48.424
48.424
Fact-finding hearing. 48.424(1)(1)
The purpose of the fact-finding hearing is to determine in cases in which the petition was contested at the hearing on the petition under s.
48.422 all of the following:
48.424(1)(a)
(a) Whether grounds exist for the termination of parental rights.
48.424(1)(b)
(b) Whether the allegations specified in s.
48.42 (1) (e) have been proved in cases involving the involuntary termination of parental rights to an Indian child.
48.424(2)
(2) The fact-finding hearing shall be conducted according to the procedure specified in s.
48.31 except as follows:
48.424(2)(a)
(a) The court may exclude the child from the hearing.
48.424(3)
(3) If the facts are determined by a jury, the jury may only decide whether any grounds for the termination of parental rights have been proved and whether the allegations specified in s.
48.42 (1) (e) have been proved in cases involving the involuntary termination of parental rights to an Indian child. The court shall decide what disposition is in the best interest of the child.
48.424(4)
(4) If grounds for the termination of parental rights are found by the court or jury, the court shall find the parent unfit. A finding of unfitness shall not preclude a dismissal of a petition under s.
48.427 (2). Except as provided in s.
48.23 (2) (b) 3., the court shall then proceed immediately to hear evidence and motions related to the dispositions enumerated in s.
48.427. Except as provided in s.
48.42 (2g) (ag), the court may delay making the disposition and set a date for a dispositional hearing no later than 45 days after the fact-finding hearing if any of the following apply:
48.424(4)(b)
(b) The court has not yet received a report to the court on the history of the child as provided in s.
48.425 and the court now orders an agency enumerated in s.
48.069 (1) or
(2) to file that report with the court, or, in the case of an Indian child, now orders that agency or requests the tribal child welfare department of the Indian child's tribe to file such a report, before the court makes the disposition on the petition.
48.424(5)
(5) If the court delays making a permanent disposition under sub.
(4), it may transfer temporary custody of the child to an agency for placement of the child until the dispositional hearing. Placement of an Indian child under this subsection shall comply with the order of placement preference under s.
48.028 (7) (b) or, if applicable, s.
48.028 (7) (c), unless the agency finds good cause, as described in s.
48.028 (7) (e), for departing from that order.
48.424 Annotation
Although the best interests of the child standard does not apply to the fact-finding hearing, the guardian ad litem can represent the interests of the child to develop the facts as they relate to whether the grounds for termination exist. When a jury is the fact-finder, the guardian ad litem should be permitted to exercise peremptory challenges in jury selection. Interest of C.E.W.
124 Wis. 2d 47,
368 N.W.2d 47 (1985).
48.424 Annotation
Despite jury findings that grounds for termination exist, the court may dismiss a termination petition if evidence does not support the jury's finding or if the evidence of unfitness is not so egregious as to warrant termination; whether the evidence supports termination is a matter of discretion. In Interest of K.D.J.
163 Wis. 2d 90,
470 N.W.2d 914 (1991).
48.424 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,
01-1692.
48.424 Annotation
While not required, circuit courts in TPR proceedings are urged to consider personally engaging the parent in a colloquy explaining that a stipulation to an element withdraws that element from the jury's consideration and determining that the withdrawal of that element from the jury is knowing and voluntary. Walworth County DH&HS v. Andrea L. O.
2008 WI 46,
309 Wis. 2d 161,
749 N.W.2d 168,
07-0008.
48.424 Annotation
A parent was deprived of the right to a jury trial when the court, rather than the jury, answered one of the verdict questions on an element of parental unfitness. Although counsel had stipulated that the element was satisfied, the parent had not agreed to the stipulation in open court, the required documentary evidence of the element was missing from the record, and the evidence adduced was not so “ample" as to make the element “undisputed and undisputable." Manitowoc County Human Services Department v. Allen J.
2008 WI App 137,
314 Wis. 2d 100,
757 N.W.2d 842,
07-1494.
48.424 Annotation
The circuit court is not obligated to inform the parent that by pleading no contest to grounds for termination the parent is waiving the constitutional right to parent or that the right to parent is a constitutional right. What is important is that the parent understands the import of the rights at stake rather than the sources from which they are derived. For a knowing, voluntary, and intelligent plea, the parent must be informed of the two independent dispositions available to the circuit court, dismissing the petition and terminating parental rights. Brown County Department of Human Services v. Brenda B.
2011 WI 6,
331 Wis. 2d 310,
795 N.W.2d 730,
10-0321.
48.424 Annotation
Contrary to the Child's Best Interest: Children's Court Proceedings. Sowinski and Wiensch. Wis. Law. Apr. 2013.
48.425
48.425
Court report by an agency. 48.425(1)(1)
If the court orders an agency enumerated under s.
48.069 (1) or
(2) to file a report under s.
48.422 (8) or
48.424 (4) (b) or requests the tribal child welfare department of an Indian child's tribe to file such a report, the agency or tribal child welfare department, if that department consents, shall file a report with the court which shall include:
48.425(1)(am)
(am) A medical record of the child on a form provided by the department which shall include:
48.425(1)(am)1.
1. The medical and genetic history of the birth parents and any medical and genetic information furnished by the birth parents about the child's grandparents, aunts, uncles, brothers and sisters.
48.425(1)(am)2.
2. A report of any medical examination which either birth parent had within one year before the date of the petition.
48.425(1)(am)3.
3. A report describing the child's prenatal care and medical condition at birth.
48.425(1)(am)4.
4. The medical and genetic history of the child and any other relevant medical and genetic information.
48.425(1)(b)
(b) A statement of the facts supporting the need for termination.
48.425(1)(c)
(c) If the child has been previously adjudicated to be in need of protection and services, a statement of the steps the agency or person responsible for provision of services has taken to remedy the conditions responsible for court intervention and the parent's response to and cooperation with these services. If the child has been removed from the home, the report shall also include a statement of the reasons why the child cannot be returned safely to the family and the steps the person or agency has taken to effect this return. If a permanency plan has previously been prepared for the child, the report shall also include specific information showing that 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.
48.425(1)(cm)
(cm) If the petition is seeking the involuntary termination of parental rights to an Indian child, specific information showing that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child under s.
48.028 (4) (e) 1. and, if the Indian child has previously been adjudged to be in need of protection or services, specific 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.
48.425(1)(d)
(d) A statement of other appropriate services, if any, which might allow the child to return safely to the home of the parent.
48.425(1)(e)
(e) A statement applying the standards and factors enumerated in s.
48.426 (2) and
(3) to the case before the court.
48.425(1)(f)
(f) If the report recommends that the parental rights of both of the child's parents or the child's only living or known parent are to be terminated, the report shall contain a statement of the likelihood that the child will be adopted. This statement shall be prepared by an agency designated in s.
48.427 (3m) (a) 1. to
4. or
(am) and include a presentation of the factors that might prevent adoption, those that would facilitate adoption, and the agency that would be responsible for accomplishing the adoption.
48.425(1)(g)
(g) If an agency designated under s.
48.427 (3m) (a) 1. to
4. or
(am) determines that it is unlikely that the child will be adopted, or if adoption would not be in the best interests of the child, the report shall include a plan for placing the child in a permanent family setting. The plan shall include a recommendation as to the agency to be named guardian of the child, a recommendation that the person appointed as the guardian of the child under s.
48.977 (2) continue to be the guardian of the child, or a recommendation that a guardian be appointed for the child under s.
48.977 (2).
48.425(1m)
(1m) The agency required under sub.
(1) to file the report shall prepare the medical record within 60 days after the date of the petition for the termination of parental rights.
48.425(2)
(2) The court may waive the report required under this section if consent is given under s.
48.41, but shall order the birth parent or parents to provide the department with the information specified under sub.
(1) (am).
48.425(3)
(3) The court may order a report as specified under this section to be prepared by an agency in those cases where the petition is filed by someone other than an agency.
48.426
48.426
Standard and factors. 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,
99-1441.
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
(3p) within 10 days.
48.427(1m)
(1m) In addition to any evidence presented under sub.
(1), the court shall give the foster parent or other physical custodian described in s.
48.62 (2) of the child a right to be heard at the dispositional hearing by permitting the 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 or other physical custodian described in s.
48.62 (2) who receives notice of a hearing under s.
48.42 (2g) (a) and a right 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 right 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 do one of the following:
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 or is receiving payments under s.
48.62 (4) for providing care and maintenance for the child.
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)(am)
(am) Transfer guardianship and custody of the child to a county department authorized to accept guardianship under s.
48.57 (1) (hm) for placement of the child for adoption by the child's foster parent, if the county department has agreed to accept guardianship and custody of the child and the foster parent has agreed to adopt the child.
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(3m)(c)
(c) Appoint a guardian under s.
48.977 and transfer guardianship and custody of the child to the guardian.
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) (a) or
(b). If the court enters an order under this subsection, the court shall terminate the guardianship under s.
48.977.
48.427(5)
(5) In placing an Indian child in a preadoptive placement following a transfer of guardianship and custody under sub.
(3m) or
(3p), the court or an agency specified in sub.
(3m) (a) 1. to
4. or
(am) 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 or agency finds good cause, as described in s.
48.028 (7) (e), for departing from that order.
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(6)(b)4.
4. If the court knows or has reason to know that the child is an Indian child, information relating to the child's membership or eligibility for membership in an Indian tribe.
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,
01-1692.
48.427 Annotation
The 10-day time limit in sub. (1) addressed a period after the circuit court made the final decisions that served to terminate parental rights of the child and put the child in a position to be adopted. There was no reason why, after all critical stages within the adjudication process are complete, and the court had made the required rulings, failure to enter a written order implicated the court's competency. Dane Co. DHS v. Dyanne M.
2007 WI App 129,
301 Wis. 2d 731,
731 N.W.2d 360,
06-2919.
48.427 Annotation
Sub. (1) provides that a court must enter one of the dispositions specified under subs. (2) to (4). Nevertheless, the court cannot simply enter one of the dispositions set forth in sub. (3m), (3p), or (4). Rather, it must first enter a disposition terminating parental rights under sub. (3). Brown County Department of Human Services v. Brenda B.
2011 WI 6,
331 Wis. 2d 310,
795 N.W.2d 730,
10-0321.
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.
