48.415 Annotation
While CHIPS judge must notify the parents of possible termination grounds in the written dispositional order and repeat that information orally to any parent present in court, proof that such oral notice was given is not required in later termination proceedings under sub. (2) (a). In Interest of D.P. 170 W (2d) 313, 488 NW (2d) 133 (Ct. App. 1992).
48.415 Annotation
A child "left with" another person under sub. (1) (a) 3. may have been actively placed with the other person by the parent or allowed to live with the other person with the parent's knowledge. Interest of Christopher D. 191 W (2d) 681, 530 NW (2d) 34 (Ct. App. 1995).
48.415 Annotation
"Disassociated" under sub. (1) (c) is not unconstitutionally vague. Disassociation means more than "failure to visit or communicate" under sub. (1) (a). Interest of Christopher D. 191 W (2d) 681, 530 NW (2d) 34 (Ct. App. 1995).
48.415 Annotation
The respondent in a TPR case has the right to meaningfully participate; whether physical presence is required must be determined on a case by case basis. Telephone participation was found adequate. Interest of Christopher D. 191 W (2d) 681, 530 NW (2d) 34 (Ct. App. 1995).
48.415 Annotation
A showing of abandonment under sub. (1) (a) 3. creates a rebuttable presumption which imposes on the parent the burden of disproving abandonment under sub. (1) (c) by showing by a preponderance of the evidence that the parent has not disassociated himself or herself from the child. Odd S.-G v. Carolyn S.-G, 194 W (2d) 366, 533 NW (2d) 794 (1995).
48.415 Annotation
Termination under sub. (8) due to a murder occurring prior to the adoption of sub. (8) did not violate the prohibition against ex post facto laws and did not violate due process, equal protection or double jeopardy protections. Winnebago County DSS v. Darrell A. 194 W (2d) 628, 534 NW (2d) 907 (Ct. App. 1995).
48.415 Annotation
It was a denial of due process to terminate parental rights on grounds substantially different from those which the parent was warned of under s. 48.356. State v. Patricia A.P. 195 W (2d) 855, 537 NW (2d) 47 (Ct. App. 1995).
48.415 Annotation
Sub. (5) does not require an assessment of present and future behavior. The statute refers to past behavior which was a threat to the child's welfare. Jerry M. v. Dennis L. M. 198 W (2d) 10, 542 NW (2d) 162 (Ct. App. 1995).
48.415 Annotation
For all terminations under sub. (5) there must be a showing that the parent has exhibited a pattern of abusive behavior and a showing under par. (a) or (b). A "conviction" under par. (a) is a conviction after the appeal as of right has been exhausted. Monroe County v. Jennifer V. 200 W (2d) 678, 548 NW (2d) 837 (Ct.. App. 1996).
48.415 Annotation
Process is constitutionally due natural parent at state-initiated parental rights termination proceeding; three-factor test discussed. Santosky v. Kramer, 455 US 745 (1982).
48.415 Annotation
Unwed father who failed to register with New York putative father registry had no constitutional right to notice of adoption proceedings. Lehr v. Robertson, 463 US 248 (1983).
48.415 Annotation
Adoption and termination proceedings in Wisconsin: Straining the wisdom of Solomon. Hayes and Morse, 66 MLR 439 (1983).
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 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; or
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(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) 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 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(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) If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under
s. 767.60 and paternity has not been established:
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)(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.
48.42(2)(e)
(e) To the child if the child is 12 years of age or older.
48.42(2m)
(2m) Notice not required. Except as provided in this subsection, 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) or
948.025 if a physician attests to his or her belief that a sexual assault as specified in this subsection has occurred or if the person who may be the father of the child has been convicted of sexual assault as specified in this subsection for conduct which may have led to the child's conception. A person who under this subsection is not given notice does not have standing to appear and contest a petition for the termination of his parental rights. This subsection 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(3)
(3) Contents of summons. The summons shall:
48.42(3)(a)
(a) Contain the name and 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. 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, except that 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)2.
2. If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under
s. 767.60 and paternity has not been adjudicated, the court may, as provided in
s. 48.422 (6) (b), order publication of a notice under
subd. 4.
48.42(4)(b)3.
3. At the time the petition is filed, the petitioner may move the court for an order waiving the requirement of constructive notice to a person who, although his identity is unknown, may be the father of a nonmarital child.
48.42(4)(b)4.
4. A notice published under this subsection shall be published as a class 1 notice under
ch. 985. In determining which newspaper is likely to give notice as required under
s. 985.02 (1), the petitioner or court shall consider the residence of the party, if known, or the residence of the relatives of the party, if known, or the last-known location of the party. If the party's post-office address is known or can, with due diligence, be ascertained, a copy of the summons and petition shall be mailed to the party upon or immediately prior to the first publication. The mailing may be omitted if the petitioner shows that the post-office address cannot be obtained with due diligence. Except as provided in
subd. 5., the notice shall include the date, place and circuit court branch for the hearing, the court file number, the name, address and telephone number of the petitioner's attorney and information the court determines to be necessary to give effective notice to the party or parties. Such information shall include the following, if known:
48.42(4)(b)4.a.
a. The name of the party or parties to whom notice is being given;
48.42(4)(b)4.d.
d. The approximate date and place of conception of the child; and
48.42(4)(b)5.
5. The notice shall not include the name of the mother unless the mother consents. The notice shall not include the name of the child unless the court finds that inclusion of the child's name is essential to give effective notice to the father.
48.42(4)(c)1.
1. That the parental rights of a parent or alleged parent who fails to appear may be terminated;
48.42(4)(c)2.
2. Of the party's right to have an attorney present and that if a person desires to contest termination of parental rights and believes that he or she cannot afford an attorney, the person may ask the state public defender to represent him or her; and
48.42(4)(c)3.
3. 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 [15] 30 days after judgment is entered for the right to pursue such relief to be preserved.
48.42 Note
NOTE: Subd. 3. is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed language was inserted by
1995 Wis. Act 225 to correspond with sub. (3) (d). The treatment of this provision by
1995 Wis. Act 275 rendered the bracketed language superfluous.
Effective date note
Judicial Council Note, 1986: Subs. (3) (d) and (4) (c) are amended to require notice to the parties of the time and manner for initiating an appeal from a judgment terminating parental rights. [Re Order eff. 7-1-87]
48.42 Annotation
See notes to 822.03 citing In Interest of A.E.H, 161 W (2d) 277, 468 NW (2d) 190.
48.42 Annotation
Sub. (2m) denies a putative father standing to contest the alleged grounds for termination where the child was conceived as the result of sexual assault. Termination of Parental Rights to A. M. 176 W (2d) 673, 500 NW (2d) 649 (1993).
48.42 Annotation
Sub. (2) (d) requires consideration in each case whether ch. 822 applies, but does not require the application of ch. 822 to intrastate cases. In Interest of Brandon S.S. 179 W (2d) 114, 507 NW (2d) 94 (1993).
48.42 Annotation
Sub. (2) is the exclusive statute for determining what parties may be summoned; intervention under s. 803.09 does not apply. In Interest of Brandon S.S. 179 W (2d) 114, 507 NW (2d) 94 (1993).
48.42 Annotation
Sexual assault under sub. (2m) does not include a violation of s. 948.09, sexual intercourse with a child age 16 or older. Paternity of Michael A.T. 182 W (2d) 395, 513 NW (2d) 669 (Ct. App. 1994).
48.422
48.422
Hearing on the petition. 48.422(1)
(1) The hearing on the petition to terminate parental rights shall be held within 30 days after the petition is filed. At the hearing on the petition to terminate parental rights the court shall determine whether any party wishes to contest the petition and inform the parties of their rights under
sub. (4) and
s. 48.423.
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) If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under
s. 767.60 and paternity has not been established, 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)(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
Court erred by failing to inform parents of right to jury trial or to representation by counsel. In re Termination of Parental Rights to M. A. M. 116 W (2d) 432, 342 NW (2d) 410 (1984).
48.422 Annotation
Concurrent TPR/adoption proceedings under 48.835 are subject to requirement under 48.422 that initial hearing be held within 30 days of filing petition. In re J.L.F. 168 W (2d) 634, 484 NW (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 W (2d) 887, 512 NW (2d) 227 (Ct. App. 1994).
48.422 Annotation
See note to Art. I, sec. 1, citing Lassiter v. Dept. of Social Services, 452 US 18 (1981).
48.423
48.423
Rights of persons alleging paternity. If a man who alleges that he is the father of the child appears at the hearing and wishes to contest the termination of his parental rights, 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 man claiming to be the father of the child of any right to counsel under
s. 48.23. The man claiming to be the father of the child must prove paternity by clear and convincing evidence.
48.423 History
History: 1979 c. 330.
