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. or
(am), 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. In placing an Indian child in sustaining care, the court shall comply with the order of placement preference under
s. 48.028 (7) (b) or, if applicable,
s. 48.028 (7) (c), unless the court finds good cause, as described in
s. 48.028 (7) (e), for departing from that order. 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).
48.428 Note
NOTE: Par. (a) is repealed and recreated by
2009 Wis. Act 94 effective the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9), as created by
2009 Wisconsin Act 28 to read:
Effective date text
(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. or (am), and place the child in the home of a licensed foster parent or kinship care relative with whom the child has resided for 6 months or longer. In placing an Indian child in sustaining care, the court shall comply with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless the court finds good cause, as described in s. 48.028 (7) (e), for departing from that order. Pursuant to the placement, that licensed 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. or
(am), 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. In placing an Indian child in sustaining care, the court shall comply with the order of placement preference under
s. 48.028 (7) (b) or, if applicable,
s. 48.028 (7) (c), unless the court finds good cause, as described in
s. 48.028 (7) (e), for departing from that order. 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. or
(am), the court shall terminate the guardianship under
s. 48.977.
48.428 Note
NOTE: Par. (b) is repealed and recreated by
2009 Wis. Act 94 effective the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9), as created by
2009 Wisconsin Act 28 to read:
Effective date text
(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. or (am), and place the child in the home of a licensed foster parent or kinship care relative with whom the child has resided for 6 months or longer. In placing an Indian child in sustaining care, the court shall comply with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless the court finds good cause, as described in s. 48.028 (7) (e), for departing from that order. Pursuant to the placement, that licensed 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. or (am), 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.
Effective date note
NOTE: Sub. (4) is amended by
2009 Wis. Act 28 eff. the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read:
Effective date text
(4) Before a licensed foster parent or kinship care relative may be appointed as a sustaining parent, the 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 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)(am)
(am) If the department or a county department receives guardianship or custody of the child under
par. (a), an order ordering the child into the placement and care responsibility of the department or county department as required under
42 USC 672 (a) (2) and assigning the department or county department primary responsibility for providing services to the child.
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)(cm)
(cm) If a permanency plan has previously been prepared for the child, a finding as to whether the agency primarily responsible for providing services to the child has made reasonable efforts to achieve the goal of the child's permanency plan, including, if appropriate, through an out-of-state placement. The court shall make the findings specified in this paragraph 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 order. An order that merely references this paragraph without documenting or referencing that specific information in the order or an amended order that retroactively corrects an earlier order that does not comply with this paragraph is not sufficient to comply with this paragraph.
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 whose parental rights are terminated and the child and between the child and all persons whose relationship to the child is derived through that parent, except as follows:
48.43(2)(a)
(a) The relationship between the child and his or her siblings is not severed until that relationship is extinguished by an order of adoption as provided in
s. 48.92 (2).
48.43(2)(b)
(b) A relative whose relationship to the child is derived through the parent whose parental rights are terminated is considered to be a relative of the child for purposes of placement of, and permanency planning for, the child until that relationship is extinguished by an order of adoption as provided in
s. 48.92 (2).
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)1.1. 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, place, and purpose of the hearing to the agency that prepared the report, the child's guardian, the child, and the child's foster parent or treatment foster parent, the operator of the facility in which the child is living, or the relative with whom the child is living.
Effective date note
NOTE: Subd. 1. is repealed and recreated by
2009 Wis. Act 79 eff. the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read:
Effective date text
1. 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, place, and purpose of the hearing to the agency that prepared the report, the child's guardian, the child, and the child's foster parent, the operator of the facility in which the child is living, or the relative with whom the child is living.
48.43(5)(b)2.
2. If the child's permanency plan includes a statement under
s. 48.38 (4) (i) indicating that the child's age and developmental level are sufficient for the court to consult with the child regarding the child's permanency plan or if, notwithstanding a decision under
s. 48.38 (4) (i) that it would not be appropriate for the court to consult with the child, the court determines that consultation with the child would be in the best interests of the child, the court shall consult with the child, in an age-appropriate and developmentally appropriate manner, regarding the child's permanency plan and any other matters the court finds appropriate. If none of those circumstances apply, the court may permit the child's caseworker, the child's counsel, or, subject to
s. 48.235 (3) (a), the child's guardian ad litem to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, expressing the child's wishes, goals, and concerns regarding the permanency plan and those matters. If the court permits such a written or oral statement to be made or submitted, the court may nonetheless require the child's presence at the hearing.
48.43(5)(b)3.
3. The court shall give a foster parent, treatment foster parent, operator of a facility, or relative who is notified of a hearing under
subd. 1. a right to be heard at the hearing by permitting the foster parent, treatment foster parent, operator, or relative 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. The foster parent, treatment foster parent, operator of a facility, or relative does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and right to be heard.
Effective date note
NOTE: Subd. 3. is amended by
2009 Wis. Act 79 eff. the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read:
Effective date text
3. The court shall give a foster parent, operator of a facility, or relative who is notified of a hearing under subd. 1. a right to be heard at the hearing by permitting the foster parent, operator, or relative 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. The foster parent, operator of a facility, or relative does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and right to be heard.
48.43(5)(bm)
(bm) If the order under
sub. (1) involuntarily terminated parental rights to an Indian child, the court shall also provide notice of the hearing under
par. (b) to the Indian child's tribe in the manner specified in
s. 48.028 (4) (a). No hearing may be held under
par. (b) until at least 10 days after receipt of notice of the hearing by the Indian child's tribe or, if the identity or location of the Indian child's tribe cannot be determined, until at least 15 days after receipt of notice of the hearing by the U.S. secretary of the interior. On request of the Indian child's tribe, the court shall grant a continuance of up to 20 additional days to enable the tribe to prepare for the hearing.
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. or
(am) that consents to the transfer, if the court determines that the transfer is in the child's best interest. If an Indian child's guardianship and custody are transferred under this paragraph, the agency consenting to the transfer shall comply with the order of placement preference under
s. 48.028 (7) (b) or, if applicable,
s. 48.028 (7) (c) in placing the child, unless the agency finds good cause, as described in
s. 48.028 (7) (e), for departing from that order. 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, to the child's foster parent or treatment foster parent, the operator of the facility in which the child is living, or the relative with whom the child is living, and, if the order under
sub. (1) involuntarily terminated parental rights to an Indian child, to the Indian child's tribe.
48.43 Note
NOTE: Sub. (5m) is shown as affected by
2009 Wis. Act 79, s.
90, and
2009 Wis. Act 94, s.
157, and as merged by the legislative reference bureau under s. 13.92 (2) (i). Sub. (5m) is repealed and recreated by
2009 Wis. Act 94, s.
158, effective the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read as follows. Act 94, s. 158, did not take cognizance of the repeal and recreation of the provision by
2009 Wis. Act 79, s.
91. The bracketed material shows the changes needed to give effect to the Act 79 changes. Material that was not changed by Act 94, s. 158, but that was deleted or replaced by Act 79, s. 91, is shown in square brackets and material that was inserted by Act 79 but not included in Act 94 is shown in curly brackets. Corrective legislation is pending.
Effective date text
(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, to the child's foster parent [or]{,} the operator of the facility in which the child is living{, or the relative with whom the child is living}, and, if the order under sub. (1) involuntarily terminated parental rights to an Indian child, to the Indian child's tribe.
48.43(6)(a)(a) 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 and are subject to a petition for rehearing or a motion for relief only as provided in
s. 48.46 (1m) and
(2) and, in the case of an Indian child,
s. 48.028 (5) (c) and
(6). The attorney representing a person during a proceeding under this subchapter shall continue representation of that person by filing a notice of intent to appeal under
s. 809.107 (2), unless the attorney has been previously discharged during the proceeding by the person or by the trial court.
48.43(6)(b)
(b) The mother of a child who completes an affidavit under
s. 48.42 (1g) may not collaterally attack a judgment terminating parental rights on the basis that the father of the child was not correctly identified.
48.43(6)(c)
(c) Except as provided in
s. 48.028 (5) (c) and
(6), in no event may any person, for any reason, collaterally attack a judgment terminating parental rights more than one year after the date on which the period for filing an appeal from the judgment has expired, or more than one year after the date on which all appeals from the judgment, if any were filed, have been decided, whichever is later.
48.43(6m)
(6m) If a person whose parental rights are terminated is present in court when the court grants the order terminating those rights, the court shall provide written notification to the person of the time periods for appeal of the judgment. The person shall sign the written notification, indicating that he or she has been notified of the time periods for filing an appeal under
ss. 808.04 (7m) and
809.107. The person's counsel shall file a copy of the signed, written notification with the court on the date on which the judgment is granted.
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, except that the department may not petition the court to transfer to a county department legal custody of a child who was initially taken into custody under
s. 48.195 (1). The court shall transfer the child's legal custody to the county department specified in the petition. The department shall remain the child's guardian.
48.43 History
History: 1979 c. 330;
1983 a. 27,
219,
286;
1985 a. 70,
176,
332; Sup. Ct. Order, 136 Wis. 2d xxv (1987);
1987 a. 383;
1993 a. 395,
446;
1995 a. 275;
1997 a. 237;
2005 a. 232,
293,
296;
2007 a. 20,
199;
2009 a. 28,
79,
94; s. 13.92 (2) (i).
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),
97-3595.
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. 767.803.
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.
48.432(3)(a)(a) The department, or agency contracted with under sub, (9), shall release the medical information under
sub. (2) to any of the following persons upon request:
48.432(3)(a)3.
3. The guardian or legal custodian of an individual or adoptee.
48.432(3)(a)4.
4. The offspring of an individual or adoptee if the requester is 18 years of age or older.
48.432(3)(a)5.
5. An agency or social worker assigned to provide services to the individual or adoptee or place the individual for adoption.
48.432(3)(b)
(b) Before releasing the information under
par. (a), the department, or agency contracted with under
sub. (9), shall delete the name and address of the birth parent and the identity of any provider of health care to the individual or adoptee or to the birth parent.
48.432(3)(c)
(c) The person making a request under this subsection shall pay a fee for the cost of locating, verifying, purging, summarizing, copying and mailing the medical or genetic information according to a fee schedule established by the department, or agency contracted with under
sub. (9), based on ability to pay. The fee may not be more than $150 and may be waived by the department or agency.
48.432(4)(a)(a) Whenever any person specified under
sub. (3) wishes to obtain medical and genetic information about an individual whose birth parent's rights have been terminated in this state at any time, or whose birth parent consented to his or her adoption before February 1, 1982, or medical and genetic information about the birth parents of such an individual or adoptee, and the information is not on file with the department, or agency contracted with under
sub. (9), the person may request that the department or agency conduct a search for the birth parents to obtain the information. The request shall be accompanied by a statement from a physician certifying either that the individual or adoptee has or may have acquired a genetically transferable disease or that the individual's or adoptee's medical condition requires access to the information.
48.432(4)(b)
(b) Upon receipt of a request under
par. (a), the department, or agency contracted with under
sub. (9), shall undertake a diligent search for the individual's or adoptee's parents.
48.432(4)(c)
(c) Employees of the department and any agency conducting a search under this subsection may not inform any person other than the birth parents of the purpose of the search.
48.432(4)(d)
(d) The department, or agency contracted with under
sub. (9), shall charge the requester a reasonable fee for the cost of the search. When the department or agency determines that the fee will exceed $100 for either birth parent, it shall notify the requester. No fee in excess of $100 per birth parent may be charged unless the requester, after receiving notification under this paragraph, has given consent to proceed with the search.
