48.35
48.35
Effect of judgment and disposition. 48.35(1)(a)(a) The judge shall enter a judgment setting forth his or her findings and disposition in the proceeding.
48.35(1)(b)
(b) The disposition of a child or an unborn child, and any record of evidence given in a hearing in court, shall not be admissible as evidence against the child or the expectant mother of the unborn child in any case or proceeding in any other court except for the following:
48.35(1)(b)1.
1. In sentencing proceedings after the child or expectant mother has been convicted of a felony or misdemeanor and then only for the purpose of a presentence investigation.
48.35(1)(b)2.
2. In a proceeding in any court assigned to exercise jurisdiction under this chapter and
ch. 938.
48.35(1)(b)3.
3. In a court of civil or criminal jurisdiction while it is exercising jurisdiction over an action affecting the family and is considering the custody of a child.
48.35(2)
(2) Except as specifically provided in
sub. (1), this section does not preclude the court from disclosing information to qualified persons if the court considers the disclosure to be in the best interests of the child or unborn child or of the administration of justice.
48.355
48.355
Dispositional orders. 48.355(1)
(1)
Intent. In any order under
s. 48.345 or
48.347 the judge shall decide on a placement and treatment finding based on evidence submitted to the judge. The disposition shall employ those means necessary to maintain and protect the well-being of the child or unborn child which are the least restrictive of the rights of the parent and child, of the rights of the parent and child expectant mother or of the rights of the adult expectant mother, and which assure the care, treatment or rehabilitation of the child and the family, of the child expectant mother, the unborn child and the family or of the adult expectant mother and the unborn child, consistent with the protection of the public. When appropriate, and, in cases of child abuse or neglect or unborn child abuse, when it is consistent with the best interest of the child or unborn child in terms of physical safety and physical health, the family unit shall be preserved and there shall be a policy of transferring custody of a child from the parent or of placing an expectant mother outside of her home only when there is no less drastic alternative. If there is no less drastic alternative for a child than transferring custody from the parent, the judge shall consider transferring custody to a relative whenever possible.
48.355(2)
(2) Content of order; copy to parent. 48.355(2)(a)(a) In addition to the order, the judge shall make written findings of fact and conclusions of law based on the evidence presented to the judge to support the disposition ordered, including findings as to the condition and need for special treatment or care of the child or expectant mother if an examination or assessment was conducted under
s. 48.295. A finding may not include a finding that a child or an expectant mother is in need of psychotropic medications.
48.355(2)(b)
(b) The court order shall be in writing and shall contain:
48.355(2)(b)1.
1. The specific services or continuum of services to be provided to the child and family, to the child expectant mother and family or to the adult expectant mother, the identity of the agencies which are to be primarily responsible for the provision of the services ordered by the judge, the identity of the person or agency who will provide case management or coordination of services, if any, and, if custody of the child is to be transferred to effect the treatment plan, the identity of the legal custodian.
48.355(2)(b)1m.
1m. A notice that the child's parent, guardian or legal custodian, the child, if 14 years of age or over, the expectant mother, if 14 years of age or over, or the unborn child by the unborn child's guardian ad litem may request an agency that is providing care or services for the child or expectant mother or that has legal custody of the child to disclose to, or make available for inspection by, the parent, guardian, legal custodian, child, expectant mother or unborn child by the unborn child's guardian ad litem the contents of any record kept or information received by the agency about the child or expectant mother as provided in
s. 48.78 (2) (ag) and
(aj).
48.355(2)(b)2.
2. If the child is placed outside the home, the name of the place or facility, including transitional placements, where the child shall be cared for or treated, except that if the placement is a foster home or treatment foster home and the name and address of the foster parent or treatment foster parent is not available at the time of the order, the name and address of the foster parent or treatment foster parent shall be furnished to the court and the parent within 21 days of the order. If, after a hearing on the issue with due notice to the parent or guardian, the judge finds that disclosure of the identity of the foster parent or treatment foster parent would result in imminent danger to the child, the foster parent or the treatment foster parent, the judge may order the name and address of the prospective foster parents or treatment foster parents withheld from the parent or guardian.
48.355(2)(b)2m.
2m. If the adult expectant mother is placed outside her home, the name of the place or facility, including transitional placements, where the expectant mother shall be treated.
48.355(2)(b)4.
4. If the child is placed outside the child's home, a designation of the amount of support, if any, to be paid by the child's parent, guardian or trustee, specifying that the support obligation begins on the date of the placement, or a referral to the county child support agency under
s. 59.53 (5) for establishment of child support.
48.355(2)(b)4m.
4m. If the child is placed outside the home and if the child's parent has not already provided a statement of income, assets, debts and living expenses to the county department or, in a county having a population of 500,000 or more, the department under
s. 48.30 (6) (b) or
(c) or
48.31 (7) (b) or
(c), an order for the parent to provide that statement to the county department or, in a county having a population of 500,000 or more, the department by a date specified by the court. The county department or, in a county having a population of 500,000 or more, the department shall provide, without charge, to the parent a form on which to provide that statement, and the parent shall provide that statement on that form. The county department or, in a county having a population of 500,000 or more, the department shall use the information provided in the statement to determine whether the department may claim federal foster care and adoption assistance reimbursement under
42 USC 670 to
679a for the cost of providing care for the child.
48.355(2)(b)5.
5. For a child placed outside his or her home pursuant to an order under
s. 48.345, a permanency plan under
s. 48.38 if one has been prepared.
48.355(2)(b)6.
6. If the child is placed outside the home, a finding that continued placement of the child in his or her home would be contrary to the welfare of the child, a finding as to whether the county department, the department, in a county having a population of 500,000 or more, or the agency primarily responsible for providing services under a court order has made reasonable efforts to prevent the removal of the child from the home, while assuring that the child's health and safety are the paramount concerns, unless the court finds that any of the circumstances specified in
sub. (2d) (b) 1. to
5. applies, and a finding as to whether the county department, department, or agency has made reasonable efforts to achieve the goal of the child's permanency plan, unless return of the child to the home is the goal of the permanency plan and the court finds that any of the circumstances specified in
sub. (2d) (b) 1. to
5. applies. The court shall make the findings specified in this subdivision on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which those findings are based in the court order. A court order that merely references this subdivision without documenting or referencing that specific information in the court order or an amended court order that retroactively corrects an earlier court order that does not comply with this subdivision is not sufficient to comply with this subdivision.
48.355(2)(b)6m.
6m. If the child is placed outside the home in a placement recommended by the agency designated under
s. 48.33 (1), a statement that the court approves the placement recommended by the agency or, if the child is placed outside the home in a placement other than a placement recommended by that agency, a statement that the court has given bona fide consideration to the recommendations made by the agency and all parties relating to the child's placement.
48.355(2)(b)6r.
6r. If the court finds that any of the circumstances specified in
sub. (2d) (b) 1. to
5. applies with respect to a parent, a determination that the county department, department, in a county having a population of 500,000 or more, or agency primarily responsible for providing services under the court order is not required to make reasonable efforts with respect to the parent to make it possible for the child to return safely to his or her home.
48.355(2)(b)7.
7. A statement of the conditions with which the child or expectant mother is required to comply.
48.355(2)(c)
(c) If school attendance is a condition of an order under
par. (b) 7., the order shall specify what constitutes a violation of the condition and shall direct the school board of the school district, or the governing body of the private school, in which the child is enrolled to notify the county department that is responsible for supervising the child or, in a county having a population of 500,000 or more, the department within 5 days after any violation of the condition by the child.
48.355(2)(d)
(d) The court shall provide a copy of a dispositional order relating to a child in need of protection or services to the child's parent, guardian or trustee, to the child through the child's counsel or guardian ad litem and to the child's court-appointed special advocate. The court shall provide a copy of a dispositional order relating to an unborn child in need of protection or services to the expectant mother, to the unborn child through the unborn child's guardian ad litem and, if the expectant mother is a child, to her parent, guardian or trustee.
48.355(2b)
(2b) Concurrent reasonable efforts permitted. A county department, the department, in a county having a population of 500,000 or more, or the agency primarily responsible for providing services to a child under a court order may, at the same time as the county department, department, or agency is making the reasonable efforts required under
sub. (2) (b) 6. to prevent the removal of the child from the home or to make it possible for the child to return safely to his or her home, work with the department, a county department under
s. 48.57 (1) (e) or
(hm), or a child welfare agency licensed under
s. 48.61 (5) in making reasonable efforts to place the child for adoption, with a guardian, with a fit and willing relative, or in some other alternative permanent placement.
48.355(2c)(a)(a) When a court makes a finding under
sub. (2) (b) 6. as to whether the county department, the department, in a county having a population of 500,000 or more, or the agency primarily responsible for providing services to the child under a court order has made reasonable efforts to prevent the removal of the child from his or her home, while assuring that the child's health and safety are the paramount concerns, the court's consideration of reasonable efforts shall include, but not be limited to, whether:
48.355(2c)(a)1.
1. A comprehensive assessment of the family's situation was completed, including a determination of the likelihood of protecting the child's health, safety and welfare effectively in the home.
48.355(2c)(a)2.
2. Financial assistance, if applicable, was provided to the family.
48.355(2c)(a)3.
3. Services were offered or provided to the family, if applicable, and whether any assistance was provided to the family to enable the family to utilize the services. Examples of the types of services that may have been offered include:
48.355(2c)(a)3.c.
c. Community support services, such as day care, parent skills training, housing assistance, employment training and emergency mental health services.
48.355(2c)(a)4.
4. Monitoring of client progress and client participation in services was provided.
48.355(2c)(a)5.
5. A consideration of alternative ways of addressing the family's needs was provided, if services did not exist or existing services were not available to the family.
48.355(2c)(b)
(b) When a court makes a finding under
sub. (2) (b) 6. as to whether the county department, department, in a county having a population of 500,000 or more, or agency primarily responsible for providing services to the child under a court order has made reasonable efforts to achieve the goal of the permanency plan, the court's consideration of reasonable efforts shall include the considerations listed under
par. (a) 1. to
5. and whether visitation schedules between the child and his or her parents were implemented, unless visitation was denied or limited by the court.
48.355(2d)(a)1.
1. "Aggravated circumstances" include abandonment 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, torture, chronic abuse and sexual abuse.
48.355(2d)(a)2.
2. "Sexual abuse" means a violation of
s. 940.225,
944.30,
948.02,
948.025,
948.05,
948.055,
948.06,
948.09 or
948.10 or a violation of the law of any other state or federal law if that violation would be a violation of
s. 940.225,
944.30,
948.02,
948.025,
948.05,
948.055,
948.06,
948.09 or
948.10 if committed in this state.
48.355(2d)(b)
(b) Notwithstanding
sub. (2) (b) 6., the court is not required to include in a dispositional order a finding as to whether the county department, the department, in a county having a population of 500,000 or more, or the agency primarily responsible for providing services under a court order has made reasonable efforts with respect to a parent of a child to prevent the removal of the child from the home, while assuring that the child's health and safety are the paramount concerns, or a finding as to whether the county department, department, or agency has made reasonable efforts with respect to a parent of a child to achieve the permanency plan goal of returning the child safely to his or her home, if the court finds any of the following:
48.355(2d)(b)1.
1. That the parent has subjected the child to aggravated circumstances, as evidenced by a final judgment of conviction.
48.355(2d)(b)2.
2. 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, as evidenced by a final judgment of conviction, and that the victim of that violation is a child of the parent.
48.355(2d)(b)3.
3. That the parent has committed a violation of s.
940.19 (3), 1999 stats., a violation of
s. 940.19 (2),
(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),
(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, as evidenced by a final judgment of conviction, 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.
48.355(2d)(b)4.
4. That the parental rights of the parent to another child have been involuntarily terminated, as evidenced by a final order of a court of competent jurisdiction terminating those parental rights.
48.355(2d)(b)5.
5. That the parent has been found under
s. 48.13 (2m) to have relinquished custody of the child under
s. 48.195 (1) when the child was 72 hours old or younger, as evidenced by a final order of a court of competent jurisdiction making that finding.
48.355(2d)(bm)
(bm) The court shall make a finding specified in
par. (b) 1. to
5. on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which that finding is based in the dispositional order. A dispositional order that merely references
par. (b) 1. to
5. without documenting or referencing that specific information in the dispositional order or an amended dispositional order that retroactively corrects an earlier dispositional order that does not comply with this paragraph is not sufficient to comply with this paragraph.
48.355(2d)(c)1.1. If the court finds that any of the circumstances specified in
par. (b) 1. to
5. applies with respect to a parent, the court shall hold a hearing within 30 days after the date of that finding to determine the permanency plan for the child. If a hearing is held under this subdivision, the agency responsible for preparing the permanency plan shall file the permanency plan with the court not less than 5 days before the date of the hearing.
48.355(2d)(c)2.
2. If a hearing is held under
subd. 1., at least 10 days before the date of the hearing the court shall notify the child, any parent, guardian, and legal custodian of the child, and any foster parent, treatment foster parent, or other physical custodian described in
s. 48.62 (2) of the child of the time, place, and purpose of the hearing.
48.355(2d)(c)3.
3. The court shall give a foster parent, treatment foster parent, or other physical custodian described in
s. 48.62 (2) who is notified of a hearing under
subd. 2. an opportunity to be heard at the hearing by permitting the foster parent, treatment foster parent, or other physical custodian to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, relevant to the issues to be determined at the hearing. A foster parent, treatment foster parent, or other physical custodian who receives a notice of a hearing under
subd. 2. and an opportunity to be heard under this subdivision 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.
48.355(2e)
(2e) Permanency plans; filing; amended orders; copies. 48.355(2e)(a)(a) If a permanency plan has not been prepared at the time the dispositional order is entered, or if the court orders a disposition that is not consistent with the permanency plan, the agency responsible for preparing the plan shall prepare a permanency plan that is consistent with the order or revise the permanency plan to conform to the order and shall file the plan with the court within the time specified in
s. 48.38 (3). A permanency plan filed under this paragraph shall be made a part of the dispositional order.
48.355(2e)(b)
(b) Each time a child's placement is changed under
s. 48.357 or a dispositional order is revised under
s. 48.363 or extended under
s. 48.365, the agency that prepared the permanency plan shall revise the plan to conform to the order and shall file a copy of the revised plan with the court. Each plan filed under this paragraph shall be made a part of the court order.
48.355(2e)(c)
(c) Either the court or the agency that prepared the permanency plan shall furnish a copy of the original plan and each revised plan to the child's parent or guardian, to the child or the child's counsel or guardian ad litem, to the child's court-appointed special advocate and to the person representing the interests of the public.
48.355(2m)
(2m) Transitional placements. The court order may include the name of transitional placements, but may not designate a specific time when transitions are to take place. The procedures of
ss. 48.357 and
48.363 shall govern when such transitions take place. However, the court may place specific time limitations on interim arrangements made for the care of the child or for the treatment of the expectant mother pending the availability of the dispositional placement.
48.355(3)(a)(a) Except as provided in
par. (b), if, after a hearing on the issue with due notice to the parent or guardian, the court finds that it would be in the best interest of the child, the court may set reasonable rules of parental visitation.
48.355(3)(b)1.1. Except as provided in
subd. 2., the court may not grant visitation under
par. (a) to a parent of a child if the parent has been convicted under
s. 940.01 of the first-degree intentional homicide, or under
s. 940.05 of the 2nd-degree intentional homicide, of the child's other parent, and the conviction has not been reversed, set aside or vacated.
48.355(3)(b)1m.
1m. Except as provided in
subd. 2., if a parent who is granted visitation rights with a child under
par. (a) is convicted under
s. 940.01 of the first-degree intentional homicide, or under
s. 940.05 of the 2nd-degree intentional homicide, of the child's other parent, and the conviction has not been reversed, set aside or vacated, the court shall issue an order prohibiting the parent from having visitation with the child on petition of the child, the guardian or legal custodian of the child, a person or agency bound by the dispositional order or the district attorney or corporation counsel of the county in which the dispositional order was entered, or on the court's own motion, and on notice to the parent.
48.355(3)(b)2.
2. Subdivisions 1. and
1m. do not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the child. The court shall consider the wishes of the child in making that determination.
48.355(4)
(4) Termination of orders. Except as provided under
s. 48.368, an order under this section or
s. 48.357 or
48.365 made before the child reaches 18 years of age that places or continues the placement of the child in his or her home shall terminate at the end of one year after its entry unless the judge specifies a shorter period of time or the judge terminates the order sooner. Except as provided under
s. 48.368, an order under this section or
s. 48.357 or
48.365 made before the child reaches 18 years of age that places or continues the placement of the child in a foster home, treatment foster home, group home, or residential care center for children and youth or in the home of a relative other than a parent shall terminate when the child reaches 18 years of age, at the end of one year after its entry, or, if the child is a full-time student at a secondary school or its vocational or technical equivalent and is reasonably expected to complete the program before reaching 19 years of age, when the child reaches 19 years of age, whichever is later, unless the judge specifies a shorter period of time or the judge terminates the order sooner. An order under this section or
s. 48.357 or
48.365 relating to an unborn child in need of protection or services that is made before the unborn child is born shall terminate at the end of one year after its entry unless the judge specifies a shorter period of time or the judge terminates the order sooner.
48.355(5)
(5) Effect of court order. Any party, person or agency who provides services for the child or the expectant mother under this section shall be bound by the court order.
48.355(7)
(7) Orders applicable to parents, guardians, legal custodians, expectant mothers and other adults. In addition to any dispositional order entered under
s. 48.345 or
48.347, the court may enter an order applicable to the parent, guardian or legal custodian of a child, to a family member of an adult expectant mother or to another adult as provided under
s. 48.45.
48.355 History
History: 1977 c. 354;
1979 c. 295,
300,
359;
1983 a. 27,
102,
399,
538;
1985 a. 29;
1987 a. 27,
339,
383;
1989 a. 31,
41,
86,
107,
121,
359;
1991 a. 39;
1993 a. 98,
334,
377,
385,
395,
446,
481,
491;
1995 a. 27,
77,
201,
225,
275;
1997 a. 27,
205,
237,
292;
1999 a. 9,
103,
149,
186;
2001 a. 2,
16,
109.
48.355 Annotation
Mandatory time limits affect a trial court's competency to act, but an objection must be raised before the trial court to avoid waiver. In Interest of L.M.C.
146 Wis. 2d 377,
430 N.W.2d 352 (Ct. App. 1988).
48.355 Annotation
A circuit court may order parents to pay toward a child's support when a CHIPS child is placed in residential treatment, but the court may not assess any of the facility's education-related costs against the parents. Calumet County Department of Human Services v. Randall H. 2002 WI 126,
257 Wis. 2d 57,
653 N.W.2d 503.
48.356
48.356
Duty of court to warn. 48.356(1)
(1) Whenever the court orders a child to be placed outside his or her home, orders an expectant mother of an unborn child to be placed outside of her home or denies a parent visitation because the child or unborn child has been adjudged to be in need of protection or services under
s. 48.345,
48.347,
48.357,
48.363 or
48.365, the court shall orally inform the parent or parents who appear in court or the expectant mother who appears in court of any grounds for termination of parental rights under
s. 48.415 which may be applicable and of the conditions necessary for the child or expectant mother to be returned to the home or for the parent to be granted visitation.
48.356(2)
(2) In addition to the notice required under
sub. (1), any written order which places a child or an expectant mother outside the home or denies visitation under
sub. (1) shall notify the parent or parents or expectant mother of the information specified under
sub. (1).
48.356 Annotation
Substantial compliance is not adequate to meet the sub. (2) notice provision; oral, rather than written, notice is insufficient. In re D.F.
147 Wis. 2d 486,
433 N.W.2d 609 (Ct. App. 1988).
48.356 Annotation
Dismissal of termination proceedings 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).
48.356 Annotation
To comply with sub. (2), the written order must contain the same information as the oral notice under sub. (1); that the notice contained more does not mean sub. (2) was violated. In Interest of Jamie L.
172 Wis. 2d 218,
493 N.W.2d 56 (1992).
48.356 Annotation
When termination is under s. 48.415 (8) for murdering the other parent, no notice under sub. (1) of the conditions necessary for the return of the child is necessary as the grounds for termination, the murder, cannot be remedied. Winnebago County DSS v. Darrell A.
194 Wis. 2d 628,
534 N.W.2d 907 (Ct. App. 1995).
48.356 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),
95-1164.
48.356 Annotation
The written warning under sub. (2) applies only to orders removing children from placement with their parents or denying parental visitation. Temporary physical custody orders or extensions of those orders may not lead to a loss of parental rights and do not require the written warning. Marinette County v. Tammy C.
219 Wis. 2d 206,
579 N.W.2d 635 (1998).
48.356 Annotation
The last order placing the child outside the home issued before the filing of the petition to terminate parental rights, rather than each order, must contain the written notice prescribed by s. 48.356 (2). Waukesha County v. Steven H. 2000 WI 28,
233 Wis. 2d 344,
607 N.W.2d 607. But see also Waushara County v. Lisa K. 2000 WI App 145,
237 Wis. 2d 830,
615 N.W.2d 204 in which it was held that there was adequate notice when an extension order, which was the final order issued before a TPR petition was filed, did not contain the written notice, but the earlier orders that were extended had.
48.357
48.357
Change in placement. 48.357(1)(a)(a) The person or agency primarily responsible for implementing the dispositional order, the district attorney, or the corporation counsel may request a change in the placement of the child or expectant mother, whether or not the change requested is authorized in the dispositional order,, as provided in
par. (am) or
(c), whichever is applicable.
48.357(1)(am)1.1. If the proposed change in placement involves any change in placement other than a change in placement specified in
par. (c), the person or agency primarily responsible for implementing the dispositional order, the district attorney, or the corporation counsel shall cause written notice of the proposed change in placement to be sent to the child, the parent, guardian, and legal custodian of the child, any foster parent, treatment foster parent, or other physical custodian described in
s. 48.62 (2) of the child, the child's court-appointed special advocate, and, if the child is the expectant mother of an unborn child under
s. 48.133, the unborn child by the unborn child's guardian ad litem. If the expectant mother is an adult, written notice shall be sent to the adult expectant mother and the unborn child by the unborn child's guardian ad litem. The notice shall contain the name and address of the new placement, the reasons for the change in placement, a statement describing why the new placement is preferable to the present placement, and a statement of how the new placement satisfies objectives of the treatment plan ordered by the court.
