48.415 Annotation
Even though there is no restraint of the petitioner's liberty, the writ of habeas corpus may be used in the court of appeals to seek relief from a termination of parental rights (TPR) when appellate counsel fails to appeal before the deadline. Under s. 809.82 (2) (b), the time for filing an appeal of a TPR may not be enlarged when the petition is filed by someone other than a representative of the public. If the court is not able to recognize the petitioner's right to raise ineffectiveness of counsel, the petitioner will never have an appeal through no fault of his or her own. Amy W. v. David G.,
2013 WI App 83,
348 Wis. 2d 593,
834 N.W.2d 432,
13-0731.
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), in a foster home, group home, nonsecured residential care center for children and youth, or shelter care facility 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 was residing in a trial reunification home. 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,
948.03 (2) (a) or
(3) (a),
948.051, or
948.085, a violation of
s. 940.302 (2) if
s. 940.302 (2) (a) 1. b. applies, or a violation of the law of any other state or federal law, if that violation would be a violation listed under this paragraph 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 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)(cm)
(cm) In the case of an Indian child, the agency primarily responsible for providing services to the Indian child and the family under a court order, if required under
s. 48.355 (2) (b) 6v. to make active efforts under
s. 48.028 (4) (d) 2. to prevent the breakup of the Indian child's family, has not provided to the Indian child's family, consistent with the child's permanency plan, the services necessary to prevent the breakup of the Indian child's family.
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.
48.42(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 or anticipated 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(1)(d)
(d) A statement of whether the child may be subject to the federal Indian Child Welfare Act,
25 USC 1901 to
1963, and, if the child may be subject to that act, the names of the child's Indian custodian, if any, and tribe, if known.
48.42(1)(e)
(e) If the petition is seeking the involuntary termination of parental rights to an Indian child, reliable and credible information showing that 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 reliable and credible information showing that active efforts under
s. 48.028 (4) (e) 2. have been made to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful.
48.42(1g)(a)(a) Except as provided in
par. (c), if the petition is filed by a person or agency other than the district attorney, corporation counsel, or other appropriate official under
s. 48.09; if the petition seeks to terminate the parental rights of a person who may be the father of a nonmarital child who is under one year of age at the time the petition is filed, who is not adopted or whose parents do not subsequently intermarry under
s. 767.803, and whose paternity has not been established; and if the mother of the child has voluntarily consented to or seeks to voluntarily consent to the termination of her parental rights to the child, the petitioner may file with the petition an affidavit signed by the mother that includes all of the following:
48.42(1g)(a)1.
1. A statement that the mother has voluntarily consented to or seeks to voluntarily consent to the termination of her parental rights to the child.
48.42(1g)(a)2.
2. A statement acknowledging that the mother has been asked to identify the father of the child.
48.42(1g)(a)3.
3. A statement that the mother knows and is identifying the father or that she does not know the identity of the father.
48.42(1g)(a)4.
4. A statement identifying any man who has lived in a familial relationship with the child and who may be the father of the child.
48.42(1g)(a)5.
5. If the mother states that she knows and is identifying the father under
subd. 3. or
4., the father's name, age, and last-known mailing address, and the last-known mailing address of the father's employer.
48.42(1g)(a)6.
6. If the mother states that she does not know the identity of the father, an explanation of why she is unable to identify him and a physical description of the father.
48.42(1g)(a)7.
7. A statement that the mother has been informed and understands that if she misidentifies the father, she is permanently barred from attacking the termination of the father's or her parental rights on the basis that the father was not correctly identified.
48.42(1g)(a)8.
8. A statement that the mother understands that she may be prosecuted under
s. 946.32 (2) for false swearing if she makes a false statement that she does not believe is true in the affidavit under this paragraph.
48.42(1g)(a)9.
9. A statement that the mother has reviewed and understands the affidavit, the name of the person who explained the affidavit and the consequences of signing the affidavit to her, and a statement that the mother is signing the affidavit voluntarily.
48.42(1g)(b)
(b) The petitioner shall notify any man identified in the affidavit under
par. (a) as an alleged father of his right to file a declaration of paternal interest under
s. 48.025 before the birth of the child, within 14 days after the birth of the child, or within 21 days after the date on which the notice is mailed, whichever is later; of the birth date or anticipated birth date of the child; and of the consequences of filing or not filing a declaration of paternal interest. The petitioner shall include with the notice a copy of the form required to file a declaration of paternal interest under
s. 48.025. The notice shall be sent by certified mail to the last-known address of the alleged father.
48.42(1g)(c)
(c) If an affidavit under
par. (a) is not filed with the petition, notice shall be given to an alleged father under
sub. (2).
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) Except as provided in
par. (bm), if the child is 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:
48.42(2)(b)1.
1. A person who has filed an unrevoked declaration of paternal interest under
s. 48.025 before the birth of the child or within 14 days after the birth of the child.
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)(bm)
(bm) If the child is a nonmarital child who is under one year of age at the time the petition is filed and who is not adopted or whose parents do not subsequently intermarry under
s. 767.803 and whose paternity has not been established and if an affidavit under
sub. (1g) (a) is filed with the petition:
48.42(2)(bm)1.
1. A person who has filed an unrevoked declaration of paternal interest under
s. 48.025 before the birth of the child, within 14 days after the birth of the child, or within 21 days after a notice under
sub. (1g) (b) is mailed, whichever is later.
48.42(2)(bm)2.
2. 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, legal custodian, and Indian 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 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 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 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 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)(ag)
(ag) In the case of an involuntary termination of parental rights to a child whom the petitioner knows or has reason to know is an Indian child, the petitioner shall cause the summons and petition to be served on the Indian child's parent and Indian custodian in the manner specified in
s. 48.028 (4) (a). In like manner, the petitioner shall also notify the Indian child's tribe of all hearings on the petition. The first notice to an Indian child's tribe shall be written, shall have a copy of the petition attached to it, and shall state the nature, location, date, and time of the initial hearing. No hearing may be held on the petition until at least 10 days after receipt of notice of the hearing by the Indian child's parent, Indian custodian, and tribe or, if the identity or location of the Indian child's parent, Indian custodian, or tribe cannot be determined, until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the Indian child's parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for the hearing.
48.42(2g)(am)
(am) The court shall give a foster parent or other physical custodian described in
s. 48.62 (2) who is notified of a hearing under
par. (a) a right to be heard at the hearing by permitting the 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 or other physical custodian described in
s. 48.62 (2) who receives a notice of a hearing under
par. (a) and a right 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 right to be heard.
48.42(2g)(b)
(b) Failure to give notice under
par. (a) to a 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 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)(a)(a)
Parent as a result of sexual assault. Except as provided in this paragraph, 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),
948.025, or
948.085 if a physician attests to his or her belief that a sexual assault as specified in this paragraph has occurred or if the person who may be the father of the child has been convicted of sexual assault as specified in this paragraph for conduct which may have led to the child's conception. A person who under this paragraph is not given notice does not have standing to appear and contest a petition for the termination of his parental rights, present evidence relevant to the issue of disposition, or make alternative dispositional recommendations. This paragraph 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(2m)(b)
(b)
Parent of nonmarital child. A person who may be the father of 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, by virtue of the fact that he has engaged in sexual intercourse with the mother of the child, is considered to be on notice that a pregnancy and a termination of parental rights proceeding concerning the child may occur, and has the duty to protect his own rights and interests. He is therefore entitled to actual notice of such a proceeding only as provided in
sub. (2) (b) or
(bm). A person who is not entitled to notice under
sub. (2) (b) or
(bm) does not have standing to appear and contest a petition for the termination of his parental rights, present evidence relevant to the issue of disposition, or make alternative dispositional recommendations.
48.42(3)
(3) Contents of summons. The summons shall:
48.42(3)(a)
(a) Contain the name and birth date or anticipated 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. Except as provided in this paragraph,
par. (b), and
sub. (2g) (ag), 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. 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)1m.
1m. If the child's custody was relinquished under
s. 48.195, service to the parents of the child may 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. 767.803 and paternity has not been acknowledged under
s. 767.805 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;
