SB501: Bill Text

Provides that abandonment is not established under s. 48.415 (1) (a) 2. or 3., stats., if the parent proves by a preponderance of the evidence that he or she:

1. Had good cause for having failed to visit with the child throughout the time period specified in s. 48.415 (1) (a) 2. or 3., stats., whichever is applicable.

2. Had good cause for having failed to communicate with the child throughout the time period specified in s. 48.415 (1) (a) 2. or 3., stats., whichever is applicable.

3. If the parent proves good cause for having failed to communicate with the child, including good cause based on evidence that the child's age or condition would have rendered any communication with the child meaningless, that the parent either:

(a) Communicated about the child with the person or persons who had physical custody of the child during the time period specified in s. 48.415 (1) (a) 2. or 3., stats., whichever is applicable, or, if s. 48.415 (1) (a) 2., stats., is applicable, with the agency responsible for the care of the child during the time period specified in s. 48.415 (1) (a) 2., stats.

(b) Had good cause for having failed to communicate about the child with such person or persons or agency.

SB501, s. 75 Section 75. 48.415 (2) (intro.) of the statutes is amended to read:

SB501,68,10 48.415 (2) Continuing need of protection or services. (intro.) Continuing need of protection or services may, which shall be established by a showing of proving all of the following:

Note: Amends current law with respect to continuing need of protection or services as a ground for involuntary TPR to require that continuing need of protection or services be established by proving the elements specified in s. 48.415 (2), stats.

SB501, s. 76 Section 76. 48.415 (2) (b) of the statutes is renumbered 48.415 (2) (b) 2.

SB501, s. 77 Section 77. 48.415 (2) (b) 1. of the statutes is created to read:

SB501,69,2 48.415 (2) (b) 1. In this paragraph, "diligent effort" means an earnest and conscientious effort to take good faith steps to provide the services ordered by the court which takes into consideration the characteristics of the parent or child, the level of cooperation of the parent and other relevant circumstances of the case.

Note: Defines "diligent effort" for purposes of the requirement that there be proof that the agency responsible for the care of the child and the family has made a "diligent effort" to provide court-ordered services in order to establish continuing need of protection or services as a ground for involuntary TPR.

SB501, s. 78 Section 78. 48.415 (2) (c) of the statutes is amended to read:

SB501,69,12 48.415 (2) (c) That the child has been outside the home for a cumulative total period of one year or longer pursuant to such orders or, if the child had not attained the age of 3 years at the time of the initial order placing the child outside of the home, that the child has been outside the home for a cumulative total period of 6 months or longer pursuant to such orders; and that the parent has failed to demonstrate substantial progress toward meeting the conditions established for the return of the child to the home and there is a substantial likelihood that the parent will not meet these conditions within the 12-month period following the fact-finding hearing under s. 48.424.

Note: Amends the ground for involuntary TPR based on continuing need of protection or services for a child who is 3 years of age or over at the time of the initial juvenile court order placing the child outside the home by reducing the period of time that such a child must spend in a court-ordered out-of-home placement from one year to 6 months, thus providing for uniform application of the 6-month provision to all children.

SB501, s. 79 Section 79. 48.415 (3) (intro.) of the statutes is amended to read:

SB501,69,15 48.415 (3) Continuing parental disability. (intro.) Continuing parental disability may, which shall be established by a showing proving that:

Note: Amends current law with respect to continuing parental disability as a ground for involuntary TPR to require that continuing parental disability be established by proving the elements specified in s. 48.415 (3), stats.

SB501, s. 80 Section 80. 48.415 (4) of the statutes is amended to read:

SB501,70,3 48.415 (4) (title) Continuing denial of periods of physical placement or visitation. Continuing denial of periods of physical placement may or visitation, which shall be established by a showing that proving all of the following:

SB501,70,7 (a) The That the parent has been denied periods of physical placement by court order in an action affecting the family; and or has been denied visitation under an order under s. 48.345, 48.357, 48.363, 48.365, 938.345, 938.357, 938.363 or 938.365 containing the notice required by s. 48.356 (2) or 938.356 (2).

SB501,70,10 (b) At That at least 1 one year has elapsed since the order denying periods of physical placement or visitation was issued and the court has not subsequently modified its order so as to permit periods of physical placement or visitation.

Note: Amends current law with respect to continuing denial of periods of physical placement as a ground for involuntary TPR to require that continuing denial of periods of physical placement be established by proving the elements specified in s. 48.415 (4), stats.

Expands the ground for involuntary TPR based on continuing denial of periods of physical placement to also provide for periods in which a juvenile court has denied visitation under an order under s. 48.345 or 938.345, stats. (CHIPS dispositional order), 48.357 or 938.357, stats. (change in placement order), 48.363 or 938.363, stats. (revision of dispositional order), or 48.365 or 938.365, stats. (extension of dispositional order), if the order contained the notice required by s. 48.356 (2), stats., that is, a warning about continuing denial of visitation as a ground for involuntary TPR and the conditions necessary for the parent to be granted visitation.

SB501, s. 81 Section 81. 48.415 (5) (intro.) and (b) of the statutes are amended to read:

SB501,70,15 48.415 (5) Child abuse. (intro.) Child abuse may, which shall be established by a showing proving that the parent has exhibited a pattern of physically or sexually abusive behavior which is a substantial threat to the health of the child who is the subject of the petition and a showing of proving either of the following:

SB501,71,2 (b) That, on more than one occasion, a child has previously been removed from the parent's home by the pursuant to a court order under s. 48.345 after an adjudication that the child is in need of protection or services and a finding by the court that sexual or physical abuse was inflicted by the parent under s. 48.13 (3) or (3m).

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).

SB501, s. 82 Section 82. 48.415 (6) (a) (intro.) and 1. of the statutes are consolidated, renumbered 48.415 (6) (a) and amended to read:

SB501,71,13 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 parent or person or persons who may be the parent of the child have never had a substantial parental relationship with the child; or.

SB501, s. 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.

SB501, s. 84 Section 84. 48.415 (6) (b) of the statutes is amended to read:

SB501,72,11 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.

SB501, s. 85 Section 85. 48.415 (7) of the statutes is amended to read:

SB501,72,16 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.

SB501, s. 86 Section 86. 48.415 (8) of the statutes is amended to read:

SB501,73,4 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.

Note: Adds first-degree reckless homicide by the parent of the child's other parent as a ground for involuntary TPR. Also amends current law to provide that intentional or reckless homicide of a parent as a ground for involuntary TPR be established by proving the elements specified in s. 48.415 (8), stats.

SB501, s. 87 Section 87. 48.415 (9) (a) of the statutes, as created by 1995 Wisconsin Act 108, is amended to read:

SB501,73,14 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 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.

Note: Amends current law with respect to parenthood as a result of sexual assault as a grounds for involuntary TPR to require that parenthood as a result of sexual assault be established by proving the elements specified in s. 48.415 (9), stats.

SB501, s. 88 Section 88. 48.415 (9m) of the statutes is created to read:

SB501,73,21 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.

SB501,74,5 (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.

Note: Adds a ground for involuntary TPR based on commission of a serious felony against one of the person's children which must be established by proving that the person whose parental rights are sought to be terminated has been convicted of a serious felony and that one of the person's children was the victim of that serious felony. These serious felonies are as follows: s. 940.01, stats., (first-degree intentional homicide), 940.02, stats., (first-degree reckless homicide), 940.03, stats., (felony murder), 940.05, stats., (2nd-degree intentional homicide), 940.225 (1), stats., (first-degree sexual assault), 940.225 (2), stats., (2nd-degree sexual assault), 948.02 (1), stats., (first-degree sexual assault of a child--child under age 13), 948.02 (2), stats., (2nd-degree sexual assault of a child--child under age 16), 948.025, stats., (engaging in repeated sexual assault of the same child), 948.03 (2) (a), stats., (intentionally causing great bodily harm to a child) or (3) (a), stats., (recklessly causing great bodily harm to a child), 948.05, stats., (sexual exploitation of a child, including a person responsible for the child's welfare knowingly permitting, allowing or encouraging a child to engage in sexually exploitative conduct), 948.06, stats., (incest with a child, including, under certain circumstances, a person responsible for the child's welfare failing to take action to prevent incest) or 948.08, stats., (soliciting a child for prostitution) or s. 948.21, stats., if death is the consequence (intentionally neglecting a child), or a similar crime under federal law or the laws of any other state. In addition to applying when the person commits a serious felony against one of the person's children other than the child who is the subject of the petition, this ground also applies in those cases in which the child who is the subject of the petition was the victim of such a crime and survives.

SB501, s. 89 Section 89. 48.415 (10) of the statutes is created to read:

SB501,74,9 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:

SB501,74,11 (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).

SB501,75,2 (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.

SB501, s. 90 Section 90. 48.42 (1m) (title) and (a) of the statutes are created to read:

SB501,75,11 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.

SB501, s. 91 Section 91. 48.42 (1m) (b) of the statutes is created to read:

SB501,75,18 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.

SB501, s. 92 Section 92. 48.42 (1m) (c) of the statutes is created to read:

SB501,76,7 48.42 (1m) (c) 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).

Note: Provides that the juvenile court may grant an injunction if prohibiting visitation or contact would be in the best interests of the child. Provides that the injunction may not remain in effect beyond the date the juvenile court's decision is made with respect to the TPR petition.

SB501, s. 93 Section 93. 48.42 (3) (d) of the statutes is amended to read:

SB501,76,12 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.

SB501, s. 94 Section 94. 48.42 (4) (c) 3. of the statutes is amended to read:

SB501,76,16 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.

SB501, s. 95 Section 95. 48.425 (1) (f) of the statutes is amended to read:

SB501,77,7 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.

SB501, s. 96 Section 96. 48.425 (1) (g) of the statutes is amended to read:

SB501,77,15 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.

SB501, s. 97 Section 97. 48.427 (1m) of the statutes is created to read:

SB501,78,5 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.

SB501, s. 98 Section 98. 48.427 (3) (intro.) of the statutes is renumbered 48.427 (3) and amended to read:

SB501,78,9 48.427 (3) The court may enter an order terminating the parental rights of one or both parents.

SB501,78,11 (3m) If the rights of both parents or of the only living parent are terminated and if a guardian has not been appointed under s. 48.977, the court shall either:

SB501, s. 99 Section 99. 48.427 (3p) of the statutes is created to read: