48.415 Annotation
Prior to determining that grounds existed to terminate parental rights, the circuit court had the duty at the fact-finding hearing to find by clear and convincing evidence that all of the elements of s. 48.415 (1) (a) 3. had been satisfied. By entering a default judgment against the mother on the issue of abandonment without first taking evidence, the circuit court did not make the finding. The error was subject to a harmless error analysis. Evelyn C.R. v. Tykila S. 2001 WI 110,
246 Wis. 2d 1,
629 N.W.2d 768,
00-1739.
48.415 Annotation
In a case under sub. (4), a parent's right to meaningfully participate in the termination proceeding includes the right to present evidence at the fact-finding hearing regarding efforts to meet the conditions for reestablishing visitation. It was error to restrict evidence to whether an order denying visitation had remained in effect for a year. State v. Frederick H. 2001 WI App 141,
246 Wis. 2d 215,
630 N.W.2d 734,
00-3035.
48.415 Annotation
Events occurring prior to a CHIPS dispositional order are frequently relevant at a termination proceeding. A history of parental conduct may be relevant to predicting a parent's chances of complying with conditions in the future, despite failing to do so to date. La Crosse County Department of Human Services v. Tara P. 2002 WI App 84,
252 Wis. 2d 179,
643 N.W.2d 194,
01-3034.
48.415 Annotation
In determining whether "there is a substantial likelihood" that a parent will not meet conditions for the return of his or her children, a parent's relevant character traits and patterns of behavior and the likelihood that any problematic traits or propensities have been or can be modified in order to assure the safety of the children must be considered. La Crosse County Department of Human Services v. Tara P. 2002 WI App 84,
252 Wis. 2d 179,
643 N.W.2d 194,
01-3034.
48.415 Annotation
A mother's criminal offenses and sentences were relevant to whether she had failed to establish a substantial parental relationship with her children under sub. (6). State v. Quinsanna D. 2002 WI App 318,
259 Wis. 2d 429,
655 N.W.2d 752,
02-1919.
48.415 Annotation
Partial summary judgment may be granted in the unfitness phase of a termination case if the moving party establishes that there is no genuine issue as to any material fact regarding the asserted grounds for unfitness, and, taking into consideration the heightened burden of proof specified in s. 48.31 (1) and required by due process, the moving party is entitled to judgment as a matter of law. Steven V. v. Kelley H. 2004 WI 47,
271 Wis. 2d 1,
678 N.W.2d 831,
02-2860.
48.415 Annotation
As applied in this case the incestuous parenthood ground under sub. (7) is not narrowly tailored to advance the compelling state interest underlying the statute. It is fundamentally unfair to terminate parental rights based solely on a parent's status as a victim of incest. Monroe County DHS v. Kelli B. 2004 WI 48,
271 Wis. 2d 51,
678 N.W.2d 856,
03-0060.
48.415 Annotation
Jennifer V.'s holding is limited to appeals based on guilt or innocence. When a parent's pending appeal does not raise issues of guilt or innocence, "final judgment of conviction" in sub. (9m) means the judgment of conviction entered by the trial court, either after a verdict of guilty by the jury, a finding of guilty by the court when a jury is waived, or a plea of guilty or no contest. Reynaldo F. v. Christal M. 2004 WI App 106,
272 Wis. 2d 816,
684 N.W.2d 138,
03-2687.
48.415 Annotation
A parent's prior convictions are not so prejudicial as to outweigh their probative value when the information would lead the jury to an understanding of why children are removed from the parent's home. Reynaldo F. v. Christal M. 2004 WI App 106,
272 Wis. 2d 707,
684 N.W.2d 138,
03-2687.
48.415 Annotation
Sub. (4) does not violate substantive due process by not requiring any evidence of parental unfitness. There are required steps that must be taken before reaching the application of sub. (4) in a TPR case and those steps form the foundation for the ultimate finding. At each of these steps, findings must be made that reflect on the parent's fitness. Dane County Department of Human Services v. P. P. 2005 WI 32,
279 Wis. 2d 169,
694 N.W.2d 344,
03-2440.
48.415 Annotation
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.
48.415 Annotation
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.
48.415 Annotation
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.
48.415 Annotation
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.
48.415 Annotation
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.
48.415 Annotation
Process is constitutionally due a natural parent at a state-initiated parental rights termination proceeding. A 3-factor test is discussed. Santosky v. Kramer,
455 U.S. 745 (1982).
48.415 Annotation
Adoption and termination proceedings in Wisconsin: Straining the wisdom of Solomon. Hayes and Morse, 66 MLR 439 (1983).
48.417
48.417
Petition for termination of parental rights; when required. 48.417(1)(1)
Filing or joining in petition; when required. Subject to
sub. (2), an agency or the district attorney, corporation counsel or other appropriate official designated under
s. 48.09 shall file a petition under
s. 48.42 (1) to terminate the parental rights of a parent or the parents of a child, or, if a petition under
s. 48.42 (1) to terminate those parental rights has already been filed, the agency, district attorney, corporation counsel or other appropriate official shall join in the petition, if any of the following circumstances apply:
48.417(1)(a)
(a) The child has been placed outside of his or her home, as described in
s. 48.365 (1) or
938.365 (1), for 15 of the most recent 22 months, not including any period during which the child was a runaway from the out-of-home placement or the first 6 months of any period during which the child was returned to his or her home for a trial home visit. If the circumstances specified in this paragraph apply, the petition shall be filed or joined in by the last day of the 15th month, as described in this paragraph, for which the child was placed outside of his or her home.
48.417(1)(b)
(b) A court of competent jurisdiction has found under
s. 48.13 (2) or under a law of any other state or a federal law that is comparable to
s. 48.13 (2) that the child was abandoned when he or she was under one year of age or has found that the parent abandoned the child when the child was under one year of age in violation of
s. 948.20 or in violation of the law of any other state or federal law, if that violation would be a violation of
s. 948.20 if committed in this state. If the circumstances specified in this paragraph apply, the petition shall be filed or joined in within 60 days after the date on which the court of competent jurisdiction found that the child was abandoned as described in this paragraph.
48.417(1)(c)
(c) A court of competent jurisdiction has found that the parent has committed, has aided or abetted the commission of, or has solicited, conspired, or attempted to commit, a violation of
s. 940.01,
940.02,
940.03, or
940.05 or a violation of the law of any other state or federal law, if that violation would be a violation of
s. 940.01,
940.02,
940.03, or
940.05 if committed in this state, and that the victim of that violation is a child of the parent. If the circumstances specified in this paragraph apply, the petition shall be filed or joined in within 60 days after the date on which the court assigned to exercise jurisdiction under this chapter determines, based on a finding that a circumstance specified in this paragraph applies, that reasonable efforts to make it possible for the child to return safely to his or her home are not required.
48.417(1)(d)
(d) A court of competent jurisdiction has found that the parent has committed a violation of s.
940.19 (3), 1999 stats., a violation of
s. 940.19 (2),
(4), or
(5),
940.225 (1) or
(2),
948.02 (1) or
(2),
948.025,
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.
48.417(2)
(2) Filing or joining in petition; when not required. Notwithstanding that any of the circumstances specified in
sub. (1) (a),
(b),
(c) or
(d) may apply, an agency or the district attorney, corporation counsel or other appropriate official designated under
s. 48.09 need not file a petition under
s. 48.42 (1) to terminate the parental rights of a parent or the parents of a child, or, if a petition under
s. 48.42 (1) to terminate those parental rights has already been filed, the agency, district attorney, corporation counsel or other appropriate official need not join in the petition, if any of the following circumstances apply:
48.417(2)(a)
(a) The child is being cared for by a fit and willing relative of the child.
48.417(2)(b)
(b) The child's permanency plan indicates and provides documentation that termination of parental rights to the child is not in the best interests of the child.
48.417(2)(c)
(c) The agency primarily responsible for providing services to the family under a court order, if required under
s. 48.355 (2) (b) 6. to make reasonable efforts to make it possible for the child to return safely to his or her home, has not provided to the family of the child, consistent with the time period in the child's permanency plan, the services necessary for the safe return of the child to his or her home.
48.417(2)(d)
(d) Grounds for an involuntary termination of parental rights under
s. 48.415 do not exist.
48.417(3)
(3) Concurrent adoption efforts required. If a petition is filed or joined in as required under
sub. (1), the agency primarily responsible for providing services to the child under a court order shall, during the pendency of the proceeding on the petition, work with the agency identified in the report under
s. 48.425 (1) (f) that would be responsible for accomplishing the adoption of the child in processing and approving a qualified family for the adoption of the child.
48.417(4)
(4) Notice to department. If a petition is filed or joined in as required under
sub. (1), the person who filed or joined in the petition shall notify the department of that filing or joinder.
48.42(1)(1)
Petition. A proceeding for the termination of parental rights shall be initiated by petition which may be filed by the child's parent, an agency or a person authorized to file a petition under
s. 48.25 or
48.835. The petition shall be entitled "In the interest of .......... (child's name), a person under the age of 18" and shall set forth with specificity:
48.42(1)(a)
(a) The name, birth date or anticipated birth date, and address of the child.
48.42(1)(b)
(b) The names and addresses of the child's parent or parents, guardian and legal custodian.
48.42(1)(c)1.
1. A statement that consent will be given to termination of parental rights as provided in
s. 48.41.
48.42(1)(c)2.
2. A statement of the grounds for involuntary termination of parental rights under
s. 48.415 and a statement of the facts and circumstances which the petitioner alleges establish these grounds.
48.42(1g)(a)(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:
48.42(1g)(a)1.
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.
48.42(1g)(a)2.
2. A statement acknowledging that the mother has been asked to identify the father of the child.
48.42(1g)(a)3.
3. A statement that the mother knows and is identifying the father or that she does not know the identity of the father.
48.42(1g)(a)4.
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.
48.42(1g)(a)5.
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.
48.42(1g)(a)6.
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.
48.42(1g)(a)7.
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.
48.42(1g)(a)8.
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.
48.42(1g)(a)9.
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.
48.42(1g)(b)
(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.
48.42(1g)(c)
(c) If an affidavit under
par. (a) is not filed with the petition, notice shall be given to an alleged father under
sub. (2).
48.42(1m)(a)(a) If the petition filed under
sub. (1) includes a statement of the grounds for involuntary termination of parental rights under
sub. (1) (c) 2., the petitioner may, at the time the petition under
sub. (1) is filed, also petition the court for a temporary order and an injunction prohibiting the person whose parental rights are sought to be terminated from visiting or contacting the child who is the subject of the petition under
sub. (1). Any petition under this paragraph shall allege facts sufficient to show that prohibiting visitation or contact would be in the best interests of the child.
48.42(1m)(b)
(b) Subject to
par. (e), the court may issue the temporary order ex parte or may refuse to issue the temporary order and hold a hearing on whether to issue an injunction. The temporary order is in effect until a hearing is held on the issuance of an injunction. The court shall hold a hearing on the issuance of an injunction on or before the date of the hearing on the petition to terminate parental rights under
s. 48.422 (1).
48.42(1m)(c)
(c) Notwithstanding any other order under
s. 48.355 (3), the court, subject to
par. (e), may grant an injunction prohibiting the respondent from visiting or contacting the child if the court determines that the prohibition would be in the best interests of the child. An injunction under this subsection is effective according to its terms but may not remain in effect beyond the date the court dismisses the petition for termination of parental rights under
s. 48.427 (2) or issues an order terminating parental rights under
s. 48.427 (3).
48.42(1m)(e)1.1. Except as provided in
subd. 2., the court shall issue a temporary order and injunction prohibiting a parent of a child from visitation or contact with the child if the parent has been convicted under
s. 940.01 of the first-degree intentional homicide, or under
s. 940.05 of the 2nd-degree intentional homicide, of the child's other parent, and the conviction has not been reversed, set aside or vacated.
48.42(1m)(e)2.
2. Subdivision 1. does not apply if the court determines by clear and convincing evidence that the visitation or contact would be in the best interests of the child. The court shall consider the wishes of the child in making that determination.
48.42(2)
(2) Who must be summoned. Except as provided in
sub. (2m), the petitioner shall cause the summons and petition to be served upon the following persons:
48.42(2)(a)
(a) The parent or parents of the child, unless the child's parent has waived the right to notice under
s. 48.41 (2) (d).
48.42(2)(b)
(b) 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:
48.42(2)(b)1.
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.
48.42(2)(b)2.
2. A person or persons alleged to the court to be the father of the child or who may, based upon the statements of the mother or other information presented to the court, be the father of the child unless that person has waived the right to notice under
s. 48.41 (2) (c).
48.42(2)(b)3.
3. A person who has lived in a familial relationship with the child and who may be the father of the child.
48.42(2)(bm)
(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:
48.42(2)(bm)1.
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.
48.42(2)(bm)2.
2. A person who has lived in a familial relationship with the child and who may be the father of the child.
48.42(2)(c)
(c) The guardian, guardian ad litem and legal custodian of the child.
48.42(2)(d)
(d) Any other person to whom notice is required to be given by
ch. 822, excluding foster parents and treatment foster parents who shall be provided notice as required under
sub. (2g).
48.42(2)(e)
(e) To the child if the child is 12 years of age or older.
48.42(2g)(a)(a) In addition to causing the summons and petition to be served as required under
sub. (2), the petitioner shall also notify any foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) of the child of all hearings on the petition. The first notice to any foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) shall be written, shall have a copy of the petition attached to it, shall state the nature, location, date and time of the initial hearing and shall be mailed to the last-known address of the foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2). Thereafter, notice of hearings may be given by telephone at least 72 hours before the time of the hearing. The person giving telephone notice shall place in the case file a signed statement of the time notice was given and the person to whom he or she spoke.
48.42(2g)(am)
(am) The court shall give a foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) who is notified of a hearing under
par. (a) an opportunity to be heard at the hearing by permitting the foster parent, treatment foster parent or other physical custodian to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, relevant to the issues to be determined at the hearing. A foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) who receives a notice of a hearing under
par. (a) and an opportunity to be heard under this paragraph does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and opportunity to be heard.
48.42(2g)(b)
(b) Failure to give notice under
par. (a) to a foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) does not deprive the court of jurisdiction in the proceeding. If a foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) is not given notice of a hearing under
par. (a), that person may request a rehearing on the matter at any time prior to the entry of an order under
s. 48.427 (2) or
(3). If the request is made, the court shall order a rehearing.
48.42(2m)(a)(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.
48.42(2m)(b)
(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.
48.42(3)
(3) Contents of summons. The summons shall:
48.42(3)(a)
(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.
48.42(3)(b)
(b) Advise the party, if applicable, of his or her right to legal counsel, regardless of ability to pay under
s. 48.23 and
ch. 977.
48.42(3)(c)
(c) Advise the parties of the possible result of the hearing and the consequences of failure to appear or respond.
48.42(3)(d)
(d) Advise the parties that if the court terminates parental rights, a notice of intent to pursue relief from the judgment must be filed in the trial court within 30 days after the judgment is entered for the right to pursue such relief to be preserved.
48.42(4)
(4) Manner of serving summons and petition. 48.42(4)(a)(a)
Personal service. Except as provided in this paragraph and
par. (b), 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.
48.42(4)(b)1.1. If with reasonable diligence a party specified in
sub. (2) cannot be served under
par. (a), service shall be made by publication of the notice under
subd. 4.
48.42(4)(b)1m.
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.
