48.415 Annotation In a case under sub. (4), a parent's right to meaningfully participate in the termination proceeding includes the right to present evidence at the fact-finding hearing regarding efforts to meet the conditions for reestablishing visitation. It was error to restrict evidence to whether an order denying visitation had remained in effect for a year. State v. Frederick H. 2001 WI App 141, 246 Wis. 2d 215, 630 N.W.2d 734, 00-3035.

48.415 Annotation Events occurring prior to a CHIPS dispositional order are frequently relevant at a termination proceeding. A history of parental conduct may be relevant to predicting a parent's chances of complying with conditions in the future, despite failing to do so to date. La Crosse County Department of Human Services v. Tara P. 2002 WI App 84, 252 Wis. 2d 179, 643 N.W.2d 194, 01-3034.

48.415 Annotation In determining whether "there is a substantial likelihood" that a parent will not meet conditions for the return of his or her children, a parent's relevant character traits and patterns of behavior and the likelihood that any problematic traits or propensities have been or can be modified in order to assure the safety of the children must be considered. La Crosse County Department of Human Services v. Tara P. 2002 WI App 84, 252 Wis. 2d 179, 643 N.W.2d 194, 01-3034.

48.415 Annotation A mother's criminal offenses and sentences were relevant to whether she had failed to establish a substantial parental relationship with her children under sub. (6). State v. Quinsanna D. 2002 WI App 318, 259 Wis. 2d 429, 655 N.W.2d 752, 02-1919.

48.415 Annotation Partial summary judgment may be granted in the unfitness phase of a termination case if the moving party establishes that there is no genuine issue as to any material fact regarding the asserted grounds for unfitness, and, taking into consideration the heightened burden of proof specified in s. 48.31 (1) and required by due process, the moving party is entitled to judgment as a matter of law. Steven V. v. Kelley H. 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 831, 02-2860.

48.415 Annotation As applied in this case the incestuous parenthood ground under sub. (7) is not narrowly tailored to advance the compelling state interest underlying the statute. It is fundamentally unfair to terminate parental rights based solely on a parent's status as a victim of incest. Monroe County DHS v. Kelli B. 2004 WI 48, 271 Wis. 2d 51, 678 N.W.2d 856, 03-0060.

48.415 Annotation Jennifer V.'s holding is limited to appeals based on guilt or innocence. When a parent's pending appeal does not raise issues of guilt or innocence, "final judgment of conviction" in sub. (9m) means the judgment of conviction entered by the trial court, either after a verdict of guilty by the jury, a finding of guilty by the court when a jury is waived, or a plea of guilty or no contest. Reynaldo F. v. Christal M. 2004 WI App 106, 272 Wis. 2d 816, 684 N.W.2d 138, 03-2687.

48.415 Annotation A parent's prior convictions are not so prejudicial as to outweigh their probative value when the information would lead the jury to an understanding of why children are removed from the parent's home. Reynaldo F. v. Christal M. 2004 WI App 106, 272 Wis. 2d 707, 684 N.W.2d 138, 03-2687.

48.415 Annotation Sub. (4) does not violate substantive due process by not requiring any evidence of parental unfitness. There are required steps that must be taken before reaching the application of sub. (4) in a TPR case and those steps form the foundation for the ultimate finding. At each of these steps, findings must be made that reflect on the parent's fitness. Dane County Department of Human Services v. P. P. 2005 WI 32, 279 Wis. 2d 169, 694 N.W.2d 344, 03-2440.

48.415 Annotation The biological father of a nonmarital child satisfies the definition of parent in s. 48.02 (13), as he is a biological parent notwithstanding that he has not officially been adjudicated as the child's biological father, and may have his parental rights terminated based on periods of abandonment that occurred prior to his official adjudication as the child's biological father. State v. James P. 2005 WI 80, 281 Wis. 2d 685, 698 N.W.2d 95, 04-0723.

48.415 Annotation The notice requirement provision of sub. (4) (a) are a part of the clause pertaining to juvenile court orders, and are inapplicable to the clause pertaining to family court orders. The fact that s. 767.24 (4) (d) [now s. 767.41 (4) (d)] requires a family court to provide the applicable notice does not establish that provision of the notice is an element of proof under sub. (4). Kimberly S. S. v. Sebastian X. L. 2005 WI App 83, 281 Wis. 2d 261, 697 N.W.2d 476, 04-3220.

48.415 Annotation When a parent is incarcerated and the only ground for parental termination is that the child continues to be in need of protection or services solely because of the parent's incarceration, sub. (2) requires that the court-ordered conditions of return are tailored to the particular needs of the parent and child. A parent's incarceration is not a sufficient basis to terminate parental rights. Other factors must be considered, such as the parent's relationship with the child both prior to and while the parent is incarcerated, the nature of the crime committed, the length and type of sentence imposed, the parent's level of cooperation with the responsible agency and the department of corrections, and the best interests of the child. Kenosha County Department of Human Services v. Jodie W. 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, 05-0002.

48.415 Annotation Sub. (10) (b) requires that within the 3 years prior a court has terminated the parent's rights to another child in an involuntary termination proceeding, but does not require proof of which of the available 12 grounds set out in this section was the basis for the involuntary termination. Oneida County Department of Social Services v. Nicole W. 2007 WI 30, 299 Wis. 2d 637, 728 N.W.2d 652, 05-2656.

48.415 Annotation In determining whether a party seeking termination of parental rights has proven by clear and convincing evidence that a biological father has failed to assume parental responsibility under sub. (6), a circuit court must consider the biological father's efforts undertaken after he discovers that he is the father but before the circuit court adjudicates the grounds of the termination proceeding. State v. Bobby G. 2007 WI 77, 301 Wis. 2d 531, 734 N.W.2d 81, 06-0066.

48.415 Annotation The 3-month abandonment ground under sub. (1) (a) 2. is effectively an exception to the more general requirement of 6 months of abandonment under sub. (1) (a) 3. The 3-month provision is a special scenario justifying a shorter abandonment period. When there is an active CHIPS order, it is a given that the child has been facing some kind of peril, and a shorter abandonment period is therefore appropriate and in the child's best interests. When a CHIPS order has been terminated or allowed to lapse, it is reasonable to assume that the parental situation has changed and the reason for the shorter abandonment period is no longer present. Heather B. v. Jennifer B. 2011 WI App 26, 331 Wis. 2d 666, 794 N.W.2d 800, 10-2528.

48.415 Annotation Sub. (1) (a) 2. requires that the 3-month abandonment period fall within the duration of a CHIPS-based placement of the child outside the parent's home. Heather B. v. Jennifer B. 2011 WI App 26, 331 Wis. 2d 666, 794 N.W.2d 800, 10-2528.

48.415 Annotation Under sub. (6) (a), a fact-finder must look to the totality-of-the-circumstances to determine if a parent has assumed parental responsibility. The phrase "have not had," does not direct the fact-finder to consider only a limited time period. Rather, the statute gives latitude to the fact-finder to consider the entirety of the child's life and determine if the parent's actions have been sufficient to find that he or she has assumed parental responsibility. Under the totality-of-the-circumstances test, a fact-finder may consider whether, during the time the parent was caring for his or her child, the parent exposed the child to a hazardous living environment. Tammy W-G. v. Jacob T. 2011 WI 30, 333 Wis. 2d 273, 797 N.W.2d 854, 09-2973.

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.