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 (4) 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.
48.427(3p) (3p) If the rights of both parents or of the only living parent are terminated under sub. (3) and if a guardian has been appointed under s. 48.977, the court may enter one of the orders specified in sub. (3m) (a) or (b). If the court enters an order under this subsection, the court shall terminate the guardianship under s. 48.977.
48.427(4) (4) If the rights of one or both parents are terminated under sub. (3), the court may enter an order placing the child in sustaining care under s. 48.428.
48.427(5) (5) In placing an Indian child in a preadoptive placement following a transfer of guardianship and custody under sub. (3m) or (3p) or in placing an Indian child in sustaining care under sub. (4), the court or an agency specified in sub. (3m) (a) 1. to 4. or (am) shall comply with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless the court or agency finds good cause, as described in s. 48.028 (7) (e), for departing from that order.
48.427(6) (6) If an order is entered under sub. (3), the court shall:
48.427(6)(a) (a) Inform each birth parent, as defined under s. 48.432 (1) (am), whose rights have been terminated of the provisions of ss. 48.432, 48.433 and 48.434.
48.427(6)(b) (b) Forward to the department:
48.427(6)(b)1. 1. The name and date of birth of the child whose birth parent's rights have been terminated.
48.427(6)(b)2. 2. The names and current addresses of the child's birth parents, guardian and legal custodian.
48.427(6)(b)3. 3. The medical and genetic information obtained under s. 48.422 (9) or 48.425 (1) (am) or (2).
48.427(6)(b)4. 4. If the court knows or has reason to know that the child is an Indian child, information relating to the child's membership or eligibility for membership in an Indian tribe.
48.427(7) (7)
48.427(7)(a)(a) If an order is entered under sub. (3), the court may orally inform the parent or parents who appear in court of the ground for termination of parental rights specified in s. 48.415 (10).
48.427(7)(b) (b) In addition to the notice permitted under par. (a), any written order under sub. (3) may notify the parent or parents of the information specified in par. (a).
48.427 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.
48.427 Annotation The 10-day time limit in sub. (1) addressed a period after the circuit court made the final decisions that served to terminate parental rights of the child and put the child in a position to be adopted. There was no reason why, after all critical stages within the adjudication process are complete, and the court had made the required rulings, failure to enter a written order implicated the court's competency. Dane Co. DHS v. Dyanne M. 2007 WI App 129, 06-2919.
48.427 Annotation Sub. (1) provides that a court must enter one of the dispositions specified under subs. (2) to (4). Nevertheless, the court cannot simply enter one of the dispositions set forth in sub. (3m), (3p), or (4). Rather, it must first enter a disposition terminating parental rights under sub. (3). Brown County Department of Human Services v. Brenda B. 2011 WI 6, 331 Wis. 2d 310, 795 N.W.2d 730, 10-0321.
48.428 48.428 Sustaining care.
48.428(1)(1) A court may place a child in sustaining care if the court has terminated the parental rights of the parent or parents of the child or has appointed a guardian for the child under s. 48.831 and the court finds that the child is unlikely to be adopted or that adoption is not in the best interest of the child.
48.428(2) (2)
48.428(2)(a)(a) Except as provided in par. (b), when a court places a child in sustaining care after an order under s. 48.427 (4), the court shall transfer legal custody of the child to the county department, the department in a county having a population of 500,000 or more, or a licensed child welfare agency, transfer guardianship of the child to an agency listed in s. 48.427 (3m) (a) 1. to 4. or (am), and place the child in the home of a licensed foster parent or kinship care relative with whom the child has resided for 6 months or longer. In placing an Indian child in sustaining care, the court shall comply with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless the court finds good cause, as described in s. 48.028 (7) (e), for departing from that order. Pursuant to the placement, that licensed foster parent or kinship care relative shall be a sustaining parent with the powers and duties specified in sub. (3).
48.428(2)(b) (b) When a court places a child in sustaining care after an order under s. 48.427 (4) with a person who has been appointed as the guardian of the child under s. 48.977 (2), the court may transfer legal custody of the child to the county department, the department in a county having a population of 500,000 or more, or a licensed child welfare agency, transfer guardianship of the child to an agency listed in s. 48.427 (3m) (a) 1. to 4. or (am), and place the child in the home of a licensed foster parent or kinship care relative with whom the child has resided for 6 months or longer. In placing an Indian child in sustaining care, the court shall comply with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless the court finds good cause, as described in s. 48.028 (7) (e), for departing from that order. Pursuant to the placement, that licensed foster parent or kinship care relative shall be a sustaining parent with the powers and duties specified in sub. (3). If the court transfers guardianship of the child to an agency listed in s. 48.427 (3m) (a) 1. to 4. or (am), the court shall terminate the guardianship under s. 48.977.
48.428(3) (3) Subject to the authority of the guardian and legal custodian of the child and to any treatment or dispositional plans for the child established by the court, the sustaining parent has the rights and responsibilities necessary for the day-to-day care of the child, including but not limited to:
48.428(3)(a) (a) The authority to consent to routine and emergency health care for the child.
48.428(3)(b) (b) The authority to sign the child's application for a license under s. 343.15.
48.428(3)(c) (c) The authority to approve the child's participation in school and youth group activities.
48.428(3)(d) (d) The authority to travel out of state with the child and consent to the child's travel out of state.
48.428(3)(e) (e) The authority to act as the child's parent under subch. V of ch. 115 and s. 118.125.
48.428(4) (4) Before a licensed foster parent or kinship care relative may be appointed as a sustaining parent, the foster parent or kinship care relative shall execute a contract with the agency responsible for providing services to the child, in which the foster parent or kinship care relative agrees to provide care for the child until the child's 18th birthday unless the placement order is changed by the court because the court finds that the sustaining parents are no longer able or willing to provide the sustaining care or the court finds that the behavior of the sustaining parents toward the child would constitute grounds for the termination of parental rights if the sustaining parent was the birth parent of the child.
48.428(6) (6)
48.428(6)(a)(a) Except as provided in par. (b), the court may order or prohibit visitation by a birth parent of a child placed in sustaining care.
48.428(6)(b)1.1. Except as provided in subd. 2., the court may not grant visitation under par. (a) to a birth parent of a child who has been placed in sustaining care if the birth parent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of the child's other birth parent, and the conviction has not been reversed, set aside or vacated.
48.428(6)(b)1m. 1m. Except as provided in subd. 2., if a birth parent who is granted visitation rights with a child under par. (a) is convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of the child's other birth parent, and the conviction has not been reversed, set aside or vacated, the court shall issue an order prohibiting the birth parent from having visitation with the child on petition of the child, the guardian or legal custodian of the child, or the district attorney or corporation counsel of the county in which the dispositional order was entered, or on the court's own motion, and on notice to the birth parent.
48.428(6)(b)2. 2. Subdivisions 1. and 1m. do not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the child. The court shall consider the wishes of the child in making that determination.
48.43 48.43 Court orders; contents and effect; review.
48.43(1)(1) The court shall enter a judgment setting forth its findings and disposition in accordance with s. 48.426 in an order implementing the disposition chosen. If the court dismisses the petition under s. 48.427 (2), the order shall contain the reasons for dismissal. If the disposition is for the termination of parental rights under s. 48.427 (3), the order shall contain all of the following:
48.43(1)(a) (a) The identity of any agency or individual that has received guardianship of the child or will receive guardianship or custody of the child upon termination and the identity of the agency which will be responsible for securing the adoption of the child or establishing the child in a permanent family setting.
48.43(1)(am) (am) If the department or a county department receives guardianship or custody of the child under par. (a), an order ordering the child into the placement and care responsibility of the department or county department as required under 42 USC 672 (a) (2) and assigning the department or county department primary responsibility for providing services to the child.
48.43(1)(b) (b) If the child will be in need of continued care and treatment after termination, the agencies and persons responsible.
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2011-12 Wisconsin Statutes updated through 2013 Wis. Act 380 and all Supreme Court Orders entered before Oct. 4, 2014. Published and certified under s. 35.18. Changes effective after Oct. 4, 2014 are designated by NOTES. (Published 10-4-14)