SB727: Bill Text

SB727,36 Section 36. 48.42 (2) (intro.) of the statutes is amended to read:

SB727,15,6 48.42 (2) Who must be summoned. (intro.) Except as provided in sub. (2m), the petitioner or movant shall cause the summons and petition or motion to terminate parental rights to be served upon the following persons:

SB727,37 Section 37. 48.42 (2) (bm) (intro.) of the statutes is amended to read:

SB727,15,12 48.42 (2) (bm) (intro.) If the child is a nonmarital child who is under one year of age at the time the petition or motion to terminate parental rights 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 or motion to terminate parental rights:

SB727,38 Section 38. 48.42 (2g) (a) of the statutes is amended to read:

SB727,15,25 48.42 (2g) (a) In addition to causing the summons and petition or motion to terminate parental rights to be served as required under sub. (2), the petitioner or movant 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 or motion. 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 or motion 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.

SB727,39 Section 39. 48.42 (2g) (ag) of the statutes is amended to read:

SB727,16,16 48.42 (2g) (ag) In the case of an involuntary termination of parental rights to a child whom the petitioner or movant knows or has reason to know is an Indian child, the petitioner or movant shall cause the summons and petition or motion 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 or movant shall also notify the Indian child's tribe of all hearings on the petition or motion. The first notice to an Indian child's tribe shall be written, shall have a copy of the petition or motion attached to it, and shall state the nature, location, date, and time of the initial hearing. No hearing may be held on the petition or motion 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.

SB727,40 Section 40. 48.42 (2m) of the statutes is amended to read:

SB727,17,6 48.42 (2m) Notice not required. (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 or motion 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.

SB727,17,17 (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 or motion for the termination of his parental rights, present evidence relevant to the issue of disposition, or make alternative dispositional recommendations.

SB727,41 Section 41. 48.42 (4) (title) of the statutes is amended to read:

SB727,17,20 48.42 (4) (title) Manner of serving summons and petition or motion to terminate parental rights.

SB727,42 Section 42. 48.42 (4) (a) of the statutes is amended to read:

SB727,18,3 48.42 (4) (a) Personal service. Except as provided in this paragraph, par. (b), and sub. (2g) (ag), a copy of the summons and petition or motion to terminate parental rights 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.

SB727,43 Section 43. 48.42 (4) (b) 3. of the statutes is amended to read:

SB727,18,8 48.42 (4) (b) 3. At the time the petition or motion to terminate parental rights is filed, the petitioner or movant 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.

SB727,44 Section 44. 48.42 (4) (b) 4. (intro.) of the statutes is amended to read:

SB727,18,23 48.42 (4) (b) 4. (intro.) 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, movant, 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 or motion to terminate parental rights shall be mailed to the party upon or immediately prior to the first publication. The mailing may be omitted if the petitioner or movant 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 or movant'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:

SB727,45 Section 45. 48.422 (title) of the statutes is amended to read:

SB727,19,2 48.422 (title) Hearing on the petition or motion to terminate parental rights.

SB727,46 Section 46. 48.422 (1) of the statutes is amended to read:

SB727,19,8 48.422 (1) Except as provided in s. 48.42 (2g) (ag), the hearing on the petition or motion to terminate parental rights shall be held within 30 days after the petition or motion is filed. At the hearing on the petition or motion to terminate parental rights the court shall determine whether any party wishes to contest the petition or motion and inform the parties of their rights under sub. (4) and s. 48.423.

SB727,47 Section 47. 48.422 (2) of the statutes is amended to read:

SB727,19,14 48.422 (2) Except as provided in s. 48.42 (2g) (ag), if the petition or motion to terminate parental rights 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 or motion, unless all of the necessary parties agree to commence with the hearing on the merits immediately.

SB727,48 Section 48. 48.422 (3) of the statutes is amended to read:

SB727,19,18 48.422 (3) If the petition or motion to terminate parental rights is not contested the court shall hear testimony in support of the allegations in the petition or motion, including testimony as required in sub. (7).

SB727,49 Section 49. 48.422 (4) of the statutes is amended to read:

SB727,19,23 48.422 (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 or motion to terminate parental rights.

SB727,50 Section 50. 48.422 (6) (b) of the statutes is amended to read:

SB727,20,10 48.422 (6) (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 or movant 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.

SB727,51 Section 51. 48.422 (7) (intro.) of the statutes is amended to read:

SB727,20,13 48.422 (7) (intro.) Before accepting an admission of the alleged facts in a petition or motion to terminate parental rights, the court shall:

SB727,52 Section 52. 48.422 (7) (a) of the statutes is amended to read:

SB727,20,17 48.422 (7) (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 or motion to terminate parental rights and the potential dispositions.

SB727,53 Section 53. 48.422 (7) (bm) of the statutes is amended to read:

SB727,21,11 48.422 (7) (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 or movant 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 motion to terminate parental rights 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 or motion was filed with a petition for adoptive placement under s. 48.837 (2).

SB727,54 Section 54. 48.422 (7) (br) of the statutes is amended to read:

SB727,21,16 48.422 (7) (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 or motion to terminate parental rights.

SB727,55 Section 55. 48.422 (8) of the statutes is amended to read:

SB727,21,22 48.422 (8) If the petition or motion 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.

SB727,56 Section 56. 48.422 (9) (a) of the statutes is amended to read:

SB727,22,3 48.422 (9) (a) If a petition or motion 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).

SB727,57 Section 57. 48.423 (2) (intro.) of the statutes is amended to read:

SB727,22,11 48.423 (2) Rights of out-of-state fathers. (intro.) 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 may contest the petition or motion to terminate parental rights, 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:

SB727,58 Section 58. 48.424 (1) (intro.) of the statutes is amended to read:

SB727,22,15 48.424 (1) (intro.) The purpose of the fact-finding hearing is to determine in cases in which the petition or motion was contested at the hearing on the petition or motion to terminate parental rights under s. 48.422 all of the following:

SB727,59 Section 59. 48.424 (4) (intro.) of the statutes is amended to read:

SB727,22,24 48.424 (4) (intro.) If grounds for the termination of parental rights are found by the court or jury, the court shall find the parent unfit. A finding of unfitness shall not preclude a dismissal of a petition or motion to terminate parental rights under s. 48.427 (2). Except as provided in s. 48.23 (2) (b) 3., the court shall then proceed immediately to hear evidence and motions related to the dispositions enumerated in s. 48.427. Except as provided in s. 48.42 (2g) (ag), the court may delay making the disposition and set a date for a dispositional hearing no later than 45 days after the fact-finding hearing if any of the following apply:

SB727,60 Section 60. 48.424 (4) (b) of the statutes is amended to read:

SB727,23,6 48.424 (4) (b) The court has not yet received a report to the court on the history of the child as provided in s. 48.425 and the court now orders an agency enumerated in s. 48.069 (1) or (2) to file that report with the court, or, in the case of an Indian child, now orders that agency or requests the tribal child welfare department of the Indian child's tribe to file such a report, before the court makes the disposition on the petition or motion to terminate parental rights.

SB727,61 Section 61. 48.425 (1) (am) 2. of the statutes is amended to read:

SB727,23,10 48.425 (1) (am) 2. A report of any medical examination which either birth parent had within one year before the date of the petition or motion to terminate parental rights.

SB727,62 Section 62. 48.425 (1) (cm) of the statutes is amended to read:

SB727,23,19 48.425 (1) (cm) If the petition or motion is seeking the involuntary termination of parental rights to an Indian child, specific information showing that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child under s. 48.028 (4) (e) 1. and, if the Indian child has previously been adjudged to be in need of protection or services, specific information showing that active efforts under s. 48.028 (4) (e) 2. have been made to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful.

SB727,63 Section 63. 48.425 (1m) of the statutes is amended to read:

SB727,23,23 48.425 (1m) The agency required under sub. (1) to file the report shall prepare the medical record within 60 days after the date of the petition or motion for the termination of parental rights.

SB727,64 Section 64. 48.425 (3) of the statutes is amended to read:

SB727,24,3 48.425 (3) The court may order a report as specified under this section to be prepared by an agency in those cases where the petition or motion to terminate parental rights is filed by someone other than an agency.

SB727,65 Section 65. 48.427 (2) of the statutes is amended to read:

SB727,24,7 48.427 (2) The court may dismiss the petition or motion to terminate parental rights if it finds that the evidence does not warrant the termination of parental rights.

SB727,66 Section 66. 48.43 (1) (intro.) of the statutes is amended to read:

SB727,24,14 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 or motion to terminate parental rights 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), the order shall contain all of the following:

SB727,67 Section 67. 48.46 (2) of the statutes is amended to read:

SB727,25,6 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 or motion initiating the proceeding in which his or her parental rights were terminated termination of parental rights proceeding 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 for relief shall be filed within 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 (7m), in which case the motion for relief shall be filed within the time permitted by s. 809.107 (5). A motion for relief under this subsection does not affect the finality or suspend the operation of the judgment or order terminating parental rights. A parent who has consented to the termination of his or her parental rights to an Indian child under s. 48.41 (2) (e) may also move for relief from the judgment under s. 48.028 (5) (c) or (6). Motions A motion for relief under this subsection or s. 48.028 (5) (c) or (6) 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.

SB727,68 Section 68. 48.46 (3) of the statutes is amended to read:

SB727,25,13 48.46 (3) An adoptive parent who has been granted adoption of a child under s. 48.91 (3) may not petition the court for a rehearing under sub. (1) or move the court under s. 806.07 for relief from the order granting adoption. A petition or motion for termination of parental rights under s. 48.42 and an appeal to the court of appeals shall be the exclusive remedies for an adoptive parent who wishes to end his or her parental relationship with his or her adopted child.

SB727,69 Section 69. 48.83 (1) of the statutes is amended to read:

SB727,25,25 48.83 (1) Except as provided in s. 48.028 (3) (b), the court of the county where the proposed adoptive parent or child resides or the court of the county where a petition or motion for termination of parental rights to the child was filed or granted under subch. VIII, upon the filing with that court of a petition for adoption or for the adoptive placement of a child, has jurisdiction over the child until the petition for adoption is withdrawn, denied, or granted. Venue in a proceeding for adoption or adoptive placement of a child shall be in the county where the proposed adoptive parent or child resides at the time the petition for adoption is filed or in the county where a petition or motion for termination of parental rights to the child was filed or granted under subch. VIII. The court may transfer the case to a court in the county in which the proposed adoptive parents reside.

SB727,70 Section 70. 48.835 (3) (title) of the statutes is amended to read:

SB727,26,3 48.835 (3) (title) Petition or motion for termination of parental rights required; exception.

SB727,71 Section 71. 48.835 (3) (a) of the statutes is amended to read:

SB727,26,8 48.835 (3) (a) If the child's parent has not filed a petition or motion for the termination of parental rights under s. 48.42, the relative with whom the child is placed shall file a petition for the termination of the parents' rights at the same time the petition for adoption is filed, except as provided under par. (b).

SB727,72 Section 72. 48.837 (3) of the statutes is amended to read:

SB727,26,13 48.837 (3) Petition or motion for termination of parental rights required. The petition under sub. (2) shall be filed with a petition or motion under s. 48.42 for the voluntary consent to the termination of any existing rights of the petitioning parent or parents.

SB727,73 Section 73. 48.837 (4) (e) of the statutes is amended to read:

SB727,26,25 48.837 (4) (e) Shall, before hearing the petitions petition under subs. sub. (2) and petition or motion under sub. (3), ascertain whether the paternity of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803 has been acknowledged under s. 767.805 or a substantially similar law of another state or adjudicated in this state or another jurisdiction. If the child's paternity has not been acknowledged or adjudicated, the court shall attempt to ascertain the paternity of the child and shall determine the rights of any person who may be the father of the child as provided under s. 48.423. The court may not proceed with the hearing on the petitions or motion under this section unless the parental rights of the nonpetitioning parent, whether known or unknown, have been terminated.

SB727,74 Section 74. 48.837 (5) of the statutes is amended to read:

SB727,27,9 48.837 (5) Attendance at hearing. The child, if he or she is 12 years of age or over, and each petitioner shall attend the hearing on the petition under sub. (2). The child, if he or she is 12 years of age or over, and each parent having custody of the child shall attend the hearing on the petition or motion under sub. (3). If the parent who has custody of the child consents and the court approves, the proposed adoptive parents may be present at the hearing on the petition or motion under sub. (3). The court may, for good cause, waive the requirement that the child attend either of the hearings.

SB727,75 Section 75. 48.837 (6) (a) of the statutes is amended to read:

SB727,27,12 48.837 (6) (a) The court shall hold the hearing on the petition under sub. (2) before the hearing on the petition or motion required under sub. (3).

SB727,76 Section 76. 48.837 (6) (b) of the statutes is amended to read:

SB727,28,2 48.837 (6) (b) At the beginning of the hearing held under sub. (2), the court shall review the report that is submitted under s. 48.913 (6). The court shall determine whether any payments or the conditions specified in any agreement to make payments are coercive to the birth parent of the child or to an alleged or 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 petitions petition under subs. sub. (2) and petition or motion under sub. (3) 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 under sub. (2) and may refer the matter to the district attorney for prosecution under s. 948.24 (1).

SB727,77 Section 77. 48.837 (6) (br) of the statutes is amended to read:

SB727,28,8 48.837 (6) (br) At the hearing on the petition under sub. (2), the court shall determine whether any person has coerced a birth parent or any alleged or presumed father of the child in violation of sub. (1r) (e). Upon a finding of coercion, the court shall dismiss the petitions petition under subs. sub. (2) and the petition or motion under sub. (3).

SB727,78 Section 78. 48.837 (6) (d) of the statutes is amended to read:

SB727,28,19 48.837 (6) (d) If the proposed placement is approved, the court shall proceed immediately to a hearing on the petition or motion required under sub. (3). If the parental rights of the parent are terminated, the court shall appoint as guardian of the child the department, a county department under s. 48.57 (1) (e) or (hm), or a child welfare agency licensed to accept guardianship under s. 48.61 (5). If the child has not been placed with the proposed adoptive parent or parents under sub. (1r) or (4) (d), the court shall order the child to be placed with the proposed adoptive parent or parents. If the child has been placed with the proposed adoptive parent or parents under sub. (1r) or (4) (d), the court shall order the child to be maintained in that placement.

SB727,79 Section 79. Initial applicability.

SB727,28,23 (1) This act first applies to a motion to terminate parental rights filed in a proceeding for which a petition is filed under s. 48.25 on the effective date of this subsection.