48.422 AnnotationA competency challenge based on the violation of the statutory time limitation of sub. (2) cannot be waived, even though it was not raised in the circuit court. Sheboygan County Department of Social Services v. Matthew S., 2005 WI 84, 282 Wis. 2d 150, 698 N.W.2d 631, 04-0901.

48.422 AnnotationAny alternative to a parent’s personal presence at a proceeding to terminate the parent’s parental rights must, unless the parent knowingly waives the right or the ministerial nature of the proceedings make personal-presence unnecessary, be functionally equivalent to personal presence. The parent must be able to assess the witnesses, confer with the parent’s lawyer, and, of course, hear everything that is going on. State v. Lavelle W., 2005 WI App 266, 288 Wis. 2d 504, 708 N.W.2d 698, 05-1604.

48.422 AnnotationWhen every option to secure the physical presence in the courtroom of a deported father failed and a webcam system was used by which the father could see and hear the proceedings in the courtroom and be seen and heard by the local participants, the father was offered meaningful participation in termination proceedings, unlike the telephone connection used in Lavelle W., 2005 WI App 266. Waukesha County Department of Health & Human Services v. Teodoro E., 2008 WI App 16, 307 Wis. 2d 372, 745 N.W.2d 701, 07-2283.

48.422 AnnotationWhile not required, circuit courts in termination of parental rights 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 Department of Health & Human Services v. Andrea L.O., 2008 WI 46, 309 Wis. 2d 161, 749 N.W.2d 168, 07-0008.

48.422 AnnotationA 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.

48.422 AnnotationIn order for no contest pleas at the grounds stage to be entered knowingly and intelligently, parents must understand that acceptance of their pleas will result in a finding of parental unfitness. Sub. (7) requires, at the very least, that a court must inform the parent that at the second step of the process, the court will hear evidence related to the disposition and then will either terminate the parent’s rights or dismiss the petition if the evidence does not warrant termination. Additionally, the court must inform the parent that the best interests of the child shall be the prevailing factor considered by the court in determining the disposition. Oneida County Department of Social Services v. Therese S., 2008 WI App 159, 314 Wis. 2d 493, 762 N.W.2d 122, 08-1126.

48.422 AnnotationNo provision of the federal or state constitutions nor this section mandates that a parent’s waiver of the right to a jury trial on the grounds for termination must be on the record during a personal colloquy with the judge. Here, although the court did not personally ask the mother whether she wished to waive her right to a jury trial, the record made clear that she did knowingly, intelligently, and voluntarily waive that right. That is the benchmark. Racine County Human Services Department v. Latanya D.K., 2013 WI App 28, 346 Wis. 2d 75, 828 N.W.2d 251, 12-1121.

48.422 AnnotationDiscussing whether the respondent in this case could withdraw a no contest plea at the grounds phase in a termination of parental rights proceeding based on an alleged lack of understanding of the potential dispositions, and the standard that would apply, at the dispositional phase. State v. A.G., 2023 WI 61, 408 Wis. 2d 413, 992 N.W.2d 75, 22-0652.

48.422 AnnotationThe court generally employs the plea withdrawal framework from criminal law cases to plea withdrawals in termination of parental rights cases. The circuit court must engage the parent in a colloquy to ensure that the plea is knowing, voluntary, and intelligent. That colloquy is governed by the requirements of sub. (7) and notions of due process. State v. B.W., 2024 WI 28, 412 Wis. 2d 364, 8 N.W.3d 22, 22-1329.

48.422 AnnotationDue process does not require appointment of counsel for indigent parents in every parental status termination proceeding. Lassiter v. Department of Social Services, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981).

48.422 AnnotationJudge or Jury? How Best to Preserve Due Process in Wisconsin Termination of Parental Rights Cases. Bloodworth. 2013 WLR 1039.

48.423(1)(1) Rights to paternity determination. If a person appears at the hearing and claims that he is the father of the child, the court shall set a date for a hearing on the issue of paternity or, if all parties agree, the court may immediately commence hearing testimony concerning the issue of paternity. The court shall inform the person claiming to be the father of the child of any right to counsel under s. 48.23. The person claiming to be the father of the child must prove paternity by clear and convincing evidence. A person who establishes his paternity of the child under this section may further participate in the termination of parental rights proceeding only if the person meets the conditions specified in sub. (2) or meets a condition specified in s. 48.42 (2) (b) or (bm).

48.423(2)(2) Rights of out-of-state fathers. 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 may contest the petition, present evidence relevant to the issue of disposition, and make alternative dispositional recommendations if the person appears at the hearing, establishes paternity under sub. (1), and proves all of the following by a preponderance of the evidence:

48.423(2)(a)(a) That the person resides and has resided in another state where the mother of the child resided or was located at the time of or after the conception of the child.

48.423(2)(c)(c) That the person attempted to locate the mother through every reasonable means, but did not know or have reason to know that the mother was residing or located in this state.

48.423(2)(d)(d) That the person has complied with the requirements of the state where the mother previously resided or was located to protect and preserve his paternal interests in matters affecting the child.

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)(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(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: