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 (3) is repealed and recreated because the so-called substituted judgment permitted therein is bad public policy.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.
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 any of the following:
48.415(2)(a)2.a.a. In this subdivision, "reasonable 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 or of the expectant mother or child, the level of cooperation of the parent or expectant mother and other relevant circumstances of the case.
48.415(2)(a)2.b.
b. That the agency responsible for the care of the child and the family or of the unborn child and expectant mother has made a reasonable effort to provide the services ordered by the court.
48.415(2)(a)3.
3. That the child has been outside the home for a cumulative total period of 6 months or longer pursuant to such orders not including time spent outside the home as an unborn child; and that the parent has failed to meet the conditions established for the safe return of the child to the home and there is a substantial likelihood that the parent will not meet these conditions within the 12-month period following the fact-finding hearing under
s. 48.424.
48.415(2)(am)1.1. That on 3 or more occasions the child has been adjudicated to be in need of protection or services under
s. 48.13 (3),
(3m),
(10) or
(10m) and, in connection with each of those adjudications, has been placed outside his or her home pursuant to a court order under
s. 48.345 containing the notice required by
s. 48.356 (2).
48.415(2)(am)2.
2. That the conditions that led to the child's placement outside his or her home under each order specified in
subd. 1. were caused by the parent.
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) Homicide or solicitation to commit homicide of parent. Homicide or solicitation to commit 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 or a crime under federal law or the law of any other state that is comparable to any of those crimes, or has been the intended victim of a solicitation to commit first-degree intentional homicide in violation of
s. 939.30 or a crime under federal law or the law of any other state that is comparable to that crime, and that the person whose parental rights are sought to be terminated has been convicted of that intentional or reckless homicide, solicitation or crime under federal law or the law of any other state 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 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(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 of the following:
48.415(9m)(b)1.
1. The commission of, the aiding or abetting of, or the solicitation, conspiracy or attempt to commit, a violation of
s. 940.01,
940.02,
940.03 or
940.05 or a violation of the law of any other state or federal law, if that violation would be a violation of
s. 940.01,
940.02,
940.03 or
940.05 if committed in this state.
48.415(9m)(b)2.
2. The commission of a violation of
s. 940.19 (2),
(3),
(4) or
(5),
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 a violation of the law of any other state or federal law, if that violation would be a violation of
s. 940.19 (2),
(3),
(4) or
(5),
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 if committed in this state.
48.415(9m)(b)3.
3. The commission of a violation of
s. 948.21 or a violation of the law of any other state or federal law, if that violation would be a violation of
s. 948.21 if committed in this state, that resulted in the death of the victim.
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 History
History: 1979 c. 330;
1983 a. 189 s.
329 (5);
1983 a. 326;
1983 a. 447 ss.
8,
67;
1983 a. 488,
538;
1987 a. 355,
383;
1989 a. 86;
1993 a. 235,
395;
1995 a. 77,
108,
225,
275;
1997 a. 35,
80,
237,
292,
294;
1999 a. 9,
32.
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 Wis. 2d 36,
227 N.W.2d 643.
48.415 Annotation
A termination order was not supported by sufficient findings when the findings merely repeated statutory language and made no determination of the best interests of the child. Termination of Parental Rights to T. R. M.
100 Wis. 2d 681,
303 N.W.2d 581 (1981).
48.415 Annotation
A parent has constitutionally protected rights to the care, custody, and management of a child. In Interest of J. L. W.
102 Wis. 2d 118,
306 N.W.2d 46 (1981).
48.415 Annotation
The dismissal of termination proceedings on grounds of abandonment because only 2 of 6 dispositional orders contained statutory warnings was inappropriate. The warning is only required on one order. In Interest of K.K.
162 Wis. 2d 431,
469 N.W.2d 881 (Ct. App. 1991).
48.415 Annotation
The abandonment period under sub. (1) (a) 3. need not immediately precede filing of the petition; if abandonment is found termination is still discretionary. In Interest of T.P.S.
168 Wis. 2d 259,
483 N.W.2d 591 (Ct. App. 1992).
48.415 Annotation
While the 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 the oral notice was given is not required in later termination proceedings under sub. (2) (a). In Interest of D.P.
170 Wis. 2d 313,
488 N.W.2d 133 (Ct. App. 1992).
48.415 Annotation
A developmentally disabled father's allegation that the county, in violation of the Americans with Disabilities Act, did not take into account his disability in attempting to provide court ordered services was not a basis to attack a termination proceeding. The ADA did not place an added burden on the county to meet the requirements of sub. (2) (b). In Interest of Torrence P.
187 Wis. 2d 10,
522 N.W.2d 243 (Ct. App. 1994).
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 Wis. 2d 681,
530 N.W.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 Wis. 2d 681,
530 N.W.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 may be adequate. Interest of Christopher D.
191 Wis. 2d 681,
530 N.W.2d 34 (Ct. App. 1995).
48.415 Annotation
A showing of abandonment under sub. (1) (a) 3. creates a rebuttable presumption that 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 Wis. 2d 366,
533 N.W.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 Wis. 2d 628,
534 N.W.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 that the parent was warned of under s. 48.356. State v. Patricia A.P.
195 Wis. 2d 855,
537 N.W.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 that was a threat to the child's welfare. Jerry M. v. Dennis L. M.
198 Wis. 2d 10,
542 N.W.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 Wis. 2d 678,
548 N.W.2d 837 (Ct.. App. 1996).
48.415 Annotation
Sub. (7) is a constitutional part of a statutory scheme that is narrowly tailored to meet the State's compelling interests. State v. Allen M.
214 Wis. 2d 302,
571 N.W.2d 872 (Ct. App. 1997).
48.415 Annotation
Venue becomes an issue only in the event that it is contested. The county where a child "resides" is the county of domicile. The county where a child "is present" is the county where the child is present at the time a petition is filed. State v. Corey J. G.
215 Wis. 2d 394,
572 N.W.2d 845 (1998).
48.415 Annotation
When a parent is prohibited from visitation, communication by phone and letter is not prohibited and sub. (1) (b) does not apply. Periods in which there has been no contact whatsoever will be counted under sub. (1) (a) 2. and 3. Carol B. v. Timothy N.
228 Wis. 2d 695,
598 N.W.2d 924 (Ct. App. 1999).
48.415 Annotation
The rules of civil procedure apply to termination of parental rights proceedings and directed verdicts are permissible. Door County DHFS v. Scott S.
230 Wis. 2d 460,
602 N.W.2d 167 (Ct. App. 1999).
48.415 Annotation
A guardian ad litem's comments regarding the best interests of the child were not improper. Only when the jury is instructed that it should consider the best interests of the child is there reversible error. Door County DHFS v. Scott S.
230 Wis. 2d 460,
602 N.W.2d 167 (Ct. App. 1999).
48.415 Annotation
Process is constitutionally due a natural parent at a state-initiated parental rights termination proceeding. A 3-factor test is discussed. Santosky v. Kramer,
455 U.S. 745 (1982).
48.415 Annotation
Adoption and termination proceedings in Wisconsin: Straining the wisdom of Solomon. Hayes and Morse, 66 MLR 439 (1983).
48.417
48.417
Petition for termination of parental rights; when required. 48.417(1)(1)
Filing or joining in petition; when required. Subject to
sub. (2), an agency or the district attorney, corporation counsel or other appropriate official designated under
s. 48.09 shall file a petition under
s. 48.42 (1) to terminate the parental rights of a parent or the parents of a child, or, if a petition under
s. 48.42 (1) to terminate those parental rights has already been filed, the agency, district attorney, corporation counsel or other appropriate official shall join in the petition, if any of the following circumstances apply:
48.417(1)(a)
(a) 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.
48.417(1)(b)
(b) 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 he or she 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.
48.417(1)(c)
(c) A court of competent jurisdiction has found that the parent has committed, has aided or abetted the commission of, or has solicited, conspired or attempted to commit, a violation of
s. 940.01,
940.02,
940.03 or
940.05 or a violation of the law of any other state or federal law, if that violation would be a violation of
s. 940.01,
940.02,
940.03 or
940.05 if committed in this state, and that the victim of that violation is a child of the parent.
48.417(1)(d)
(d) A court of competent jurisdiction has found that the parent has committed a violation of
s. 940.19 (2),
(3),
(4) or
(5),
940.225 (1) or
(2),
948.02 (1) or
(2),
948.025 or
948.03 (2) (a) or
(3) (a) or a violation of the law of any other state or federal law, if that violation would be a violation of
s. 940.19 (2),
(3),
(4) or
(5),
940.225 (1) or
(2),
948.02 (1) or
(2),
948.025 or
948.03 (2) (a) or
(3) (a) if committed in this state, and that the violation resulted in great bodily harm, as defined in
s. 939.22 (14), or in substantial bodily harm, as defined in
s. 939.22 (38), to the child or another child of the parent.
48.417(2)
(2) Filing or joining in petition; when not required. Notwithstanding that any of the circumstances specified in
sub. (1) (a),
(b),
(c) or
(d) may apply, an agency or the district attorney, corporation counsel or other appropriate official designated under
s. 48.09 need not file a petition under
s. 48.42 (1) to terminate the parental rights of a parent or the parents of a child, or, if a petition under
s. 48.42 (1) to terminate those parental rights has already been filed, the agency, district attorney, corporation counsel or other appropriate official need not join in the petition, if any of the following circumstances apply:
48.417(2)(a)
(a) The child is being cared for by a relative of the child.
48.417(2)(b)
(b) The child's permanency plan indicates that termination of parental rights to the child is not in the best interests of the child.
48.417(2)(c)
(c) The agency primarily responsible for providing services to the child and the family under a court order, if required under
s. 48.355 (2) (b) 6. to make reasonable efforts to make it possible for the child to return safely to his or her home, has not provided to the family of the child, consistent with the time period in the child's permanency plan, the services necessary for the safe return of the child to his or her home.
48.417(3)
(3) Concurrent adoption efforts required. If a petition is filed or joined in as required under
sub. (1), the agency primarily responsible for providing services to the child under a court order shall, during the pendency of the proceeding on the petition, work with the agency identified in the report under
s. 48.425 (1) (f) that would be responsible for accomplishing the adoption of the child in processing and approving a qualified family for the adoption of the child.
