SB727: Bill Text

SB727,9,16 48.417 (1) Filing or joining in petition or motion; when required. (intro.) 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) or a motion under s. 48.42 (1d) to terminate the parental rights of a parent or the parents of a child, or, if a petition under s. 48.42 (1) or motion under s. 48.42 (1d) to terminate those parental rights has already been filed, the agency, district attorney, corporation counsel or other appropriate official shall join in the petition or motion, if any of the following circumstances apply:

SB727,21 Section 21. 48.417 (1) (a) of the statutes is amended to read:

SB727,9,25 48.417 (1) (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 or motion to terminate parental rights 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.

SB727,22 Section 22. 48.417 (1) (b) of the statutes is amended to read:

SB727,10,11 48.417 (1) (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 or motion to terminate parental rights 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.

SB727,23 Section 23. 48.417 (1) (c) of the statutes is amended to read:

SB727,10,23 48.417 (1) (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 or motion to terminate parental rights 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.

SB727,24 Section 24. 48.417 (1) (d) of the statutes is amended to read:

SB727,11,14 48.417 (1) (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), (3) (a), or (5) (a) 1., 2., or 3., 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 or motion to terminate parental rights 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.

SB727,25 Section 25 . 48.417 (2) (intro.) of the statutes is amended to read:

SB727,11,24 48.417 (2) Filing or joining in petition or motion; when not required. (intro.) 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) or motion under s. 48.42 (1d) to terminate the parental rights of a parent or the parents of a child, or, if a petition under s. 48.42 (1) or motion 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:

SB727,26 Section 26. 48.417 (3) of the statutes is amended to read:

SB727,12,7 48.417 (3) Concurrent adoption efforts required. If a petition or motion to terminate parental rights 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 or motion, 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.

SB727,27 Section 27. 48.417 (4) of the statutes is amended to read:

SB727,12,11 48.417 (4) Notice to department. If a petition or motion to terminate parental rights is filed or joined in as required under sub. (1), the person who filed or joined in the petition or motion shall notify the department of that filing or joinder.

SB727,28 Section 28 . 48.42 (1) (intro.) of the statutes is amended to read:

SB727,12,17 48.42 (1) Petition. (intro.) A Except as provided under sub. (1d), 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:

SB727,29 Section 29 . 48.42 (1d) of the statutes is created to read:

SB727,13,2 48.42 (1d) Motion to terminate parental rights of a child alleged to be in need of protection or services. If there is an open proceeding under s. 48.13 for the child, the termination of parental rights may be initiated by filing a motion in that open proceeding. A motion under this subsection 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, who is a party to the open proceeding, and shall set forth with specificity the information required in sub. (1) (c) and (e). A motion filed under this subsection is subject to the procedures of this subchapter.

SB727,30 Section 30. 48.42 (1g) (a) (intro.) of the statutes is amended to read:

SB727,13,14 48.42 (1g) (a) (intro.) Except as provided in par. (c), if the petition or motion to terminate parental rights 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 or motion 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 or motion 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 or movant may file with the petition or motion an affidavit signed by the mother that includes all of the following:

SB727,31 Section 31. 48.42 (1g) (b) of the statutes is amended to read:

SB727,13,24 48.42 (1g) (b) The petitioner or movant 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 or movant 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.

SB727,32 Section 32. 48.42 (1g) (c) of the statutes is amended to read:

SB727,14,2 48.42 (1g) (c) If an affidavit under par. (a) is not filed with the petition or motion, notice shall be given to an alleged father under sub. (2).

SB727,33 Section 33 . 48.42 (1m) (a) of the statutes is amended to read:

SB727,14,12 48.42 (1m) (a) If the petition filed under sub. (1) or motion filed under sub. (1d) includes a statement of the grounds for involuntary termination of parental rights under sub. (1) (c) 2., the petitioner or movant may, at the time the petition under sub. (1) or motion under sub. (1d) 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) or motion. 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.

SB727,34 Section 34. 48.42 (1m) (b) of the statutes is amended to read:

SB727,14,19 48.42 (1m) (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 or motion to terminate parental rights under s. 48.422 (1).

SB727,35 Section 35. 48.42 (1m) (c) of the statutes is amended to read:

SB727,15,2 48.42 (1m) (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 or motion for termination of parental rights under s. 48.427 (2) or issues an order terminating parental rights under s. 48.427 (3).

SB727,36 Section 36. 48.42 (2) (intro.) of the statutes is amended to read:

SB727,15,6 48.42 (2) Who must be summoned. (intro.) Except as provided in sub. (2m), the petitioner or movant shall cause the summons and petition or motion to terminate parental rights to be served upon the following persons:

SB727,37 Section 37. 48.42 (2) (bm) (intro.) of the statutes is amended to read:

SB727,15,12 48.42 (2) (bm) (intro.) If the child is a nonmarital child who is under one year of age at the time the petition or motion to terminate parental rights 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 or motion to terminate parental rights:

SB727,38 Section 38. 48.42 (2g) (a) of the statutes is amended to read:

SB727,15,25 48.42 (2g) (a) In addition to causing the summons and petition or motion to terminate parental rights to be served as required under sub. (2), the petitioner or movant 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 or motion. 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 or motion 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.

SB727,39 Section 39. 48.42 (2g) (ag) of the statutes is amended to read:

SB727,16,16 48.42 (2g) (ag) In the case of an involuntary termination of parental rights to a child whom the petitioner or movant knows or has reason to know is an Indian child, the petitioner or movant shall cause the summons and petition or motion 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 or movant shall also notify the Indian child's tribe of all hearings on the petition or motion. The first notice to an Indian child's tribe shall be written, shall have a copy of the petition or motion attached to it, and shall state the nature, location, date, and time of the initial hearing. No hearing may be held on the petition or motion 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.

SB727,40 Section 40. 48.42 (2m) of the statutes is amended to read:

SB727,17,6 48.42 (2m) Notice not required. (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 or motion 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.

SB727,17,17 (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 or motion for the termination of his parental rights, present evidence relevant to the issue of disposition, or make alternative dispositional recommendations.

SB727,41 Section 41. 48.42 (4) (title) of the statutes is amended to read:

SB727,17,20 48.42 (4) (title) Manner of serving summons and petition or motion to terminate parental rights.

SB727,42 Section 42. 48.42 (4) (a) of the statutes is amended to read:

SB727,18,3 48.42 (4) (a) Personal service. Except as provided in this paragraph, par. (b), and sub. (2g) (ag), a copy of the summons and petition or motion to terminate parental rights 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.

SB727,43 Section 43. 48.42 (4) (b) 3. of the statutes is amended to read:

SB727,18,8 48.42 (4) (b) 3. At the time the petition or motion to terminate parental rights is filed, the petitioner or movant 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.

SB727,44 Section 44. 48.42 (4) (b) 4. (intro.) of the statutes is amended to read:

SB727,18,23 48.42 (4) (b) 4. (intro.) 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, movant, 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 or motion to terminate parental rights shall be mailed to the party upon or immediately prior to the first publication. The mailing may be omitted if the petitioner or movant 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 or movant'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:

SB727,45 Section 45. 48.422 (title) of the statutes is amended to read:

SB727,19,2 48.422 (title) Hearing on the petition or motion to terminate parental rights.

SB727,46 Section 46. 48.422 (1) of the statutes is amended to read:

SB727,19,8 48.422 (1) Except as provided in s. 48.42 (2g) (ag), the hearing on the petition or motion to terminate parental rights shall be held within 30 days after the petition or motion is filed. At the hearing on the petition or motion to terminate parental rights the court shall determine whether any party wishes to contest the petition or motion and inform the parties of their rights under sub. (4) and s. 48.423.

SB727,47 Section 47. 48.422 (2) of the statutes is amended to read:

SB727,19,14 48.422 (2) Except as provided in s. 48.42 (2g) (ag), if the petition or motion to terminate parental rights is contested the court shall set a date for a fact-finding hearing to be held within 45 days after the hearing on the petition or motion, unless all of the necessary parties agree to commence with the hearing on the merits immediately.

SB727,48 Section 48. 48.422 (3) of the statutes is amended to read:

SB727,19,18 48.422 (3) If the petition or motion to terminate parental rights is not contested the court shall hear testimony in support of the allegations in the petition or motion, including testimony as required in sub. (7).

SB727,49 Section 49. 48.422 (4) of the statutes is amended to read:

SB727,19,23 48.422 (4) Any party who is necessary to the proceeding or whose rights may be affected by an order terminating parental rights shall be granted a jury trial upon request if the request is made before the end of the initial hearing on the petition or motion to terminate parental rights.

SB727,50 Section 50. 48.422 (6) (b) of the statutes is amended to read:

SB727,20,10 48.422 (6) (b) If the court determines that an unknown person may be the father of the child and notice to that person has not been waived under s. 48.42 (4) (b) 3., the court shall determine whether constructive notice will substantially increase the likelihood of notice to that person. If the court does determine that it would substantially increase the likelihood of notice and the petitioner or movant has not already caused the notice to be published or the court determines that the publication used was not sufficient, the court shall adjourn the hearing for a period not to exceed 30 days and shall order constructive notice under s. 48.42 (4) (b). If the court determines that constructive notice will not substantially increase the likelihood of notice to that person, the court shall order that the hearing proceed.

SB727,51 Section 51. 48.422 (7) (intro.) of the statutes is amended to read:

SB727,20,13 48.422 (7) (intro.) Before accepting an admission of the alleged facts in a petition or motion to terminate parental rights, the court shall:

SB727,52 Section 52. 48.422 (7) (a) of the statutes is amended to read:

SB727,20,17 48.422 (7) (a) Address the parties present and determine that the admission is made voluntarily with understanding of the nature of the acts alleged in the petition or motion to terminate parental rights and the potential dispositions.

SB727,53 Section 53. 48.422 (7) (bm) of the statutes is amended to read:

SB727,21,11 48.422 (7) (bm) Establish whether a proposed adoptive parent of the child has been identified. If a proposed adoptive parent of the child has been identified and the proposed adoptive parent is not a relative of the child, the court shall order the petitioner or movant to submit a report to the court containing the information specified in s. 48.913 (7). The court shall review the report to determine whether any payments or agreement to make payments set forth in the report are coercive to the birth parent of the child or to an alleged to presumed father of the child or are impermissible under s. 48.913 (4). Making any payment to or on behalf of the birth parent of the child, an alleged or presumed father of the child or the child conditional in any part upon transfer or surrender of the child or the termination of parental rights or the finalization of the adoption creates a rebuttable presumption of coercion. Upon a finding of coercion, the court shall dismiss the petition or motion to terminate parental rights or amend the agreement to delete any coercive conditions, if the parties agree to the amendment. Upon a finding that payments which are impermissible under s. 48.913 (4) have been made, the court may dismiss the petition and may refer the matter to the district attorney for prosecution under s. 948.24 (1). This paragraph does not apply if the petition or motion was filed with a petition for adoptive placement under s. 48.837 (2).

SB727,54 Section 54. 48.422 (7) (br) of the statutes is amended to read:

SB727,21,16 48.422 (7) (br) Establish whether any person has coerced a birth parent or any alleged or presumed father of the child in violation of s. 48.63 (3) (b) 5. Upon a finding of coercion, the court shall dismiss the petition or motion to terminate parental rights.

SB727,55 Section 55. 48.422 (8) of the statutes is amended to read:

SB727,21,22 48.422 (8) If the petition or motion for termination of parental rights is filed by an agency enumerated in s. 48.069 (1) or (2), the court shall order the agency to file a report with the court as provided in s. 48.425 (1), except that, if the child is an Indian child, the court may order the agency or request the tribal child welfare department of the Indian child's tribe to file that report.

SB727,56 Section 56. 48.422 (9) (a) of the statutes is amended to read:

SB727,22,3 48.422 (9) (a) If a petition or motion for termination of the rights of a birth parent, as defined under s. 48.432 (1) (am), is filed by a person other than an agency enumerated under s. 48.069 (1) or (2) or if the court waives the report required under s. 48.425, the court shall order any parent whose rights may be terminated to file with the court the information specified under s. 48.425 (1) (am).

SB727,57 Section 57. 48.423 (2) (intro.) of the statutes is amended to read:

SB727,22,11 48.423 (2) Rights of out-of-state fathers. (intro.) 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 or motion to terminate parental rights, 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:

SB727,58 Section 58. 48.424 (1) (intro.) of the statutes is amended to read:

SB727,22,15 48.424 (1) (intro.) The purpose of the fact-finding hearing is to determine in cases in which the petition or motion was contested at the hearing on the petition or motion to terminate parental rights under s. 48.422 all of the following:

SB727,59 Section 59. 48.424 (4) (intro.) of the statutes is amended to read:

SB727,22,24 48.424 (4) (intro.) 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 or motion to terminate parental rights 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:

SB727,60 Section 60. 48.424 (4) (b) of the statutes is amended to read:

SB727,23,6 48.424 (4) (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 or motion to terminate parental rights.

SB727,61 Section 61. 48.425 (1) (am) 2. of the statutes is amended to read:

SB727,23,10 48.425 (1) (am) 2. A report of any medical examination which either birth parent had within one year before the date of the petition or motion to terminate parental rights.

SB727,62 Section 62. 48.425 (1) (cm) of the statutes is amended to read:

SB727,23,19 48.425 (1) (cm) If the petition or motion 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.

SB727,63 Section 63. 48.425 (1m) of the statutes is amended to read:

SB727,23,23 48.425 (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 or motion for the termination of parental rights.

SB727,64 Section 64. 48.425 (3) of the statutes is amended to read: