48.422 Annotation
The court erred by failing to inform parents of the right to jury trial and to representation by counsel. In re Termination of Parental Rights to M. A. M.
116 Wis. 2d 432,
342 N.W.2d 410 (1984).
48.422 Annotation
Concurrent TPR/adoption proceedings under s. 48.835 are subject to the requirement under s. 48.422 that the initial hearing be held within 30 days of filing the petition. In re J.L.F.
168 Wis. 2d 634,
484 N.W.2d 359 (Ct. App. 1992).
48.422 Annotation
A court's failure to inform parents of their rights under this section is not reversible error, absent prejudice to the parents. Interest of Robert D.
181 Wis. 2d 887,
512 N.W.2d 227 (Ct. App. 1994).
48.422 Annotation
The general time requirements of s. 48.315 (2) control extensions of the time limit under sub. (1). There are no provisions for waiver of time limits, and the only provisions for delays, continuances and extensions are under s. 48.315. State v. April O. 2000 WI App 70,
233 Wis. 2d 663,
607 N.W.2d 927.
48.422 Annotation
Due process does not require appointment of counsel for indigent parents in every parental status termination proceeding. Lassiter v. Dept. of Social Services,
452 U.S. 18 (1981).
48.423
48.423
Rights of persons alleging paternity. If a man who alleges that he is the father of the child appears at the hearing and wishes to contest the termination of his parental rights, the court shall set a date for a hearing on the issue of paternity or, if all parties agree, the court may immediately commence hearing testimony concerning the issue of paternity. The court shall inform the man claiming to be the father of the child of any right to counsel under
s. 48.23. The man claiming to be the father of the child must prove paternity by clear and convincing evidence.
48.423 History
History: 1979 c. 330.
48.423 Annotation
Putative father's right to custody of his child. 1971 WLR 1262.
48.424
48.424
Fact-finding hearing. 48.424(1)
(1) The purpose of the fact-finding hearing is to determine whether grounds exist for the termination of parental rights in those cases where the termination was contested at the hearing on the petition under
s. 48.422.
48.424(2)
(2) The fact-finding hearing shall be conducted according to the procedure specified in
s. 48.31 except that:
48.424(2)(a)
(a) The court may exclude the child from the hearing; and
48.424(3)
(3) If the facts are determined by a jury, the jury may only decide whether any grounds for the termination of parental rights have been proven. The court shall decide what disposition is in the best interest of the child.
48.424(4)
(4) 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 under
s. 48.427 (2). The court shall then proceed immediately to hear evidence and motions related to the dispositions enumerated in
s. 48.427. 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:
48.424(4)(b)
(b) The court has not yet received a report to the court on the history of the child as provided in
s. 48.425 from an agency enumerated in
s. 48.069 (1) or
(2) and the court now directs the agency to prepare this report to be considered before the court makes the disposition on the petition.
48.424(5)
(5) If the court delays making a permanent disposition under
sub. (4), it may transfer temporary custody of the child to an agency for placement of the child until the dispositional hearing.
48.424 History
History: 1979 c. 330;
1987 a. 383.
48.424 Annotation
The court erred by instructing the jury that the jury determines whether parental rights are to be terminated. Interest of C.E.W.
124 Wis. 2d 47,
368 N.W.2d 47 (1985).
48.424 Annotation
The general time requirements of s. 48.315 (2) control extensions of the time limit under sub. (4). There are no provisions for waiver of time limits, and the only provisions for delays, continuances and extensions are under s. 48.315. State v. April O. 2000 WI App 70,
233 Wis. 2d 663,
607 N.W.2d 927.
48.425
48.425
Court report by an agency. 48.425(1)
(1) If the petition for the termination of parental rights is filed by an agency, or if the court orders a report under
s. 48.424 (4) (b), the agency shall file a report with the court which shall include:
48.425(1)(am)
(am) A medical record of the child on a form provided by the department which shall include:
48.425(1)(am)1.
1. The medical and genetic history of the birth parents and any medical and genetic information furnished by the birth parents about the child's grandparents, aunts, uncles, brothers and sisters.
48.425(1)(am)2.
2. A report of any medical examination which either birth parent had within one year before the date of the petition.
48.425(1)(am)3.
3. A report describing the child's prenatal care and medical condition at birth.
48.425(1)(am)4.
4. The medical and genetic history of the child and any other relevant medical and genetic information.
48.425(1)(b)
(b) A statement of the facts supporting the need for termination.
48.425(1)(c)
(c) If the child has been previously adjudicated to be in need of protection and services, a statement of the steps the agency or person responsible for provision of services has taken to remedy the conditions responsible for court intervention and the parent's response to and cooperation with these services. If the child has been removed from the home, the report should also include a statement of the reasons why the child cannot be returned safely to the family, and the steps the person or agency has taken to effect this return.
48.425(1)(d)
(d) A statement of other appropriate services, if any, which might allow the child to return safely to the home of the parent.
48.425(1)(e)
(e) A statement applying the standards and factors enumerated in
s. 48.426 (2) and
(3) to the case before the court.
48.425(1)(f)
(f) If the report recommends that the parental rights of both of the child's parents or the child's only living or known parent are to be terminated, the report shall contain a statement of the likelihood that the child will be adopted. This statement shall be prepared by an agency designated in
s. 48.427 (3m) (a) 1. to
4. and include a presentation of the factors which might prevent adoption, those which would facilitate it, and the agency which would be responsible for accomplishing the adoption.
48.425(1)(g)
(g) If an agency designated under
s. 48.427 (3m) (a) 1. to
4. determines that it is unlikely that the child will be adopted, or if adoption would not be in the best interests of the child, the report shall include a plan for placing the child in a permanent family setting. The plan shall include a recommendation as to the agency to be named guardian of the child or a recommendation that the person appointed as the guardian of the child under
s. 48.977 (2) continue to be the guardian of the child.
48.425(1m)
(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 for the termination of parental rights.
48.425(2)
(2) The court may waive the report required under this section if consent is given under
s. 48.41, but shall order the birth parent or parents to provide the department with the information specified under
sub. (1) (am).
48.425(3)
(3) The court may order a report as specified under this section to be prepared by an agency in those cases where the petition is filed by someone other than an agency.
48.426
48.426
Standard and factors. 48.426(1)
(1)
Court considerations. In making a decision about the appropriate disposition under
s. 48.427, the court shall consider the standard and factors enumerated in this section and any report submitted by an agency under
s. 48.425.
48.426(2)
(2) Standard. The best interests of the child shall be the prevailing factor considered by the court in determining the disposition of all proceedings under this subchapter.
48.426(3)
(3) Factors. In considering the best interests of the child under this section the court shall consider but not be limited to the following:
48.426(3)(a)
(a) The likelihood of the child's adoption after termination.
48.426(3)(b)
(b) The age and health of the child, both at the time of the disposition and, if applicable, at the time the child was removed from the home.
48.426(3)(c)
(c) Whether the child has substantial relationships with the parent or other family members, and whether it would be harmful to the child to sever these relationships.
48.426(3)(e)
(e) The duration of the separation of the parent from the child.
48.426(3)(f)
(f) Whether the child will be able to enter into a more stable and permanent family relationship as a result of the termination, taking into account the conditions of the child's current placement, the likelihood of future placements and the results of prior placements.
48.426 History
History: 1979 c. 330.
48.426 Annotation
When grandparents opposing termination had a substantial relationship with the child and wished to participate in the proceedings, it was error to exclude their testimony in determining the child's best interest. In Interest of Brandon S.S.
179 Wis. 2d 114,
507 N.W.2d 94 (1993).
48.426 Annotation
A termination of parental rights works a legal severance of the relationship between the child and the child's birth family. Sub. (3) (c) requires an examination of the harmful effect of the legal severance on the child's relationships with the birth family. The court may consider an adoptive parent's promise to continue the relationship, but it is not bound to hinge its determination on that legally unenforceable promise. State v. Margaret H. 2000 WI 42,
234 Wis. 2d 606,
610 N.W.2d 475.
48.427(1)(1) Any party may present evidence relevant to the issue of disposition, including expert testimony, and may make alternative dispositional recommendations to the court. After receiving any evidence related to the disposition, the court shall enter one of the dispositions specified under
subs. (2) to
(4) within 10 days.
48.427(1m)
(1m) In addition to any evidence presented under
sub. (1), the court shall give the foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) of the child an opportunity to be heard at the dispositional hearing by permitting the foster parent, treatment foster parent or other physical custodian to make a written or oral statement during the dispositional hearing, or to submit a written statement prior to disposition, relevant to the issue of disposition. A foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) who receives notice of a hearing under
s. 48.42 (2g) (a) and an opportunity to be heard under this subsection does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and opportunity to be heard.
48.427(2)
(2) The court may dismiss the petition if it finds that the evidence does not warrant the termination of parental rights.
48.427(3)
(3) The court may enter an order terminating the parental rights of one or both parents.
48.427(3m)
(3m) If the rights of both parents or of the only living parent are terminated under
sub. (3) and if a guardian has not been appointed under
s. 48.977, the court shall either:
48.427(3m)(a)
(a) Transfer guardianship and custody of the child pending adoptive placement to:
48.427(3m)(a)5.
5. A relative with whom the child resides, if the relative has filed a petition to adopt the child or if the relative is a kinship care relative.
48.427(3m)(a)6.
6. An individual who has been appointed guardian of the child by a court of a foreign jurisdiction.
48.427(3m)(b)
(b) Transfer guardianship of the child to one of the agencies specified under
par. (a) 1. to
4. and custody of the child to an individual in whose home the child has resided for at least 12 consecutive months immediately prior to the termination of parental rights or to a relative.
48.427(3p)
(3p) If the rights of both parents or of the only living parent are terminated under
sub. (3) and if a guardian has been appointed under
s. 48.977, the court may enter one of the orders specified in
sub. (3m). If the court enters an order under this subsection, the court shall terminate the guardianship under
s. 48.977.
48.427(4)
(4) If the rights of one or both parents are terminated under
sub. (3), the court may enter an order placing the child in sustaining care under
s. 48.428.
48.427(6)
(6) If an order is entered under
sub. (3), the court shall:
48.427(6)(b)1.
1. The name and date of birth of the child whose birth parent's rights have been terminated.
48.427(6)(b)2.
2. The names and current addresses of the child's birth parents, guardian and legal custodian.
48.427(7)(a)(a) If an order is entered under
sub. (3), the court may orally inform the parent or parents who appear in court of the ground for termination of parental rights specified in
s. 48.415 (10).
48.427(7)(b)
(b) In addition to the notice permitted under
par. (a), any written order under
sub. (3) may notify the parent or parents of the information specified in
par. (a).
48.427 Annotation
Despite jury findings, the court may dismiss a termination petition if evidence does not support a finding or unfitness evidence is not so egregious as to warrant termination; whether evidence supports termination is matter of discretion. In Interest of K.D.J.
163 Wis. 2d 90,
470 N.W.2d 914 (1991).
48.428
48.428
Sustaining care. 48.428(1)(1) A court may place a child in sustaining care if the court has terminated the parental rights of the parent or parents of the child or has appointed a guardian for the child under
s. 48.831 and the court finds that the child is unlikely to be adopted or that adoption is not in the best interest of the child.
48.428(2)(a)(a) Except as provided in
par. (b), when a court places a child in sustaining care after an order under
s. 48.427 (4), the court shall transfer legal custody of the child to the county department, the department, in a county having a population of 500,000 or more, or a licensed child welfare agency, transfer guardianship of the child to an agency listed in
s. 48.427 (3m) (a) 1. to
4. and place the child in the home of a licensed foster parent, licensed treatment foster parent or kinship care relative with whom the child has resided for 6 months or longer. Pursuant to such a placement, this licensed foster parent, licensed treatment foster parent or kinship care relative shall be a sustaining parent with the powers and duties specified in
sub. (3).
48.428(2)(b)
(b) When a court places a child in sustaining care after an order under
s. 48.427 (4) with a person who has been appointed as the guardian of the child under
s. 48.977 (2), the court may transfer legal custody of the child to the county department, the department, in a county having a population of 500,000 or more, or a licensed child welfare agency, transfer guardianship of the child to an agency listed in
s. 48.427 (3m) (a) 1. to
4. and place the child in the home of a licensed foster parent, licensed treatment foster parent or kinship care relative with whom the child has resided for 6 months or longer. Pursuant to such a placement, that licensed foster parent, licensed treatment foster parent or kinship care relative shall be a sustaining parent with the powers and duties specified in
sub. (3). If the court transfers guardianship of the child to an agency listed in
s. 48.427 (3m) (a) 1. to
4., the court shall terminate the guardianship under
s. 48.977.
48.428(3)
(3) Subject to the authority of the guardian and legal custodian of the child and to any treatment or dispositional plans for the child established by the court, the sustaining parent has the rights and responsibilities necessary for the day-to-day care of the child, including but not limited to:
48.428(3)(a)
(a) The authority to consent to routine and emergency health care for the child.
48.428(3)(b)
(b) The authority to sign the child's application for a license under
s. 343.15.
48.428(3)(c)
(c) The authority to approve the child's participation in school and youth group activities.
48.428(3)(d)
(d) The authority to travel out of state with the child and consent to the child's travel out of state.
