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
Once a basis for termination has been found by the jury and confirmed with a finding of unfitness by the court, the court must move to the dispositional hearing in which the prevailing factor is the best interests of the child. A court should not dismiss a petition for termination at a dispositional hearing unless it can reconcile dismissal with the best interests of the child. Sheboygan County D.H.S.S. v. Julie A.B. 2002 WI 95,
255 Wis. 2d 170,
648 N.W.2d 402.
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.
48.428(4)
(4) Before a licensed foster parent, licensed treatment foster parent or kinship care relative may be appointed as a sustaining parent, the foster parent, treatment foster parent or kinship care relative shall execute a contract with the agency responsible for providing services to the child, in which the foster parent, treatment foster parent or kinship care relative agrees to provide care for the child until the child's 18th birthday unless the placement order is changed by the court because the court finds that the sustaining parents are no longer able or willing to provide the sustaining care or the court finds that the behavior of the sustaining parents toward the child would constitute grounds for the termination of parental rights if the sustaining parent was the birth parent of the child.
48.428(6)(a)(a) Except as provided in
par. (b), the court may order or prohibit visitation by a birth parent of a child placed in sustaining care.
48.428(6)(b)1.1. Except as provided in
subd. 2., the court may not grant visitation under
par. (a) to a birth parent of a child who has been placed in sustaining care if the birth 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 birth parent, and the conviction has not been reversed, set aside or vacated.
48.428(6)(b)1m.
1m. Except as provided in
subd. 2., if a birth 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 birth parent, and the conviction has not been reversed, set aside or vacated, the court shall issue an order prohibiting the birth parent from having visitation with the child on petition of the child, the guardian or legal custodian of the child, 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 birth parent.
48.428(6)(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.
48.43
48.43
Court orders; contents and effect; review. 48.43(1)(1) The court shall enter a judgment setting forth its findings and disposition in accordance with
s. 48.426 in an order implementing the disposition chosen. If the court dismisses the petition under
s. 48.427 (2), the order shall contain the reasons for dismissal. If the disposition is for the termination of parental rights under
s. 48.427 (3), the order shall contain all of the following:
48.43(1)(a)
(a) The identity of any agency or individual that has received guardianship of the child or will receive guardianship or custody of the child upon termination and the identity of the agency which will be responsible for securing the adoption of the child or establishing the child in a permanent family setting.
48.43(1)(b)
(b) If the child will be in need of continued care and treatment after termination, the agencies and persons responsible.
48.43(1)(c)
(c) If an agency receives custody of the child under
par. (a), the child's permanency plan prepared under
s. 48.38 by the agency. If a permanency plan has not been prepared at the time the order is entered, or if the court enters an order that is not consistent with the permanency plan, the agency 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 60 days from the date of the order.
48.43(1)(d)
(d) A finding that the termination of parental rights is in the best interests of the child.
48.43(2)
(2) An order terminating parental rights permanently severs all legal rights and duties between the parent and the child.
48.43(3)
(3) If only one parent consents under
s. 48.41 or if the grounds specified in
s. 48.415 are found to exist as to only one parent, the rights of only that parent may be terminated without affecting the rights of the other parent.
48.43(4)
(4) A certified copy of the order terminating parental rights shall be furnished by the court to the agency given guardianship for placement for adoption of the child or to the person or agency given custodianship or guardianship for placement of the child in sustaining care and to the person appointed as the guardian of the child under
s. 48.977 (2). The court shall, upon request, furnish a certified copy of the child's birth certificate and a transcript of the testimony in the termination of parental rights hearing to the same person or agency.
48.43(5)(a)(a) If the custodian specified in
sub. (1) (a) is an agency, the agency shall report to the court on the status of the child at least once each year until the child is adopted or reaches 18 years of age, whichever is sooner. The agency shall file an annual report no less than 30 days before the anniversary of the date of the order. An agency may file an additional report at any time if it determines that more frequent reporting is appropriate. A report shall summarize the child's permanency plan and the recommendations of the review panel under
s. 48.38 (5), if any, and shall describe any progress that has been made in finding a permanent placement for the child.
48.43(5)(b)
(b) The court shall hold a hearing to review the permanency plan within 30 days after receiving a report under
par. (a). At least 10 days before the date of the hearing, the court shall provide notice of the time, date and purpose of the hearing to the agency that prepared the report, the child's guardian, the child, if he or she is 12 years of age or over, and the child's foster parent, treatment foster parent, other physical custodian described in
s. 48.62 (2) or the operator of the facility in which the child is living.
48.43(5)(c)
(c) Following the hearing, the court shall make all of the determinations specified under
s. 48.38 (5) (c), except the determinations relating to the child's parents. The court may amend the order under
sub. (1) to transfer the child's guardianship and custody to any agency specified under
s. 48.427 (3m) (a) 1. to
4. which consents to the transfer, if the court determines that the transfer is in the child's best interest. If an order is amended, 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.
48.43(5m)
(5m) 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, if he or she is 12 years of age or over, and to the child's foster parent, the child's treatment foster parent or the operator of the facility in which the child is living.
48.43(6)
(6) Judgments under this subchapter terminating parental rights are final and are appealable under
s. 808.03 (1) according to the procedure specified in
s. 809.107.
48.43(7)
(7) If the agency specified under
sub. (1) (a) is the department and a permanent adoptive placement is not in progress 2 years after entry of the order, the department may petition the court to transfer legal custody of the child to a county department. The court shall transfer the child's custody to the county department specified in the petition. The department shall remain the child's guardian.
48.43 Annotation
The appeal process in a termination case must be commenced within 30 days after the order is entered. In Interest of J.D.
106 Wis. 2d 126,
315 N.W.2d 365 (1982).
48.43 Annotation
Termination has the same effect on relationships between members of the biological parents' families and the child as it has on the parent-child relationship. Equitable considerations did not form a basis to allow biological grandparents to obtain visitation rights after termination and adoption. Elgin and Carol W. v. DHFS,
221 Wis. 2d 36,
584 N.W.2d 195 (Ct. App. 1998).
48.432
48.432
Access to medical information. 48.432(1)(a)
(a) "Adoptee" means a person who has been adopted in this state with the consent of his or her birth parent or parents before February 1, 1982.
48.432(1)(ag)
(ag) "Agency" means a county department or a licensed child welfare agency.
48.432(1)(am)1.
1. The mother designated on the individual's or adoptee's original birth certificate.
48.432(1)(am)2.b.
b. If there is no adjudicated father, the husband of the mother at the time the individual or adoptee is conceived or born, or when the parents intermarry under
s. 767.60.
48.432(1)(b)
(b) "Individual" means a person whose birth parent's rights have been terminated in this state at any time.
48.432(2)(a)(a) The department, or agency contracted with under
sub. (9), shall maintain all information obtained under
s. 48.427 (6) (b) in a centralized birth record file.
48.432(2)(b)
(b) Any birth parent whose rights to a child have been terminated in this state at any time, or who consented to the adoption of a child before February 1, 1982, may file with the department, or agency contracted with under
sub. (9), any relevant medical or genetic information about the child or the child's birth parents, and the department or agency shall maintain the information in the centralized birth record file.
