(2) Provides that a guardian under the bill may resign at any time if the
resignation is accepted by the juvenile court.
(3) Provides a procedure and standards for removing the guardian for cause.
(4) Provides a procedure and standards for terminating the guardianship
upon a parent's petition.
S. Grounds for Involuntary TPR--In General
1. Current Law
Current law provides 9 grounds for involuntary TPR: abandonment,
continuing need of protection or services, continuing parental disability,
continuing denial of periods of physical placement, child abuse, failure to
assume parental responsibility, incestuous parenthood, intentional homicide
of the child's other parent and being conceived as a result of sexual assault
(created by
1995 Wisconsin Act 108).
2. The Bill
The bill modifies the grounds for involuntary TPR set out above to make
clear that the ground must be established by proving the elements specified,
rather than stating that the ground may be established by a showing of the
elements specified.
T. Involuntary TPR Based on Abandonment
1. Current Law
Under current law, abandonment may be established by a showing of one of
3 bases:
a. The child has been left without provision for its care or support, the
petitioner has investigated the circumstances surrounding the matter and, for
60 days, the petitioner has been unable to find either parent.
b. The child has been placed, or continued in a placement, outside the
parent's home by a juvenile court order containing the notice required by s.
48.356 (2), stats., (warning regarding the applicable grounds for involuntary
TPR and the conditions necessary for the child to be returned home), and the
parent has failed to visit or communicate with the child for a period of 6
months or longer.
c. The child has been left by the parent with a relative or other person, the
parent knows or could discover the whereabouts of the child and the parent
has failed to visit or communicate with the child for a period of one year or
longer.
Under current law, a parent may rebut the 2nd and 3rd of these bases by
proving that he or she has not disassociated himself or herself from the child
or relinquished responsibility for the child's care and well-being.
2. The Bill
The bill does the following:
a. Provides an additional basis for establishing abandonment if a child has
been left without provision for its care or support in a place or manner that
exposes the child to substantial risk of death or great bodily harm, as defined
in s. 939.22 (14), stats.
b. Provides that, with respect to a child who has been placed, or continued
in a placement, outside the parent's home by a juvenile court order, the
parent has failed to visit or communicate with the child for a period of 3
months or longer, rather than 6 months or longer.
c. Provides that, with respect to a child who has been left by the parent, the
child must have been left with any person other than the child's other parent,
rather than with a relative or other person (which may include the child's
other parent), and provides that the parent then must have failed to visit or
communicate with the child for a period of 6 months or longer, rather than
one year or longer.
d. Deletes the provision allowing rebuttal of the presumption that
abandonment has occurred based on evidence that the parent has not
disassociated himself or herself from the child or relinquished responsibility
for the child's care and well-being and instead provides that abandonment is
not established under items b or c, above, if the parent proves all of the
following by a preponderance of the evidence:
(1) That he or she had good cause for having failed to visit with the child
throughout the time period specified in items b or c, above, whichever is
applicable.
(2) That he or she had good cause for having failed to communicate with
the child throughout the time period specified in items b or c, above,
whichever is applicable.
(3) If the parent proves good cause for having failed to communicate with
the child, including good cause based on evidence that the child's age or
condition would have rendered any communication with the child
meaningless, that the parent either:
(a) Communicated about the child with the person or persons who had
physical custody of the child during the time period specified in items b or c,
above, whichever is applicable, or, if item b, above, is applicable, with the
agency responsible for the care of the child during the time period specified
in item b, above; or
(b) Had good cause for having failed to communicate about the child with
such person or persons or agency during the applicable time period.
U. Involuntary TPR Based on Continuing Need of
Protection or Services
1. Current Law
Currently, continuing need of protection or services as a ground for
involuntary TPR may be established by a showing that: (a) the child has
been adjudged CHIPS and placed, or continued in a placement, outside the
child's home by the juvenile court under a CHIPS dispositional order,
change of placement order, extension of dispositional order or revision of
dispositional order; (b) the agency responsible for the care of the child and
the family has made a diligent effort to provide the services ordered by the
juvenile court; (c) the child has been outside the home under such an order
for a cumulative total period of one year or longer or, if the child had not
attained the age of 3 years at the time of the initial order placing the child
outside the home, for a cumulative total period of 6 months or longer; and
(d) the parent has failed to demonstrate substantial progress toward meeting
the conditions established for the return of the child to the home and there is
a substantial likelihood that the parent will not meet those conditions within
the next 12 months.
2. The Bill
The bill does the following:
a. Amends this ground for a child who is 3 years of age or older at the time
of the initial juvenile court order placing the child outside the home by
reducing the period of time that such a child must spend in a court-ordered
out-of-home placement from one year to 6 months.
b. Defines "diligent effort" to provide court-ordered services.
V. Involuntary TPR Based on Continuing Denial of
Periods of Physical Placement or Visitation
1. Current Law
Under current law, continuing denial of periods of physical placement by a
court order in an action affecting the family is a ground for involuntary TPR
if the parent has been denied periods of physical placement for a period of at
least one year and the family court has not subsequently modified its order
so as to permit periods of physical placement.
2. The Bill
The bill does the following:
a. Expands this ground to also provide for periods in which a juvenile court
has denied visitation under a CHIPS dispositional order, a change in
placement order, a revision of dispositional order or an extension of
dispositional order if the order contained a warning about continuing denial
of visitation as a ground for involuntary TPR and notified the parent of the
conditions necessary for the parent to be granted visitation.
b. Requires a juvenile court, when denying a parent visitation under such an
order, to warn the parent orally and in writing that continuing denial of
visitation is a ground for involuntary TPR and of the conditions necessary
for the parent to be granted visitation.
W. Involuntary TPR Based on Child Abuse
1. Current Law
Currently, child abuse may be established as a ground for involuntary TPR
by a showing that the parent has exhibited a pattern of abusive behavior
which poses a substantial threat to the health of the child and that either: (a)
the parent has been convicted of a felony for causing death or injury to a
child; or (b) on more than one occasion, a child has been removed from the
home after being adjudged CHIPS and there is a finding by the juvenile
court that sexual or physical abuse has been inflicted by the parent.
2. The Bill
The bill provides that child abuse is established as a ground for involuntary
TPR by proving that the parent has exhibited a pattern of physically or
sexually abusive behavior which poses a substantial threat to the health of
the child and that either: (a) the parent has been convicted of a felony for
causing death or injury to any child; or (b) any child has previously been
removed from the parent's home pursuant to a CHIPS dispositional order
after the child was adjudged CHIPS as a victim of physical or sexual abuse,
or for being at substantial risk of becoming the victim of physical or sexual
abuse based on information that another child in the home has been the
victim of such abuse.
X. Involuntary TPR Based on Failure to Assume
Parental Responsibility
1. Current Law
Under current law, the parental rights of the father of a nonmarital child, that
is, a child who is neither conceived nor born while his or her parents are
intermarried, who has not been adopted or whose parents have not
subsequently intermarried and for whom paternity has not been adjudicated
prior to the filing of the TPR petition, may be terminated if: (a) the person
or persons who may be the father of the child have been given notice about
the TPR petition but have failed to appear or otherwise submit to the
jurisdiction of the juvenile court and have never had a substantial parental
relationship with the child; or (b) that although paternity has been
adjudicated, the father did not establish a substantial parental relationship
with the child prior to the filing of the TPR petition even though he had
reason to believe he was the father of the child and has not assumed parental
responsibility for the child.
2. The Bill
The bill expands this ground for involuntary TPR to include: (a) mothers as
well as fathers; (b) marital children as well as nonmarital children; and (c)
fathers for whom paternity was adjudicated prior to the filing of the TPR
petition.
Y. Involuntary TPR Based on Intentional or Reckless
Homicide of The Child's Other Parent
1. Current Law
Under current law, first-degree intentional homicide by the parent of the
child's other parent is a ground for involuntary TPR.
2. The Bill
The bill adds first-degree reckless homicide by the parent of the child's
other parent as a ground for involuntary TPR.
Z. Involuntary TPR Based on Commission of a Serious
Felony Against One of the Person's Children
The bill creates an additional ground for involuntary TPR based on
commission of a serious felony against one of the person's children. This
ground must be established by proving that the person whose parental rights
are sought to be terminated has been convicted of a "serious felony" (as
defined in the bill) and that one of the person's children was the victim of
that serious felony. In addition to applying when the person commits a
serious felony against one of the person's children other than the child who
is the subject of the TPR petition, this ground also applies in those cases in
which the child who is the subject of the TPR petition was the victim of such
a crime and survives.
ZA. Involuntary TPR Based on Prior Involuntary TPR to
Another Child
The bill creates an additional ground for involuntary TPR, based on prior
involuntary TPR to another child.
This new ground must be established by proving both of the following:
1. The child who is the subject of the TPR petition has been adjudged
CHIPS because of abandonment or sexual or physical abuse or because a
parent, guardian or legal custodian neglects, refuses or is unable, for reasons
other than poverty, to provide necessary care, food, clothing, medical or
dental care or shelter so as to seriously endanger the physical health of the
child.
2. Within the 3 years prior to the date the child who is the subject of the
TPR petition was adjudged CHIPS, a juvenile court has ordered the
involuntary TPR of another of the person's children.
ZB. Appeals of Orders Terminating Parental Rights
1. Current Law
Currently, orders granting or denying involuntary TPR are final orders that
are appealable like other circuit court final orders.
2. The Bill
The bill provides as follows:
a. A notice of intent to appeal an involuntary TPR judgment or order must
be filed with the trial court within 30 days after the entry of the TPR
judgment or order, rather than 15 days.
b. The appellant has 30 days from the date of service of the transcript to file
the official notice of appeal and docketing statement, rather than 15 days.
c. The court of appeals must give TPR appeals preference and must decide
a TPR appeal within 30 days after the filing of the appellant's reply brief or
statement that a reply brief will not be filed, rather than 45 days after the
filing of the record on appeal.
d. A petition for the supreme court to review the decision of the court of
appeals in a TPR case must be filed within 30 days after the date of the
decision of the court of appeals, rather than 15 days.
e. With respect to a parent who consented to TPR or did not contest an
involuntary TPR and, unless an exception applies, a motion for relief from
judgment on such grounds as fraud, mistake or newly discovered evidence
must be filed within 30 days after the entry of the TPR judgment or order,
rather than 40 days.
ZC. Petitioning a Court, When an Involuntary TPR
Petition is Filed, for an Order Prohibiting Visitation
or Contact with a Child
1. Current Law
Current law provides that a juvenile court may, in a dispositional order
under s. 48.355, stats., set reasonable rules of parental visitation if a child is
adjudged CHIPS [s. 48.355 (3), stats.] and may prohibit a parent from
visiting a child if a child is placed in sustaining care after a TPR order [s.
48.428 (6), stats.]. In addition, current law provides that a child abuse
restraining order and injunction ordering a person to avoid a child's
residence and to avoid contacting the child may be granted if a person has
engaged in or may engage in abuse of the child [s. 813.122, stats.]. If the
respondent to a petition for a child abuse restraining order or injunction is
the child's parent, current law specifies that the court may provide that the
parent has reasonable visitation rights, unless the court finds that visitation
would endanger the child's physical, mental or emotional health.
Current statutes do not explicitly provide that a juvenile court may enter an
order denying visitation or contact with a child who is the subject of an
involuntary TPR petition while the case is pending.
2. The Bill
The bill provides that:
a. If a petition for involuntary TPR is filed, the person filing the TPR
petition may also petition the juvenile 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.
b. The juvenile 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 bill specifies that the temporary order is in effect until a
hearing is held on the issuance of an injunction and that the hearing on the
issuance of an injunction must be held before or on the same day as the
initial hearing on the TPR petition.
c. The juvenile court may grant an injunction prohibiting the respondent
from visiting or contacting the child if the juvenile court determines that the
prohibition would be in the best interests of the child.
d. Such an injunction may not remain in effect beyond the date the juvenile
court either dismisses the TPR petition or issues an order terminating
parental rights.
ZD. Disclosure of Information to Certain Voluntary
Reporters of Child Abuse or Neglect
1. Current Law
Under current law, certain individuals, such as physicians, nurses, teachers
and social workers (mandatory reporters), must report to the county
department or to the sheriff or city, village or town police department cases
of children seen in the course of professional duties whom they suspect have
been abused or neglected or threatened with abuse or neglect. Any other
individual may, but is not required to, report suspected or threatened child
abuse or neglect and, if a report is made, is considered to be a voluntary
reporter. Currently, the county department or licensed child welfare agency
under contract with the county department investigating a report of
suspected or threatened child abuse or neglect must, within 60 days after
receipt of a report from a mandatory reporter, inform the mandatory reporter
of what action was taken to protect the health and welfare of the child who is
the subject of the report. Current law does not provide for disclosure of
information to voluntary reporters.
2. The Bill
The bill provides that:
a. Those voluntary reporters who are relatives of a child, as defined in s.
48.981 (1) (fm), stats., other than the child's parent, may request in writing
that a county department or a licensed child welfare agency under contract
with the county department disclose information to them regarding what
action was taken to protect the health and welfare of the child who is the
subject of the report.
b. A county department or a licensed child welfare agency that receives
such a request must, within 60 days after it receives the report or within 20
days after it receives the written request, whichever is later, inform such a
voluntary reporter in writing of: (1) what action, if any, was taken to protect
the health and welfare of the child, unless the county department or child
welfare agency has obtained a juvenile court order prohibiting such
disclosure; and (2) the duty to keep the information confidential and the
penalties for failing to do so.
