1995 Wisconsin Act 275

Note: 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: (1) the parent has been convicted of a felony for causing death or injury to any child; or (2) any child has previously been removed from the home pursuant to a juvenile court order under s. 48.345, stats., (CHIPS dispositional order) after the child was adjudicated CHIPS under s. 48.13 (3), stats., (victim of physical injury or specified sex crimes) or s. 48.13 (3m), stats., (substantial risk of becoming the victim of physical injury or specified sex crimes based on information that another child in the home has been the victim of such abuse).

275,82m Section 82m. 48.415 (6) (a) (intro.) and 1. of the statutes are consolidated, renumbered 48.415 (6) (a) and amended to read:

48.415 (6) (a) Failure to assume parental responsibility may, which shall be established by a showing proving that a child is a nonmarital child who has not been adopted or whose parents have not subsequently intermarried under s. 767.60, that paternity was not adjudicated prior to the filing of the petition for termination of parental rights and: 1. The the parent or the person or persons who may be the father parent of the child have been given notice under s. 48.42 but have failed to appear or otherwise submit to the jurisdiction of the court and that such person or persons have never had a substantial parental relationship with the child; or.

275,83 Section 83 . 48.415 (6) (a) 2. of the statutes is repealed.

Note: 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: (1) 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 court and have never had a substantial parental relationship with the child; or (2) 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 although the father had reason to believe he was the father of the child and has not assumed parental responsibility for the child.

This bill expands this ground for involuntary TPR to include: (1) mothers as well as fathers; (2) marital children as well as nonmarital children; and (3) fathers for whom paternity was adjudicated prior to the filing of the TPR petition.

275,84 Section 84 . 48.415 (6) (b) of the statutes is amended to read:

48.415 (6) (b) In this subsection, “substantial parental relationship" means the acceptance and exercise of significant responsibility for the daily supervision, education, protection and care of the child. In evaluating whether the person has had a substantial parental relationship with the child, the court may consider such factors, including, but not limited to, whether the person has ever expressed concern for or interest in the support, care or well-being of the child or the mother during her pregnancy and, whether the person has neglected or refused to provide care or support for the child and whether, with respect to a person who is or may be the father of the child, the person has ever expressed concern for or interest in the support, care or well-being of the mother during her pregnancy.

Note: Reflects the amendment of s. 48.415 (6) (a), stats., adding provision for mothers.

275,85 Section 85 . 48.415 (7) of the statutes is amended to read:

48.415 (7) Incestuous parenthood. Incestuous parenthood may, which shall be established by a showing proving that the person whose parental rights are sought to be terminated is also related, either by blood or adoption, to the child's other parent in a degree of kinship closer than 2nd cousin.

Note: Amends current law with respect to incestuous parenthood as a ground for involuntary TPR to require that incestuous parenthood be established by proving the elements specified in s. 48.415 (7), stats.

275,86 Section 86 . 48.415 (8) of the statutes is amended to read:

48.415 (8) (title) Intentional or reckless homicide of parent. Intentional or reckless homicide of a parent may, which shall be established by a showing proving that a parent of the child has been a victim of first-degree intentional homicide in violation of s. 940.01 or of , first-degree reckless homicide in violation of s. 940.02 or 2nd-degree intentional homicide in violation of s. 940.05 and that the person whose parental rights are sought to be terminated has been convicted of that intentional or reckless homicide as evidenced by a final judgment of conviction.

275,87 Section 87 . 48.415 (9) (a) of the statutes, as created by 1995 Wisconsin Act 108, is amended to read:

48.415 (9) (a) Parenthood as a result of sexual assault may, which shall be established by a showing proving that the child was 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. Conception final as a result of sexual assault as specified in this paragraph may be proved by a judgment of conviction or other evidence produced at a fact-finding hearing under s. 48.424 indicating that the person who may be the father of the child committed, during a possible time of conception, a sexual assault as specified in this paragraph against the mother of the child.

275,88 Section 88 . 48.415 (9m) of the statutes is created to read:

48.415 (9m) Commission of a serious felony against one of the person's children. (a) Commission of a serious felony against one of the person's children, which shall be established by proving that a child of the person whose parental rights are sought to be terminated was the victim of a serious felony and that the person whose parental rights are sought to be terminated has been convicted of that serious felony as evidenced by a final judgment of conviction.

(b) In this subsection, “serious felony" means any felony under s. 940.01, 940.02, 940.03, 940.05, 940.225 (1) or (2), 948.02 (1) or (2), 948.025, 948.03 (2) (a) or (3) (a), 948.05, 948.06 or 948.08 or under s. 948.21 if death is a consequence or a crime under federal law or the law of any other state that is comparable to a crime specified in this paragraph.

275,89 Section 89 . 48.415 (10) of the statutes is created to read:

48.415 (10) Prior involuntary termination of parental rights to another child. Prior involuntary termination of parental rights to another child, which shall be established by proving all of the following:

(a) That the child who is the subject of the petition has been adjudged to be in need of protection or services under s. 48.13 (2), (3) or (10).

(b) That, within 3 years prior to the date the court adjudged the child who is the subject of the petition to be in need of protection or services as specified in par. (a), a court has ordered the termination of parental rights with respect to another child of the person whose parental rights are sought to be terminated on one or more of the grounds specified in this section.

Note: Adds a ground for involuntary TPR based on the involuntary TPR of another child when the following conditions are met:

1. The child who is the subject of the petition has been adjudicated CHIPS under s. 48.13 (2), stats., (abandonment), (3), stats., (sexual or physical abuse) or (10), stats., (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); and

2. Within the 3 years prior to the date the child was adjudicated CHIPS, a juvenile court has ordered the involuntary TPR of another of the person's children.

275,90 Section 90 . 48.42 (1m) (title) and (a) of the statutes are created to read:

48.42 (1m) (title) Visitation or contact rights. (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.

Note: Allows a person petitioning for involuntary TPR to also petition for a temporary order and injunction prohibiting visitation or contact with the child who is the subject of the TPR petition.

275,91 Section 91 . 48.42 (1m) (b) of the statutes is created to read:

48.42 (1m) (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).

Note: Provides that a juvenile court may issue a temporary order prohibiting visitation or contact ex parte. Provides that a hearing on the issuance of an injunction must be held on or before the day of the initial hearing on the TPR petition.

275,92 Section 92 . 48.42 (1m) (c) of the statutes is created to read:

48.42 (1m) (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).

275,93 Section 93 . 48.42 (3) (d) of the statutes is amended to read:

48.42 (3) (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 15 30 days after the judgment is entered for the right to pursue such relief to be preserved.

Note: Reflects the treatment of s. 808.04 (7m), stats., by this bill.

275,94 Section 94 . 48.42 (4) (c) 3. of the statutes is amended to read:

48.42 (4) (c) 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 40 30 days after judgment is entered for the right to pursue such relief to be preserved.

Note: Provides that the notice given to the parties in a TPR case must notify the person that if the juvenile court terminates parental rights, a notice of intent to pursue relief from the judgment must be filed within 30 days after the date judgment is entered, rather than 40 days. This amendment makes s. 48.42 (4) (c) 3., stats., consistent with ss. 48.42 (3) (d), stats., and 808.04 (7m), stats., as amended by this bill.

275,95 Section 95 . 48.425 (1) (f) of the statutes is amended to read:

48.425 (1) (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 (3) (3m) (a) 1.to 4. and include a presentation of the factors which might prevent adoption, those which would facilitate it, and the agency which would be responsible for accomplishing the adoption.

Note: Revises a reference to s. 48.427 (3), stats., in current law to reflect the renumbering in that subsection by this bill.

275,96 Section 96 . 48.425 (1) (g) of the statutes is amended to read:

48.425 (1) (g) If an agency designated under s. 48.427 (3) (3m) (a) 1. to 4. 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, including. The plan shall include a recommendation as to the agency to be named guardian of the child or 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.

Note: Amends s. 48.425 (1) (g), stats., relating to the contents of a juvenile court report required to be filed by an agency when a TPR petition is filed [or when the juvenile court orders a report under s. 48.424 (4) (b), stats.], to do all of the following:

1. Revise a reference to s. 48.427 (3), stats., in current law to reflect the renumbering in that subsection by this bill.

2. Specify that if an agency designated by the court in a TPR disposition under s. 48.427 (3m) (a) 1. to 4., stats., (as affected by the bill) 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 plan for placing the child in a permanent family setting [a required part of the report if such a determination is made] must include either of the following:

a. A recommendation as to the agency to be named guardian of the child [current law].

b. A recommendation that the person appointed as the guardian of the child under new s. 48.977 (2), stats., as created by this bill, continue to be the guardian of the child.

275,97 Section 97 . 48.427 (1m) of the statutes is created to read:

48.427 (1m) In addition to any evidence presented under sub. (1), the court shall permit the foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) of the child to make a written or oral statement during the fact-finding or dispositional hearing or to submit a written statement prior to disposition, relevant to the issue of disposition.

Note: Revises s. 48.427, stats., relating to dispositions in TPR proceedings, to require the juvenile court to permit the foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2), stats., of the child to make a written or oral statement during the fact-finding or dispositional hearing, or to submit a written statement prior to disposition, relevant to the issue of disposition.

275,98 Section 98 . 48.427 (3) (intro.) of the statutes is renumbered 48.427 (3) and amended to read:

48.427 (3) The court may enter an order terminating the parental rights of one or both parents.

(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 either:

275,99 Section 99 . 48.427 (3p) of the statutes is created to read:

48.427 (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). If the court enters an order under this subsection, the court shall terminate the guardianship under s. 48.977.

275,99d Section 99d. 48.427 (4) of the statutes is amended to read:

48.427 (4) The court may enter an order terminating the parental If the rights of one or both parents and are terminated under sub. (3), the court may enter an order placing the child in sustaining care under s. 48.428.

275,99g Section 99g. 48.427 (6) (intro.) of the statutes is amended to read:

48.427 (6) (intro.) If an order is entered under sub. (3) or (4), the court shall:

275,99m Section 99m. 48.427 (7) of the statutes is created to read:

48.427 (7) (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).

(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).

275,100 Section 100 . 48.428 (2) of the statutes is renumbered 48.428 (2) (a) and amended to read:

48.428 (2) (a) When 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 or a licensed child welfare agency, transfer guardianship of the child to an agency listed in s. 48.427 (3) (3m) (a) 1. to 4. and place the child in the home of a licensed foster parent or licensed treatment foster parent with whom the child has resided for 6 months or longer. Pursuant to such a placement, this licensed foster parent or licensed treatment foster parent shall be a sustaining parent with the powers and duties specified in sub. (3).

275,101 Section 101 . 48.428 (2) (b) of the statutes is created to read:

48.428 (2) (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 or a licensed child welfare agency, transfer guardianship of the child to an agency listed in s. 48.427 (3m) (a) 1. to 4. and place the child in the home of a licensed foster parent or licensed treatment foster parent with whom the child has resided for 6 months or longer. Pursuant to such a placement, that licensed foster parent or licensed treatment foster parent 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., the court shall terminate the guardianship under s. 48.977.

275,101m Section 101m. 48.43 (1) (intro.) of the statutes is amended to read:

48.43 (1) (intro.) 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) or (4), the order shall contain all of the following:

275,102 Section 102 . 48.43 (1) (a) of the statutes is amended to read:

48.43 (1) (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.

Note: Revises s. 48.43 (1) (a), stats., relating to a required item in the contents of an order for TPR, to specify that the order must contain the identity of any agency or individual that has received guardianship of the child or will receive guardianship or custody of the child upon TPR. Current law only refers to “will receive" and does not refer to an agency or individual that has already received guardianship of the child, such as a guardian under s. 48.977 (2), stats., as created by this bill.

275,103 Section 103 . 48.43 (4) of the statutes is amended to read:

48.43 (4) A certified copy of the order terminating parental rights shall be furnished by the court to the agency given guardianship for placement for adoption of the child or to the person or agency given custodianship or guardianship for placement of the child in sustaining care and to the person appointed as the guardian of the child under s. 48.977 (2). The court shall, upon request, furnish a certified copy of the child's birth certificate and a transcript of the testimony in the termination of parental rights hearing to the same person or agency.

Note: Revises s. 48.43 (4), stats., relating to the requirement that the juvenile court furnish a certified copy of the TPR order to certain persons and entities, to include the person appointed as the guardian of the child under s. 48.977 (2), stats., as created by this bill, as one of those persons required to be furnished with a certified copy of the order.

275,104 Section 104 . 48.43 (5) (b) of the statutes is amended to read:

48.43 (5) (b) The court shall hold a hearing to review the permanency plan within 30 days after receiving a report under par. (a). At least 10 days before the date of the hearing, the court shall provide notice of the time, date and purpose of the hearing to the agency that prepared the report, the child's guardian, the child, if he or she is 12 years of age or over, and the child's foster parent, the child's treatment foster parent, other physical custodian described in s. 48.62 (2) or the operator of the facility in which the child is living.

Note: Revises s. 48.43 (5) (b), stats., relating to the hearing to review a child's permanency plan subsequent to a TPR, to require that notice of the time, date and purpose of the hearing be given to any other physical custodian described in s. 48.62 (2), stats., of the child. Current law requires notice to be given to the child's foster parent, treatment foster parent, or the operator of the facility in which the child is living, but does not refer to any other physical custodian described in s. 48.62 (2), stats.

275,105 Section 105 . 48.43 (5) (c) of the statutes is amended to read:

48.43 (5) (c) Following the hearing, the court shall make all of the determinations specified under s. 48.38 (5) (c), except the determinations relating to the child's parents. The court may amend the order under sub. (1) to transfer the child's guardianship and custody to any agency specified under s. 48.427 (3) (3m) (a) 1. to 4. which consents to the transfer, if the court determines that the transfer is in the child's best interest. If an order is amended, the agency that prepared the permanency plan shall revise the plan to conform to the order and shall file a copy of the revised plan with the court. Each plan filed under this paragraph shall be made a part of the court order.

Note: Revises a reference to s. 48.427 (3), stats., in current law to reflect the renumbering in that subsection by this bill.

275,106 Section 106 . 48.46 (2) of the statutes is amended to read:

48.46 (2) A parent who has consented to the termination of his or her parental rights under s. 48.41 or who did not contest the petition initiating the proceeding in which his or her parental rights were terminated may move the court for relief from the judgment on any of the grounds specified in s. 806.07 (1) (a), (b), (c), (d) or (f). Any such motion shall be filed within 40 30 days after the entry of the judgment or order terminating parental rights, unless the parent files a timely notice of intent to pursue relief from the judgment under s. 808.04 (7) (7m), in which case the motion shall be filed within the time permitted by s. 809.30 (2) (h) 809.107 (5). A motion under this subsection does not affect the finality or suspend the operation of the judgment or order terminating parental rights. Motions under this subsection and appeals to the court of appeals shall be the exclusive remedies for such a parent to obtain a new hearing in a termination of parental rights proceeding.

275,107 Section 107 . 48.62 (2) of the statutes is amended to read:

48.62 (2) A relative as defined in s. 48.02 (15) or as specified in s. 49.19 (1) (a) or a guardian of a child, who provides care and maintenance for a child, is not required to obtain the license specified in this section. The department, county department or licensed child welfare agency as provided in s. 48.75 may issue a license to operate a foster home or a treatment foster home to a relative who has no duty of support under s. 49.90 (1) (a) and who requests a license to operate a foster home or treatment foster home for a specific child who is either placed by court order or who is the subject of a voluntary placement agreement under s. 48.63. The department, a county department or a licensed child welfare agency may, at the request of a guardian appointed under s. 48.977 or ch. 880, license the guardian's home as a foster home or treatment foster home for the guardian's minor ward who is living in the home and who is placed in the home by court order. Relatives with no duty of support and guardians appointed under s. 48.977 or ch. 880 who are licensed to operate foster homes or treatment foster homes are subject to the department's licensing rules.

Note: Current s. 48.62 (2), stats., relating to licensing of foster homes, specifies all of the following, in pertinent part:

1. That the department of health and social services (DHSS), a county department of human services or social services (county department) or a licensed child welfare agency may, at the request of a guardian appointed under ch. 880, stats., license the guardian's home as a foster home or treatment foster home for the guardian's minor ward who is living in the home and who is placed in the home by an order of the juvenile court.