Standard and factors. 48.426(1)(1)
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
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.
In considering the best interests of the child under this section the court shall consider but not be limited to the following:
The likelihood of the child's adoption after termination.
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.
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.
The duration of the separation of the parent from the child.
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.
History: 1979 c. 330
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
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
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)
within 10 days.
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.
The court may dismiss the petition if it finds that the evidence does not warrant the termination of parental rights.
The court may enter an order terminating the parental rights of one or both parents.
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:
Transfer guardianship and custody of the child pending adoptive placement to:
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.
An individual who has been appointed guardian of the child by a court of a foreign jurisdiction.
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.
Transfer guardianship of the child to one of the agencies specified under par. (a) 1.
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.
Appoint a guardian under s. 48.977
and transfer guardianship and custody of the child to the guardian.
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)
. If the court enters an order under this subsection, the court shall terminate the guardianship under s. 48.977
In placing an Indian child in a preadoptive placement following a transfer of guardianship and custody under sub. (3m)
, the court or an agency specified in sub. (3m) (a) 1.
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.
If an order is entered under sub. (3)
, the court shall:
The name and date of birth of the child whose birth parent's rights have been terminated.
The names and current addresses of the child's birth parents, guardian and legal custodian.
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.
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)
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)
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
The ten-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
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
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:
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.
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.
If the child will be in need of continued care and treatment after termination, the agencies and persons responsible.
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.
If a permanency plan has previously been prepared for the child, a finding as to whether the agency primarily responsible for providing services to the child has made reasonable efforts to achieve the permanency goal of the child's permanency plan, including, if appropriate, through an out-of-state placement. The court shall make the findings specified in this paragraph on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which those findings are based in the order. An order that merely references this paragraph without documenting or referencing that specific information in the order or an amended order that retroactively corrects an earlier order that does not comply with this paragraph is not sufficient to comply with this paragraph.
A finding that the termination of parental rights is in the best interests of the child.
An order terminating parental rights permanently severs all legal rights and duties between the parent whose parental rights are terminated and the child and between the child and all persons whose relationship to the child is derived through that parent, except as follows:
The relationship between the child and his or her siblings is not severed until that relationship is extinguished by an order of adoption as provided in s. 48.92 (2)
A relative whose relationship to the child is derived through the parent whose parental rights are terminated is considered to be a relative of the child for purposes of placement of, and permanency planning for, the child until that relationship is extinguished by an order of adoption as provided in s. 48.92 (2)
If only one parent consents under s. 48.41
or if the grounds specified in s. 48.415
are found to exist as to only one parent, the rights of only that parent may be terminated without affecting the rights of the other parent.
A certified copy of the order terminating parental rights shall be furnished by the court to the agency given guardianship for placement for adoption of the child or to the person appointed as the guardian of the child under s. 48.977 (2)
. The court shall, upon request, furnish a certified copy of the child's birth certificate and a transcript of the testimony in the termination of parental rights hearing to the same person or agency.
If the custodian specified in sub. (1) (a)
is an agency, the agency shall report to the court on the status of the child at least once each year until the child is adopted or reaches 18 years of age, whichever is sooner. The agency shall file an annual report no less than 30 days before the anniversary of the date of the order. An agency may file an additional report at any time if it determines that more frequent reporting is appropriate. A report shall summarize the child's permanency plan and the recommendations of the review panel under s. 48.38 (5)
, if any, and shall describe any progress that has been made in finding a permanent placement for the child.
The court shall hold a hearing to review the permanency plan within 30 days after receiving a report under par. (a)
. At least 10 days before the date of the hearing, the court shall provide notice of the time, place, and purpose of the hearing to the agency that prepared the report, the child's guardian, the child, and the child's foster parent, the operator of the facility in which the child is living, or the relative with whom the child is living.
If the child's permanency plan includes a statement under s. 48.38 (4) (i)
indicating that the child's age and developmental level are sufficient for the court to consult with the child regarding the child's permanency plan or if, notwithstanding a decision under s. 48.38 (4) (i)
that it would not be appropriate for the court to consult with the child, the court determines that consultation with the child would be in the best interests of the child, the court shall consult with the child, in an age-appropriate and developmentally appropriate manner, regarding the child's permanency plan and any other matters the court finds appropriate. If none of those circumstances apply, the court may permit the child's caseworker, the child's counsel, or, subject to s. 48.235 (3) (a)
, the child's guardian ad litem to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, expressing the child's wishes, goals, and concerns regarding the permanency plan and those matters. If the court permits such a written or oral statement to be made or submitted, the court may nonetheless require the child's presence at the hearing.
If the permanency goal of the child's permanency plan is placement of the child in a planned permanent living arrangement described in ss. 48.38 (4) (fg) 5.
, the agency that prepared the report shall present to the court specific information showing that intensive and ongoing efforts were made by the agency, including searching social media, to return the child to the child's home or to place the child for adoption, with a guardian, or with a fit and willing relative and that those efforts have proved unsuccessful and specific information showing the steps taken by the agency, including consultation with the child, to ascertain whether the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities and to ensure that the child's caregiver is applying the reasonable and prudent parent standard to decisions concerning the child's participation in those activities. In addition, at the hearing the court shall consult with the child about the permanency outcome desired by the child.
The court shall give a foster parent, operator of a facility, or relative who is notified of a hearing under subd. 1.
a right to be heard at the hearing by permitting the foster parent, operator, or relative 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. The foster parent, operator of a facility, or relative 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.
If the order under sub. (1)
involuntarily terminated parental rights to an Indian child, the court shall also provide notice of the hearing under par. (b)
to the Indian child's tribe in the manner specified in s. 48.028 (4) (a)
. No hearing may be held under par. (b)
until at least 10 days after receipt of notice of the hearing by the Indian child's tribe or, if the identity or location of the Indian child's tribe cannot be determined, until at least 15 days after receipt of notice of the hearing by the U.S. secretary of the interior. On request of the Indian child's tribe, the court shall grant a continuance of up to 20 additional days to enable the tribe to prepare for the hearing.
Following the hearing, the court shall make all of the determinations specified under s. 48.38 (5) (c)
, except the determinations relating to the child's parents. The court may amend the order under sub. (1)
to transfer the child's guardianship and custody to any agency specified under s. 48.427 (3m) (a) 1.
that consents to the transfer, if the court determines that the transfer is in the child's best interest. If an Indian child's guardianship and custody are transferred under this paragraph, the agency consenting to the transfer shall comply with the order of placement preference under s. 48.028 (7) (b)
or, if applicable, s. 48.028 (7) (c)
in placing the child, unless the agency finds good cause, as described in s. 48.028 (7) (e)
, for departing from that order. If an order is amended, the agency that prepared the permanency plan shall revise the plan to conform to the order and shall file a copy of the revised plan with the court. Each plan filed under this paragraph shall be made a part of the court order.
Either the court or the agency that prepared the permanency plan shall furnish a copy of the original plan and each revised plan to the child, if he or she is 12 years of age or over, to the child's guardian, to the child's foster parent, the operator of the facility in which the child is living, or the relative with whom the child is living, and, if the order under sub. (1)
involuntarily terminated parental rights to an Indian child, to the Indian child's tribe.
Judgments under this subchapter terminating parental rights are final and are appealable under s. 808.03 (1)
according to the procedure specified in s. 809.107
and are subject to a petition for rehearing or a motion for relief only as provided in s. 48.46 (1m)
and, in the case of an Indian child, s. 48.028 (5) (c)
. The attorney representing a person during a proceeding under this subchapter shall continue representation of that person by filing a notice of intent to appeal under s. 809.107 (2)
, unless the attorney has been previously discharged during the proceeding by the person or by the trial court.
The mother of a child who completes an affidavit under s. 48.42 (1g)
may not collaterally attack a judgment terminating parental rights on the basis that the father of the child was not correctly identified.
Except as provided in s. 48.028 (5) (c)
, in no event may any person, for any reason, collaterally attack a judgment terminating parental rights more than one year after the date on which the period for filing an appeal from the judgment has expired, or more than one year after the date on which all appeals from the judgment, if any were filed, have been decided, whichever is later.
If a person whose parental rights are terminated is present in court when the court grants the order terminating those rights, the court shall provide written notification to the person of the time periods for appeal of the judgment. The person shall sign the written notification, indicating that he or she has been notified of the time periods for filing an appeal under ss. 808.04 (7m)
. The person's counsel shall file a copy of the signed, written notification with the court on the date on which the judgment is granted.
If the agency specified under sub. (1) (a)
is the department, the department shall seek a permanent adoptive placement for the child or seek to enter into a subsidized guardianship agreement under s. 48.623 (2)
with a proposed guardian of the child and petition the court for the appointment of that individual as the guardian of the child under s. 48.977 (2)
If a permanent adoptive or subsidized guardianship placement is not in progress 2 years after entry of the order, the department may petition the court to transfer legal custody of the child to a county department, except that the department may not petition the court to transfer to a county department legal custody of a child who was initially taken into custody under s. 48.195 (1)
. The court shall transfer the child's legal custody to the county department specified in the petition. The department shall remain the child's guardian.
History: 1979 c. 330
; 1983 a. 27
; 1985 a. 70
; Sup. Ct. Order, 136 Wis. 2d xxv (1987); 1987 a. 383
; 1993 a. 395
; 1995 a. 275
; 1997 a. 237
; 2005 a. 232
; 2007 a. 20
; 2009 a. 28
; 2011 a. 181
; 2013 a. 20
; 2015 a. 128
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
The appeal process in a termination case must be commenced within 30 days after the order is entered. In Interest of J.D., 106 Wis. 2d 126
, 315 N.W.2d 365
Termination has the same effect on relationships between members of the biological parents' families and the child as it has on the parent-child relationship. Equitable considerations did not form a basis to allow biological grandparents to obtain visitation rights after termination and adoption. Elgin and Carol W. v. DHFS, 221 Wis. 2d 36
, 584 N.W.2d 195
(Ct. App. 1998), 97-3595
Access to medical information. 48.432(1)(a)
“Adoptee" means a person who has been adopted in this state with the consent of his or her birth parent or parents before February 1, 1982.
“Agency" means a county department or a licensed child welfare agency.
The mother designated on the individual's or adoptee's original birth record.
If there is no adjudicated father, the husband of the mother at the time the individual or adoptee is conceived or born, or when the parents intermarry under s. 767.803