48.385
48.385
Plan for transition to independent living. During the 90 days immediately before a child who is placed in a foster home, group home, or residential care center for children and youth, in the home of a relative other than a parent, or in a supervised independent living arrangement attains 18 years of age or, if the child is placed in such a placement under an order under
s. 48.355,
48.357, or
48.365 that terminates under
s. 48.355 (4) (b) after the child attains 18 years of age, during the 90 days immediately before the termination of the order, the agency primarily responsible for providing services to the child under the order shall provide the child with assistance and support in developing a plan for making the transition from out-of-home care to independent living. The transition plan shall be personalized at the direction of the child, shall be as detailed as the child directs, and shall include specific options for obtaining housing, health care, education, mentoring and continuing support services, and workforce support and employment services.
48.396(1)(1) Law enforcement officers' records of children shall be kept separate from records of adults. Law enforcement officers' records of the adult expectant mothers of unborn children shall be kept separate from records of other adults. Law enforcement officers' records of children and the adult expectant mothers of unborn children shall not be open to inspection or their contents disclosed except under
sub. (1b),
(1d),
(5), or
(6) or
s. 48.293 or
938.396 (2m) (c) 1p. or by order of the court. This subsection does not apply to the representatives of newspapers or other reporters of news who wish to obtain information for the purpose of reporting news without revealing the identity of the child or adult expectant mother involved, to the confidential exchange of information between the police and officials of the public or private school attended by the child or other law enforcement or social welfare agencies, or to children 10 years of age or older who are subject to the jurisdiction of the court of criminal jurisdiction. A public school official who obtains information under this subsection shall keep the information confidential as required under
s. 118.125, and a private school official who obtains information under this subsection shall keep the information confidential in the same manner as is required of a public school official under
s. 118.125. This subsection does not apply to the confidential exchange of information between the police and officials of the tribal school attended by the child if the police determine that enforceable protections are provided by a tribal school policy or tribal law that requires tribal school officials to keep the information confidential in a manner at least as stringent as is required of a public school official under
s. 118.125. A law enforcement agency that obtains information under this subsection shall keep the information confidential as required under this subsection and
s. 938.396 (1) (a). A social welfare agency that obtains information under this subsection shall keep the information confidential as required under
ss. 48.78 and
938.78.
48.396(1b)
(1b) If requested by the parent, guardian, or legal custodian of a child who is the subject of a law enforcement officer's report, or if requested by the child, if 14 years of age or over, a law enforcement agency may, subject to official agency policy, provide to the parent, guardian, legal custodian, or child a copy of that report. If requested by the parent, guardian, or legal custodian of a child expectant mother of an unborn child who is the subject of a law enforcement officer's report, if requested by an expectant mother of an unborn child who is the subject of a law enforcement officer's report, if 14 years of age or over, or if requested by an unborn child's guardian ad litem, a law enforcement agency may, subject to official agency policy, provide to the parent, guardian, legal custodian, expectant mother or unborn child's guardian ad litem a copy of that report.
48.396(1d)
(1d) Upon the written permission of the parent, guardian, or legal custodian of a child who is the subject of a law enforcement officer's report or upon the written permission of the child, if 14 years of age or over, a law enforcement agency may, subject to official agency policy, make available to the person named in the permission any reports specifically identified by the parent, guardian, legal custodian or child in the written permission. Upon the written permission of the parent, guardian, or legal custodian of a child expectant mother of an unborn child who is the subject of a law enforcement officer's report, or of an expectant mother of an unborn child who is the subject of a law enforcement officer's report, if 14 years of age or over, and of the unborn child's guardian ad litem, a law enforcement agency may, subject to official agency policy, make available to the person named in the permission any reports specifically identified by the parent, guardian, legal custodian or expectant mother, and unborn child's guardian ad litem in the written permission.
48.396(2)(a)(a) Records of the court assigned to exercise jurisdiction under this chapter and
ch. 938 and of courts exercising jurisdiction under
s. 48.16 shall be entered in books or deposited in files kept for that purpose only. Those records shall not be open to inspection or their contents disclosed except by order of the court assigned to exercise jurisdiction under this chapter and
ch. 938 or as required or permitted under this subsection,
sub. (3) (b) or
(c) 1g.,
1m., or
1r. or
(6), or
s. 48.375 (7) (e).
48.396(2)(ag)
(ag) Upon request of the parent, guardian or legal custodian of a child who is the subject of a record of a court specified in
par. (a), or upon request of the child, if 14 years of age or over, the court shall open for inspection by the parent, guardian, legal custodian or child the records of the court relating to that child, unless the court finds, after due notice and hearing, that inspection of those records by the parent, guardian, legal custodian or child would result in imminent danger to anyone.
48.396(2)(aj)
(aj) Upon request of the parent, guardian, or legal custodian of a child expectant mother of an unborn child who is the subject of a record of a court specified in
par. (a), upon request of an expectant mother of an unborn child who is the subject of a record of a court specified in
par. (a), if 14 years of age or over, or upon request of an unborn child's guardian ad litem, the court shall open for inspection by the parent, guardian, legal custodian, expectant mother, or unborn child's guardian ad litem the records of the court relating to that expectant mother, unless the court finds, after due notice and hearing, that inspection of those records by the parent, guardian, legal custodian, expectant mother, or unborn child's guardian ad litem would result in imminent danger to anyone.
48.396(2)(am)
(am) Upon the written permission of the parent, guardian or legal custodian of a child who is the subject of a record of a court specified in
par. (a), or upon the written permission of the child, if 14 years of age or over, the court shall open for inspection by the person named in the permission any records specifically identified by the parent, guardian, legal custodian or child in the written permission, unless the court finds, after due notice and hearing, that inspection of those records by the person named in the permission would result in imminent danger to anyone.
48.396(2)(ap)
(ap) Upon the written permission of the parent, guardian, or legal custodian of a child expectant mother of an unborn child who is the subject of a record of a court specified in
par. (a), or of an expectant mother of an unborn child who is the subject of a record of a court specified in
par. (a), if 14 years of age or over, and of the unborn child's guardian ad litem, the court shall open for inspection by the person named in the permission any records specifically identified by the parent, guardian, legal custodian, or expectant mother, and unborn child's guardian ad litem in the written permission, unless the court finds, after due notice and hearing, that inspection of those records by the person named in the permission would result in imminent danger to anyone.
48.396(2)(b)1.1. Upon request of the department or a federal agency to review court records for the purpose of monitoring and conducting periodic evaluations of activities as required by and implemented under
45 CFR 1355,
1356, and
1357, the court shall open those records for inspection and copying by authorized representatives of the department or federal agency. Those representatives shall keep those records confidential and may use and further disclose those records only for the purpose for which those records were requested.
48.396(2)(b)2.
2. Upon request of an entity engaged in the bona fide research, monitoring, or evaluation of activities conducted under
42 USC 629h, as determined by the director of state courts, to review court records for the purpose of that research, monitoring, or evaluation, the court shall open those records for inspection and copying by authorized representatives of that entity. Those representatives shall keep those records confidential and may use and further disclose those records only for the purpose for which those records were requested. The director of state courts may use the circuit court automated information system under
s. 758.19 (4) to facilitate the transfer of electronic records between the court and that entity.
48.396(2)(dm)
(dm) Upon request of a court having jurisdiction over actions affecting the family, an attorney responsible for support enforcement under
s. 59.53 (6) (a) or a party to a paternity proceeding under
subch. IX of ch. 767, the party's attorney or the guardian ad litem for the child who is the subject of that proceeding to review or be provided with information from the records of the court assigned to exercise jurisdiction under this chapter and
ch. 938 relating to the paternity of a child for the purpose of determining the paternity of the child or for the purpose of rebutting the presumption of paternity under
s. 891.405 or
891.41 (1), the court assigned to exercise jurisdiction under this chapter and
ch. 938 shall open for inspection by the requester its records relating to the paternity of the child or disclose to the requester those records.
48.396(2)(dr)
(dr) Upon request of the department of corrections or any other person preparing a presentence investigation under
s. 972.15 to review court records for the purpose of preparing the presentence investigation, the court shall open for inspection by any authorized representative of the requester the records of the court relating to any child who has been the subject of a proceeding under this chapter.
48.396(2)(e)
(e) Upon request of a court of criminal jurisdiction to review court records for the purpose of conducting or preparing for a proceeding in that court or upon request of a district attorney to review court records for the purpose of performing his or her official duties in a proceeding in a court of criminal jurisdiction, the court assigned to exercise jurisdiction under this chapter and
ch. 938 shall open for inspection by authorized representatives of the requester the records of the court relating to any child who has been the subject of a proceeding under this chapter.
48.396(2)(g)
(g) Upon request of any court assigned to exercise jurisdiction under this chapter and
ch. 938, any municipal court exercising jurisdiction under
s. 938.17 (2), or a district attorney, corporation counsel, or city, village, or town attorney to review court records for the purpose of any proceeding in that court or upon request of the attorney or guardian ad litem for a party to a proceeding in that court to review court records for the purpose of that proceeding, the court shall open for inspection by any authorized representative of the requester the records of the court relating to any child who has been the subject of a proceeding under this chapter.
48.396(2)(h)
(h) Upon request of the court having jurisdiction over an action affecting the family or of an attorney for a party or a guardian ad litem in an action affecting the family to review court records for the purpose of considering the custody of a child, the court assigned to exercise jurisdiction under this chapter and
ch. 938 shall open for inspection by an authorized representative of the requester the records of the court relating to any child who has been the subject of a proceeding under this chapter.
48.396(3)(a)(a) In this subsection, "court" means the court assigned to exercise jurisdiction under this chapter and
ch. 938.
48.396(3)(b)1.1. The court shall make information relating to proceedings under this chapter that is contained in the electronic records of the court available to any other court assigned to exercise jurisdiction under this chapter and
ch. 938, a municipal court exercising jurisdiction under
s. 938.17 (2), a court of criminal jurisdiction, a person representing the interests of the public under
s. 48.09 or
938.09, an attorney or guardian ad litem for a parent or child who is a party to a proceeding in a court assigned to exercise jurisdiction under this chapter or
ch. 938 or a municipal court, a district attorney prosecuting a criminal case, or the department, regardless of whether the person to whom the information is transferred is a party to or is otherwise involved in the proceedings in which the electronic records containing that information were created. The director of state courts may use the circuit court automated information systems established under
s. 758.19 (4) to make information contained in the electronic records of the court available as provided in this subdivision.
48.396(3)(b)2.
2. Subdivision 1. does not authorize disclosure of any information relating to the physical or mental health of an individual or that deals with any other sensitive personal matter of an individual, including information contained in a patient health care record, as defined in
s. 146.81 (4), a treatment record, as defined in
s. 51.30 (1) (b), the record of a proceeding under
s. 48.135, a report resulting from an examination or assessment under
s. 48.295, a court report under
s. 48.33, or a permanency plan under
s. 48.38, except with the informed consent of a person authorized to consent to that disclosure, by order of the court, or as otherwise permitted by law.
48.396(3)(bm)
(bm) The department may transfer to the court information contained in the electronic records of the department that are maintained in the statewide automated child welfare information system under
s. 48.47 (7g). The director of state courts may use the circuit court automated information systems established under
s. 758.19 (4) to facilitate the transfer of those electronic records from the department to the court. The director of state courts and the department shall specify what types of information may be transferred from the department to the court under this paragraph and made available by the court to the department under
par. (b) 1.
48.396(3)(c)1g.1g. A court assigned to exercise jurisdiction under this chapter and
ch. 938, a municipal court exercising jurisdiction under
s. 938.17 (2), or a court of criminal jurisdiction shall keep any information made available to that court under
par. (b) 1. confidential and may use or allow access to that information only for the purpose of conducting or preparing for a proceeding in that court. That court may allow that access regardless of whether the person who is allowed that access is a party to or is otherwise involved in the proceedings in which the electronic records containing that information were created.
48.396(3)(c)1m.
1m. A person representing the interests of the public under
s. 48.09 or
938.09, an attorney or guardian ad litem for a parent or child who is a party to a proceeding in a court assigned to exercise jurisdiction under this chapter or
ch. 938 or a municipal court, or a district attorney prosecuting a criminal case shall keep any information made available to that person under
par. (b) 1. confidential and may use or allow access to that information only for the purpose of performing his or her official duties relating to a proceeding in a court assigned to exercise jurisdiction under this chapter and
ch. 938, a municipal court, or a court of criminal jurisdiction. That person may allow that access regardless of whether the person who is allowed that access is a party to or is otherwise involved in the proceedings in which the electronic records containing that information were created.
48.396(3)(c)1r.
1r. The department shall keep any information made available to the department under
par. (b) 1. confidential and may use or allow access to that information only for the purpose of providing services under
s. 48.06,
48.067,
48.069,
938.06,
938.067, or
938.069. The department may allow that access regardless of whether the person who is allowed that access is a party to or is otherwise involved in the proceedings in which the electronic records containing that information were created.
48.396(3)(c)2.
2. The court or the director of state courts may allow access to any information transferred to the court under
par. (bm) only to the extent that the information may be disclosed under this chapter or
ch. 938.
48.396(3)(c)3.
3. An individual who is allowed under
subd. 1g.,
1m.,
1r., or
2. to have access to any information transferred or made available under
par. (b) 1. or
(bm) shall keep the information confidential and may use and further disclose the information only for the purposes described in
subd. 1g.,
1m., or
1r. or to the extent permitted under
subd. 2.
48.396(3)(d)
(d) Any person who intentionally uses or discloses information in violation of
par. (c) may be required to forfeit not more than $5,000.
48.396(5)(a)(a) Any person who is denied access to a record under
sub. (1),
(1b),
(1d), or
(6) may petition the court to order the disclosure of the records governed by the applicable subsection. The petition shall be in writing and shall describe as specifically as possible all of the following:
48.396(5)(a)3.
3. The basis for the petitioner's belief that the information is contained in the records.
48.396(5)(a)4.
4. The relevance of the information sought to the petitioner's reason for seeking the information.
48.396(5)(a)5.
5. The petitioner's efforts to obtain the information from other sources.
48.396(5)(b)
(b) The court shall notify the child, the child's counsel, the child's parents, appropriate law enforcement agencies, and, if the child is an expectant mother of an unborn child under
s. 48.133, the unborn child's guardian ad litem, or shall notify the adult expectant mother, the unborn child's guardian ad litem, and appropriate law enforcement agencies, in writing of the petition. If any person notified objects to the disclosure, the court may hold a hearing to take evidence relating to the petitioner's need for the disclosure.
48.396(5)(c)
(c) The court shall make an inspection, which may be in camera, of the records of the child or expectant mother. If the court determines that the information sought is for good cause and that it cannot be obtained with reasonable effort from other sources, the court shall then determine whether the petitioner's need for the information outweighs society's interest in protecting its confidentiality. In making that determination, the court shall balance the interest of the petitioner in obtaining access to the record against the interest of the child or expectant mother in avoiding the stigma that might result from disclosure.
48.396(5)(d)
(d) If the court determines that disclosure is warranted, it shall order the disclosure of only as much information as is necessary to meet the petitioner's need for the information.
48.396(5)(e)
(e) The court shall record the reasons for its decision to disclose or not to disclose the records of the child or expectant mother. All records related to a decision under this subsection are confidential.
48.396(6)
(6) Records of law enforcement officers and of the court assigned to exercise jurisdiction under this chapter and
ch. 938 shall be open for inspection to authorized representatives of the department of corrections, the department of health services, the department of justice, or a district attorney for use in the prosecution of any proceeding or any evaluation conducted under
ch. 980, if the records involve or relate to an individual who is the subject of the proceeding or evaluation. The court in which the proceeding under
ch. 980 is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this subsection. Any representative of the department of corrections, the department of health services, the department of justice, or a district attorney may disclose information obtained under this subsection for any purpose consistent with any proceeding under
ch. 980.
48.396 History
History: 1971 c. 278;
1977 c. 354 s.
47;
1977 c. 449; Stats. 1977 s. 48.396;
1979 c. 300;
1979 c. 333 s.
5;
1983 a. 74 s.
32;
1983 a. 487,
538;
1985 a. 311,
332;
1987 a. 27,
180,
403;
1989 a. 31,
107,
145;
1991 a. 39,
263;
1993 a. 98,
195,
228,
334,
479,
491;
1995 a. 27 ss.
2479 to
2480m,
9126 (19);
1995 a. 77,
173,
275,
352,
440,
448;
1997 a. 35,
80,
191,
205,
252,
292;
1999 a. 32,
89;
2003 a. 82;
2005 a. 344,
434;
2005 a. 443 s.
265;
2007 a. 20 s.
9121 (6) (a);
2007 a. 97;
2009 a. 302,
338;
2011 a. 270;
2013 a. 168,
170,
252.
48.396 Annotation
In the interest of fostering fair and efficient administration of justice, a circuit court has the power to order disclosure of police records. State ex rel. Herget v. Waukesha Co. Cir. Ct.
84 Wis. 2d 435,
267 N.W.2d 309 (1978).
48.396 Annotation
Section 967.06 gives the public defender the right to receive juvenile records of indigent clients notwithstanding s. 48.396 (2). State ex rel. S. M. O.
110 Wis. 2d 447,
329 N.W.2d 275 (Ct. App. 1982).
48.396 Annotation
In determining whether to release juvenile court records, the child's best interests are paramount. The child's interests must be weighed against the need of the party seeking the information. The child whose confidentiality interests are at stake must be represented. State v. Bellows,
218 Wis. 2d 614,
582 N.W.2d 53 (Ct. App. 1998),
97-0977.
48.396 Annotation
The juvenile court must make a threshold relevancy determination by an in camera review when confronted with: 1) a discovery request under s. 48.293 (2); 2) an inspection request of juvenile records under ss. 48.396 (2) and 938.396 (2); or 3) an inspection request of agency records under ss. 48.78 (2) (a) and 938.78 (2) (a). The test for permissible discovery is whether the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Courtney F. v. Ramiro M.C.
2004 WI App 36,
269 Wis. 2d 709,
676 N.W.2d 545,
03-3018.
48.396 Annotation
Juvenile officers are not required to provide information concerning juveniles to school officials. A school does not violate sub. (1) by using information obtained from an officer to take disciplinary actions against a student as long as the school does not reveal the reason for its action. 69 Atty. Gen. 179.
48.396 Annotation
A sheriff's department may, when evaluating an individual for an employment position, consider information in its possession concerning the individual's juvenile record. 67 Atty. Gen. 327 is overruled.
79 Atty. Gen. 89.
48.396 Annotation
Corporation counsel may not have access to juvenile cases through the court system's electronic case management system until such time as the system can be programmed to provide for access only to individual files when access is permitted under this section. The statutes cannot be interpreted to provide corporation counsel unlimited access to juvenile records through the electronic case management system when the general rule is confidentiality and disclosure is the exception granted only after a fact-specific, case-by-case analysis.
OAG 07-10.
TERMINATION OF PARENTAL RIGHTS
48.40
48.40
Definitions. In this subchapter:
48.40(1)
(1) Except as otherwise provided, "agency" means the department, a county department or a licensed child welfare agency.
48.40(1m)
(1m) "Kinship care relative" means a person receiving payments under
s. 48.57 (3m) (am) for providing care and maintenance for a child.
48.40(1r)
(1r) "Parent" has the meaning given in
s. 48.02 (13), except that for purposes of filing a petition seeking the involuntary termination of parental rights under
s. 48.415 to a nonmarital child who is not adopted or whose parents do not subsequently intermarry under
s. 767.803 and whose paternity has not been established, of finding grounds under
s. 48.415 for the involuntary termination of parental rights to such a child, and of terminating the parental rights to such a child on a ground specified in
s. 48.415, "parent" includes a person who may be the parent of such a child.
48.40(2)
(2) "Termination of parental rights" means that, pursuant to a court order, all rights, powers, privileges, immunities, duties and obligations existing between parent and child are permanently severed.
48.40 Annotation
Parents whose rights have been terminated do not inherit from a child; the child's siblings, whether parental rights as to them have been terminated or not, are the child's heirs. Estate of Pamanet,
46 Wis. 2d 514,
175 N.W.2d 234 (1970).
48.40 Annotation
Terminating parental rights. Hayes and Ogorchok. Wis. Law. June 1989.
48.41
48.41
Voluntary consent to termination of parental rights. 48.41(1)(1) The court may terminate the parental rights of a parent after the parent has given his or her consent as specified in this section. When such voluntary consent is given as provided in this section, the judge may proceed immediately to a disposition of the matter after considering the standard and factors specified in
s. 48.426.
48.41(2)
(2) The court may accept a voluntary consent to termination of parental rights only as follows:
48.41(2)(a)
(a) The parent appears personally at the hearing and gives his or her consent to the termination of his or her parental rights. The judge may accept the consent only after the judge has explained the effect of termination of parental rights and has questioned the parent, or has permitted an attorney who represents any of the parties to question the parent, and is satisfied that the consent is informed and voluntary.
48.41(2)(b)
(b) If the court finds that it would be difficult or impossible for the parent to appear in person at the hearing, the court may do any of the following:
48.41(2)(b)1.
1. Accept the written consent of the parent given before an embassy or consul official, a military judge, or a judge of any court of record in another county or state or a foreign jurisdiction. This written consent shall be accompanied by the signed findings of the embassy or consul official or judge who accepted the parent's consent. These findings shall recite that the embassy or consul official or judge or an attorney who represents any of the parties questioned the parent and found that the consent was informed and voluntary before the embassy or consul official or judge accepted the consent of the parent.
48.41(2)(b)2.
2. On request of the parent, unless good cause to the contrary is shown, admit testimony on the record by telephone or live audiovisual means as prescribed in
s. 807.13 (2).
48.41(2)(c)
(c) A person who may be, but who has not been adjudicated as, the father of a nonmarital child may consent to the termination of any parental rights that he may have as provided in
par. (a) or
(b) or by signing a written, notarized statement which recites that he has been informed of and understands the effect of an order to terminate parental rights and that he voluntarily disclaims any rights that he may have to the child, including the right to notice of proceedings under this subchapter.
48.41(2)(d)
(d) If the proceeding to terminate parental rights is held prior to an adoption proceeding in which the petitioner is the child's stepparent, or in which the child's birth parent is a resident of a foreign jurisdiction, the child's birth parent may consent to the termination of any parental rights that he or she may have as provided in
par. (a) or
(b) or by filing with the court an affidavit witnessed by 2 persons stating that he or she has been informed of and understands the effect of an order to terminate parental rights and that he or she voluntarily disclaims all rights to the child, including the right to notice of proceedings under this subchapter.
48.41(3)
(3) If in any proceeding to terminate parental rights voluntarily a guardian ad litem has reason to doubt the capacity of a parent to give informed and voluntary consent to the termination, he or she shall so inform the court. The court shall then inquire into the capacity of that parent in any appropriate way and shall make a finding as to whether or not the parent is capable of giving informed and voluntary consent to the termination. If the court finds that the parent is incapable of knowingly and voluntarily consenting to the termination of parental rights, it shall dismiss the proceedings without prejudice. That dismissal shall not preclude an involuntary termination of the parent's rights under
s. 48.415.
48.41 History
History: 1979 c. 330;
1981 c. 384;
1983 a. 352,
447;
1987 a. 383; Sup. Ct. Order, 151 Wis. 2d xxv (1989);
1999 a. 83;
2005 a. 293;
2009 a. 94.
48.41 Note
Judicial Council Note, 1990: Sub. (3) is repealed and recreated because the so-called substituted judgment permitted therein is bad public policy. New sub. (3) deals with the situation in which there is reason to doubt the competency of a parent who wishes to consent to the termination of his or her parental rights. Any party or guardian ad litem with reason to doubt such competency is required to so inform the court. The court must then make an inquiry in whatever way is appropriate. This may mean a simple discussion with the person, an examination, the appointment of experts to examine the person, a hearing or whatever seems proper in the discretion of the court. If the court finds the person incapable of making an informed and voluntary termination of parental rights, the court must dismiss the proceeding. If appropriate, an involuntary proceeding may then be commenced. A finding that the parent is competent does not obviate the need for a record that he or she has in fact given informed and voluntary consent prior to entry of a termination order. In Interest of D.L.S.,
112 Wis. 2d 180, 196-97 (1983). [Re Order effective Jan. 1, 1990]
48.41 Annotation
The minimum information that must be found on the record to support a finding that a minor parent's consent was voluntary and informed is set forth. In Interest of D. L. S.
112 Wis. 2d 180,
332 N.W.2d 293 (1983).
48.41 Annotation
Enforcement of surrogacy agreements promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation. The surrogacy agreement in this case was enforceable except for the portions of the agreement requiring a voluntary termination of parental rights (TPR). The TPR provisions did not comply with the procedural safeguards set forth in s. 48.41 for a voluntary TPR because the biological mother would not consent to the TPR and there was no legal basis for involuntary termination. The TPR provisions were severable. Rosecky v. Schissel,
2013 WI 66,
349 Wis. 2d 84,
833 N.W.2d 634,
11-2166.
48.415
48.415
Grounds for involuntary termination of parental rights. At the fact-finding hearing the court or jury shall determine whether grounds exist for the termination of parental rights. If the child is an Indian child, the court or jury shall also determine at the fact-finding hearing whether continued custody of the Indian child by the Indian child's parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child under
s. 48.028 (4) (e) 1. and whether active efforts under
s. 48.028 (4) (e) 2. have been made to prevent the breakup of the Indian child's family and whether those efforts have proved unsuccessful, unless partial summary judgment on the grounds for termination of parental rights is granted, in which case the court shall make those determinations at the dispositional hearing. Grounds for termination of parental rights shall be one of the following:
48.415(1)(a)(a) Abandonment, which, subject to
par. (c), shall be established by proving any of the following:
48.415(1)(a)1.
1. That the child has been left without provision for the child's care or support, the petitioner has investigated the circumstances surrounding the matter and for 60 days the petitioner has been unable to find either parent.
48.415(1)(a)1m.
1m. That the child has been left by the parent without provision for the child's care or support in a place or manner that exposes the child to substantial risk of great bodily harm, as defined in
s. 939.22 (14), or death.
48.415(1)(a)1r.
1r. That 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 the child 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.
48.415(1)(a)2.
2. That the child has been placed, or continued in a placement, outside the parent's home by a court order containing the notice required by
s. 48.356 (2) or
938.356 (2) and the parent has failed to visit or communicate with the child for a period of 3 months or longer.
48.415(1)(a)3.
3. The child has been left by the parent with any person, the parent knows or could discover the whereabouts of the child and the parent has failed to visit or communicate with the child for a period of 6 months or longer.
48.415(1)(b)
(b) Incidental contact between parent and child shall not preclude the court from finding that the parent has failed to visit or communicate with the child under
par. (a) 2. or
3. The time periods under
par. (a) 2. or
3. shall not include any periods during which the parent has been prohibited by judicial order from visiting or communicating with the child.
48.415(1)(c)
(c) Abandonment is not established under
par. (a) 2. or
3. if the parent proves all of the following by a preponderance of the evidence:
48.415(1)(c)1.
1. That the parent had good cause for having failed to visit with the child throughout the time period specified in
par. (a) 2. or
3., whichever is applicable.
