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 Once a basis for termination has been found by the jury and confirmed with a finding of unfitness by the court, the court must move to the dispositional hearing in which the prevailing factor is the best interests of the child. A court should not dismiss a petition for termination at a dispositional hearing unless it can reconcile dismissal with the best interests of the child. Sheboygan County D.H.S.S. v. Julie A.B. 2002 WI 95, 255 Wis. 2d 170, 648 N.W.2d 402, 01-1692.
48.422 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, 307 Wis. 2d 372, 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, 309 Wis. 2d 161, 749 N.W.2d 168, 07-0008.
48.422 Annotation 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.
48.422 Annotation 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.
48.422 Annotation 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.
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).
48.422 Annotation Judge or Jury? How Best to Preserve Due Process in Wisconsin Termination of Parental Rights Cases. Bloodworth. 2013 WLR 1039.
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 History History: 1979 c. 330; 2005 a. 293; 2007 a. 96, 97.
48.424 48.424 Fact-finding hearing.
48.424(1)(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:
48.424(1)(a) (a) Whether grounds exist for the termination of parental rights.
48.424(1)(b) (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.
48.424(2) (2)The fact-finding hearing shall be conducted according to the procedure specified in s. 48.31 except as follows:
48.424(2)(a) (a) The court may exclude the child from the hearing.
48.424(2)(b) (b) The hearing shall be closed to the public.
48.424(3) (3)If the facts are determined by a jury, the jury may only decide whether any grounds for the termination of parental rights have been 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.
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). Except as provided in s. 48.23 (2) (b) 3., 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:
48.424(4)(a) (a) All parties to the proceeding agree.
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 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.
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. 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.
48.424 History History: 1979 c. 330; 1987 a. 383; 2009 a. 94; 2013 a. 337.
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 Once a basis for termination has been found by the jury and confirmed with a finding of unfitness by the court, the court must move to the dispositional hearing in which the prevailing factor is the best interests of the child. A court should not dismiss a petition for termination at a dispositional hearing unless it can reconcile dismissal with the best interests of the child. Sheboygan County D.H.S.S. v. Julie A.B. 2002 WI 95, 255 Wis. 2d 170, 648 N.W.2d 402, 01-1692.
48.424 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, 309 Wis. 2d 161, 749 N.W.2d 168, 07-0008.
48.424 Annotation 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.
48.424 Annotation 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.
48.424 Annotation Contrary to the Child's Best Interest: Children's Court Proceedings. Sowinski and Wiensch. Wis. Law. Apr. 2013.
48.425 48.425 Court report by an agency.
48.425(1)(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:
48.425(1)(a) (a) The social history of the child.
48.425(1)(am) (am) A medical record of the child on a form provided by the department which shall include:
48.425(1)(am)1. 1. The medical and genetic history of the birth parents and any medical and genetic information furnished by the birth parents about the child's grandparents, aunts, uncles, brothers and sisters.
48.425(1)(am)2. 2. A report of any medical examination which either birth parent had within one year before the date of the petition.
48.425(1)(am)3. 3. A report describing the child's prenatal care and medical condition at birth.
48.425(1)(am)4. 4. The medical and genetic history of the child and any other relevant medical and genetic information.
48.425(1)(b) (b) A statement of the facts supporting the need for termination.
48.425(1)(c) (c) If the child has been previously adjudicated to be in need of protection and services, a statement of the steps the agency or person responsible for provision of services has taken to remedy the conditions responsible for court intervention and the parent's response to and cooperation with these services. If the child has been removed from the home, the report 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.
48.425(1)(cm) (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.
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)(d) (d) The wishes of the child.
48.426(3)(e) (e) The duration of the separation of the parent from the child.
48.426(3)(f) (f) Whether the child will be able to enter into a more stable and permanent family relationship as a result of the termination, taking into account the conditions of the child's current placement, the likelihood of future placements and the results of prior placements.
48.426 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 48.427 Dispositions.
48.427(1)(1)Any party may present evidence relevant to the issue of disposition, including expert testimony, and may make alternative dispositional recommendations to the court. After receiving any evidence related to the disposition, the court shall enter one of the dispositions specified under subs. (2) to (3p) within 10 days.
48.427(1m) (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.
48.427(2) (2)The court may dismiss the petition if it finds that the evidence does not warrant the termination of parental rights.
48.427(3) (3)The court may enter an order terminating the parental rights of one or both parents.
48.427(3m) (3m)If the rights of both parents or of the only living parent are terminated under sub. (3) and if a guardian has not been appointed under s. 48.977, the court shall do one of the following:
48.427(3m)(a) (a) Transfer guardianship and custody of the child pending adoptive placement to:
48.427(3m)(a)1. 1. A county department authorized to accept guardianship under s. 48.57 (1) (e).
48.427(3m)(a)3. 3. A child welfare agency licensed under s. 48.61 (5) to accept guardianship.
48.427(3m)(a)4. 4. The department.
48.427(3m)(a)5. 5. A relative with whom the child resides, if the relative has filed a petition to adopt the child or if the relative is a kinship care relative or is receiving payments under s. 48.62 (4) for providing care and maintenance for the child.
48.427(3m)(a)6. 6. An individual who has been appointed guardian of the child by a court of a foreign jurisdiction.
48.427(3m)(am) (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.
48.427(3m)(b) (b) Transfer guardianship of the child to one of the agencies specified under par. (a) 1. to 4. and custody of the child to an individual in whose home the child has resided for at least 12 consecutive months immediately prior to the termination of parental rights or to a relative.
48.427(3m)(c) (c) Appoint a guardian under s. 48.977 and transfer guardianship and custody of the child to the guardian.
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2017-18 Wisconsin Statutes updated through 2019 Wis. Act 7 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on July 1, 2019. Published and certified under s. 35.18. Changes effective after July 1, 2019, are designated by NOTES. (Published 7-1-19)