48.38(5)(c)1.
1. The continuing necessity for and the safety and appropriateness of the placement.
48.38(5)(c)2.
2. The extent of compliance with the permanency plan by the agency and any other service providers, the child's parents, the child and the child's guardian, if any.
48.38(5)(c)3.
3. The extent of any efforts to involve appropriate service providers in addition to the agency's staff in planning to meet the special needs of the child and the child's parents.
48.38(5)(c)4.
4. The progress toward eliminating the causes for the child's placement outside of his or her home and toward returning the child safely to his or her home or obtaining a permanent placement for the child.
48.38(5)(c)5.
5. The date by which it is likely that the child will be returned to his or her home or placed for adoption, with a guardian or in some other alternative permanent placement.
48.38(5)(c)6.
6. If the child has been placed outside of his or her home, as described in
s. 48.365 (1), for 15 of the most recent 22 months, the appropriateness of the permanency plan and the circumstances which prevent the child from any of the following:
48.38(5)(c)6.b.
b. Having a petition for the involuntary termination of parental rights filed on behalf of the child.
48.38(5)(c)7.
7. Whether reasonable efforts were made by the agency to make it possible for the child to return safely to his or her home, except that the court or panel need not determine whether those reasonable efforts were made with respect to a parent of the child if any of the circumstances specified in
s. 48.355 (2d) (b) 1.,
2.,
3. or
4. apply to that parent.
48.38(5)(d)
(d) Notwithstanding
s. 48.78 (2) (a), the agency that prepared the permanency plan shall, at least 5 days before a review by a review panel, provide to each person appointed to the review panel, the person representing the interests of the public, the child's counsel, the child's guardian ad litem and the child's court-appointed special advocate a copy of the permanency plan and any written comments submitted under
par. (b). Notwithstanding
s. 48.78 (2) (a), a person appointed to a review panel, the person representing the interests of the public, the child's counsel, the child's guardian ad litem and the child's court-appointed special advocate may have access to any other records concerning the child for the purpose of participating in the review. A person permitted access to a child's records under this paragraph may not disclose any information from the records to any other person.
48.38(5)(e)
(e) Within 30 days, the agency shall prepare a written summary of the determinations under
par. (c) and shall provide a copy to the court that entered the order, the child or the child's counsel or guardian ad litem, the person representing the interests of the public, the child's parent or guardian, the child's court-appointed special advocate and the child's foster parent, the child's treatment foster parent or the operator of the facility where the child is living.
48.38(5)(f)
(f) If the summary prepared under
par. (e) indicates that the review panel made recommendations that conflict with the court order or that provide for additional services not specified in the court order, the agency primarily responsible for providing services to the child shall request a revision of the court order.
48.38(6)
(6) Rules. The department shall promulgate rules establishing the following:
48.38(6)(a)
(a) Procedures for conducting permanency plan reviews.
48.38(6)(b)
(b) Requirements for training review panels.
48.38(6)(c)
(c) Standards for reasonable efforts to prevent placement of children outside of their homes, while assuring that their health and safety are the paramount concerns, and to make it possible for children to return safely to their homes if they have been placed outside of their homes.
48.38(6)(d)
(d) The format for permanency plans and review panel reports.
48.38(6)(e)
(e) Standards and guidelines for decisions regarding the placement of children.
48.38 History
History: 1983 a. 399;
1985 a. 70 ss.
1,
10;
1985 a. 176;
1985 a. 292 s.
3;
1985 a. 332;
1987 a. 383;
1989 a. 31,
86,
107;
1993 a. 377,
385,
395,
446,
491;
1995 a. 27 ss.
2474 to
2478,
9126 (19);
1995 a. 77,
143,
275;
1997 a. 27,
35,
104,
237;
1999 a. 149.
48.38 Note
NOTE: 1993 Wis. Act 395, which affects subs. (5) and (5m), contains extensive explanatory notes.
48.38 Annotation
The time limits in sub. (3) are not a prerequisite to trial court jurisdiction. Interest of Scott Y.
175 Wis. 2d 222,
499 N.W.2d 219 (Ct. App. 1993).
48.396(1)(1) Law enforcement officers' records of children shall be kept separate from records of adults. Law enforcement officers' records of the adult expectant mothers of unborn children shall be kept separate from records of other adults. Law enforcement officers' records of children and the adult expectant mothers of unborn children shall not be open to inspection or their contents disclosed except under
sub. (1b),
(1d) or
(5) or
s. 48.293 or by order of the court. This subsection does not apply to the representatives of newspapers or other reporters of news who wish to obtain information for the purpose of reporting news without revealing the identity of the child or adult expectant mother involved, to the confidential exchange of information between the police and officials of the school attended by the child or other law enforcement or social welfare agencies or to children 10 years of age or older who are subject to the jurisdiction of the court of criminal jurisdiction. A public school official who obtains information under this subsection shall keep the information confidential as required under
s. 118.125 and a private school official who obtains information under this subsection shall keep the information confidential in the same manner as is required of a public school official under
s. 118.125. A law enforcement agency that obtains information under this subsection shall keep the information confidential as required under this subsection and
s. 938.396 (1). A social welfare agency that obtains information under this subsection shall keep the information confidential as required under
ss. 48.78 and
938.78.
48.396(1b)
(1b) If requested by the parent, guardian or legal custodian of a child who is the subject of a law enforcement officer's report, or if requested by the child, if 14 years of age or over, a law enforcement agency may, subject to official agency policy, provide to the parent, guardian, legal custodian or child a copy of that report. If requested by the parent, guardian or legal custodian of a child expectant mother of an unborn child who is the subject of a law enforcement officer's report, if requested by an expectant mother of an unborn child who is the subject of a law enforcement officer's report, if 14 years of age or over, or if requested by an unborn child through the unborn child's guardian ad litem, a law enforcement agency may, subject to official agency policy, provide to the parent, guardian, legal custodian, expectant mother or unborn child by the unborn child's guardian ad litem a copy of that report.
48.396(1d)
(1d) Upon the written permission of the parent, guardian or legal custodian of a child who is the subject of a law enforcement officer's report or upon the written permission of the child, if 14 years of age or over, a law enforcement agency may, subject to official agency policy, make available to the person named in the permission any reports specifically identified by the parent, guardian, legal custodian or child in the written permission. Upon the written permission of the parent, guardian or legal custodian of a child expectant mother of an unborn child who is the subject of a law enforcement officer's report, or of an expectant mother of an unborn child who is the subject of a law enforcement officer's report, if 14 years of age or over, and of the unborn child by the unborn child's guardian ad litem, a law enforcement agency may, subject to official agency policy, make available to the person named in the permission any reports specifically identified by the parent, guardian, legal custodian or expectant mother, and unborn child by the unborn child's guardian ad litem in the written permission.
48.396(2)(a)(a) Records of the court assigned to exercise jurisdiction under this chapter and
ch. 938 and of courts exercising jurisdiction under
s. 48.16 shall be entered in books or deposited in files kept for that purpose only. They shall not be open to inspection or their contents disclosed except by order of the court assigned to exercise jurisdiction under this chapter and
ch. 938 or as permitted under this section or
s. 48.375 (7) (e).
48.396(2)(ag)
(ag) Upon request of the parent, guardian or legal custodian of a child who is the subject of a record of a court specified in
par. (a), or upon request of the child, if 14 years of age or over, the court shall open for inspection by the parent, guardian, legal custodian or child the records of the court relating to that child, unless the court finds, after due notice and hearing, that inspection of those records by the parent, guardian, legal custodian or child would result in imminent danger to anyone.
48.396(2)(aj)
(aj) Upon request of the parent, guardian or legal custodian of a child expectant mother of an unborn child who is the subject of a record of a court specified in
par. (a), upon request of an expectant mother of an unborn child who is the subject of a record of a court specified in
par. (a), if 14 years of age or over, or upon request of an unborn child by the unborn child's guardian ad litem, the court shall open for inspection by the parent, guardian, legal custodian, expectant mother or unborn child by the unborn child's guardian ad litem the records of the court relating to that expectant mother, unless the court finds, after due notice and hearing, that inspection of those records by the parent, guardian, legal custodian, expectant mother or unborn child by the unborn child's guardian ad litem would result in imminent danger to anyone.
48.396(2)(am)
(am) Upon the written permission of the parent, guardian or legal custodian of a child who is the subject of a record of a court specified in
par. (a), or upon the written permission of the child, if 14 years of age or over, the court shall open for inspection by the person named in the permission any records specifically identified by the parent, guardian, legal custodian or child in the written permission, unless the court finds, after due notice and hearing, that inspection of those records by the person named in the permission would result in imminent danger to anyone.
48.396(2)(ap)
(ap) Upon the written permission of the parent, guardian or legal custodian of a child expectant mother of an unborn child who is the subject of a record of a court specified in
par. (a), or of an expectant mother of an unborn child who is the subject of a record of a court specified in
par. (a), if 14 years of age or over, and of the unborn child by the unborn child's guardian ad litem, the court shall open for inspection by the person named in the permission any records specifically identified by the parent, guardian, legal custodian or expectant mother, and unborn child by the unborn child's guardian ad litem in the written permission, unless the court finds, after due notice and hearing, that inspection of those records by the person named in the permission would result in imminent danger to anyone.
48.396(2)(b)
(b) Upon request of the department or a federal agency to review court records for the purpose of monitoring and conducting periodic evaluations of activities as required by and implemented under
45 CFR 1355,
1356 and
1357, the court shall open those records for inspection by authorized representatives of the department or federal agency.
48.396(2)(dm)
(dm) Upon request of a court having jurisdiction over actions affecting the family, an attorney responsible for support enforcement under
s. 59.53 (6) (a) or a party to a paternity proceeding under
ss. 767.45 to
767.60, the party's attorney or the guardian ad litem for the child who is the subject of that proceeding to review or be provided with information from the records of the court assigned to exercise jurisdiction under this chapter and
ch. 938 relating to the paternity of a child for the purpose of determining the paternity of the child or for the purpose of rebutting the presumption of paternity under
s. 891.405 or
891.41 (1), the court assigned to exercise jurisdiction under this chapter and
ch. 938 shall open for inspection by the requester its records relating to the paternity of the child or disclose to the requester those records.
48.396(2)(dr)
(dr) Upon request of the department of corrections or any other person preparing a presentence investigation under
s. 972.15 to review court records for the purpose of preparing the presentence investigation, the court shall open for inspection by any authorized representative of the requester the records of the court relating to any child who has been the subject of a proceeding under this chapter.
48.396(2)(f)
(f) Upon request of the department of corrections to review court records for the purpose of obtaining information concerning a child required to register under
s. 301.45, the court shall open for inspection by authorized representatives of the department of corrections the records of the court relating to any child who has been found in need of protection or services for an offense specified in
s. 301.45 (1g) (a). The department of corrections may disclose information that it obtains under this paragraph as provided under
s. 301.46.
48.396(2)(g)
(g) Upon request of any other court assigned to exercise jurisdiction under this chapter and
ch. 938, a district attorney or corporation counsel to review court records for the purpose of any proceeding in that other court, the court shall open for inspection by any authorized representative of the requester the records of the court relating to any child who has been the subject of a proceeding under this chapter.
48.396(2)(h)
(h) Upon request of the court having jurisdiction over an action affecting the family or of an attorney for a party or a guardian ad litem in an action affecting the family to review court records for the purpose of considering the custody of a child, the court assigned to exercise jurisdiction under this chapter and
ch. 938 shall open for inspection by an authorized representative of the requester the records of the court relating to any child who has been the subject of a proceeding under this chapter.
48.396(5)(a)(a) Any person who is denied access to a record under
sub. (1),
(1b) or
(1d) may petition the court to order the disclosure of the records governed by the applicable subsection. The petition shall be in writing and shall describe as specifically as possible all of the following:
48.396(5)(a)3.
3. The basis for the petitioner's belief that the information is contained in the records.
48.396(5)(a)4.
4. The relevance of the information sought to the petitioner's reason for seeking the information.
48.396(5)(a)5.
5. The petitioner's efforts to obtain the information from other sources.
48.396(5)(b)
(b) The court shall notify the child, the child's counsel, the child's parents, appropriate law enforcement agencies and, if the child is an expectant mother of an unborn child under
s. 48.133, the unborn child by the unborn child's guardian ad litem, or shall notify the adult expectant mother, the unborn child by the unborn child's guardian ad litem and appropriate law enforcement agencies, in writing of the petition. If any person notified objects to the disclosure, the court may hold a hearing to take evidence relating to the petitioner's need for the disclosure.
48.396(5)(c)
(c) The court shall make an inspection, which may be in camera, of the records of the child or expectant mother. If the court determines that the information sought is for good cause and that it cannot be obtained with reasonable effort from other sources, the court shall then determine whether the petitioner's need for the information outweighs society's interest in protecting its confidentiality. In making that determination, the court shall balance the interest of the petitioner in obtaining access to the record against the interest of the child or expectant mother in avoiding the stigma that might result from disclosure.
48.396(5)(d)
(d) If the court determines that disclosure is warranted, it shall order the disclosure of only as much information as is necessary to meet the petitioner's need for the information.
48.396(5)(e)
(e) The court shall record the reasons for its decision to disclose or not to disclose the records of the child or expectant mother. All records related to a decision under this subsection are confidential.
48.396 History
History: 1971 c. 278;
1977 c. 354 s.
47;
1977 c. 449; Stats. 1977 s. 48.396;
1979 c. 300;
1979 c. 333 s.
5;
1983 a. 74 s.
32;
1983 a. 487,
538;
1985 a. 311,
332;
1987 a. 27,
180,
403;
1989 a. 31,
107,
145;
1991 a. 39,
263;
1993 a. 98,
195,
228,
334,
479,
491;
1995 a. 27 ss.
2479 to
2480m,
9126 (19);
1995 a. 77,
173,
275,
352,
440,
448;
1997 a. 35,
80,
191,
205,
252,
292;
1999 a. 32,
89.
48.396 Annotation
Discovery of juvenile police and court records is discussed. State ex rel. Herget v. Waukesha Co. Cir. Ct.
84 Wis. 2d 435,
267 N.W.2d 309 (1978).
48.396 Annotation
Section 967.06 gives the public defender the right to receive juvenile records of indigent clients notwithstanding s. 48.396 (2). State ex rel. S. M. O.
110 Wis. 2d 447,
329 N.W.2d 275 (Ct. App. 1982).
48.396 Annotation
In determining whether to release juvenile court records, the child's best interests are paramount. The child's interests must be weighed against the need of the party seeking the information. The child whose confidentiality interests are at stake must be represented. State v. Bellows,
218 Wis. 2d 614,
582 N.W.2d 53 (Ct. App. 1998).
48.396 Annotation
Juvenile officers are not required to provide information concerning juveniles to school officials. A school does not violate sub. (1) by using information obtained from an officer to take disciplinary actions against a student as long as the school does not reveal the reason for its action. 69 Atty. Gen. 179.
48.396 Annotation
A sheriff's department may, when evaluating an individual for an employment position, consider information in its possession concerning the individual's juvenile record. 67 Atty. Gen. 327 is overruled.
79 Atty. Gen. 89.
TERMINATION OF PARENTAL RIGHTS
48.40
48.40
Definitions. In this subchapter:
48.40(1)
(1) Except as otherwise provided, "agency" means the department, a county department or a licensed child welfare agency.
48.40(1m)
(1m) "Kinship care relative" means a person receiving payments under
s. 48.57 (3m) (am) for providing care and maintenance for a child.
48.40(2)
(2) "Termination of parental rights" means that, pursuant to a court order, all rights, powers, privileges, immunities, duties and obligations existing between parent and child are permanently severed.
48.40 Annotation
Parents whose rights have been terminated do not inherit from a child; the child's siblings, whether parental rights as to them have been terminated or not, are the child's heirs. Estate of Pamanet,
46 Wis. 2d 514,
175 N.W.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.
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 Wis. 2d xxv (1989);
1999 a. 83.
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
The minimum information that must be found on the record to support a finding that a minor parent's consent was voluntary and informed is set forth. In Interest of D. L. S.
112 Wis. 2d 180,
332 N.W.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 any of the following:
48.415(1)(a)1.
1. That the child has been left without provision for the child's 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. That 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)1r.
1r. That a court of competent jurisdiction has found under
s. 48.13 (2) or under a law of any other state or a federal law that is comparable to
s. 48.13 (2) that the child was abandoned when the child was under one year of age or has found that the parent abandoned the child when the child was under one year of age in violation of
s. 948.20 or in violation of the law of any other state or federal law, if that violation would be a violation of
s. 948.20 if committed in this state.
48.415(1)(a)2.
2. That 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.
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.
