48.40 Annotation
Parents whose rights have been terminated do not inherit from a child; his brothers and sisters (whether parental rights as to them have been terminated or not) are his heirs. Estate of Pamanet, 46 W (2d) 514, 175 NW (2d) 234.
48.40 Annotation
Terminating parental rights. Hayes and Ogorchok. Wis. Law. June 1989.
48.41
48.41
Voluntary consent to termination of parental rights. 48.41(1)(1) The court may terminate the parental rights of a parent after the parent has given his or her consent as specified in this section. When such voluntary consent is given as provided in this section, the judge may proceed immediately to a disposition of the matter after considering the standard and factors specified in
s. 48.426.
48.41(2)
(2) The court may accept a voluntary consent to termination of parental rights only as follows:
48.41(2)(a)
(a) The parent appears personally at the hearing and gives his or her consent to the termination of his or her parental rights. The judge may accept the consent only after the judge has explained the effect of termination of parental rights and has questioned the parent, or has permitted an attorney who represents any of the parties to question the parent, and is satisfied that the consent is informed and voluntary; or
48.41(2)(b)
(b) If the court finds that it would be difficult or impossible for the parent to appear in person at the hearing, the court may 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.
48.41(2)(c)
(c) A person who may be, but who has not been adjudicated as, the father of a nonmarital child may consent to the termination of any parental rights that he may have as provided in
par. (a) or
(b) or by signing a written, notarized statement which recites that he has been informed of and understands the effect of an order to terminate parental rights and that he voluntarily disclaims any rights that he may have to the child, including the right to notice of proceedings under this subchapter.
48.41(2)(d)
(d) If the proceeding to terminate parental rights is held prior to an adoption proceeding in which the petitioner is the child's stepparent, or in which the child's birth parent is a resident of a foreign jurisdiction, the child's birth parent may consent to the termination of any parental rights that he or she may have as provided in
par. (a) or
(b) or by filing with the court an affidavit witnessed by 2 persons stating that he or she has been informed of and understands the effect of an order to terminate parental rights and that he or she voluntarily disclaims all rights to the child, including the right to notice of proceedings under this subchapter.
48.41(3)
(3) If in any proceeding to terminate parental rights voluntarily a guardian ad litem has reason to doubt the capacity of a parent to give informed and voluntary consent to the termination, he or she shall so inform the court. The court shall then inquire into the capacity of that parent in any appropriate way and shall make a finding as to whether or not the parent is capable of giving informed and voluntary consent to the termination. If the court finds that the parent is incapable of knowingly and voluntarily consenting to the termination of parental rights, it shall dismiss the proceedings without prejudice. That dismissal shall not preclude an involuntary termination of the parent's rights under
s. 48.415.
48.41 History
History: 1979 c. 330;
1981 c. 384;
1983 a. 352,
447;
1987 a. 383; Sup. Ct. Order, 151 W (2d) xxv (1989).
48.41 Note
Judicial Council Note, 1990: Sub. (3) is repealed and recreated because the so-called substituted judgment permitted therein is bad public policy. New sub. (3) deals with the situation in which there is reason to doubt the competency of a parent who wishes to consent to the termination of his or her parental rights. Any party or guardian ad litem with reason to doubt such competency is required to so inform the court. The court must then make an inquiry in whatever way is appropriate. This may mean a simple discussion with the person, an examination, the appointment of experts to examine the person, a hearing or whatever seems proper in the discretion of the court. If the court finds the person incapable of making an informed and voluntary termination of parental rights, the court must dismiss the proceeding. If appropriate, an involuntary proceeding may then be commenced. A finding that the parent is competent does not obviate the need for a record that he or she has in fact given informed and voluntary consent prior to entry of a termination order. In Interest of D.L.S.,
112 Wis. 2d 180, 196-97 (1983). [Re Order effective Jan. 1, 1990]
48.41 Annotation
Circuit court record did not support finding that minor parent's consent was voluntary and informed. Minimum information which must be determined on the record set forth. In Interest of D. L. S. 112 W (2d) 180, 332 NW (2d) 293 (1983).
48.415
48.415
Grounds for involuntary termination of parental rights. At the fact-finding hearing the court or jury may make a finding that grounds exist for the termination of parental rights. Grounds for termination of parental rights shall be one of the following:
48.415(1)(a)(a) Abandonment, which, subject to
par. (c), shall be established by proving that:
48.415(1)(a)1.
1. The child has been left without provision for its care or support, the petitioner has investigated the circumstances surrounding the matter and for 60 days the petitioner has been unable to find either parent;
48.415(1)(a)1m.
1m. The child has been left by the parent without provision for the child's care or support in a place or manner that exposes the child to substantial risk of great bodily harm, as defined in
s. 939.22 (14), or death;
48.415(1)(a)2.
2. The child has been placed, or continued in a placement, outside the parent's home by a court order containing the notice required by
s. 48.356 (2) or
938.356 (2) and the parent has failed to visit or communicate with the child for a period of 3 months or longer; or
48.415(1)(a)3.
3. The child has been left by the parent with any person, the parent knows or could discover the whereabouts of the child and the parent has failed to visit or communicate with the child for a period of 6 months or longer.
48.415(1)(b)
(b) Incidental contact between parent and child shall not preclude the court from finding that the parent has failed to visit or communicate with the child under
par. (a) 2. or
3. The time periods under
par. (a) 2. or
3. shall not include any periods during which the parent has been prohibited by judicial order from visiting or communicating with the child.
48.415(1)(c)
(c) Abandonment is not established under
par. (a) 2. or
3. if the parent proves all of the following by a preponderance of the evidence:
48.415(1)(c)1.
1. That the parent had good cause for having failed to visit with the child throughout the time period specified in
par. (a) 2. or
3., whichever is applicable.
48.415(1)(c)2.
2. That the parent had good cause for having failed to communicate with the child throughout the time period specified in
par. (a) 2. or
3., whichever is applicable.
48.415(1)(c)3.
3. If the parent proves good cause under
subd. 2., including good cause based on evidence that the child's age or condition would have rendered any communication with the child meaningless, that one of the following occurred:
48.415(1)(c)3.a.
a. The parent communicated about the child with the person or persons who had physical custody of the child during the time period specified in
par. (a) 2. or
3., whichever is applicable, or, if
par. (a) 2. is applicable, with the agency responsible for the care of the child during the time period specified in
par. (a) 2.
48.415(1)(c)3.b.
b. The parent had good cause for having failed to communicate about the child with the person or persons who had physical custody of the child or the agency responsible for the care of the child throughout the time period specified in
par. (a) 2. or
3., whichever is applicable.
48.415(2)
(2) Continuing need of protection or services. Continuing need of protection or services, which shall be established by proving all of the following:
48.415(2)(b)1.1. 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.
48.415(2)(b)2.
2. That the agency responsible for the care of the child and the family has made a diligent effort to provide the services ordered by the court.
48.415(2)(c)
(c) 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.
48.415(3)
(3) Continuing parental disability. Continuing parental disability, which shall be established by proving that:
48.415(3)(a)
(a) The parent is presently, and for a cumulative total period of at least 2 years within the 5 years immediately prior to the filing of the petition has been, an inpatient at one or more hospitals as defined in
s. 50.33 (2) (a),
(b) or
(c), licensed treatment facilities as defined in
s. 51.01 (2) or state treatment facilities as defined in
s. 51.01 (15) on account of mental illness as defined in
s. 51.01 (13) (a) or
(b) or developmental disability as defined in
s. 55.01 (2) or
(5);
48.415(3)(b)
(b) The condition of the parent is likely to continue indefinitely; and
48.415(3)(c)
(c) The child is not being provided with adequate care by a relative who has legal custody of the child, or by a parent or a guardian.
48.415(4)
(4) Continuing denial of periods of physical placement or visitation. Continuing denial of periods of physical placement or visitation, which shall be established by proving all of the following:
48.415(4)(b)
(b) That at least 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.
48.415(5)
(5) Child abuse. Child abuse, which shall be established by 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 proving either of the following:
48.415(5)(a)
(a) That the parent has caused death or injury to a child or children resulting in a felony conviction.
48.415(5)(b)
(b) That a child has previously been removed from the parent's home pursuant to a court order under
s. 48.345 after an adjudication that the child is in need of protection or services under
s. 48.13 (3) or
(3m).
48.415(6)
(6) Failure to assume parental responsibility. 48.415(6)(a)(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 had a substantial parental relationship with the child.
48.415(6)(b)
(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.
48.415(7)
(7) Incestuous parenthood. Incestuous parenthood, which shall be established by 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.
48.415(8)
(8) Intentional or reckless homicide of parent. Intentional or reckless homicide of a parent, which shall be established by proving that a parent of the child has been a victim of first-degree intentional homicide in violation of
s. 940.01, 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.
48.415(9)
(9) Parenthood as a result of sexual assault. 48.415(9)(a)(a) Parenthood as a result of sexual assault, which shall be established by 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 [final] 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.
48.415 Note
NOTE: The first bracketed "final" was incorrectly inserted by
1995 Wis. Act 275. The second bracketed "final" is shown in the correct location. Corrective legislation is pending.
48.415(9)(b)
(b) If the conviction or other evidence specified in
par. (a) indicates that the child was conceived as a result of a sexual assault in violation of
s. 948.02 (1) or
(2), the mother of the child may be heard on her desire for the termination of the father's parental rights.
48.415(9m)
(9m) Commission of a serious felony against one of the person's children. 48.415(9m)(a)(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.
48.415(9m)(b)
(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.
48.415(10)
(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:
48.415(10)(a)
(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).
48.415(10)(b)
(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.
48.415 Note
NOTE: Section 48.415 (intro.) and (1) to (8), as renumbered under s. 13.93 (1) (b), are shown as affected by 2 acts of the 1995 legislature and as merged under s. 13.93 (2) (c). Subsection (1) (title) as created by
1995 Wis. Act 225 is rendered surplusage by the renumbering.
48.415 Annotation
Consent by the mother subsequent to the birth of the child to termination of her parental rights in its best interests so that the child might be placed for adoption constituted an abandonment, and although she was permitted to withdraw that consent by a previous decision of the supreme court, the best interests of the child require modification of the county court order to effect a termination of her parental rights. State ex rel. Lewis v. Lutheran Social Services, 68 W (2d) 36, 227 NW (2d) 643.
48.415 Annotation
Termination order under s. 48.40 (2), 1975 stats., was not supported by sufficient findings where findings merely repeated statutory language and made no determination of best interests of child. Termination of Parental Rights to T. R. M. 100 W (2d) 681, 303 NW (2d) 581 (1981).
48.415 Annotation
Parent had constitutionally protected rights to care, custody and management of child. In Interest of J. L. W. 102 W (2d) 118, 306 NW (2d) 46 (1981).
48.415 Annotation
Statutory provisions under which court may terminate all rights of parents to minor were not, as applied to parent convicted of second-degree murder, void for vagueness. Termination of Parental Rights to A. M. K. 105 W (2d) 91, 312 NW (2d) 840 (Ct. App. 1981).
48.415 Annotation
Sub. (6) (a) 2 does not unconstitutionally discriminate against fathers. Mere fact that unwed father was jailed since 5th month of pregnancy did not preclude termination of parental rights. In Interest of Baby Girl K. 113 W (2d) 429, 335 NW (2d) 846 (1983).
48.415 Annotation
Dismissal of termination proceedings on grounds of abandonment because only 2 of 6 dispositional orders contained statutory warnings overturned. Warning is only required on one order. In Interest of K.K. 162 W (2d) 431, 469 NW (2d) 881 (Ct. App. 1991).
48.415 Annotation
One-year abandonment period under (1) (a) 3 need not immediately precede filing of the petition; where abandonment is found termination is still discretionary. In Interest of T.P.S. 168 W (2d) 259, 483 NW (2d) 591 (Ct. App. 1992).
48.415 Annotation
While CHIPS judge must notify the parents of possible termination grounds in the written dispositional order and repeat that information orally to any parent present in court, proof that such oral notice was given is not required in later termination proceedings under sub. (2) (a). In Interest of D.P. 170 W (2d) 313, 488 NW (2d) 133 (Ct. App. 1992).
48.415 Annotation
A child "left with" another person under sub. (1) (a) 3. may have been actively placed with the other person by the parent or allowed to live with the other person with the parent's knowledge. Interest of Christopher D. 191 W (2d) 681, 530 NW (2d) 34 (Ct. App. 1995).
48.415 Annotation
"Disassociated" under sub. (1) (c) is not unconstitutionally vague. Disassociation means more than "failure to visit or communicate" under sub. (1) (a). Interest of Christopher D. 191 W (2d) 681, 530 NW (2d) 34 (Ct. App. 1995).
48.415 Annotation
The respondent in a TPR case has the right to meaningfully participate; whether physical presence is required must be determined on a case by case basis. Telephone participation was found adequate. Interest of Christopher D. 191 W (2d) 681, 530 NW (2d) 34 (Ct. App. 1995).
48.415 Annotation
A showing of abandonment under sub. (1) (a) 3. creates a rebuttable presumption which imposes on the parent the burden of disproving abandonment under sub. (1) (c) by showing by a preponderance of the evidence that the parent has not disassociated himself or herself from the child. Odd S.-G v. Carolyn S.-G, 194 W (2d) 366, 533 NW (2d) 794 (1995).
48.415 Annotation
Termination under sub. (8) due to a murder occurring prior to the adoption of sub. (8) did not violate the prohibition against ex post facto laws and did not violate due process, equal protection or double jeopardy protections. Winnebago County DSS v. Darrell A. 194 W (2d) 628, 534 NW (2d) 907 (Ct. App. 1995).
48.415 Annotation
It was a denial of due process to terminate parental rights on grounds substantially different from those which the parent was warned of under s. 48.356. State v. Patricia A.P. 195 W (2d) 855, 537 NW (2d) 47 (Ct. App. 1995).
48.415 Annotation
Sub. (5) does not require an assessment of present and future behavior. The statute refers to past behavior which was a threat to the child's welfare. Jerry M. v. Dennis L. M. 198 W (2d) 10, 542 NW (2d) 162 (Ct. App. 1995).
48.415 Annotation
For all terminations under sub. (5) there must be a showing that the parent has exhibited a pattern of abusive behavior and a showing under par. (a) or (b). A "conviction" under par. (a) is a conviction after the appeal as of right has been exhausted. Monroe County v. Jennifer V. 200 W (2d) 678, 548 NW (2d) 837 (Ct.. App. 1996).
48.415 Annotation
Process is constitutionally due natural parent at state-initiated parental rights termination proceeding; three-factor test discussed. Santosky v. Kramer, 455 US 745 (1982).
48.415 Annotation
Unwed father who failed to register with New York putative father registry had no constitutional right to notice of adoption proceedings. Lehr v. Robertson, 463 US 248 (1983).
48.415 Annotation
Adoption and termination proceedings in Wisconsin: Straining the wisdom of Solomon. Hayes and Morse, 66 MLR 439 (1983).
48.42(1)(1)
Petition. A proceeding for the termination of parental rights shall be initiated by petition which may be filed by the child's parent, an agency or a person authorized to file a petition under
s. 48.25 or
48.835. The petition shall be entitled "In the interest of .......... (child's name), a person under the age of 18" and shall set forth with specificity:
48.42(1)(a)
(a) The name, birth date and address of the child;
48.42(1)(b)
(b) The names and addresses of the child's parent or parents, guardian and legal custodian;
48.42(1)(c)1.1. A statement that consent will be given to termination of parental rights as provided in
s. 48.41; or
48.42(1)(c)2.
2. A statement of the grounds for involuntary termination of parental rights under
s. 48.415 and a statement of the facts and circumstances which the petitioner alleges establish these grounds.
