48.42(1m)(e)1.1. Except as provided in
subd. 2., the court shall issue a temporary order and injunction prohibiting a parent of a child from visitation or contact with the child if the 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 parent, and the conviction has not been reversed, set aside or vacated.
48.42(1m)(e)2.
2. Subdivision 1. does not apply if the court determines by clear and convincing evidence that the visitation or contact would be in the best interests of the child. The court shall consider the wishes of the child in making that determination.
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) Except as provided in
par. (bm), if the child is 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:
48.42(2)(b)1.
1. A person who has filed an unrevoked declaration of paternal interest under
s. 48.025 before the birth of the child or within 14 days after the birth of the child.
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)(bm)
(bm) If the child is a nonmarital child who is under one year of age at the time the petition is filed and who is not adopted or whose parents do not subsequently intermarry under
s. 767.803 and whose paternity has not been established and if an affidavit under
sub. (1g) (a) is filed with the petition:
48.42(2)(bm)1.
1. A person who has filed an unrevoked declaration of paternal interest under
s. 48.025 before the birth of the child, within 14 days after the birth of the child, or within 21 days after a notice under
sub. (1g) (b) is mailed, whichever is later.
48.42(2)(bm)2.
2. 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, legal custodian, and Indian 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 who shall be provided notice as required under
sub. (2g).
48.42(2)(e)
(e) To the child if the child is 12 years of age or older.
48.42(2g)(a)(a) In addition to causing the summons and petition to be served as required under
sub. (2), the petitioner shall also notify any foster parent or other physical custodian described in
s. 48.62 (2) of the child of all hearings on the petition. The first notice to any foster parent or other physical custodian described in
s. 48.62 (2) shall be written, shall have a copy of the petition attached to it, shall state the nature, location, date, and time of the initial hearing and shall be mailed to the last-known address of the foster parent or other physical custodian described in
s. 48.62 (2). Thereafter, notice of hearings may be given by telephone at least 72 hours before the time of the hearing. The person giving telephone notice shall place in the case file a signed statement of the time notice was given and the person to whom he or she spoke.
48.42(2g)(ag)
(ag) In the case of an involuntary termination of parental rights to a child whom the petitioner knows or has reason to know is an Indian child, the petitioner shall cause the summons and petition to be served on the Indian child's parent and Indian custodian in the manner specified in
s. 48.028 (4) (a). In like manner, the petitioner shall also notify the Indian child's tribe of all hearings on the petition. The first notice to an Indian child's tribe shall be written, shall have a copy of the petition attached to it, and shall state the nature, location, date, and time of the initial hearing. No hearing may be held on the petition until at least 10 days after receipt of notice of the hearing by the Indian child's parent, Indian custodian, and tribe or, if the identity or location of the Indian child's parent, Indian custodian, or tribe cannot be determined, until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the Indian child's parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for the hearing.
48.42(2g)(am)
(am) The court shall give a foster parent or other physical custodian described in
s. 48.62 (2) who is notified of a hearing under
par. (a) a right to be heard at the hearing by permitting the foster parent or other physical custodian to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, relevant to the issues to be determined at the hearing. A foster parent or other physical custodian described in
s. 48.62 (2) who receives a notice of a hearing under
par. (a) and a right to be heard under this paragraph 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.
48.42(2g)(b)
(b) Failure to give notice under
par. (a) to a foster parent or other physical custodian described in
s. 48.62 (2) does not deprive the court of jurisdiction in the proceeding. If a foster parent or other physical custodian described in
s. 48.62 (2) is not given notice of a hearing under
par. (a), that person may request a rehearing on the matter at any time prior to the entry of an order under
s. 48.427 (2) or
(3). If the request is made, the court shall order a rehearing.
48.42(2m)(a)(a)
Parent as a result of sexual assault. Except as provided in this paragraph, 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),
948.025, or
948.085 if a physician attests to his or her belief that a sexual assault as specified in this paragraph has occurred or if the person who may be the father of the child has been convicted of sexual assault as specified in this paragraph for conduct which may have led to the child's conception. A person who under this paragraph is not given notice does not have standing to appear and contest a petition for the termination of his parental rights, present evidence relevant to the issue of disposition, or make alternative dispositional recommendations. This paragraph 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(2m)(b)
(b)
Parent of nonmarital child. 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, by virtue of the fact that he has engaged in sexual intercourse with the mother of the child, is considered to be on notice that a pregnancy and a termination of parental rights proceeding concerning the child may occur, and has the duty to protect his own rights and interests. He is therefore entitled to actual notice of such a proceeding only as provided in
sub. (2) (b) or
(bm). A person who is not entitled to notice under
sub. (2) (b) or
(bm) does not have standing to appear and contest a petition for the termination of his parental rights, present evidence relevant to the issue of disposition, or make alternative dispositional recommendations.
48.42(3)
(3) Contents of summons. The summons shall:
48.42(3)(a)
(a) Contain the name and birth date or anticipated 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. Except as provided in this paragraph,
par. (b), and
sub. (2g) (ag), 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. 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)1m.
1m. If the child's custody was relinquished under
s. 48.195, service to the parents of the child may 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. 767.803 and paternity has not been acknowledged under
s. 767.805 or a substantially similar law of another state or 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 30 days after judgment is entered for the right to pursue such relief to be preserved.
48.42(5)
(5) Penalty. Any person who knowingly and willfully makes or causes to be made any false statement or representation of a material fact in the course of a proceeding under this section with an intent to deceive or mislead the court for the purpose of preventing a person who is entitled to receive notice of a proceeding under this section from receiving notice may be fined not more than $10,000 or imprisoned for not more than 9 months, or both. It is not a violation of this subsection for a person to refuse to make a statement or representation of material fact in the course of a proceeding under this section for the purpose of preventing a person who is entitled to receive notice of a proceeding under this section from receiving notice if, at the time of the refusal, the person stated that he or she feared that making such a statement or representation would place the person or another person at risk of domestic abuse, as defined in
s. 813.12 (1) (am), or abuse, as defined in
s. 813.122 (1) (a), and if the person proves that he or she refused to make such a statement or representation because of a recent overt act, attempt, or threat that caused him or her reasonably to believe that refusing to make such a statement or representation was the only means of preventing domestic abuse, as defined in
s. 813.12 (1) (am), or abuse, as defined in
s. 813.122 (1) (a), to himself or herself or to another.
48.42 History
History: 1973 c. 263;
1977 c. 354;
1979 c. 330;
1981 c. 81 s.
33;
1981 c. 391;
1983 a. 447;
1985 a. 94; Sup. Ct. Order, 136 Wis. 2d xxv (1987);
1987 a. 383;
1989 a. 86;
1993 a. 395,
446;
1995 a. 108,
225,
275,
352;
1997 a. 35,
80,
191,
237;
1999 a. 9,
83;
2005 a. 277,
293;
2005 a. 443 s.
265;
2007 a. 96,
97;
2009 a. 28,
79,
94;
2011 a. 257 s.
56.
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
Guardianship and TPR proceedings are custody proceedings, guardianship and TPR determinations are custody determinations, and guardianship and TPR determinations are custody decrees, all governed by ch. 822. In Interest of A.E.H.
161 Wis. 2d 277,
468 N.W.2d 190 (1991).
48.42 Annotation
Sub. (2m) denies a putative father standing to contest the alleged grounds for termination when the child was conceived as the result of sexual assault. Termination of Parental Rights to A. M.
176 Wis. 2d 673,
500 N.W.2d 649 (1993).
48.42 Annotation
Sub. (2) (d) requires consideration in each case of whether ch. 822 applies but does not require the application of ch. 822 to intrastate cases. In Interest of Brandon S.S.
179 Wis. 2d 114,
507 N.W.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 Wis. 2d 114,
507 N.W.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 Wis. 2d 395,
513 N.W.2d 669 (Ct. App. 1994).
48.422
48.422
Hearing on the petition. 48.422(1)
(1) Except as provided in
s. 48.42 (2g) (ag), 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) Except as provided in
s. 48.42 (2g) (ag), if the petition is contested the court shall set a date for a fact-finding hearing to be held within 45 days after 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) and
(2g) (ag). 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 file a report with the court as provided in
s. 48.425 (1), except that, if the child is an Indian child, the court may order the agency or request the tribal child welfare department of the Indian child's tribe to file that report.
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) (a) to
(p), 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
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
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).
