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
Prior to determining that grounds existed to terminate parental rights, the circuit court had the duty at the fact-finding hearing to find by clear and convincing evidence that all of the elements of s. 48.415 (1) (a) 3. had been satisfied. By entering a default judgment against the mother on the issue of abandonment without first taking evidence, the circuit court did not make the finding. The error was subject to a harmless error analysis. Evelyn C.R. v. Tykila S. 2001 WI 110,
246 Wis. 2d 1,
629 N.W.2d 768.
48.415 Annotation
In a case under sub. (4), a parent's right to meaningfully participate in the termination proceeding includes the right to present evidence at the fact-finding hearing regarding efforts to to meet the conditions for reestablishing visitation. It was error to restrict evidence to whether an order denying visitation had remained in effect for a year. State v. Frederick H. 2001 WI App 141,
246 Wis. 2d 215,
630 N.W.2d 734.
48.415 Annotation
Events occurring prior to a CHIPS dispositional order are frequently relevant at a termination proceeding. A history of parental conduct may be relevant to predicting a parent's chances of complying with conditions in the future, despite failing to do so to date. La Crosse County Department of Human Services v. Tara P. 2002 WI App 84,
252 Wis. 2d 179,
643 N.W.2d 194.
48.415 Annotation
In determining whether "there is a substantial likelihood" that a parent will not meet conditions for the return of his or her children, a parent's relevant character traits and patterns of behavior and the likelihood that any problematic traits or propensities have been or can be modified in order to assure the safety of the children must be considered. La Crosse County Department of Human Services v. Tara P. 2002 WI App 84,
252 Wis. 2d 179,
643 N.W.2d 194.
48.415 Annotation
A mother's criminal offenses and sentences were relevant to whether she had failed to establish a substantial parental relationship with her children under sub. (6). State v. Quinsanna D. 2002 WI App 318,
259 Wis. 2d 429,
655 N.W.2d 752,
02-1919.
48.415 Annotation
Partial summary judgment may be granted in the unfitness phase of a termination case if the moving party establishes that there is no genuine issue as to any material fact regarding the asserted grounds for unfitness, and, taking into consideration the heightened burden of proof specified in s. 48.31 (1) and required by due process, the moving party is entitled to judgment as a matter of law. Steven V. v. Kelley H. 2004 WI 47,
271 Wis. 2d 1,
678 N.W.2d 831,
02-2860.
48.415 Annotation
As applied in this case the incestuous parenthood ground under sub. (7) is not narrowly tailored to advance the compelling state interest underlying the statute. It is fundamentally unfair to terminate parental rights based solely on a parent's status as a victim of incest. Monroe County DHS v. Kelli B. 2004 WI 48,
271 Wis. 2d 51,
678 N.W.2d 856,
03-0060.
48.415 Annotation
Jennifer V.'s holding is limited to appeals based on guilt or innocence. When a parent's pending appeal does not raise issues of guilt or innocence, "final judgment of conviction" in sub. (9m) means the judgment of conviction entered by the trial court, either after a verdict of guilty by the jury, a finding of guilty by the court when a jury is waived, or a plea of guilty or no contest. Reynaldo F. v. Christal M. 2004 WI App 106, ___ Wis. 2d ___,
684 N.W.2d 138,
03-2687.
48.415 Annotation
A parent's prior convictions are not so prejudicial as to outweigh their probative value when the information would lead the jury to an understanding of why children are removed from the parent's home. Reynaldo F. v. Christal M. 2004 WI App 106, ___ Wis. 2d ___,
684 N.W.2d 138,
03-2687.
48.415 Annotation
It is of no import that paternity was unadjudicated during the abandonment period, the statute still applies and the state can terminate a father's rights under sub. (1) (a) 3. State v. James P. 2004 WI App 124, ___ Wis. 2d ___, ___ N.W.2d ___,
04-0723.
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) or
938.365 (1), for 15 of the most recent 22 months, not including any period during which the child was a runaway from the out-of-home placement or the first 6 months of any period during which the child was returned to his or her home for a trial home visit. If the circumstances specified in this paragraph apply, the petition shall be filed or joined in by the last day of the 15th month, as described in this paragraph, for which the child was placed outside of his or her home.
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. If the circumstances specified in this paragraph apply, the petition shall be filed or joined in within 60 days after the date on which the court of competent jurisdiction found that the child was abandoned as described in this paragraph.
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. If the circumstances specified in this paragraph apply, the petition shall be filed or joined in within 60 days after the date on which the court assigned to exercise jurisdiction under this chapter determines, based on a finding that a circumstance specified in this paragraph applies, that reasonable efforts to make it possible for the child to return safely to his or her home are not required.
48.417(1)(d)
(d) A court of competent jurisdiction has found 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, 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. If the circumstances specified in this paragraph apply, the petition shall be filed or joined in within 60 days after the date on which the court assigned to exercise jurisdiction under this chapter determines, based on a finding that a circumstance specified in this paragraph applies, that reasonable efforts to make it possible for the child to return safely to his or her home are not required.
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 fit and willing relative of the child.
48.417(2)(b)
(b) The child's permanency plan indicates and provides documentation 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(2)(d)
(d) Grounds for an involuntary termination of parental rights under
s. 48.415 do not exist.
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.
48.417(4)
(4) Notice to department. If a petition is filed or joined in as required under
sub. (1), the person who filed or joined in the petition shall notify the department of that filing or joinder.
48.417 History
History: 1997 a. 237;
2001 a. 109.
48.42(1)(1)
Petition. A proceeding for the termination of parental rights shall be initiated by petition which may be filed by the child's parent, an agency or a person authorized to file a petition under
s. 48.25 or
48.835. The petition shall be entitled "In the interest of .......... (child's name), a person under the age of 18" and shall set forth with specificity:
48.42(1)(a)
(a) The name, birth date and address of the child.
48.42(1)(b)
(b) The names and addresses of the child's parent or parents, guardian and legal custodian.
48.42(1)(c)1.
1. A statement that consent will be given to termination of parental rights as provided in
s. 48.41.
48.42(1)(c)2.
2. A statement of the grounds for involuntary termination of parental rights under
s. 48.415 and a statement of the facts and circumstances which the petitioner alleges establish these grounds.
48.42(1m)(a)(a) If the petition filed under
sub. (1) includes a statement of the grounds for involuntary termination of parental rights under
sub. (1) (c) 2., the petitioner may, at the time the petition under
sub. (1) is filed, also petition the court for a temporary order and an injunction prohibiting the person whose parental rights are sought to be terminated from visiting or contacting the child who is the subject of the petition under
sub. (1). Any petition under this paragraph shall allege facts sufficient to show that prohibiting visitation or contact would be in the best interests of the child.
48.42(1m)(b)
(b) Subject to
par. (e), the court may issue the temporary order ex parte or may refuse to issue the temporary order and hold a hearing on whether to issue an injunction. The temporary order is in effect until a hearing is held on the issuance of an injunction. The court shall hold a hearing on the issuance of an injunction on or before the date of the hearing on the petition to terminate parental rights under
s. 48.422 (1).
48.42(1m)(c)
(c) Notwithstanding any other order under
s. 48.355 (3), the court, subject to
par. (e), may grant an injunction prohibiting the respondent from visiting or contacting the child if the court determines that the prohibition would be in the best interests of the child. An injunction under this subsection is effective according to its terms but may not remain in effect beyond the date the court dismisses the petition for termination of parental rights under
s. 48.427 (2) or issues an order terminating parental rights under
s. 48.427 (3).
48.42(1m)(e)1.1. Except as provided in
subd. 2., the court shall issue a temporary order and injunction prohibiting a parent of a child from visitation or contact with the 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.
48.42(1m)(e)2.
2. Subdivision 1. does not apply if the court determines by clear and convincing evidence that the visitation or contact would be in the best interests of the child. The court shall consider the wishes of the child in making that determination.
48.42(2)
(2) Who must be summoned. Except as provided in
sub. (2m), the petitioner shall cause the summons and petition to be served upon the following persons:
48.42(2)(a)
(a) The parent or parents of the child, unless the child's parent has waived the right to notice under
s. 48.41 (2) (d).
48.42(2)(b)
(b) If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under
s. 767.60 and paternity has not been established:
48.42(2)(b)2.
2. A person or persons alleged to the court to be the father of the child or who may, based upon the statements of the mother or other information presented to the court, be the father of the child unless that person has waived the right to notice under
s. 48.41 (2) (c).
48.42(2)(b)3.
3. A person who has lived in a familial relationship with the child and who may be the father of the child.
48.42(2)(c)
(c) The guardian, guardian ad litem and legal custodian of the child.
48.42(2)(d)
(d) Any other person to whom notice is required to be given by
ch. 822, excluding foster parents and treatment foster parents who shall be provided notice as required under
sub. (2g).
48.42(2)(e)
(e) To the child if the child is 12 years of age or older.
48.42(2g)(a)(a) In addition to causing the summons and petition to be served as required under
sub. (2), the petitioner shall also notify any foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) of the child of all hearings on the petition. The first notice to any foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) shall be written, shall have a copy of the petition attached to it, shall state the nature, location, date and time of the initial hearing and shall be mailed to the last-known address of the foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2). Thereafter, notice of hearings may be given by telephone at least 72 hours before the time of the hearing. The person giving telephone notice shall place in the case file a signed statement of the time notice was given and the person to whom he or she spoke.
48.42(2g)(am)
(am) 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
par. (a) 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 described in
s. 48.62 (2) who receives a notice of a hearing under
par. (a) and an opportunity to be heard under this paragraph 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.
48.42(2g)(b)
(b) Failure to give notice under
par. (a) to a foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) does not deprive the court of jurisdiction in the proceeding. If a foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) is not given notice of a hearing under
par. (a), that person may request a rehearing on the matter at any time prior to the entry of an order under
s. 48.427 (2) or
(3). If the request is made, the court shall order a rehearing.
48.42(2m)
(2m) Notice not required. Except as provided in this subsection, notice is not required to be given to a person who may be the father of a child 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 if a physician attests to his or her belief that a sexual assault as specified in this subsection has occurred or if the person who may be the father of the child has been convicted of sexual assault as specified in this subsection for conduct which may have led to the child's conception. A person who under this subsection is not given notice does not have standing to appear and contest a petition for the termination of his parental rights. This subsection does not apply to a person who may be the father of a child conceived as a result of a sexual assault in violation of
s. 948.02 (1) or
(2) if that person was under 18 years of age at the time of the sexual assault.
48.42(3)
(3) Contents of summons. The summons shall:
48.42(3)(a)
(a) Contain the name and birth date of the child, and the nature, location, date and time of the initial hearing.
48.42(3)(b)
(b) Advise the party, if applicable, of his or her right to legal counsel, regardless of ability to pay under
s. 48.23 and
ch. 977.
48.42(3)(c)
(c) Advise the parties of the possible result of the hearing and the consequences of failure to appear or respond.
48.42(3)(d)
(d) Advise the parties that if the court terminates parental rights, a notice of intent to pursue relief from the judgment must be filed in the trial court within 30 days after the judgment is entered for the right to pursue such relief to be preserved.
48.42(4)
(4) Manner of serving summons and petition. 48.42(4)(a)(a) Personal service. A copy of the summons and petition shall be served personally upon the parties specified in
sub. (2), if known, at least 7 days before the date of the hearing, except that service of summons is not required if the party submits to the jurisdiction of the court. Service upon parties who are not natural persons and upon persons under a disability shall be as prescribed in
s. 801.11.
48.42(4)(b)1.1. If with reasonable diligence a party specified in
sub. (2) cannot be served under
par. (a), service shall be made by publication of the notice under
subd. 4.
48.42(4)(b)2.
2. If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under
s. 767.60 and paternity has not been acknowledged under
s. 767.62 (1) or a substantially similar law of another state or adjudicated, the court may, as provided in
s. 48.422 (6) (b), order publication of a notice under
subd. 4.
48.42(4)(b)3.
3. At the time the petition is filed, the petitioner may move the court for an order waiving the requirement of constructive notice to a person who, although his identity is unknown, may be the father of a nonmarital child.
48.42(4)(b)4.
4. A notice published under this subsection shall be published as a class 1 notice under
ch. 985. In determining which newspaper is likely to give notice as required under
s. 985.02 (1), the petitioner or court shall consider the residence of the party, if known, or the residence of the relatives of the party, if known, or the last-known location of the party. If the party's post-office address is known or can, with due diligence, be ascertained, a copy of the summons and petition shall be mailed to the party upon or immediately prior to the first publication. The mailing may be omitted if the petitioner shows that the post-office address cannot be obtained with due diligence. Except as provided in
subd. 5., the notice shall include the date, place and circuit court branch for the hearing, the court file number, the name, address and telephone number of the petitioner's attorney and information the court determines to be necessary to give effective notice to the party or parties. Such information shall include the following, if known:
48.42(4)(b)4.a.
a. The name of the party or parties to whom notice is being given;
48.42(4)(b)4.d.
d. The approximate date and place of conception of the child; and
48.42(4)(b)5.
5. The notice shall not include the name of the mother unless the mother consents. The notice shall not include the name of the child unless the court finds that inclusion of the child's name is essential to give effective notice to the father.
48.42(4)(c)1.
1. That the parental rights of a parent or alleged parent who fails to appear may be terminated;
48.42(4)(c)2.
2. Of the party's right to have an attorney present and that if a person desires to contest termination of parental rights and believes that he or she cannot afford an attorney, the person may ask the state public defender to represent him or her; and
48.42(4)(c)3.
3. That if the court terminates parental rights, a notice of intent to pursue relief from the judgment must be filed in the trial court within 30 days after judgment is entered for the right to pursue such relief to be preserved.
Effective date note
Judicial Council Note, 1986: Subs. (3) (d) and (4) (c) are amended to require notice to the parties of the time and manner for initiating an appeal from a judgment terminating parental rights. [Re Order eff. 7-1-87]
48.42 Annotation
Guardianship and TPR proceedings are custody proceedings, guardianship and TPR determinations are custody determinations, and guardianship and TPR determinations are custody decrees, all governed by ch. 822. In Interest of A.E.H.
161 Wis. 2d 277,
468 N.W.2d 190 (1991).
48.42 Annotation
Sub. (2m) denies a putative father standing to contest the alleged grounds for termination when the child was conceived as the result of sexual assault. Termination of Parental Rights to A. M.
176 Wis. 2d 673,
500 N.W.2d 649 (1993).
48.42 Annotation
Sub. (2) (d) requires consideration in each case of whether ch. 822 applies but does not require the application of ch. 822 to intrastate cases. In Interest of Brandon S.S.
179 Wis. 2d 114,
507 N.W.2d 94 (1993).
48.42 Annotation
Sub. (2) is the exclusive statute for determining what parties may be summoned; intervention under s. 803.09 does not apply. In Interest of Brandon S.S.
179 Wis. 2d 114,
507 N.W.2d 94 (1993).
48.42 Annotation
Sexual assault under sub. (2m) does not include a violation of s. 948.09, sexual intercourse with a child age 16 or older. Paternity of Michael A.T.
182 Wis. 2d 395,
513 N.W.2d 669 (Ct. App. 1994).
48.422
48.422
Hearing on the petition. 48.422(1)
(1) The hearing on the petition to terminate parental rights shall be held within 30 days after the petition is filed. At the hearing on the petition to terminate parental rights the court shall determine whether any party wishes to contest the petition and inform the parties of their rights under
sub. (4) and
s. 48.423.
48.422(2)
(2) If the petition is contested the court shall set a date for a fact-finding hearing to be held within 45 days of the hearing on the petition, unless all of the necessary parties agree to commence with the hearing on the merits immediately.
