substantial change in circumstances since the last
order affecting the guardianship was entered and that the proposed
revision would be in the best interests of the child and shall allege
any other information that affects the advisability of the court’s
disposition.
(b) The court shall hold a hearing on the matter prior to any
revision of the guardianship order if the request or court proposal
indicates that new information is available which affects the
advisability of the court’s guardianship order, unless written waivers
of objections to the revision are signed by all parties entitled
to receive notice under sub. (4) (c) and the court approves the
waivers.
(c) If a hearing is to be held, the court shall notify the persons
entitled to receive notice under sub. (4) (c) at least 7 days prior to
the hearing of the date, place and purpose of the hearing. A copy
of the request or proposal shall be attached to the notice. The court
may order a revision if, at the hearing, the court finds that it has
been proved by clear and convincing evidence that there has been
a substantial change in circumstances and if the court determines
that a revision would be in the best interests of the child.
(7) TERMINATION OF GUARDIANSHIP. (a) Term of guardianship.
Unless the court order entered under sub. (4) (h) 2. or (6) specifies
that a guardianship under this section be for a lesser period of time,
a guardianship under this section shall continue until the child
attains the age of 18 years or until terminated by the court, whichever
occurs earlier.
(b) Removal for cause. 1. Any person authorized to file a petition
under sub. (4) (a) may request that a guardian appointed under
sub. (2) be removed for cause or the court may, on its own motion,
propose such a removal. The request or court proposal shall allege
facts sufficient to show that the guardian is or has been neglecting,
is or has been refusing or is or has been unable to discharge the
guardian’s trust and may allege facts relating to any other information
that affects the advisability of the court’s disposition.
2. The court shall hold a hearing on the matter unless written
waivers of objections to the removal are signed by all parties
entitled to receive notice under sub. (4) (c) and the court approves
the waivers.
3. If a hearing is to be held, the court shall notify the persons
entitled to receive notice under sub. (4) (c) at least 7 days prior to
the hearing of the date, place and purpose of the hearing. A copy
of the request or court proposal shall be attached to the notice. The
court shall remove the guardian for cause if, at the hearing, the
court finds that it has been proved by clear and convincing evidence that the guardian is or has been neglecting, is or has been
refusing or is or has been unable to discharge the guardian’s trust
and if the court determines that removal of the guardian would be
in the best interests of the child.
(c) Resignation. A guardian appointed under sub. (2) may
resign at any time if the resignation is accepted by the court.
(d) Termination on request of parent. 1. A parent of the child
may request that a guardianship order entered under sub. (4) (h)
2. or a revised order entered under sub. (6) be terminated. The
request shall allege facts sufficient to show that there has been a
substantial change in circumstances since the last order affecting
the guardianship was entered, that the parent is willing and able
to carry out the duties of a guardian and that the proposed termination
of guardianship would be in the best interests of the child.
2. The court shall hold a hearing on the matter unless written
waivers of objections to the termination are signed by all parties
entitled to receive notice under sub. (4) (c) and the court approves
the waivers.
3. If a hearing is to be held, the court shall notify the persons
entitled to receive notice under sub. (4) (c) at least 7 days prior to
the hearing of the date, place and purpose of the hearing. A copy
of the request shall be attached to the notice. The court shall terminate
the guardianship if, at the hearing, the court finds that it has
been proved by clear and convincing evidence that there has been
a substantial change in circumstances since the last order affecting
the guardianship was entered and the parent is willing and able to
carry out the duties of a guardian and if the court determines that
termination of the guardianship would be in the best interests of
the child.
(e) Termination on termination of parental rights. If a court
enters an order under s. 48.427 (3p) or 48.428 (2) (b), the court
shall terminate the guardianship under this section.
(8) RELATIONSHIP TO CH. 54 AND CH. 880, 2003 STATS. (a) This
section does not abridge the duties or authority of a guardian
appointed under ch. 54 or ch. 880, 2003 stats.
(b) Nothing in this section prohibits an individual from petitioning
a court under ch. 54 for appointment of a guardian.
History: 1995 a. 275; 1997 a. 27, 35, 80, 237; 1999 a. 133; 2001 a. 2, 109; 2005
a. 25, 130, 387; 2007 a. 77; 2009 a. 94; 2011 a. 32, 181; 2013 a. 20.

48.978 Appointment or designation of standby guardian
of a child. (1) DEFINITIONS. In this section:
(a) “Attending physician” means a physician licensed under
ch. 448 who has primary responsibility for the treatment and care
of a parent who has filed a petition under sub. (2) (a) or made a
written designation under sub. (3) (a) or, if more than one physician
has responsibility for the treatment and care of that parent, if
a physician is acting on behalf of a physician who has primary
responsibility for the treatment and care of that parent or if no physician
is responsible for the treatment and care of that parent,
“attending physician” means any physician licensed under ch. 448
who is familiar with the medical condition of that parent.
(b) “Debilitation” means a person’s chronic and substantial
inability, as a result of a physical illness, disease, impairment or
injury, to care for his or her child.
(c) “Incapacity” means a person’s chronic and substantial
inability, as a result of a mental impairment, to care for his or her
child.
(2) JUDICIAL APPOINTMENT. (a) Who may file petition. 1. A
parent of a child may file a petition for the judicial appointment
of a standby guardian of the person or estate or both of the child
under this subsection. A parent may include in the petition the
nomination of an alternate standby guardian for the court to
appoint if the person nominated as standby guardian is unwilling
or unable to serve as the child’s guardian or if the court determines
that appointment of the person nominated as standby guardian as
the child’s guardian is not in the best interests of the child. Subject
to subds. 2. and 3., if a petition is filed under this subdivision, the
petition shall be joined by each parent of the child.
2. If a parent of a child cannot with reasonable diligence
locate the other parent of the child, the parent may file a petition
under subd. 1. without the other parent joining in the petition and,
if the parent filing the petition submits proof satisfactory to the
court of that reasonable diligence, the court may grant the petition.
3. If a parent of a child can locate the other parent of the child,
but that other parent refuses to join in the petition or indicates that
he or she is unwilling or unable to exercise the duty and authority
of guardianship, the parent may file a petition under subd. 1. without
the other parent joining in the petition and, if the parent filing
the petition submits proof satisfactory to the court of that refusal,
unwillingness or inability, the court may grant the petition.
(b) Contents of petition. A proceeding for the appointment of
a standby guardian for a child under this subsection shall be initiated
by a petition that shall be entitled “In the interest of ....
(child’s name), a person under the age of 18” and shall set forth
with specificity all of the following:
1. The name, birth date and address of the child.
2. The names and addresses of the child’s parent or parents,
guardian and legal custodian.
3. The name and address of the person nominated as standby
guardian and, if the petitioner is nominating an alternate standby
guardian, the name and address of the person nominated as alternate
standby guardian.
4. The duties and authority that the petitioner wishes the
standby guardian to exercise.
5. A statement of whether the duty and authority of the
standby guardian are to become effective on the petitioner’s incapacity,
on the petitioner’s death, or on the petitioner’s debilitation
and consent to the beginning of the duty and authority of the
standby guardian, or on whichever occurs first.
6. A statement that there is a significant risk that the petitioner
will become incapacitated or debilitated or die, as applicable,
within 2 years after the date on which the petition is filed and the
factual basis for that statement.
7. If a parent of the child cannot with reasonable diligence
locate the other parent of the child, a statement that the child has
no parent, other than the petitioner, who is willing and able to exercise
the duties and authority of guardianship and who, with reasonable
diligence, can be located and a statement of the efforts
made to locate the other parent.
8. If a parent of the child can locate the other parent of the
child, but that other parent refuses to join in the petition or indicates
that he or she is unwilling or unable to exercise the duty and
authority of guardianship, a statement that the child has no parent,
other than the petitioner, who is willing and able to exercise the
duty and authority of guardianship and a statement that the nonpetitioning
parent has refused to join in the petition or has indicated
that he or she is unwilling or unable to exercise the duty and
authority of guardianship.
9. A description of the child’s income and assets, if any.
10. A statement of whether the proceedings are subject to the
Uniform Child Custody Jurisdiction and Enforcement Act under
ch. 822.
11. A statement of whether the child may be subject to the federal
Indian Child Welfare Act, 25 USC 1901 to 1963, and, if the
child may be subject to that act, the names and addresses of the
child’s Indian custodian, if any, and Indian tribe, if known.
(c) Service of petition and notice. 1. The petitioner shall cause
the petition and notice of the time and place of the hearing under
par. (d) to be served on all of the following persons:
a. The child if the child is 12 years of age or older.
b. The child’s guardian and legal custodian.
c. The child’s guardian ad litem.
d. The child’s counsel.
e. The child’s other parent, if that parent has not joined in the
petition and if that parent can with reasonable diligence be
located.
f. The persons to whom notice is required to be given under
s. 48.27 (3) (b) 1.
g. The person who is nominated as the standby guardian of
the child in the petition and, if an alternate standby guardian is
nominated in the petition, the person who is nominated as the
alternate standby guardian.
2. Service shall be made by certified mail at least 7 days
before the hearing or by personal service in the same manner as
a summons is served under s. 801.11 (1) (a) or (b) at least 7 days
before the hearing or, if with reasonable diligence a party specified
in subd. 1. cannot be served by mail or by personal or substituted
service, service shall be made by publication of a notice 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
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.
(d) Plea hearing. 1. A hearing to determine whether any party
wishes to contest a petition filed under par. (a) shall take place on
a date that allows reasonable time for the parties to prepare but is
no more than 30 days after the filing of the petition. At the hearing,
the nonpetitioning parties and the child, if he or she is 12 years of
age or over or is otherwise competent to do so, shall state whether
they wish to contest the petition.
2. If the petition is not contested, the court may immediately
proceed to a dispositional hearing under par. (g), unless an
adjournment is requested under par. (g).
3. If the petition is contested, the court shall set a date for a
fact−finding hearing under par. (e) that allows reasonable time for
the parties to prepare but is no more than 30 days after the plea
hearing.
(e) Fact−finding hearing. The court shall hold a fact−finding
hearing on the petition on the date set by the court under par. (d)
3. at which any party may present evidence relevant to any of the
following issues:
1. Whether there is a significant risk that the petitioner will
become incapacitated or debilitated or die within 2 years after the
date on which the petition was filed.
2. Whether the child has any parent, other than the petitioner,
who is willing and able to exercise the duty and authority of guardianship.
3. If a parent cannot be located, whether the petitioner has
made diligent efforts to locate that parent.
4. If a parent has refused to join in the petition, whether that
refusal is unreasonable.
(f) Required findings by court. If the court, at the conclusion
of the fact−finding hearing, makes all of the following findings by
clear and convincing evidence, the court shall immediately proceed
to a dispositional hearing unless an adjournment is requested
under par. (g):
1. That there is a significant risk that the petitioner will
become incapacitated or debilitated or die within 2 years after the
date on which the petition was filed.
2. That the child has no parent, other than the petitioner, who
is willing and able to exercise the duty and authority of guardianship.
3. That, if a parent cannot be located, the petitioner has made
diligent efforts to locate that parent.
4. That, if a parent has refused to join in the petition, the
refusal was unreasonable.
5. That the person nominated as standby guardian is willing
and able to act as standby guardian or, if that person is not so willing
and able, that the person nominated as alternate standby guardian
is willing and able to act as standby guardian.
(g) Dispositional hearing. The court shall hold a dispositional
hearing on the petition at the time specified under par. (d) 2. or (e),
at which any party may present evidence, including expert testimony,
relevant to the disposition. If at the plea hearing or the fact−
finding hearing a party requests an adjournment of the dispositional
hearing, the court shall set a date for the dispositional
hearing that allows reasonable time for the parties to prepare but
is no more than 30 days after the plea hearing or fact−finding hearing.
(h) Dispositional factors. In determining the appropriate disposition
under this par. (j), the best interests of the child shall be
the prevailing factor to be considered by the court. In making a
decision about the appropriate disposition, the court shall consider
all of the following:
1. Whether the person nominated as standby guardian or
alternate standby guardian would be a suitable guardian of the
child.
2. The willingness and ability of the person nominated as
standby guardian or alternate standby guardian to serve as the
child’s guardian if the petitioner becomes incapacitated or debilitated
or dies.
3. The wishes of the child.
(i) Appearance by petitioner. If the petitioner is medically
unable to appear at a hearing under par. (d), (e) or (g), the court
may dispense with the petitioner’s appearance, except on the
motion of a party and for good cause shown.
(j) Disposition. After receiving any evidence relating to the
disposition, the court shall enter one of the following dispositions
within 10 days after the dispositional hearing:
1. A disposition dismissing the petition if the court determines
that appointment of the person nominated as standby guardian
or alternate standby guardian as the child’s standby guardian
is not in the best interests of the child.
2. A disposition ordering that the person nominated as
standby guardian or alternate standby guardian be appointed as
the child’s standby guardian if the court determines that such an
appointment is in the best interests of the child.
(k) Guardianship order. A standby guardianship order under
par. (j) 2. shall include all of the following:
1. A statement of whether the standby guardianship is a full
guardianship under sub. (6) (b) 1. or a limited guardianship under
sub. (6) (b) 2.
2. A statement of when the standby guardianship goes into
effect, which may be on receipt by the standby guardian of a determination
of the petitioner’s incapacity, a certificate of the petitioner’s
death, or a determination of the petitioner’s debilitation and
the petitioner’s written consent under par. (L) 3. that the standby
guardianship go into effect.
(L) Commencement of duty and authority of court−appointed
standby guardian. 1. If a standby guardianship order under par.
(j) 2. provides that the duty and authority of a standby guardian are
effective on the petitioner’s incapacity, the duty and authority of
the standby guardian shall begin on the receipt by the standby
guardian of a copy of a determination of incapacity under sub. (4).
2. If a standby guardianship order under par. (j) 2. provides
that the duty and authority of a standby guardian are effective on
the petitioner’s death, the duty and authority of the standby guardian
shall begin on the receipt by the standby guardian of a copy of
the certificate of the petitioner’s death.
3. If a standby guardianship order under par. (j) 2. provides
that the duty and authority of a standby guardian are effective on
the petitioner’s debilitation and consent to the standby guardianship
going into effect, the duty and authority of a standby guardian
shall begin on the receipt by the standby guardian of a determination
of debilitation under sub. (4) and a written consent to the
beginning of that duty and authority signed by the petitioner in the
presence of 2 witnesses 18 years of age or over, neither of whom
may be the standby guardian, and by the standby guardian. If the
petitioner is physically unable to sign that written consent, another
person 18 years of age or over who is not the standby guardian
may sign the written consent on behalf of the petitioner and at the
direction of the petitioner, in the presence of the petitioner and 2 witnesses 18 years of age or over, neither of whom may be the
standby guardian.
4. The standby guardian shall file the determination of incapacity
received under subd. 1., the certificate of death received
under subd. 2., or the determination of debilitation and written
consent received under subd. 3., whichever is applicable, with the
court that entered the guardianship order within 90 days after the
date on which the standby guardian receives that determination,
certificate, or determination and written consent. If the standby
guardian fails to file that determination, certificate, or determination
and written consent with that court within those 90 days, the
court may rescind the guardianship order.
(m) Suspension of duty and authority of court−appointed
standby guardian. 1. The duty and authority of a standby guardian
appointed under par. (j) 2. shall be suspended on the receipt by
the standby guardian of a copy of a determination of recovery or
remission under sub. (5).
2. The standby guardian shall file the determination of recovery
or remission received under subd. 1. with the court that entered
the guardianship order within 90 days after the date on which the
standby guardian receives that determination. If the standby
guardian fails to file that determination with that court within
those 90 days, the court may rescind the guardianship order.
3. The duty and authority of a standby guardian that are suspended
under subd. 1. shall begin again as provided in par. (L).
(n) Rescission of standby guardianship. 1. If at any time
before the duty and authority of a standby guardian appointed
under par. (j) 2. begin, the court finds that the findings of the court
under par. (f) no longer apply or determines that the determination
of the court under par. (j) 2. no longer applies, the court may
rescind the guardianship order.
2. A person who is appointed as a standby guardian under par.
(j) 2. may, at any time before his or her duty and authority as a
standby guardian begin, renounce that appointment by executing
a written renunciation, filing the renunciation with the court that
issued the guardianship order and notifying the petitioner in writing
of the renunciation. On compliance with this subdivision, the
court shall rescind the guardianship order.
3. A person who is appointed as a standby guardian under par.
(j) 2. may, at any time after his or her duty and authority as standby
guardian begin, resign that appointment be executing a written
resignation, filing the resignation with the court that issued the
guardianship order and notifying the petitioner, if living, in writing
of that resignation. On compliance with this subdivision, the
court may accept the resignation and rescind the guardianship
order if the court determines that the resignation and rescission are
in the best interests of the child.
4. The petitioner may revoke a standby guardianship ordered
under par. (j) 2. at any time before the duty and authority of the
standby guardian begin by executing a written revocation, filing
the revocation with the court that entered the guardianship order
and notifying the standby guardian in writing of the revocation.
On compliance with this subdivision, the court shall rescind the
guardianship order.
5. The petitioner may revoke a standby guardianship ordered
under par. (j) 2. at any time after the duty and authority of the
standby guardian begin by executing a written revocation, filing
the written revocation with the court that entered the guardianship
order and notifying the standby guardian in writing of the revocation.
On compliance with this subdivision, the court may rescind
the guardianship order if the court determines that rescission of
the guardianship order is in the best interests of the child.
(3) PARENTAL DESIGNATION. (a) Written designation. A parent
may designate a standby guardian for his or her child by means of
a written designation signed by the parent in the presence of 2 witnesses
18 years of age or over, neither of whom may be the standby
guardian, and by the standby guardian. If a parent is physically
unable to sign that written designation, another person 18 years of
age or over who is not the standby guardian may sign the written
designation on behalf of the parent and at the direction of the parent,
in the presence of the parent and 2 witnesses 18 years of age
or over, neither of whom may be the standby guardian.
(b) Contents of written designation; form. 1. A written designation
of a standby guardian shall identify the parent who is making
the designation, the child who is the subject of the standby
guardianship and the person who is designated to be the standby
guardian. The written designation shall also state the duties and
authority that the parent wishes the standby guardian to exercise
and shall indicate that the parent intends for the duty and authority
of standby guardian to begin on the parent’s incapacity, death, or
debilitation and consent under par. (c) 3. to the beginning of the
duty and authority of the standby guardian, or on whichever
occurs first. A parent may designate an alternate standby guardian
in the same written designation and in the same manner as the parent
designates the standby guardian.
2. A written designation of a standby guardian complies with
this subsection if the written designation substantially conforms
to the following form:
DESIGNATION OF STANDBY GUARDIAN
I, .... (name and address of parent), being of sound mind, do
hereby designate .... (name and address of standby guardian) as
standby guardian of the person and estate of my child(ren) ....
(name(s), birth date(s) and address(es) of child(ren)).
(You may, if you wish, provide that the duty and authority of
the standby guardian shall extend only to the person, or only to the
estate, of your child(ren), by crossing out “person and” or “and
estate”, whichever is inapplicable, above.)
The duty and authority of the standby guardian shall begin on
one of the following events, whichever occurs first:
1. I die.
2. My doctor determines that I am mentally incapacitated, and
thus unable to care for my child(ren).
3. My doctor determines that I am physically debilitated, and
thus unable to care for my child(ren), and I consent in writing,
before 2 witnesses, to the standby guardian’s duty and authority
taking effect.
If the person I designate above is unwilling or unable to act as
standby guardian for my child(ren), I hereby designate .... (name
and address of alternate standby guardian) as standby guardian for
my child(ren).
I also understand that the duty and authority of the standby
guardian designated above will end 180 days after the day on
which that duty and authority begin if the standby guardian does
not petition the court within those 180 days for an order appointing
him or her as standby guardian.
I understand that I retain full parental rights over my child(ren)
even after the beginning of the standby guardianship, that I may
revoke the standby guardianship at any time before the standby
guardianship begins, that I may revoke the standby guardianship
at any time after the standby guardianship begins, subject to the
approval of the court, and that the standby guardianship will be
suspended on my recovery or remission from my incapacity or
debilitation.
Signature.... Date ....
STATEMENT OF WITNESSES
I declare that the person whose name appears above signed this
document in my presence, or was physically unable to sign the
document and asked another person 18 years of age or over to sign
the document, who did so in my presence, and that I believe the
person whose name appears above to be of sound mind. I further
declare that I am 18 years of age or over and that I am not the person
designated as standby guardian or alternate standby guardian.
Witness No. 1:
(print) Name ... Date ....
Address ....
Signature ....
Witness No. 2:
(print) Name .... Date ....
Address ....
Signature ....
STATEMENT OF STANDBY GUARDIAN
AND ALTERNATE STANDBY GUARDIAN
I .... (name and address of standby guardian), and I, .... (name
and address of alternate standby guardian), understand that ....
(name of parent) has designated me to be the standby guardian or
alternate standby guardian of the person and estate (cross out “person
and” or “and estate”, if inapplicable) of his or her child(ren)
if he or she dies, becomes mentally incapacitated, or becomes
physically debilitated and consents, to my duty and authority taking
effect. I hereby declare that I am willing and able to undertake
the duty and authority of standby guardianship and I understand
that within 180 days after that duty and authority begin I must petition
the court for an order appointing me as standby guardian. I
further understand that .... (name of parent) retains full parental
rights over his or her child(ren) even after the beginning of the
standby guardianship, that he or she may revoke the standby
guardianship at any time before the standby guardianship begins,
that he or she may revoke the standby guardianship at any time
after the standby guardianship begins, subject to the approval of
the court, and that the standby guardianship will be suspended on
his or her recovery or remission from his or her incapacity or
debilitation.
Standby guardian’s signature .... Date ....
Address ....
Alternate standby guardian’ signature .... Date ....
Address ....
3. A written designation of a standby guardian may also contain
a consent to that designation that substantially conforms to the
following form and that shall be completed if the child’s other parent
can be located:
CONSENT TO DESIGNATION OF STANDBY GUARDIAN
I, .... (name and address of other parent), being of sound mind,
do hereby consent to the designation by .... (name of designating
parent) of .... (name of standby guardian) as standby guardian, and
of .... (name of alternate standby guardian) as alternate standby
guardian, of the person and estate (cross out “person and” or “and
estate”, if inapplicable) of my child(ren) .... (name(s), birth date(s)
and address(es) of child(ren)).
I also consent to the terms and conditions of the standby guardianship
stated above and I understand that I retain full parental
rights over my child(ren) even after the beginning of the standby
guardianship and that I may revoke my consent to the standby
guardianship at any time.
Signature .... Date ....
STATEMENT OF WITNESSES
I declare that the person whose name appears above signed this
document in my presence, or was physically unable to sign the
document and asked another person 18 years of age or over to sign
the document, who did so in my presence, and that I believe the
person whose name appears above to be of sound mind. I further
declare that I am 18 years of age or over and that I am not the person
designated as standby guardian or alternate standby guardian.
Witness No. 1:
(print) Name .... Date ....
Address ....
Signature ....
Witness No. 2:
(print) Name .... Date ....
Address ....
Signature ....
(c) Commencement of duty and authority of designated
standby guardian. 1. If a written designation under par. (a) indicates
that the parent intends for the duty and authority of the
standby guardian to begin on the parent’s incapacity, the duty and
authority of the standby guardian shall begin on the receipt by the
standby guardian of a copy of a determination of incapacity under
sub. (4).
2. If a written designation under par. (a) indicates that the parent
intends for the duty and authority of the standby guardian to
begin on the parent’s death, the duty and authority of the standby
guardian shall begin on the receipt by the standby guardian of a
copy of a certificate of the parent’s death.
3. If a written designation under par. (a) indicates that the parent
intends for the duty and authority of the standby guardian to
begin on the parent becoming debilitated and consenting to the
beginning of the standby guardianship, the duty and authority of
the standby guardian shall begin on the receipt by the standby
guardian of a copy of a determination of debilitation under sub. (4)
and a copy of the parent’s written consent to the beginning of that
duty and authority signed by the parent in the presence of 2 witnesses,
neither of whom may be the standby guardian, and by the
standby guardian. If the parent is physically unable to sign that
written consent, another person 18 years of age or over who is not
the standby guardian may sign the written consent on behalf of the
parent and at the direction of the parent, in the presence of the parent
and 2 witnesses, neither of whom may be the standby guardian.
4. Subject to par. (d) 2., the standby guardian shall file a petition
under par. (e) for judicial appointment as standby guardian of
the child within 180 days after the date on which the standby
guardianship begins. If the standby guardian fails to file that petition
within those 180 days, the standby guardian’s duty and
authority shall end 180 days after the date on which the standby
guardianship began. If the standby guardian files the petition after
the expiration of those 180 days, the duty and authority of the
standby guardian shall begin again on the date on which the petition
is filed.
(d) Suspension of duty and authority of designated standby
guardian. 1. The duty and authority of a standby guardian designated
under par. (a) shall be suspended on the receipt by the
standby guardian of a copy of a determination of recovery or
remission under sub. (5).
2. If the standby guardian receives a determination of recovery
or remission under subd. 1. before the standby guardian files
the petition under par. (e), the standby guardian need not file the
petition under par. (e).
3. If the standby guardian receives a determination of recovery
or remission under subd. 1. after the standby guardian files the
petition under par. (e), but before the standby guardian is judicially
appointed under par. (g), the standby guardian shall file that
determination with the court with which the petition is filed by the
time of the next hearing on the petition or within 7 days after the
date on which the standby guardian receives that determination,
whichever is sooner. On compliance with this subdivision, the
court shall dismiss the petition. If the standby guardian fails to file
that determination with that court within those 7 days, the court
may rescind the guardianship.
4. If the standby guardian receives a determination of recovery
or remission under subd. 1. after the standby guardian is judicially
appointed under par. (g), the standby guardian shall file that
determination with the court that entered the guardianship order
within 90 days after the date on which the standby guardian
receives that determination. If the standby guardian fails to file
that determination with that court within those 90 days, the court
may rescind the guardianship order.
5. The duty and authority of a standby guardian that are suspended
under subd. 1. shall begin again as provided in par. (c).
(e) Petition for judicial appointment. A petition for judicial
appointment as standby guardian of a child under this subsection
shall be in the same form as a petition under sub. (2) (b) and shall set forth with specificity the information specified in sub. (2) (b)
1. to 4. and 7. to 11. The petition shall also contain a statement that
the parent has become incapacitated, has died, or has become
debilitated and has consented to the beginning of the duty and
authority of the standby guardian. In addition, the petition shall
be accompanied by the following documentation:
1. The written designation under par. (a) signed or consented
to by each parent of the child or, if a parent cannot with reasonable
diligence be located or has refused to consent to the designation,
the written designation under par. (a) signed by one parent and a
statement of the efforts made to find the other parent or of the fact
that the other parent has refused to consent to the designation.
2. A copy of the determination of incapacity received under
par. (c) 1., the certificate of death received under par. (c) 2. or the
determination of debilitation and written consent received under
par. (c) 3.
3. If the petition is filed by a person who has been designated
as an alternate standby guardian, a statement that the person designated
as standby guardian is unwilling or unable to act as standby
guardian and the factual basis for that statement.
(f) Procedure for judicial appointment. 1. The petitioner shall
cause the petition and notice of the time and place of the plea hearing
under subd. 2. to be served on all of the persons specified in
sub. (2) (c) 1. a. to f. and on the parent who has made the written
designation under par. (a), if living. Service shall be made in the
manner provided in sub. (2) (c) 2.
2. The court shall hold a plea hearing, a fact−finding hearing
and a dispositional hearing in the manner provided in sub. (2) (d)
to (g) and shall enter a dispositional order as provided in sub. (2)
(j) and (k) 1., except that at the fact−finding hearing any party may
present evidence relevant to the issues specified in par. (g), and at
the conclusion of that hearing the court shall immediately proceed
to a dispositional hearing, unless an adjournment is requested, if
the court finds by clear and convincing evidence that the conditions
specified in par. (g) have been met.
(g) Required findings by court. The court shall appoint a person
to be a standby guardian under this subsection if, after making
the following findings by clear and convincing evidence, the court
determines that the appointment is in the best interests of the child:
1. That the person was designated as standby guardian in
accordance with pars. (a) and (b).
2. That the standby guardian has received a determination of
incapacity, a death certificate, or a determination of debilitation
and written consent, as provided in par. (c) 1., 2. or 3., whichever
is applicable.
3. That the child has no parent who is willing and able to exercise
the duty and authority of guardianship.
4. That, if a parent cannot be located, the petitioner has made
diligent efforts to locate that parent or, if a parent has refused to
consent to the designation of the standby guardian, the consent
was unreasonably withheld.
5. That, if the petitioner is a person designated as an alternate
standby guardian, the person designated as standby guardian is
unwilling or unable to act as standby guardian.
(h) Dispositional factors. In determining the appropriate disposition
under par. (g), the best interests of the child shall be the
prevailing factor to be considered by the court. In making a decision
about the appropriate disposition, the court shall consider all
of the following:
1. Whether the person designated as standby guardian or
alternate standby guardian would be a suitable guardian of the
child.
2. The willingness and ability of the person designated as
standby guardian or alternate standby guardian to serve as the
child’s guardian.
3. The wishes of the child.
(i) Appearance by parent. If the parent who has made a written
designation under par. (a) is medically unable to appear at a hearing
specified in par. (f) 2., the court may dispense with the parent’s
appearance, except on the motion of a party and for good cause
shown.
(j) Revocation by parent. 1. A parent who has made a written
designation under par. (a) may, at any time before the filing of a
petition under par. (e), revoke a standby guardianship created
under this subsection by executing a written revocation and notifying
the standby guardian in writing of the revocation, making a
subsequent written designation under par. (a) or verbally revoking
the standby guardianship in the presence of 2 witnesses.
2. After a petition under par. (e) has been filed but before the
standby guardian has been judicially appointed under par. (g), a
parent who has made a written designation under par. (a) may
revoke a standby guardianship created under this subsection by
executing a written revocation, filing the revocation with the court
with which the petition has been filed and notifying the standby
guardian in writing of the revocation. On compliance with this
subdivision, the court may dismiss the petition and rescind the
guardianship if the court determines that dismissal of the petition
and rescission of the guardianship are in the best interests of the
child.
3. After the standby guardian has been judicially appointed
under par. (g), a parent who has made a written designation under
par. (a) may revoke a standby guardianship created under this subsection
by executing a written revocation, filing the revocation
with the court that entered the guardianship order and notifying
the standby guardian in writing of the revocation. On compliance
with this subdivision, the court may rescind the guardianship
order if the court determines that rescission of the guardianship
order is in the best interests of the child.
(k) Renunciation of designation. 1. A person whom a parent
has designated as a standby guardian under par. (a) may, at any
time before the filing of a petition under par. (e), renounce that
designation by executing a written renunciation and notifying the
parent, if living, in writing of that renunciation.
2. After a petition under par. (e) has been filed, but before the
standby guardian has been judicially appointed under par. (g), a
person whom a parent has designated as a standby guardian under
par. (a) may renounce that designation by executing a written
renunciation, filing the renunciation with the court with which the
petition has been filed and notifying the parent, if living, in writing
of that renunciation. On compliance with this subdivision, the
court may accept the renunciation and rescind the guardianship
order if the court finds that the renunciation and rescission are in
the best interests of the child.
3. A person who has been judicially appointed as a standby
guardian under par. (g) may, at any time after that appointment,
resign that appointment by executing a written resignation, filing
the resignation with the court that entered the guardianship order
and notifying the parent who designated the person as a standby
guardian under par. (a), if living, in writing of that resignation. On
compliance with this subdivision, the court may accept the resignation
and rescind the guardianship order if the court determines
that the resignation and rescission are in the best interests of the
child.
(4) DETERMINATION OF INCAPACITY OR DEBILITATION. (a) In
general. 1. A determination of incapacity or debilitation under
this section shall be in writing, shall be made to a reasonable
degree of medical certainty by an attending physician and shall
contain the opinion of the attending physician regarding the cause
and nature of the parent’s incapacity or debilitation and the extent
and probable duration of the incapacity or debilitation.
2. If a standby guardian’s identity is known to an attending
physician making a determination of incapacity or debilitation,
the attending physician shall provide a copy of the determination
of incapacity or debilitation to the standby guardian.
(b) On request of standby guardian. If requested by a standby
guardian, an attending physician shall make a determination regarding a parent’s incapacity or debilitation for purposes of this
section.
(c) Information to be provided to parent. On receipt of a determination
of a parent’s incapacity, a standby guardian shall inform
the parent of all of the following, if the parent is able to comprehend
that information:
1. That a determination of incapacity has been made and, as
a result, the duty and authority of the standby guardian have
begun.
2. That the parent may revoke the standby guardianship in
accordance with sub. (2) (n) 5. or (3) (j) 1., 2. or 3., whichever is
applicable.
(5) DETERMINATION OF RECOVERY OR REMISSION. (a) In general.
1. A determination that a parent has recovered or is in remission
from his or her incapacity or debilitation shall be in writing,
shall be made to a reasonable degree of medical certainty by an
attending physician and shall contain the opinion of the attending
physician regarding the extent and probable duration of the recovery
or remission.
2. If a standby guardian’s identity is known to an attending
physician making a determination of recovery or remission, the
attending physician shall provide a copy of the determination of
recovery or remission to the standby guardian.
(b) On request of standby guardian. If requested by a standby
guardian, an attending physician shall make a determination
regarding a parent’s recovery or remission for purposes of this
section.
(6) PARENTAL RIGHTS; DUTY AND AUTHORITY OF STANDBY
GUARDIAN. (a) Parental rights. The beginning of the duty and
authority of a standby guardian under sub. (2) or (3) does not, in
itself, divest a parent of any parental rights.
(b) Duties and authority of guardian. 1. Unless limited under
subd. 2., a standby guardian appointed under sub. (2) or designated
under sub. (3) shall have all of the duties and authority specified
in s. 48.023.
2. The court may order or a parent may provide that the duties
and authority of a standby guardian appointed under sub. (2) or
designated under sub. (3) be limited. The duties and authority of
a limited standby guardian shall be as specified by the order of
appointment under sub. (2) (j) 2. or the written designation under
sub. (3) (a). All provisions of the statutes concerning the duties
and authority of a guardian shall apply to a limited standby guardian
appointed under sub. (2) or designated under sub. (3) to the
extent those provisions are relevant to the duties or authority of the
limited standby guardian, except as limited by the order of
appointment or written designation.
(7) RELATIONSHIP TO CH. 54. (a) Except when a different right,
remedy or procedure is provided under this section, the rights,
remedies, and procedures provided in ch. 54 shall govern a
standby guardianship created under this section.
(b) This section does not abridge the duties or authority of a
guardian appointed under ch. 880, 2003 stats., or ch. 54.
(c) Nothing in this section prohibits an individual from petitioning
a court for the appointment of a guardian under ch. 54.
History: 1997 a. 334; 2005 a. 130, 387; 2007 a. 96; 2009 a. 94.

48.979 Delegation of power by parent. (1) (a) A parent
who has legal custody of a child, by a power of attorney that is
properly executed by all parents who have legal custody of the
child, may delegate to an agent, for a period not to exceed one year,
any of his or her powers regarding the care and custody of the
child, except the power to consent to the marriage or adoption of
the child, the performance or inducement of an abortion on or for
the child, the termination of parental rights to the child, or the
enlistment of the child in the U.S. armed forces. A delegation of
powers under this paragraph does not deprive the parent of any of
his or her powers regarding the care and custody of the child.
(b) If a delegation of powers to an agent under par. (a) is facilitated
by an entity, as defined in s. 48.685 (1) (b), that entity shall
obtain the information specified in s. 48.685 (2) (b) 1. with respect
to the proposed agent and any nonclient resident, as defined in s.
48.685 (1) (bm), of the proposed agent. Subject to s. 48.685 (5),
if that information indicates that the proposed agent may not be a
contractor, as defined in s. 48.685 (1) (ar), of the entity or that a
nonclient resident of the proposed agent may not be permitted to
reside with the proposed agent for a reason specified in s. 48.685
(4m) (b) 1. to 5., the entity may not facilitate a delegation of powers
to the proposed agent under par. (a). The entity shall provide
the department of health services with information about each person
who is denied a delegation of powers or permission to reside
under this paragraph for a reason specified in s. 48.685 (4m) (b)
1. to 5.
(bm) A parent may not delegate under par. (a) his or her powers
regarding the care and custody of a child who is subject to the
jurisdiction of the court under s. 48.13, 48.14, 938.12, 938.13, or
938.14 unless the court approves the delegation.
(c) A parent who has legal custody of a child may not place the
child in a foster home, group home, or inpatient treatment facility
by means of a delegation of powers under par. (a). Those placements
may be made only by means of a court order or as provided
in s. 48.63 or 51.13.
(d) A delegation of powers under par. (a) does not prevent or
supersede any of the following:
1. An agency, a sheriff, or a police department from receiving
and investigating a report of suspected or threatened abuse or
neglect of the child under s. 48.981.
2. The child from being taken into and held in custody under
ss. 48.19 to 48.21 or 938.19 to 938.21.
3. An intake worker from conducting an intake inquiry under
s. 48.24 or 938.24.
4. A court from exercising jurisdiction over the child under
s. 48.13 or 938.13.
(dm) A delegation of powers under par. (a) regarding the care
and custody of an Indian child is subject to the requirements of s.
48.028 (5) (a).
(e) A parent who has delegated his or her powers regarding the
care and custody of a child under par. (a) may revoke that delegation
at any time by executing a written revocation and notifying
the agent in writing of the revocation. A written revocation invalidates
the delegation of powers except with respect to acts already
taken in reliance on the delegation of powers.
(2) A power of attorney complies with sub. (1) (a) if the power
of attorney substantially conforms to the following form:
POWER OF ATTORNEY
DELEGATING PARENTAL POWER
AUTHORIZED BY s. 48.979, Wis. Stats.
NAME(S) OF CHILD(REN)
This power of attorney is for the purpose of providing for the
care and custody of:
Name, address, and date of birth of child ....
Name, address, and date of birth of child ....
Name, address, and date of birth of child ....
DELEGATION OF POWER TO AGENT
I, .... (name and address of parent), state that I have legal custody
of the child(ren) named above. (Only a parent who has legal
custody may use this form.) A parent may not use this form to delegate
parental powers regarding a child who is subject to the jurisdiction
of the juvenile court under s. 48.13, 48.14, 938.12, 938.13,
or 938.14, Wis. Stats.
I delegate my parental power to:
Name of agent ....
Agent’s address ....
Agent’s telephone number(s) ....
Agent’s e−mail address ....
Relationship of agent to child(ren) ....
The parental power I am delegating is as follows:
FULL
(Check if you want to delegate full parental power regarding
the care and custody of the child(ren) named above.)
.... Full parental power regarding the care and custody of the
child(ren) named above
PARTIAL
(Check each subject over which you want to delegate your
parental power regarding the child(ren) named above.)
.... The power to consent to all health care; or
.... The power to consent to only the following health care:
.... Ordinary or routine health care, excluding major surgical
procedures, extraordinary procedures, and experimental treatment
.... Emergency blood transfusion
.... Dental care
.... Disclosure of health information about the child(ren)
.... The power to consent to educational and vocational services
.... The power to consent to the employment of the child(ren)
.... The power to consent to the disclosure of confidential information,
other than health information, about the child(ren)
.... The power to provide for the care and custody of the
child(ren)
.... The power to consent to the child(ren) obtaining a motor
vehicle operator’s license
.... The power to travel with the child(ren) outside the state of
Wisconsin
.... The power to obtain substitute care, such as child care, for
the child(ren)
.... Other specifically delegated powers or limits on delegated
powers (Fill in the following space or attach a separate sheet
describing any other specific powers that you wish to delegate or
any limits that you wish to place on the powers you are delegating.)
....
This delegation of parental powers does not deprive a custodial
or noncustodial parent of any of his or her powers regarding the
care and custody of the child, whether granted by court order or
force of law.
THIS DOCUMENT MAY NOT BE USED TO DELEGATE
THE POWER TO CONSENT TO THE MARRIAGE OR ADOPTION
OF THE CHILD(REN), THE PERFORMANCE OR
INDUCEMENT OF AN ABORTION ON OR FOR THE
CHILD(REN), THE TERMINATION OF PARENTAL RIGHTS
TO THE CHILD(REN), THE ENLISTMENT OF THE
CHILD(REN) IN THE U.S. ARMED FORCES OR TO PLACE
THE CHILD(REN) IN A FOSTER HOME, GROUP HOME, OR
INPATIENT TREATMENT FACILITY.
EFFECTIVE DATE AND TERM
OF THIS DELEGATION
This Power of Attorney takes effect on .... and will remain in
effect until .... If no termination date is given or if the termination
date given is more than one year after the effective date of this
Power of Attorney, this Power of Attorney will remain in effect for
a period of one year after the effective date, but no longer. This
Power of Attorney may be revoked in writing at any time by a parent
who has legal custody of the child(ren) and such a revocation
invalidates the delegation of parental powers made by this Power
of Attorney, except with respect to acts already taken in reliance
on this Power of Attorney.
SIGNATURE(S) OF PARENT(S)
Signature of parent .... Date ....
Parent’s name printed ....
Parent’s address ....
Parent’s telephone number ....
Parent’s e−mail address ....
Signature of parent .... Date ....
Parent’s name printed ....
Parent’s address ....
Parent’s telephone number ....
Parent’s e−mail address ....
WITNESSING OF SIGNATURE(S) (OPTIONAL)
State of ....
County of ....
This document was signed before me on .... (date) by ....
(name(s) of parent(s)).
Signature of notary ....
My commission expires: ....
STATEMENT OF AGENT
I, .... (name and address of agent), understand that .... (name(s)
of parent(s)) has (have) delegated to me the powers specified in
this Power of Attorney regarding the care and custody of ....
(name(s) of child(ren)). I further understand that this Power of
Attorney may be revoked in writing at any time by a parent who
has legal custody of .... (name(s) of child(ren)). I hereby declare
that I have read this Power of Attorney, understand the powers delegated
to me by this Power of Attorney, am fit, willing, and able
to undertake those powers, and accept those powers.
Agent’s signature .... Date ....
APPENDIX
(Here the parent(s) may indicate where they may be located
during the term of the Power of Attorney if different from the
address(es) set forth above.)
.... I can be located at:
Address(es) ....
Telephone number(s) ....
E−mail address(es) ....
.... Or, by contacting:
Name ....
Address ....
Telephone number ....
E−mail address ....
.... Or, I cannot be located
(3) (a) In this subsection:
1. “Agent” means a person to whom delegation of the care and
custody of a child under this section is facilitated by an organization.
2. “Organization” means an organization that facilitates delegations
of the care and custody of children under this section.
(b) The department may promulgate rules to implement this
section. If the department promulgates those rules, those rules
shall include rules establishing all of the following:
1. Training requirements for the staff of an organization,
including training in identifying children who have been abused
or neglected and the laws and procedures under s. 48.981 governing
the reporting of suspected or threatened child abuse or neglect.
2. Screening and assessment requirements for a proposed
agent, including a screening of the personal characteristics,
health, and finances of the proposed agent and of the physical
environment and safety of the proposed agent’s home and, based
on that screening, an assessment of the proposed agent’s fitness to
provide for the care and custody of the child and ability to meet
the child’s needs. The rules promulgated under this subdivision
shall prohibit an organization from facilitating a delegation of the
care and custody of a child to a proposed agent unless the proposed
agent is fit to provide for the care and custody of the child and able
to meet the child’s needs.
3. Training requirements for an agent, including the training
described in subd. 1. and training in the expectations of an agent
specified in subd. 4.
4. The expectations of an agent with respect to the care and
custody of the child, including expectations relating to the care,
nurturing, protection, training, guidance, and discipline of the
child; the provision of food, shelter, education, and health care for the child; cooperation with the child’s parents in coparenting the
child; and cooperation with the organization in facilitating visitation
and other communications with the child’s parents and in
otherwise complying with the expectations of the organization.
5. A requirement that an organization regularly monitor an
agent and the child whose care and custody is delegated to the
agent and maintain communications with the child’s parents.
History: 2011 a. 87; correction in (2) (form) under 35.17.

A
Adams Amery Antigo Appleton Ashland

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B
Baldwin Baraboo Barron Beaver Dam Beloit Berlin Black River Falls Bloomer Brookfield Burlington

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C
Cedarburg Chetek Chilton Chippewa Falls Clintonville Columbus Crandon Crivitz Cudahy

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D
De Forest De Pere Delafield Delavan Dodgeville Durand

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E
Eagle River East Troy Eau Claire Edgerton Elkhorn Ellsworth Elm Grove

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F
Fond Du Lac Fort Atkinson Franklin

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G
Germantown Grafton Green Bay Greendale

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H
Hales Corners Hartford Hartland Hayward Holmen Hudson

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J
Jackson Janesville Jefferson

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K
Kaukauna Kenosha Kewaunee

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L
La Crosse Ladysmith Lake Geneva Lake Mills Lancaster Little Chute Lodi

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M
Madison Manitowoc Marinette Marshfield Mauston Mc Farland Medford Menasha Menomonee Falls Menomonie Mequon Merrill Middleton Milton Milwaukee Minocqua Mondovi Monroe Mosinee Mount Horeb Mukwonago Muskego

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N
Neenah Neillsville New Berlin New London New Richmond

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O
Oak Creek Oconomowoc Oconto Oconto Falls Onalaska Oregon Oshkosh

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P
Pewaukee Phillips Platteville Plover Plymouth Port Washington Portage Poynette Prairie Du Chien Pulaski

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R
Racine Reedsburg Rhinelander Rice Lake Richland Center Ripon River Falls

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S
Saint Croix Falls Sauk City Schofield Shawano Sheboygan Sheboygan Falls Siren Slinger South Milwaukee Sparta Spooner Stevens Point Stoughton Sturgeon Bay Sturtevant Sun Prairie Superior Sussex

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T
Thiensville Tomah Tomahawk Two Rivers

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U
Union Grove

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V
Verona Viroqua

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W
Walworth Waterford Watertown Waukesha Waunakee Waupaca Waupun Wausau Wautoma West Bend Whitewater Wisconsin Dells Wisconsin Rapids Woodruff