48.422(2)
(2) If the petition is contested the court shall set a date for a fact-finding hearing to be held within 45 days of the hearing on the petition, unless all of the necessary parties agree to commence with the hearing on the merits immediately.
48.422(3)
(3) If the petition is not contested the court shall hear testimony in support of the allegations in the petition, including testimony as required in
sub. (7).
48.422(4)
(4) Any party who is necessary to the proceeding or whose rights may be affected by an order terminating parental rights shall be granted a jury trial upon request if the request is made before the end of the initial hearing on the petition.
48.422(5)
(5) Any nonpetitioning party, including the child, shall be granted a continuance of the hearing for the purpose of consulting with an attorney on the request for a jury trial or concerning a request for the substitution of a judge.
48.422(6)(a)(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). If not, the court shall adjourn the hearing and order appropriate notice to be given.
48.422(6)(b)
(b) If the court determines that an unknown person may be the father of the child and notice to that person has not been waived under
s. 48.42 (4) (b) 3., the court shall determine whether constructive notice will substantially increase the likelihood of notice to that person. If the court does determine that it would substantially increase the likelihood of notice and the petitioner has not already caused the notice to be published or the court determines that the publication used was not sufficient, the court shall adjourn the hearing for a period not to exceed 30 days and shall order constructive notice under
s. 48.42 (4) (b). If the court determines that constructive notice will not substantially increase the likelihood of notice to that person, the court shall order that the hearing proceed.
48.422(6)(c)
(c) If paternity is adjudicated under this subchapter and parental rights are not terminated, the court may make and enforce such orders for the suitable care, custody and support of the child as a court having jurisdiction over actions affecting the family may make under
ch. 767. If there is a finding by the court that the child is in need of protection or services, the court may make dispositional orders under
s. 48.345.
48.422(7)
(7) Before accepting an admission of the alleged facts in a petition, the court shall:
48.422(7)(a)
(a) Address the parties present and determine that the admission is made voluntarily with understanding of the nature of the acts alleged in the petition and the potential dispositions.
48.422(7)(b)
(b) Establish whether any promises or threats were made to elicit an admission and alert all unrepresented parties to the possibility that a lawyer may discover defenses or mitigating circumstances which would not be apparent to them.
48.422(7)(bm)
(bm) Establish whether a proposed adoptive parent of the child has been identified. If a proposed adoptive parent of the child has been identified and the proposed adoptive parent is not a relative of the child, the court shall order the petitioner to submit a report to the court containing the information specified in
s. 48.913 (7). The court shall review the report to determine whether any payments or agreement to make payments set forth in the report are coercive to the birth parent of the child or to an alleged to presumed father of the child or are impermissible under
s. 48.913 (4). Making any payment to or on behalf of the birth parent of the child, an alleged or presumed father of the child or the child conditional in any part upon transfer or surrender of the child or the termination of parental rights or the finalization of the adoption creates a rebuttable presumption of coercion. Upon a finding of coercion, the court shall dismiss the petition or amend the agreement to delete any coercive conditions, if the parties agree to the amendment. Upon a finding that payments which are impermissible under
s. 48.913 (4) have been made, the court may dismiss the petition and may refer the matter to the district attorney for prosecution under
s. 948.24 (1). This paragraph does not apply if the petition was filed with a petition for adoptive placement under
s. 48.837 (2).
48.422(7)(br)
(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.
48.422(7)(c)
(c) Make such inquiries as satisfactorily establish that there is a factual basis for the admission.
48.422(8)
(8) If the petition for termination of parental rights is filed by an agency enumerated in
s. 48.069 (1) or
(2), the court shall order the agency to submit a report to the court as provided in
s. 48.425.
48.422(9)(a)(a) If a petition for termination of the rights of a birth parent, as defined under
s. 48.432 (1) (am), is filed by a person other than an agency enumerated under
s. 48.069 (1) or
(2) or if the court waives the report required under
s. 48.425, the court shall order any parent whose rights may be terminated to file with the court the information specified under
s. 48.425 (1) (am).
48.422(9)(b)
(b) If a birth parent does not comply with
par. (a), the court shall order any health care provider as defined under
s. 146.81 (1) known to have provided care to the birth parent or parents to provide the court with any health care records of the birth parent or parents that are relevant to the child's medical condition or genetic history. A court order for the release of alcohol or drug abuse treatment records subject to
21 USC 1175 or
42 USC 4582 shall comply with
42 CFR 2.
48.422 Annotation
The court erred by failing to inform parents of the right to jury trial and to representation by counsel. In re Termination of Parental Rights to M. A. M.
116 Wis. 2d 432,
342 N.W.2d 410 (1984).
48.422 Annotation
Concurrent TPR/adoption proceedings under s. 48.835 are subject to the requirement under s. 48.422 that the initial hearing be held within 30 days of filing the petition. In re J.L.F.
168 Wis. 2d 634,
484 N.W.2d 359 (Ct. App. 1992).
48.422 Annotation
A court's failure to inform parents of their rights under this section is not reversible error absent prejudice to the parents. Interest of Robert D.
181 Wis. 2d 887,
512 N.W.2d 227 (Ct. App. 1994).
48.422 Annotation
The general time requirements of s. 48.315 (2) control extensions of the time limit under sub. (1). There are no provisions for waiver of time limits, and the only provisions for delays, continuances, and extensions are under s. 48.315. State v. April O. 2000 WI App 70,
233 Wis. 2d 663,
607 N.W.2d 927,
99-2487.
48.422 Annotation
This section does not require the circuit court to advise nonpetitioning parties of the right under sub. (5) to a continuance to consult with counsel regarding judicial substitution. Steven V. v. Kelley H. 2004 WI 47,
271 Wis. 2d 1,
678 N.W.2d 831,
02-2860.
48.422 Annotation
A competency challenge based on the violation of the statutory time limitation of sub. (2) cannot be waived, even though it was not raised in the circuit court. Sheboygan County Department of Social Services v. Matthew S. 2005 WI 84,
282 Wis. 2d 150,
698 N.W.2d 631,
04-0901.
48.422 Annotation
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.
48.422 Annotation
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, ___ Wis. 2d ___,
745 N.W.2d 701,
07-2283.
48.422 Annotation
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, ___ Wis. 2d ___, ___ N.W.2d ___,
07-0008.
48.422 Annotation
Due process does not require appointment of counsel for indigent parents in every parental status termination proceeding. Lassiter v. Dept. of Social Services,
452 U.S. 18 (1981).
48.423
48.423
Rights of persons alleging paternity. 48.423(1)
(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).
48.423(2)
(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:
48.423(2)(a)
(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.
48.423(2)(b)
(b) That the mother left that state without notifying or informing that person that she could be located in this state.
48.423(2)(c)
(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.
48.423(2)(d)
(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.
48.423 Annotation
Putative father's right to custody of his child. 1971 WLR 1262.
48.424
48.424
Fact-finding hearing. 48.424(1)
(1) The purpose of the fact-finding hearing is to determine whether grounds exist for the termination of parental rights in those cases where the termination was contested at the hearing on the petition under
s. 48.422.
48.424(2)
(2) The fact-finding hearing shall be conducted according to the procedure specified in
s. 48.31 except that:
48.424(2)(a)
(a) The court may exclude the child from the hearing; and
48.424(3)
(3) If the facts are determined by a jury, the jury may only decide whether any grounds for the termination of parental rights have been proven. The court shall decide what disposition is in the best interest of the child.
48.424(4)
(4) If grounds for the termination of parental rights are found by the court or jury, the court shall find the parent unfit. A finding of unfitness shall not preclude a dismissal of a petition under
s. 48.427 (2). The court shall then proceed immediately to hear evidence and motions related to the dispositions enumerated in
s. 48.427. The court may delay making the disposition and set a date for a dispositional hearing no later than 45 days after the fact-finding hearing if:
48.424(4)(b)
(b) The court has not yet received a report to the court on the history of the child as provided in
s. 48.425 from an agency enumerated in
s. 48.069 (1) or
(2) and the court now directs the agency to prepare this report to be considered before the court makes the disposition on the petition.
48.424(5)
(5) If the court delays making a permanent disposition under
sub. (4), it may transfer temporary custody of the child to an agency for placement of the child until the dispositional hearing.
48.424 History
History: 1979 c. 330;
1987 a. 383.
48.424 Annotation
Although the best interests of the child standard does not apply to the fact-finding hearing, the guardian ad litem can represent the interests of the child to develop the facts as they relate to whether the grounds for termination exist. When a jury is the fact-finder, the guardian ad litem should be permitted to exercise peremptory challenges in jury selection. Interest of C.E.W.
124 Wis. 2d 47,
368 N.W.2d 47 (1985).
48.424 Annotation
Despite jury findings that grounds for termination exist, the court may dismiss a termination petition if evidence does not support the jury's finding or if the evidence of unfitness is not so egregious as to warrant termination; whether the evidence supports termination is a matter of discretion. In Interest of K.D.J.
163 Wis. 2d 90,
470 N.W.2d 914 (1991).
48.424 Annotation
The general time requirements of s. 48.315 (2) control extensions of the time limit under sub. (4). There are no provisions for waiver of time limits, and the only provisions for delays, continuances and extensions are under s. 48.315. State v. April O. 2000 WI App 70,
233 Wis. 2d 663,
607 N.W.2d 927,
99-2487.
48.424 Annotation
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, ___ Wis. 2d ___, ___ N.W.2d ___,
07-0008.
48.425
48.425
Court report by an agency. 48.425(1)
(1) If the petition for the termination of parental rights is filed by an agency, or if the court orders a report under
s. 48.424 (4) (b), the agency shall file a report with the court which shall include:
48.425(1)(am)
(am) A medical record of the child on a form provided by the department which shall include:
48.425(1)(am)1.
1. The medical and genetic history of the birth parents and any medical and genetic information furnished by the birth parents about the child's grandparents, aunts, uncles, brothers and sisters.
48.425(1)(am)2.
2. A report of any medical examination which either birth parent had within one year before the date of the petition.
48.425(1)(am)3.
3. A report describing the child's prenatal care and medical condition at birth.
48.425(1)(am)4.
4. The medical and genetic history of the child and any other relevant medical and genetic information.
48.425(1)(b)
(b) A statement of the facts supporting the need for termination.
48.425(1)(c)
(c) If the child has been previously adjudicated to be in need of protection and services, a statement of the steps the agency or person responsible for provision of services has taken to remedy the conditions responsible for court intervention and the parent's response to and cooperation with these services. If the child has been removed from the home, the report 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.
48.425(1)(d)
(d) A statement of other appropriate services, if any, which might allow the child to return safely to the home of the parent.
48.425(1)(e)
(e) A statement applying the standards and factors enumerated in
s. 48.426 (2) and
(3) to the case before the court.
48.425(1)(f)
(f) If the report recommends that the parental rights of both of the child's parents or the child's only living or known parent are to be terminated, the report shall contain a statement of the likelihood that the child will be adopted. This statement shall be prepared by an agency designated in
s. 48.427 (3m) (a) 1. to
4. 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.
48.425(1)(g)
(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).
48.425(1m)
(1m) The agency required under
sub. (1) to file the report shall prepare the medical record within 60 days after the date of the petition for the termination of parental rights.
48.425(2)
(2) The court may waive the report required under this section if consent is given under
s. 48.41, but shall order the birth parent or parents to provide the department with the information specified under
sub. (1) (am).
48.425(3)
(3) The court may order a report as specified under this section to be prepared by an agency in those cases where the petition is filed by someone other than an agency.
48.426
48.426
Standard and factors. 48.426(1)
(1)
Court considerations. In making a decision about the appropriate disposition under
s. 48.427, the court shall consider the standard and factors enumerated in this section and any report submitted by an agency under
s. 48.425.
48.426(2)
(2) Standard. The best interests of the child shall be the prevailing factor considered by the court in determining the disposition of all proceedings under this subchapter.
48.426(3)
(3) Factors. In considering the best interests of the child under this section the court shall consider but not be limited to the following:
48.426(3)(a)
(a) The likelihood of the child's adoption after termination.
48.426(3)(b)
(b) The age and health of the child, both at the time of the disposition and, if applicable, at the time the child was removed from the home.
48.426(3)(c)
(c) Whether the child has substantial relationships with the parent or other family members, and whether it would be harmful to the child to sever these relationships.
48.426(3)(e)
(e) The duration of the separation of the parent from the child.
48.426(3)(f)
(f) Whether the child will be able to enter into a more stable and permanent family relationship as a result of the termination, taking into account the conditions of the child's current placement, the likelihood of future placements and the results of prior placements.
48.426 History
History: 1979 c. 330.
48.426 Annotation
When grandparents opposing termination had a substantial relationship with the child and wished to participate in the proceedings, it was error to exclude their testimony in determining the child's best interest. In Interest of Brandon S.S.
179 Wis. 2d 114,
507 N.W.2d 94 (1993).
48.426 Annotation
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(1)(1) Any party may present evidence relevant to the issue of disposition, including expert testimony, and may make alternative dispositional recommendations to the court. After receiving any evidence related to the disposition, the court shall enter one of the dispositions specified under
subs. (2) to
(4) within 10 days.
48.427(1m)
(1m) In addition to any evidence presented under
sub. (1), the court shall give the foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) of the child an opportunity to be heard at the dispositional hearing by permitting the foster parent, treatment foster parent or other physical custodian to make a written or oral statement during the dispositional hearing, or to submit a written statement prior to disposition, relevant to the issue of disposition. A foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) who receives notice of a hearing under
s. 48.42 (2g) (a) and an opportunity to be heard under this subsection does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and opportunity to be heard.
48.427(2)
(2) The court may dismiss the petition if it finds that the evidence does not warrant the termination of parental rights.
48.427(3)
(3) The court may enter an order terminating the parental rights of one or both parents.
