2005 Wisconsin Act 293

293,12 Section 12. 48.235 (5m) of the statutes is created to read:

48.235 (5m) Matters involving contested termination of parental rights proceedings. (a) In any termination of parental rights proceeding involving a child who has been found to be in need of protection or services and whose parent is contesting the termination of his or her parental rights, a guardian ad litem for a parent who has been appointed under sub. (1) (g) shall provide information to the court relating to the parent's competency to participate in the proceeding, and shall also provide assistance to the court and the parent's adversary counsel in protecting the parent's rights in the proceeding.

(b) The guardian ad litem may not participate in the proceeding as a party, and may not call witnesses, provide opening statements or closing arguments, or participate in any activity at trial that is required to be performed by the parent's adversary counsel.

293,13 Section 13 . 48.27 (3) (b) 1. a. of the statutes is amended to read:

48.27 (3) (b) 1. a. A person who has filed a declaration of paternal interest under s. 48.025.

293,14 Section 14 . 48.27 (5) of the statutes is amended to read:

48.27 (5) Subject to sub. (3) (b), the court shall make every reasonable effort to identify and notify any person who has filed a declaration of paternal interest under s. 48.025, any person who has acknowledged paternity of the child under s. 767.62 (1), and any person who has been adjudged to be the biological father of the child in a judicial proceeding unless the biological father's person's parental rights have been terminated.

293,15 Section 15. 48.295 (1) of the statutes is amended to read:

48.295 (1) After the filing of a petition and upon a finding by the court that reasonable cause exists to warrant an a physical, psychological, mental, or developmental examination or an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 48.547 (4), the court may order any child coming within its jurisdiction to be examined as an outpatient by personnel in an approved treatment facility for alcohol and other drug abuse, by a physician, psychiatrist or licensed psychologist, or by another expert appointed by the court holding at least a master's degree in social work or another related field of child development, in order that the child's physical, psychological, alcohol or other drug dependency, mental, or developmental condition may be considered. The court may also order an a physical, psychological, mental, or developmental examination or an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 48.547 (4) of a parent, guardian, or legal custodian whose ability to care for a child is at issue before the court or of an expectant mother whose ability to control her use of alcohol beverages, controlled substances, or controlled substance analogs is at issue before the court. The court shall hear any objections by the child, or the child's parents, guardian, or legal custodian to the request for such an examination or assessment before ordering the examination or assessment. The expenses of an examination, if approved by the court, shall be paid by the county of the court ordering the examination in a county having a population of less than 500,000 or by the department in a county having a population of 500,000 or more. The payment for an alcohol and other drug abuse assessment shall be in accordance with s. 48.361.

293,16 Section 16. 48.368 (1) of the statutes is amended to read:

48.368 Continuation of dispositional orders. (1) If a petition for termination of parental rights is filed under s. 48.41 or 48.415 or an appeal from a judgment terminating or denying termination of parental rights is filed during the year in which a dispositional order under s. 48.355 or, an extension order under s. 48.365, a voluntary agreement for placement of the child under s. 48.63, or a guardianship order under s. 48.977 or ch. 880 is in effect, the dispositional or extension order, voluntary agreement, or guardianship order shall remain in effect until all proceedings related to the filing of the petition or an appeal are concluded.

293,17 Section 17. 48.40 (1r) of the statutes is created to read:

48.40 (1r) "Parent" has the meaning given in s. 48.02 (13), except that for purposes of filing a petition seeking the involuntary termination of parental rights under s. 48.415 to a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60 and whose paternity has not been established, of finding grounds under s. 48.415 for the involuntary termination of parental rights to such a child, and of terminating the parental rights to such a child on a ground specified in s. 48.415, "parent" includes a person who may be the parent of such a child.

293,18 Section 18. 48.41 (2) (b) of the statutes is renumbered 48.41 (2) (b) (intro.) and amended to read:

48.41 (2) (b) (intro.) If the court finds that it would be difficult or impossible for the parent to appear in person at the hearing, the court may do any of the following:

1. Accept accept the written consent of the parent given before an embassy or consul official, a military judge, or a judge of any court of record in another county or state or a foreign jurisdiction. This written consent shall be accompanied by the signed findings of the embassy or consul official or judge who accepted the parent's consent. These findings shall recite that the embassy or consul official or judge or an attorney who represents any of the parties questioned the parent and found that the consent was informed and voluntary before the embassy or consul official or judge accepted the consent of the parent.

293,19 Section 19. 48.41 (2) (b) 2. of the statutes is created to read:

48.41 (2) (b) 2. On request of the parent, unless good cause to the contrary is shown, admit testimony on the record by telephone or live audiovisual means as prescribed in s. 807.13 (2).

293,20 Section 20. 48.415 (2) (a) 3. of the statutes is amended to read:

48.415 (2) (a) 3. That the child has been outside the home for a cumulative total period of 6 months or longer pursuant to such orders not including time spent outside the home as an unborn child; and that the parent has failed to meet the conditions established for the safe return of the child to the home and there is a substantial likelihood that the parent will not meet these conditions within the 12-month 9-month period following the fact-finding hearing under s. 48.424.

293,21 Section 21. 48.415 (6) (a) and (b) of the statutes are amended to read:

48.415 (6) (a) Failure to assume parental responsibility, which shall be established by proving that the parent or the person or persons who may be the parent of the child have never not had a substantial parental relationship with the child.

(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, 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.

293,22 Section 22. 48.415 (10) (a) of the statutes is amended to read:

48.415 (10) (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); or that the child who is the subject of the petition was born after the filing of a petition under this subsection whose subject is a sibling of the child.

293,23 Section 23. 48.415 (10) (b) of the statutes is amended to read:

48.415 (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) or, in the case of a child born after the filing of a petition as specified in par. (a), within 3 years prior to the date of birth of the child, 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.

293,24 Section 24. 48.42 (1) (a) of the statutes is amended to read:

48.42 (1) (a) The name, birth date or anticipated birth date, and address of the child.

293,25 Section 25 . 48.42 (1g) of the statutes is created to read:

48.42 (1g) Affidavit. (a) Except as provided in par. (c), if the petition is filed by a person or agency other than the district attorney, corporation counsel, or other appropriate official under s. 48.09; if the petition seeks to terminate the parental rights of a person who may be the father of a nonmarital child who is under one year of age at the time the petition is filed, who is not adopted or whose parents do not subsequently intermarry under s. 767.60, and whose paternity has not been established; and if the mother of the child has voluntarily consented to or seeks to voluntarily consent to the termination of her parental rights to the child, the petitioner may file with the petition an affidavit signed by the mother that includes all of the following:

1. A statement that the mother has voluntarily consented to or seeks to voluntarily consent to the termination of her parental rights to the child.

2. A statement acknowledging that the mother has been asked to identify the father of the child.

3. A statement that the mother knows and is identifying the father or that she does not know the identity of the father.

4. A statement identifying any man who has lived in a familial relationship with the child and who may be the father of the child.

5. If the mother states that she knows and is identifying the father under subd. 3. or 4., the father's name, age, and last-known mailing address, and the last-known mailing address of the father's employer.

6. If the mother states that she does not know the identity of the father, an explanation of why she is unable to identify him and a physical description of the father.

7. A statement that the mother has been informed and understands that if she misidentifies the father, she is permanently barred from attacking the termination of the father's or her parental rights on the basis that the father was not correctly identified.

8. A statement that the mother understands that she may be prosecuted under s. 946.32 (2) for false swearing if she makes a false statement that she does not believe is true in the affidavit under this paragraph.

9. A statement that the mother has reviewed and understands the affidavit, the name of the person who explained the affidavit and the consequences of signing the affidavit to her, and a statement that the mother is signing the affidavit voluntarily.

(b) The petitioner shall notify any man identified in the affidavit under par. (a) as an alleged father of his right to file a 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 the date on which the notice is mailed, whichever is later; of the birth date or anticipated birth date of the child; and of the consequences of filing or not filing a declaration of paternal interest. The petitioner shall include with the notice a copy of the form required to file a declaration of paternal interest under s. 48.025. The notice shall be sent by certified mail to the last-known address of the alleged father.

(c) If an affidavit under par. (a) is not filed with the petition, notice shall be given to an alleged father under sub. (2).

293,26 Section 26. 48.42 (2) (b) (intro.) of the statutes is amended to read:

48.42 (2) (b) (intro.) If 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. 767.60 and whose paternity has not been established:

293,27 Section 27. 48.42 (2) (b) 1. of the statutes is amended to read:

48.42 (2) (b) 1. A person who has filed a 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.

293,28 Section 28 . 48.42 (2) (bm) of the statutes is created to read:

48.42 (2) (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. 767.60 and whose paternity has not been established and if an affidavit under sub. (1g) (a) is filed with the petition:

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.

2. A person who has lived in a familial relationship with the child and who may be the father of the child.

293,29 Section 29. 48.42 (2m) of the statutes is renumbered 48.42 (2m) (a) and amended to read:

48.42 (2m) (a) Parent as a result of sexual assault. Except as provided in this subsection 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), or 948.025 if a physician attests to his or her belief that a sexual assault as specified in this subsection 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 subsection paragraph for conduct which may have led to the child's conception. A person who under this subsection 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 subsection 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.

293,30 Section 30 . 48.42 (2m) (b) of the statutes is created to read:

48.42 (2m) (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. 767.60 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.

293,31 Section 31. 48.42 (3) (a) of the statutes is amended to read:

48.42 (3) (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.

293,32 Section 32. 48.42 (4) (a) of the statutes is amended to read:

48.42 (4) (a) Personal service. A Except as provided in this paragraph and par. (b), 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. 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.

293,33 Section 33. 48.42 (4) (b) 1m. of the statutes is created to read:

48.42 (4) (b) 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.

293,34 Section 34. 48.42 (5) of the statutes is created to read:

48.42 (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.

293,35 Section 35 . 48.422 (6) (a) of the statutes is amended to read:

48.422 (6) (a) If the child is In the case of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60 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). If not, the court shall adjourn the hearing and order appropriate notice to be given.

293,36 Section 36 . 48.423 of the statutes is renumbered 48.423 (1) and amended to read:

48.423 (1) Rights to paternity determination. If a man who alleges that he is the father of the child person appears at the hearing and wishes to contest the termination of his parental rights claims that he is the father of the child, 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 person claiming to be the father of the child of any right to counsel under s. 48.23. The man person claiming to be the father of the child must prove paternity by clear and convincing evidence. A person who establishes his paternity of the child under this section may further participate in the termination of parental rights proceeding only if the person meets the conditions specified in sub. (2) or meets a condition specified in s. 48.42 (2) or (b) or (bm).

293,37 Section 37. 48.423 (2) of the statutes is created to read:

48.423 (2) Rights of out-of-state fathers. A person who may be the father of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60 and whose paternity has not been established may contest the petition, present evidence relevant to the issue of disposition, and make alternative dispositional recommendations if the person appears at the hearing, establishes paternity under sub. (1), and proves all of the following by a preponderance of the evidence:

(a) That the person resides and has resided in another state where the mother of the child resided or was located at the time of or after the conception of the child.

(b) That the mother left that state without notifying or informing that person that she could be located in this state.

(c) That the person attempted to locate the mother through every reasonable means, but did not know or have reason to know that the mother was residing or located in this state.

(d) That the person has complied with the requirements of the state where the mother previously resided or was located to protect and preserve his paternal interests in matters affecting the child.

293,38 Section 38. 48.43 (6) of the statutes is renumbered 48.43 (6) (a) and amended to read:

48.43 (6) (a) Judgments under this subchapter terminating parental rights are final and are appealable under s. 808.03 (1) according to the procedure specified in s. 809.107 and are subject to a petition for rehearing or a motion for relief only as provided in s. 48.46 (1m) and (2). The attorney representing a person during a proceeding under this subchapter shall continue representation of that person by filing a notice of intent to appeal under s. 809.107 (2), unless the attorney has been previously discharged during the proceeding by the person or by the trial court.

293,39 Section 39 . 48.43 (6) (b) and (c) of the statutes are created to read:

48.43 (6) (b) The mother of a child who completes an affidavit under s. 48.42 (1g) may not collaterally attack a judgment terminating parental rights on the basis that the father of the child was not correctly identified.

(c) In no event may any person, for any reason, collaterally attack a judgment terminating parental rights more than one year after the date on which the time limit for filing an appeal from the judgment has expired, or more than one year after the date on which all appeals from the judgment, if any were filed, have been decided, whichever is later.

293,40 Section 40. 48.43 (6m) of the statutes is created to read:

48.43 (6m) If a person whose parental rights are terminated is present in court when the court grants the order terminating those rights, the court shall provide written notification to the person of the time limits for appeal of the judgment. The person shall sign the written notification, indicating that he or she has been notified of the time limits for filing an appeal under ss. 808.04 (7m) and 809.107. The person's counsel shall file a copy of the signed, written notification with the court on the date on which the judgment is granted.

293,41 Section 41 . 48.48 (17) (bm) of the statutes is created to read:

48.48 (17) (bm) As soon as practicable after learning that a person who is receiving child welfare services under par. (a) from the department has changed his or her county of residence, the department shall provide notice of that change to the county department of the person's new county of residence. The notice shall include a brief, written description of the services offered or provided to the person by the department and the name, telephone number, and address of a person to contact for more information.

293,42 Section 42 . 48.57 (2m) of the statutes is created to read:

48.57 (2m) A county department, as soon as practicable after learning that a person who is receiving child welfare services under sub. (1) from the county department has changed his or her county of residence, shall provide notice of that change to the county department of the person's new county of residence or, if that new county of residence is a county having a population of 500,000 or more, the department. The notice shall include a brief, written description of the services offered or provided to the person by the county department and the name, telephone number, and address of a person to contact for more information.

293,43 Section 43. 48.64 (4) (c) of the statutes is amended to read:

48.64 (4) (c) The circuit court for the county where the child is placed dispositional order placing a child in a foster home, treatment foster home, or group home was entered or the voluntary agreement under s. 48.63 so placing a child was made has jurisdiction upon petition of any interested party over a child who is placed in a foster home, treatment foster home, or group home. The circuit court may call a hearing, at which the head of the home and the supervising agency under sub. (2) shall be present, for the purpose of reviewing any decision or order of that agency involving the placement and care of the child. If the child has been placed in a foster home, the foster parent may present relevant evidence at the hearing. The court shall determine the case so as to promote The petitioner has the burden of proving by clear and convincing evidence that the decision or order issued by the agency is not in the best interests of the child.

293,44 Section 44. 48.72 of the statutes is amended to read:

48.72 Appeal procedure. Except as provided in s. 48.715 (6) and (7), any person aggrieved by the department's refusal or failure to issue, renew, or continue a license or by any action taken by the department under s. 48.715 has the right to an administrative hearing provided for contested cases in ch. 227. To receive an administrative hearing under ch. 227, the aggrieved person shall send to the department a written request for a hearing under s. 227.44 within 10 days after the date of the department's refusal or failure to issue, renew, or continue a license or the department's action taken under s. 48.715. The department shall hold an administrative hearing under s. 227.44 within 30 days after receipt of the request for the administrative hearing unless the aggrieved person consents to an extension of that time period. Judicial review of the department's decision may be had by any party in the contested case as provided in ch. 227.

293,45 Section 45 . 48.78 (2) (a) of the statutes is amended to read:

48.78 (2) (a) No agency may make available for inspection or disclose the contents of any record kept or information received about an individual in its care or legal custody, except as provided under s. 48.371, 48.38 (5) (b) or (d) or (5m) (d), 48.432, 48.433, 48.48 (17) (bm), 48.57 (2m), 48.93, 48.981 (7), 938.51, or 938.78 or by order of the court.