Chapter 48

48.9895   Withdrawal from Interstate Compact on the Placement of Children.

48.99   Interstate Compact for the Placement of Children.

48.9985   Interstate adoption agreements.

48.999   Expediting interstate placements of children.

Ch. 48 Note NOTE: 1995 Wis. Act 275, which made major revisions of this chapter, contains extensive explanatory notes.

subch. I of ch. 48 SUBCHAPTER I

GENERAL PROVISIONS

48.01 48.01 Title and legislative purpose.

48.01(1) (1) This chapter may be cited as “The Children’s Code”. In construing this chapter, the best interests of the child or unborn child shall always be of paramount consideration. This chapter shall be liberally construed to effectuate the following express legislative purposes:

48.01(1)(a) (a) While recognizing that the paramount goal of this chapter is to protect children and unborn children, to preserve the unity of the family, whenever appropriate, by strengthening family life through assisting parents and the expectant mothers of unborn children, whenever appropriate, in fulfilling their responsibilities as parents or expectant mothers. The courts and agencies responsible for child welfare, while assuring that a child’s health and safety are the paramount concerns, should assist parents and the expectant mothers of unborn children in changing any circumstances in the home which might harm the child or unborn child, which may require the child to be placed outside the home or which may require the expectant mother to be taken into custody. The courts should recognize that they have the authority, in appropriate cases, not to reunite a child with his or her family. The courts and agencies responsible for child welfare should also recognize that instability and impermanence in family relationships are contrary to the welfare of children and should therefore recognize the importance of eliminating the need for children to wait unreasonable periods of time for their parents to correct the conditions that prevent their safe return to the family.

48.01(1)(ad) (ad) To provide judicial and other procedures through which children and all other interested parties are assured fair hearings and their constitutional and other legal rights are recognized and enforced, while protecting the public safety.

48.01(1)(ag) (ag) To recognize that children have certain basic needs which must be provided for, including the need for adequate food, clothing and shelter; the need to be free from physical, sexual or emotional injury or exploitation; the need to develop physically, mentally and emotionally to their potential; and the need for a safe and permanent family. It is further recognized that, under certain circumstances, in order to ensure that the needs of a child, as described in this paragraph, are provided for, the court may determine that it is in the best interests of the child for the child to be removed from his or her parents, consistent with any applicable law relating to the rights of parents.

48.01(1)(am) (am) To recognize that unborn children have certain basic needs which must be provided for, including the need to develop physically to their potential and the need to be free from physical harm due to the habitual lack of self-control of their expectant mothers in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree. It is further recognized that, when an expectant mother of an unborn child suffers from a habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, in order to ensure that the needs of the unborn child, as described in this paragraph, are provided for, the court may determine that it is in the best interests of the unborn child for the expectant mother to be ordered to receive treatment, including inpatient treatment, for that habitual lack of self-control, consistent with any applicable law relating to the rights of the expectant mother.

48.01(1)(ap) (ap) To recognize the compelling need to reduce the harmful financial, societal and emotional impacts that arise and the tremendous burdens that are placed on families and the community and on the health care, social services, educational and criminal justice systems as a result of the habitual lack of self-control of expectant mothers in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, during all stages of pregnancy.

48.01(1)(bg) (bg)

48.01(1)(bg)1. 1. To ensure that children are protected against the harmful effects resulting from the absence of parents or parent substitutes, from the inability, other than financial inability, of parents or parent substitutes to provide care and protection for their children and from the destructive behavior of parents or parent substitutes in providing care and protection for their children.

48.01(1)(bg)2. 2. To ensure that children are provided good substitute parental care in the event of the absence, temporary or permanent inability, other than financial inability, or unfitness of parents to provide care and protection for their children.

48.01(1)(bm) (bm) To ensure that unborn children are protected against the harmful effects resulting from the habitual lack of self-control of their expectant mothers in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree. To effectuate this purpose and the purpose specified in par. (am), it is the intent of the legislature that the provisions of this chapter that protect unborn children against those harmful effects and that provide for the needs of unborn children, as described in par. (am), shall be construed to apply throughout an expectant mother’s pregnancy to the extent that application of those provisions throughout an expectant mother’s pregnancy is constitutionally permissible and that expectant mothers who habitually lack self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, be encouraged to seek treatment for that habitual lack of self-control voluntarily when voluntary treatment would be practicable and effective.

48.01(1)(br) (br) To encourage innovative and effective prevention, intervention and treatment approaches, including collaborative community efforts and the use of community-based programs, as significant strategies in planning and implementing legislative, executive and local government policies and programs relating to children and their families and substitute families and to unborn children and their expectant mothers.

48.01(1)(dm) (dm) To divert children and unborn children from formal proceedings under this chapter to the extent that this is consistent with protection of children, unborn children and the public safety.

48.01(1)(f) (f) To assure that children pending adoptive homes will be placed in the best homes available and protected from adoption by persons unfit to have responsibility for raising children.

48.01(1)(gg) (gg) To promote the adoption of children into safe and stable families rather than allowing children to remain in the impermanence of foster care.

48.01(1)(gr) (gr) To allow for the termination of parental rights at the earliest possible time after rehabilitation and reunification efforts are discontinued in accordance with this chapter and termination of parental rights is in the best interest of the child.

48.01(1)(gt) (gt) To reaffirm that the duty of a parent to support and maintain his or her child continues during any period in which the child may be removed from the custody of the parent.

48.01(1)(h) (h) To provide a just and humane program of services to nonmarital children, children and unborn children in need of protection or services, and the expectant mothers of those unborn children; to avoid duplication and waste of effort and money on the part of public and private agencies; and to coordinate and integrate a program of services to children and families.

48.01(2) (2) In Indian child custody proceedings, the best interests of the Indian child shall be determined in accordance with the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and the policy specified in this subsection. It is the policy of this state for courts and agencies responsible for child welfare to do all of the following:

48.01(2)(a) (a) Cooperate fully with Indian tribes in order to ensure that the federal Indian Child Welfare Act is enforced in this state.

48.01(2)(b) (b) Protect the best interests of Indian children and promote the stability and security of Indian tribes and families by doing all of the following:

48.01(2)(b)1. 1. Establishing minimum standards for the removal of Indian children from their families and placing those children in out-of-home care placements, preadoptive placements, or adoptive placements that will reflect the unique value of Indian culture.

48.01(2)(b)2. 2. Using practices, in accordance with the federal Indian Child Welfare Act, 25 USC 1901 to 1963, this section, and other applicable law, that are designed to prevent the voluntary or involuntary out-of-home care placement of Indian children and, when an out-of-home care placement, adoptive placement, or preadoptive placement is necessary, placing an Indian child in a placement that reflects the unique values of the Indian child’s tribal culture and that is best able to assist the Indian child in establishing, developing, and maintaining a political, cultural, and social relationship with the Indian child’s tribe and tribal community.

48.01 History History: 1977 c. 354; 1979 c. 330; 1981 c. 81; 1985 a. 311; 1987 a. 383; 1989 a. 41; 1993 a. 446; 1995 a. 77, 275; 1997 a. 237, 292; 1999 a. 32; 2007 a. 20; 2009 a. 28, 94.

48.01 Annotation The “best interests of the child” is a question of law. Shehow v. Plier, 60 Wis. 2d 540, 210 N.W.2d 865 (1973).

48.01 Annotation The “paramount consideration” of a child’s best interest does not mandate that the child’s interests will always outweigh the public’s. B.B. v. State, 166 Wis. 2d 202, 479 N.W.2d 205 (Ct. App. 1991).

48.01 Annotation Discussing jurisdictional questions relating to the Indian child welfare act. 70 Atty. Gen. 237.

48.01 Annotation Adoption and Termination Proceedings in Wisconsin: Straining the Wisdom of Solomon. Hayes & Morse. 66 MLR 439 (1983).

48.01 Annotation The Indian Child Welfare Act—Tribal Self-Determination Through Participation in Child Custody Proceedings. Limprecht. 1979 WLR 1202.

48.01 Annotation Family Court or Not? Raising Child Abuse Allegations Against a Parent. Kornblum & Pollack. Wis. Law. Mar. 2020.

48.02 48.02 Definitions. In this chapter, unless otherwise defined:

48.02(1) (1) “Abuse,” other than when used in referring to abuse of alcohol beverages or other drugs, means any of the following:

48.02(1)(a) (a) Physical injury inflicted on a child by other than accidental means.

48.02(1)(am) (am) When used in referring to an unborn child, serious physical harm inflicted on the unborn child, and the risk of serious physical harm to the child when born, caused by the habitual lack of self-control of the expectant mother of the unborn child in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree.

48.02(1)(b) (b) Sexual intercourse or sexual contact under s. 940.225, 948.02, 948.025, or 948.085.

48.02(1)(c) (c) A violation of s. 948.05.

48.02(1)(cm) (cm) A violation of s. 948.051.

48.02(1)(d) (d) Permitting, allowing or encouraging a child to violate s. 944.30 (1m).

48.02(1)(e) (e) A violation of s. 948.055.

48.02(1)(f) (f) A violation of s. 948.10.

48.02(1)(g) (g) Manufacturing methamphetamine in violation of s. 961.41 (1) (e) under any of the following circumstances:

48.02(1)(g)1. 1. With a child physically present during the manufacture.

48.02(1)(g)2. 2. In a child’s home, on the premises of a child’s home, or in a motor vehicle located on the premises of a child’s home.

48.02(1)(g)3. 3. Under any other circumstances in which a reasonable person should have known that the manufacture would be seen, smelled, or heard by a child.

48.02(1)(gm) (gm) Emotional damage for which the child’s parent, guardian or legal custodian has neglected, refused or been unable for reasons other than poverty to obtain the necessary treatment or to take steps to ameliorate the symptoms.

48.02(1d) (1d) “Adult” means a person who is 18 years of age or older, except that for purposes of investigating or prosecuting a person who is alleged to have violated any state or federal criminal law or any civil law or municipal ordinance, “adult” means a person who has attained 17 years of age.

48.02(1dm) (1dm) “Age or developmentally appropriate activities” means activities that are generally accepted as suitable for children of a given chronological age or level of maturity or that are determined to be developmentally appropriate for a child based on the cognitive, emotional, physical, and behavioral capacities that are typical for children of a given age or age group or, in the case of a specific child, activities that are suitable for the child based on the cognitive, emotional, physical, and behavioral capacities of that child.

48.02(1e) (1e) “Alcohol and other drug abuse impairment” means a condition of a person which is exhibited by characteristics of habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs to the extent that the person’s health is substantially affected or endangered or the person’s social or economic functioning is substantially disrupted.

48.02(1m) (1m) “Alcoholism” has the meaning given in s. 51.01 (1m).

48.02(1s) (1s) “Approved treatment facility” has the meaning given in s. 51.01 (2).

48.02(2) (2) “Child,” when used without further qualification, means a person who is less than 18 years of age, except that for purposes of investigating or prosecuting a person who is alleged to have violated a state or federal criminal law or any civil law or municipal ordinance, “child” does not include a person who has attained 17 years of age.

48.02(2d) (2d) “Controlled substance” has the meaning given in s. 961.01 (4).

48.02(2e) (2e) “Controlled substance analog” has the meaning given in s. 961.01 (4m).

48.02(2f) (2f) “Coordinated services plan of care” has the meaning given in s. 46.56 (1) (cm).

48.02(2g) (2g) “County department” means a county department under s. 46.22 or 46.23, unless the context requires otherwise.

48.02(2m) (2m) “Court,” when used without further qualification, means the court assigned to exercise jurisdiction under this chapter and ch. 938.

48.02(3) (3) “Court intake worker” means any person designated to provide intake services under s. 48.067.

48.02(3t) (3t) “Dental care,” for purposes of providing ordinary medical and dental care, means routine dental care, including diagnostic and preventative services, and treatment including restoring teeth, tooth extractions, and use of nitrous oxide.

48.02(4) (4) “Department” means the department of children and families.

48.02(5) (5) “Developmentally disabled” means having a developmental disability, as defined in s. 51.01 (5).

48.02(5g) (5g) “Drug dependent” has the meaning given in s. 51.01 (8b).

48.02(5j) (5j) “Emotional damage” means harm to a child’s psychological or intellectual functioning. “Emotional damage” shall be evidenced by one or more of the following characteristics exhibited to a severe degree: anxiety; depression; withdrawal; outward aggressive behavior; or a substantial and observable change in behavior, emotional response or cognition that is not within the normal range for the child’s age and stage of development.

48.02(5m) (5m) “Foreign jurisdiction” means a jurisdiction outside of the United States.

48.02(6) (6) “Foster home” means any facility that is operated by a person required to be licensed by s. 48.62 (1) and that provides care and maintenance for no more than 4 children or, if necessary to enable a sibling group to remain together, for no more than 6 children or, if the department promulgates rules permitting a different number of children, for the number of children permitted under those rules.

48.02(7) (7) “Group home” means any facility operated by a person required to be licensed by the department under s. 48.625 for the care and maintenance of 5 to 8 children, as provided in s. 48.625 (1).

48.02(8) (8) “Guardian” means the person named by the court having the duty and authority of guardianship.

48.02(8d) (8d) “Indian” means any person who is a member of an Indian tribe or who is an Alaska native and a member of a regional corporation, as defined in 43 USC 1606.

48.02(8g) (8g) “Indian child” means any unmarried person who is under the age of 18 years and is affiliated with an Indian tribe in any of the following ways:

48.02(8g)(a) (a) As a member of the Indian tribe.

48.02(8g)(b) (b) As a person who is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

48.02(8m) (8m) “Indian child’s tribe” means one of the following:

48.02(8m)(a) (a) The Indian tribe in which an Indian child is a member or eligible for membership.

48.02(8m)(b) (b) In the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts.

48.02(8p) (8p) “Indian custodian” means an Indian person who has legal custody of an Indian child under tribal law or custom or under state law or to whom temporary physical care, custody, and control has been transferred by the parent of the child.

48.02(8r) (8r) “Indian tribe” means any Indian tribe, band, nation, or other organized group or community of Indians that is recognized as eligible for the services provided to Indians by the U.S. secretary of the interior because of Indian status, including any Alaska native village, as defined in 43 USC 1602 (c).

48.02(10) (10) “Judge”, if used without further qualification, means the judge of the court assigned to exercise jurisdiction under this chapter and ch. 938.

48.02(10m) (10m) “Juvenile correctional facility” has the meaning given in s. 938.02 (10p).

48.02(10r) (10r) “Juvenile detention facility” means a locked facility approved by the department of corrections under s. 301.36 for the secure, temporary holding in custody of children.

48.02(11) (11) “Legal custodian” means a person, other than a parent or guardian, or an agency to whom legal custody of the child has been transferred by a court, but does not include a person who has only physical custody of the child.

48.02(12) (12) “Legal custody” means a legal status created by the order of a court, which confers the right and duty to protect, train and discipline the child, and to provide food, shelter, legal services, education and ordinary medical and dental care, subject to the rights, duties and responsibilities of the guardian of the child and subject to any residual parental rights and responsibilities and the provisions of any court order.

48.02(12c) (12c) “Like-kin” means an individual who has a significant emotional relationship with a child or the child’s family that is similar to a familial relationship and who is not and has not previously been the child’s licensed foster parent. For an Indian child, “like-kin” includes individuals identified by the child’s tribe according to tribal tradition, custom or resolution, code, or law.