48.45 Annotation
Involuntary commitment was not authorized by this section. Contempt In Interest of J. S.,
137 Wis. 2d 217,
404 N.W.2d 79 (Ct. App. 1987).
REHEARING AND APPEAL
48.46
48.46
New evidence; relief from judgment terminating parental rights. 48.46(1)(1) Except as provided in
subs. (1m),
(2) and
(3), the child whose status is adjudicated by the court, the parent, guardian or legal custodian of that child, the unborn child whose status is adjudicated by the court or the expectant mother of that unborn child may at any time within one year after the entering of the court's order petition the court for a rehearing on the ground that new evidence has been discovered affecting the advisability of the court's original adjudication. Upon a showing that such evidence does exist, the court shall order a new hearing.
48.46(1m)
(1m) Except as provided in
sub. (2), the parent, guardian or legal custodian of the child or the child whose status is adjudicated by the court in an order entered under
s. 48.43 or an order adjudicating paternity under
subch. VIII may, within the time permitted under this subsection, petition the court for a rehearing on the ground that new evidence has been discovered affecting the advisability of the court's adjudication. Upon a showing that such evidence does exist, the court shall order a new hearing. A petition under this subsection shall be filed within one year after the date on which the order under
s. 48.43 or order adjudicating paternity under
subch. VIII is entered, unless within that one-year period a court in this state or in another jurisdiction enters an order granting adoption of the child, in which case a petition under this subsection shall be filed before the date on which the order granting adoption is entered or within 30 days after the date on which the order under
s. 48.43 or order adjudicating paternity under
subch. VIII is entered, whichever is later.
48.46(2)
(2) A parent who has consented to the termination of his or her parental rights under
s. 48.41 or who did not contest the petition initiating the proceeding in which his or her parental rights were terminated may move the court for relief from the judgment on any of the grounds specified in
s. 806.07 (1) (a),
(b),
(c),
(d) or
(f). Any such motion shall be filed within 30 days after the entry of the judgment or order terminating parental rights, unless the parent files a timely notice of intent to pursue relief from the judgment under
s. 808.04 (7m), in which case the motion shall be filed within the time permitted by
s. 809.107 (5). A motion under this subsection does not affect the finality or suspend the operation of the judgment or order terminating parental rights. Motions under this subsection and appeals to the court of appeals shall be the exclusive remedies for such a parent to obtain a new hearing in a termination of parental rights proceeding.
48.46(3)
(3) An adoptive parent who has been granted adoption of a child under
s. 48.91 (3) may not petition the court for a rehearing under
sub. (1) or move the court under
s. 806.07 for relief from the order granting adoption. A petition for termination of parental rights under
s. 48.42 and an appeal to the court of appeals shall be the exclusive remedies for an adoptive parent who wishes to end his or her parental relationship with his or her adopted child.
48.46 History
History: 1977 c. 449;
1979 c. 300;
1987 a. 383; Sup. Ct. Order, 146 Wis. 2d xxxiii (1988);
1995 a. 275;
1997 a. 104,
114,
252,
292.
48.46 Note
Judicial Council Note, 1988: Sub. (2) limits the remedies for relief from a judgment or order terminating parental rights when the aggrieved party is a parent whose rights were terminated by consent or who has failed to contest the petition. The motion for relief from the judgment or order must be filed within 40 days after entry of the judgment or order terminating parental rights, unless the appellate process is timely initiated, in which case the motion must be filed within 60 days after service of the transcript. The court must grant a rehearing upon a prima facie showing of one or more of the following grounds: mistake, inadvertence, surprise or excusable neglect; newly discovered evidence justifying a new hearing under s. 805.15 (3); fraud, misrepresentation or other misconduct of an adverse party; the judgment or order is void; the judgment or order is based upon a prior judgment which has been reversed or otherwise vacated. [Re Order effective Jan. 1, 1989]
48.46 Annotation
Affidavit by the mother that she consented under duress and by her attorney as to what he expected to prove were not sufficient to reopen the case. Schroud v. Milw. County Dept. of Pub. Welfare,
53 Wis. 2d 650,
193 N.W.2d 671.
AUTHORITY
48.48
48.48
Authority of department. The department shall have authority:
48.48(1)
(1) To promote the enforcement of the laws relating to nonmarital children, children in need of protection or services including developmentally disabled children and unborn children in need of protection or services and to take the initiative in all matters involving the interests of those children and unborn children when adequate provision for those interests is not made. This duty shall be discharged in cooperation with the courts, county departments, licensed child welfare agencies and with parents, expectant mothers and other individuals interested in the welfare of children and unborn children.
48.48(2)
(2) To assist in extending and strengthening child welfare services with appropriate federal agencies and in conformity with the federal social security act and in cooperation with parents, other individuals and other agencies so that all children needing such services are reached.
48.48(3)
(3) To accept guardianship of children when appointed by the court, and to provide special treatment and care when directed by the court. A court may not direct the department to administer psychotropic medications to children who receive special treatment or care under this subsection.
48.48(3m)
(3m) To accept appointment by an American Indian tribal court in this state as guardian of a child for the purpose of making an adoptive placement for the child if all of the following conditions exist:
48.48(3m)(a)
(a) The child does not have parents or a guardian or the parental rights to the child have been terminated by a tribal court in accordance with procedures that are substantially equivalent to the procedures specified in
subch. VIII.
48.48(3m)(b)
(b) The tribal court has transferred the guardianship or legal custody, or both, of the child to the department, if the child does not have parents or a guardian.
48.48(3m)(c)
(c) The tribal court's judgment for termination of parental rights identifies the department as the agency that will receive guardianship or legal custody, or both, of the child upon termination, if the parental rights to the child have been terminated.
48.48(3m)(d)
(d) The tribal court has signed a written contract that addresses federal and state law and that provides that the tribal court will accept the return of the legal custody or the legal custody and guardianship of the child if the department petitions the tribal court to do so under
s. 48.485.
48.48(7)
(7) To accept guardianship of children when appointed by the court.
48.48(8)
(8) To place children under its guardianship for adoption.
48.48(8m)
(8m) To enter into agreements with American Indian tribes in this state to implement the Indian child welfare act,
25 USC 1911 to
1963.
48.48(9)
(9) To license foster homes or treatment foster homes as provided in
s. 48.66 (1) (a) for its own use or for the use of licensed child welfare agencies or, if requested to do so, for the use of county departments.
48.48(11)
(11) When notified of the birth or expected birth of a child who is or is likely to be a nonmarital child, to see that the interests of the child are safeguarded, that steps are taken to establish the child's paternity and that there is secured for the child, if possible, the care, support and education the child would receive if he or she were a marital child.
48.48(12)(a)(a) To enter into an agreement to assist in the cost of care of a child after legal adoption when the department has determined that such assistance is necessary to assure the child's adoption. Agreements under this paragraph shall be made in accordance with
s. 48.975. Payments shall be made from the appropriation under
s. 20.435 (3) (dd).
48.48(12)(b)
(b) This subsection shall be administered by the department according to criteria, standards and review procedures which it shall establish.
48.48(13)
(13) To promulgate rules for the payment of an allowance to children in its institutions and a cash grant to a child being discharged from its institutions.
48.48(16m)
(16m) To employ under the unclassified service in an office of the department that is located in a 1st class city a director of the office of urban development who shall be appointed by the secretary to serve at the pleasure of the secretary and who shall coordinate the provision of child welfare services in a county having a population of 500,000 or more with the implementation of the Wisconsin works program under
ss. 49.141 to
49.161 in a county having a population of 500,000 or more.
48.48(17)(a)(a) In a county having a population of 500,000 or more, to administer child welfare services and to expend such amounts as may be necessary out of any moneys which may be appropriated for child welfare services by the legislature, which may be donated by individuals or private organizations or which may be otherwise provided. The department shall also have authority to do all of the following:
48.48(17)(a)1.
1. Investigate the conditions surrounding nonmarital children, children in need of protection or services and unborn children in need of protection or services within the county and to take every reasonable action within its power to secure for them the full benefit of all laws enacted for their benefit. Unless provided by another agency, the department shall offer social services to the caretaker of any child, and to the expectant mother of any unborn child, who is referred to the department under the conditions specified in this subdivision. This duty shall be discharged in cooperation with the court and with the public officers or boards legally responsible for the administration and enforcement of these laws.
48.48(17)(a)2.
2. Accept legal custody of children transferred to it by the court under
s. 48.355, to accept supervision over expectant mothers of unborn children who are placed under its supervision under
s. 48.355 and to provide special treatment and care for children and expectant mothers if ordered by the court and if providing special treatment and care is not the responsibility of the county department under
s. 46.215,
51.42 or
51.437. A court may not order the department to administer psychotropic medications to children and expectant mothers who receive special treatment or care under this subdivision.
48.48(17)(a)3.
3. Provide appropriate protection and services for children and the expectant mothers of unborn children in its care, including providing services for those children and their families and for those expectant mothers in their own homes, placing the children in licensed foster homes, treatment foster homes or group homes in this state or another state within a reasonable proximity to the agency with legal custody or contracting for services for those children by licensed child welfare agencies, except that the department may not purchase the educational component of private day treatment programs unless the department, the school board as defined in
s. 115.001 (7) and the state superintendent of public instruction all determine that an appropriate public education program is not available. Disputes between the department and the school district shall be resolved by the state superintendent of public instruction.
48.48(17)(a)4.
4. Provide for the moral and religious training of children in its care according to the religious belief of the child or of his or her parents.
48.48(17)(a)5.
5. Place children in a county children's home in the county, to accept guardianship of children when appointed by the court and to place children under its guardianship for adoption.
48.48(17)(a)7.
7. Contract with any parent or guardian or other person for the care and maintenance of any child.
48.48(17)(a)9.
9. Use in the media a picture or description of a child in its guardianship for the purpose of finding adoptive parents for that child.
48.48(17)(a)11.
11. Contract with the county department under
s. 46.215,
51.42 or
51.437 or with a licensed child welfare agency to provide any of the services that the department is authorized to provide under this chapter.
48.48(17)(b)
(b) In performing the functions specified in
par. (a), the department may avail itself of the cooperation of any individual or private agency or organization interested in the social welfare of children and unborn children in the county.
48.48(17)(c)
(c) From the appropriations under
s. 20.435 (3) (cx),
(gx),
(kw) and
(mx), the department may provide funding for the maintenance of any child who meets all of the following criteria:
48.48(17)(c)2.
2. Is enrolled in and regularly attending a secondary education classroom program leading to a high school diploma.
48.48(17)(c)4.
4. Is living in a foster home, treatment foster home, group home or child caring institution.
48.48 History
History: 1973 c. 90,
333;
1977 c. 29;
1977 c. 83 s.
26;
1977 c. 354,
418,
447,
449;
1979 c. 34 ss.
833m,
834,
2102 (20) (a);
1979 c. 221,
300;
1983 a. 27 s.
2202 (20);
1983 a. 189 s.
329 (17);
1983 a. 447;
1985 a. 135,
176;
1985 a. 332 s.
251 (3);
1987 a. 339;
1989 a. 31,
107,
359;
1991 a. 316;
1993 a. 16,
375,
385,
446,
491;
1995 a. 27 ss.
2526 to
2534m,
9126 (19),
9145 (1);
1995 a. 77;
1997 a. 27,
35,
80,
105,
292;
1999 a. 9.
48.48 Annotation
An allegation that the department failed to adopt rules or to exercise supervision over a local social service agency and that those failures led to a deprivation of child custody without due process stated a cause of action for deprivation of civil rights. Roe v. Borup,
500 F. Supp. 127 (1980).
48.48 Annotation
The state has ultimate foster care responsibility, and dismissal of a 42 USC 1983 action against the state for civil rights violations by a county agency was not appropriate. Jeanine B. by Blondin v. Thompson,
877 F. Supp. 1268 (1995).
48.485
48.485
Transfer of tribal children to department for adoption. If the department accepts guardianship or legal custody or both from an American Indian tribal court under
s. 48.48 (3m), the department shall seek a permanent adoptive placement for the child. If a permanent adoptive placement is not in progress within 2 years after entry of the termination of parental rights order by the tribal court, the department may petition the tribal court to transfer legal custody or guardianship of the child back to the tribe.
48.485 History
History: 1989 a. 31.
48.52
48.52
Facilities for care of children and adult expectant mothers in care of department. 48.52(1)
(1)
Facilities maintained or used for children. The department may maintain or use the following facilities for children in its care:
48.52(1)(a)
(a) Receiving homes to be used for the temporary care of children;
48.52(1)(b)
(b) Foster homes or treatment foster homes;
48.52(1)(f)
(f) Other facilities deemed by the department to be appropriate for the child, except that no state funds may be used for the maintenance of a child in the home of a parent or relative eligible for aid under
s. 49.19 if such funds would reduce federal funds to this state.
48.52(1m)
(1m) Facilities maintained or used for adult expectant mothers. The department may maintain or use the following facilities for adult expectant mothers in its care:
48.52(1m)(c)
(c) Other facilities determined by the department to be appropriate for the adult expectant mother.
48.52(2)(a)(a) In addition to the facilities and services described in
sub. (1), the department may use other facilities and services under its jurisdiction. The department may also contract for and pay for the use of other public facilities or private facilities for the care and treatment of children and the expectant mothers of unborn children in its care. Placements in institutions for the mentally ill or developmentally disabled shall be made in accordance with
ss. 48.14 (5),
48.347 (6) and
48.63 and
ch. 51.
48.52(2)(b)
(b) Public facilities are required to accept and care for persons placed with them by the department in the same manner as they would be required to do had the legal custody of these persons been transferred by a court of competent jurisdiction. Nothing in this subsection shall be construed to require any public facility to serve the department inconsistently with its functions or with the laws and regulations governing their activities; or to give the department authority to use any private facility without its consent.
48.52(2)(c)
(c) The department shall have the right to inspect all facilities it is using and to examine and consult with persons whom the department has placed in that facility.
48.52(4)
(4) Coeducational programs and institutions. The department may institute and maintain coeducational programs and institutions under this chapter.
48.52 Annotation
A detention home is not one of the "other facilities" under sub. (1). State ex rel. Harris v. Larson,
64 Wis. 2d 521,
219 N.W.2d 335.
48.52 Annotation
Foster homes owned, operated, or contracted for by the department or a county department are immune from local zoning ordinances. Foster homes owned, operated, or contracted for by licensed child welfare agencies are not immune. All family operated foster homes are subject to local zoning. Municipal foster home licensing ordinances are unenforceable. 63 Atty. Gen. 34.
48.52 Annotation
Foster homes leased by the department pursuant to sub. (2) are immune from local zoning to the extent that the zoning conflicts with the department's possessory use of property under ch. 48, subject to s. 13.48 (13). The lessor remains responsible for property tax. 65 Atty. Gen. 93.
48.547
48.547
Alcohol and other drug abuse program. 48.547(1)(1)
Legislative findings and purpose. The legislature finds that the use and abuse of alcohol and other drugs by children and the expectant mothers of unborn children is a state responsibility of statewide dimension. The legislature recognizes that there is a lack of adequate procedures to screen, assess and treat children and the expectant mothers of unborn children for alcohol and other drug abuse. To reduce the incidence of alcohol and other drug abuse by children and the expectant mothers of unborn children, the legislature deems it necessary to experiment with solutions to the problems of the use and abuse of alcohol and other drugs by children and the expectant mothers of unborn children by establishing a juvenile and expectant mother alcohol and other drug abuse program in a limited number of counties. The purpose of the program is to develop intake and court procedures that screen, assess and give new dispositional alternatives for children and expectant mothers with needs and problems related to the use of alcohol beverages, controlled substances or controlled substance analogs who come within the jurisdiction of a court assigned to exercise jurisdiction under this chapter and
ch. 938 in the counties selected by the department.
48.547(2)
(2) Department responsibilities. Within the availability of funding under
s. 20.435 (7) (mb) that is available for the program, the department shall select counties to participate in the program. Unless a county department of human services has been established under
s. 46.23 in the county that is seeking to implement a program, the application submitted to the department shall be a joint application by the county department that provides social services and the county department established under
s. 51.42 or
51.437. The department shall select counties in accordance with the request for proposal procedures established by the department. The department shall give a preference to county applications that include a plan for case management.
48.547(3)
(3) Multidisciplinary screen. The department shall provide a multidisciplinary screen for the program. The screen shall be used by an intake worker to determine whether or not a child or an expectant mother of an unborn child is in need of an alcohol or other drug abuse assessment. The screen shall also include indicators that screen children and expectant mothers for:
48.547(4)
(4) Assessment criteria. The department shall provide uniform alcohol and other drug abuse assessment criteria to be used in the pilot program under
ss. 48.245 (2) (a) 3. and
48.295 (1). An approved treatment facility that assesses a person under
s. 48.245 (2) (a) 3. or
48.295 (1) may not also provide the person with treatment unless the department permits the approved treatment facility to do both in accordance with the criteria established by rule by the department.
