Chapter 48

48.375(2)(d) (d) Notwithstanding s. 48.02 (2m), “court” means any circuit court within this state.

48.375(2)(e) (e) “Emancipated minor” means a minor who is or has been married; a minor who has previously given birth; or a minor who has been freed from the care, custody and control of her parents, with little likelihood of returning to the care, custody and control prior to marriage or prior to reaching the age of majority.

48.375(2)(em) (em) “Member of the clergy” has the meaning given in s. 765.002 (1).

48.375(2)(g) (g) “Physician” means a person licensed to practice medicine and surgery under ch. 448.

48.375(2)(h) (h) “Referring physician” means a physician who refers a minor to another physician for the purpose of obtaining an abortion.

48.375(3) (3) Applicability. This section applies whether or not the minor who initiates the proceeding is a resident of this state.

48.375(4) (4) Parental consent required.

48.375(4)(a) (a) Except as provided in this section, no person may perform or induce an abortion on or for a minor who is not an emancipated minor unless the person is a physician and one of the following applies:

48.375(4)(a)1. 1. The person or the person’s agent has, either directly or through a referring physician or his or her agent, received and made part of the minor’s medical record, under the requirements of s. 253.10, the voluntary and informed written consent of the minor and the voluntary and informed written consent of one of her parents; or of the minor’s guardian or legal custodian, if one has been appointed; or of an adult family member of the minor; or of one of the minor’s foster parents, if the minor has been placed in a foster home and the minor’s parent has signed a waiver granting the department, a county department, or the foster parent the authority to consent to medical services or treatment on behalf of the minor.

48.375(4)(a)2. 2. The court has granted a petition under sub. (7).

48.375(4)(b) (b) Paragraph (a) does not apply if the person who intends to perform or induce the abortion is a physician and any of the following occurs:

48.375(4)(b)1. 1. The person who intends to perform or induce the abortion believes, to the best of his or her medical judgment based on the facts of the case before him or her, that a medical emergency exists that complicates the pregnancy so as to require an immediate abortion.

48.375(4)(b)1g. 1g. The minor provides the person who intends to perform or induce the abortion with a written statement, signed and dated by the minor, in which the minor swears that the pregnancy is the result of a sexual assault in violation of s. 940.225 (1), (2) or (3) in which the minor did not indicate a freely given agreement to have sexual intercourse. The person who intends to perform or induce the abortion shall place the statement in the minor’s medical record and report the sexual intercourse as required under s. 48.981 (2) or (2m) (e). Any minor who makes a false statement under this subdivision, which the minor does not believe is true, is subject to a proceeding under s. 938.12 or 938.13 (12), whichever is applicable, based on a violation of s. 946.32 (2).

48.375(4)(b)1m. 1m. A physician who specializes in psychiatry or a psychologist states in writing that the physician or psychologist believes, to the best of his or her professional judgment based on the facts of the case before him or her, that the minor is likely to commit suicide rather than file a petition under s. 48.257 or approach her parent, or guardian or legal custodian, if one has been appointed, or an adult family member of the minor, or one of the minor’s foster parents, if the minor has been placed in a foster home and the minor’s parent has signed a waiver granting the department, a county department, or the foster parent the authority to consent to medical services or treatment on behalf of the minor, for consent.

48.375(4)(b)2. 2. The minor provides the person who intends to perform or induce the abortion with a written statement, signed and dated by the minor, that the pregnancy is the result of sexual intercourse with a caregiver specified in s. 48.981 (1) (am) 1., 2., 3., 4. or 8. The person who intends to perform or induce the abortion shall place the statement in the minor’s medical record. The person who intends to perform or induce the abortion shall report the sexual intercourse as required under s. 48.981 (2m) (d) 1.

48.375(4)(b)3. 3. The minor provides the person who intends to perform or induce the abortion with a written statement, signed and dated by the minor, that a parent who has legal custody of the minor, or the minor’s guardian or legal custodian, if one has been appointed, or an adult family member of the minor, or a foster parent, if the minor has been placed in a foster home and the minor’s parent has signed a waiver granting the department, a county department, or the foster parent the authority to consent to medical services or treatment on behalf of the minor, has inflicted abuse on the minor. The person who intends to perform or induce the abortion shall place the statement in the minor’s medical record. The person who intends to perform or induce the abortion shall report the abuse as required under s. 48.981 (2).

48.375(5) (5) Counseling. Any minor who is pregnant and who is seeking an abortion and any minor who has had an abortion may receive counseling from a counselor of her choice. A county department may refer the minor to a private counselor.

48.375(6) (6) Right to petition court for waiver. Any pregnant minor who is seeking an abortion in this state, and any member of the clergy on the minor’s behalf, may file a petition specified under s. 48.257 with any court for a waiver of the parental consent requirement under sub. (4) (a) 1.

48.375(7) (7) Court procedure.

48.375(7)(a) (a) Receipt of petition; initial appearance. On the date that a petition under s. 48.257 is filed, or if it is impossible to do so on that day, on the next calendar day, the court shall hold an initial appearance in chambers at which the minor or the member of the clergy who filed the petition on behalf of the minor, if any, is present and shall do all of the following:

48.375(7)(a)1. 1. Appoint legal counsel under s. 48.23 (1m) (cm) for the minor if the minor is not represented by counsel.

48.375(7)(a)3. 3. Set a time for a hearing on the petition that will enable the court to act within the time period specified in par. (d) 1.

48.375(7)(a)4. 4. Notify the minor, the minor’s counsel, if any, the member of the clergy who filed the petition on behalf of the minor, if any, and the minor’s guardian ad litem, if any, of the time, date and place of the hearing.

48.375(7)(am) (am) Guardian ad litem; appointment. At the initial appearance under par. (a), the court may also, in its discretion, appoint a guardian ad litem under s. 48.235 (1) (d).

48.375(7)(b) (b) Hearing; evidence. The court shall hold a confidential hearing on a petition that is filed by a minor. The hearing shall be held in chambers, unless a public fact-finding hearing is demanded by the minor through her counsel. At the hearing, the court shall consider the report of the guardian ad litem, if any, and hear evidence relating to all of the following:

48.375(7)(b)1. 1. The emotional development, maturity, intellect and understanding of the minor.

48.375(7)(b)2. 2. The understanding of the minor about the nature of, possible consequences of and alternatives to the intended abortion procedure.

48.375(7)(b)3. 3. Any other evidence that the court may find useful in making the determination under par. (c).

48.375(7)(bm) (bm) Member of the clergy’s affidavit. If a member of the clergy files a petition under s. 48.257 on behalf of a minor, the member of the clergy shall file with the petition an affidavit stating that the member of the clergy has met personally with the minor and has explored with the minor the alternative choices available to the minor for managing the pregnancy, including carrying the pregnancy to term and keeping the infant, carrying the pregnancy to term and placing the infant with a relative or with another family for adoption or having an abortion, and has discussed with the minor the possibility of involving one of the persons specified in sub. (4) (a) 1. in the minor’s decision making concerning the pregnancy and whether or not in the opinion of the minor that involvement would be in the minor’s best interests. The court may make the determination under par. (c) on the basis of the ordained member of the clergy’s affidavit or may, in its discretion, require the minor to attend an interview with the court in chambers before making that determination. Any information supplied by a minor to a member of the clergy in preparation of the petition under s. 48.257 or the affidavit under this paragraph shall be kept confidential and may only be disclosed to the court in connection with a proceeding under this subsection.

48.375(7)(c) (c) Determination. The court shall grant the petition if the court finds that any of the following standards applies:

48.375(7)(c)1. 1. That the minor is mature and well-informed enough to make the abortion decision on her own.

48.375(7)(c)2. 2. That the performance or inducement of the abortion is in the minor’s best interests.

48.375(7)(d) (d) Time period.

48.375(7)(d)1. 1. The court shall make the determination under par. (c) and issue an order within 3 calendar days after the initial appearance unless the minor and her counsel, or the member of the clergy who filed the petition on behalf of the minor, if any, consent to an extension of the time period. The order shall be effective immediately. The court shall prepare and file with the clerk of court findings of fact, conclusions of law and a final order granting or denying the petition within 24 hours after making the determination and order. If the court grants the petition, the court shall immediately so notify the minor by personal service on her counsel, or the member of the clergy who filed the petition on behalf of the minor, if any, of a certified copy of the court’s order granting the petition. If the court denies the petition, the court shall immediately so notify the minor by personal service on her counsel, or the member of the clergy who filed the petition on behalf of the minor, if any, of a copy of the court’s order denying the petition and shall also notify the minor by her counsel, or the member of the clergy who filed the petition on behalf of the minor, if any, that she has a right to initiate an appeal under s. 809.105.

48.375(7)(d)1m. 1m. Except as provided under s. 48.315 (1) (b), (c), (f), and (h), if the court fails to act within the applicable time period specified under subd. 1. without the prior consent of the minor and the minor’s counsel, if any, or the member of the clergy who filed the petition on behalf of the minor, if any, the minor and the minor’s counsel, if any, or the member of the clergy, if any, shall select a temporary reserve judge, as defined in s. 753.075 (1) (b), to make the determination under par. (c) and issue an order granting or denying the petition and the chief judge of the judicial administrative district in which the court is located shall assign the temporary reserve judge selected by the minor and the minor’s counsel, if any, or the member of the clergy, if any, to make the determination and issue the order. A temporary reserve judge assigned under this subdivision to make a determination under par. (c) and issue an order granting or denying a petition shall make the determination and issue the order within 2 calendar days after the assignment, unless the minor and her counsel, if any, or the member of the clergy who filed the petition on behalf of the minor, if any, consent to an extension of that time period. The order shall be effective immediately. The court shall prepare and file with the clerk of court findings of fact, conclusions of law and a final order granting or denying the petition, and shall notify the minor of the court’s order, as provided under subd. 1.

48.375(7)(d)2. 2. Counsel for the minor, or the member of the clergy who filed the petition on behalf of the minor, if any, shall immediately, upon notification under subd. 1. or 1m. that the court has granted or denied the petition, notify the minor. If the court has granted the petition, counsel for the minor, or the member of the clergy who filed the petition on behalf of the minor, if any, shall hand deliver a certified copy of the court order to the person who intends to perform or induce the abortion. If with reasonable diligence the person who intends to perform or induce the abortion cannot be located for delivery, then counsel for the minor, or the member of the clergy who filed the petition on behalf of the minor, if any, shall leave a certified copy of the order with the person’s agent at the person’s principal place of business. If a clinic or medical facility is specified in the petition as the corporation, limited liability company, partnership or other unincorporated association that employs the person who intends to perform or induce the abortion, then counsel for the minor, or the member of the clergy who filed the petition on behalf of the minor, if any, shall hand deliver a certified copy of the order to an agent of the corporation, limited liability company, partnership or other unincorporated association at its principal place of business. There may be no service by mail or publication. The person or agent who receives the certified copy of the order under this subdivision shall place the copy in the minor’s medical record.

48.375(7)(e) (e) Confidentiality. The identity of a minor who files or for whom is filed a petition under s. 48.257 and all records and other papers relating to a proceeding under this subsection shall be kept confidential except for use in a forfeiture action under s. 895.037 (2), a civil action filed under s. 895.037 (3) or a child abuse or neglect investigation under s. 48.981.

48.375(7)(f) (f) Certain persons barred from proceedings. No parent, or guardian or legal custodian, if one has been appointed, or foster parent, if the minor has been placed in a foster home and the minor’s parent has signed a waiver granting the department, a county department, or the foster parent the authority to consent to medical services or treatment on behalf of the minor, or adult family member, of any minor who is seeking a court determination under this subsection may attend, intervene, or give evidence in any proceeding under this subsection.

48.375(8) (8) Appeal. An appeal by a minor from an order of the trial court denying a petition under sub. (7) may be taken to the court of appeals as a matter of right under s. 808.03 (1) and is governed by s. 809.105.

48.375(9) (9) Assistance to minors concerning parental consent for abortion. If a minor who is contemplating an abortion requests assistance from a county department under s. 46.215, 46.22 or 46.23 in seeking the consent of the minor’s parent, guardian, or legal custodian, or in seeking the consent of an adult family member, for the contemplated abortion or in seeking a waiver from the circuit court, the county department shall provide assistance, including, if so requested, accompanying the minor as appropriate.

48.375 History History: 1991 a. 263, 315; 1993 a. 112, 230, 446; 1995 a. 77, 275, 309; 2001 a. 16, 103; 2007 a. 20 s. 892; 2007 a. 199; 2009 a. 28; 2021 a. 22, 131.

48.375 Annotation Any law requiring parental consent for a minor to obtain an abortion must ensure that the parent does not have absolute, and possibly arbitrary, veto power. Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035, 61 L. Ed. 2d 797 (1979).

48.375 Annotation The constitution does not confer a right to abortion. Therefore, a rational-basis review is the appropriate standard for a constitutional challenge to abortion laws. A law regulating abortion, like other health and welfare laws, is entitled to a strong presumption of validity. It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).

subch. VII of ch. 48 SUBCHAPTER VII

PERMANENCY PLANNING; RECORDS

48.38 48.38 Permanency planning.

48.38(1) (1) Definitions. In this section:

48.38(1)(a) (a) “Agency” means the department, a county department or a licensed child welfare agency.

48.38(1)(ad) (ad) “Child” includes a person 18 years of age or over for whom a permanency plan is required under sub. (2).

48.38(1)(ag) (ag) “Family permanency team” means the team of individuals assembled under sub. (3m) to participate in a child’s permanency planning.

48.38(1)(am) (am) “Independent agency” means a private, nonprofit organization, but does not include a licensed child welfare agency that is authorized to prepare permanency plans or that is assigned the primary responsibility of providing services under a permanency plan.

48.38(1)(b) (b) “Permanency plan” means a plan designed to ensure that a child is reunified with his or her family whenever appropriate, or that the child quickly attains a placement or home providing long-term stability.

48.38(1)(c) (c) “Qualified residential treatment program” means a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675.

48.38(2) (2) Permanency plan required. Except as provided in sub. (3), for each child living in a foster home, group home, residential care center for children and youth, juvenile detention facility, shelter care facility, qualifying residential family-based treatment facility with a parent, or supervised independent living arrangement, the agency that placed the child or arranged the placement or the agency assigned primary responsibility for providing services to the child under s. 48.355 (2) (b) 6g. shall prepare a written permanency plan, if any of the following conditions exists, and, for each child living in the home of a guardian, a relative other than a parent, or like-kin, that agency shall prepare a written permanency plan, if any of the conditions specified in pars. (a) to (e) exists:

48.38(2)(a) (a) The child is being held in physical custody under s. 48.207, 48.208 or 48.209.

48.38(2)(b) (b) The child is in the legal custody of the agency.

48.38(2)(c) (c) The child is under the supervision of an agency under s. 48.64 (2), under a consent decree under s. 48.32 (1) (b), or under a court order under s. 48.355.

48.38(2)(d) (d) The child was placed under a voluntary agreement between the agency and the child’s parent under s. 48.63 (1) (a) or (bm) or (5) (b) or under a voluntary transition-to-independent-living agreement under s. 48.366 (3).

48.38(2)(e) (e) The child is under the guardianship of the agency.

48.38(2)(f) (f) The child’s care would be paid for under s. 49.19 but for s. 49.19 (20), except that this paragraph does not apply to a child whose care is being paid for under s. 48.623 (1).

48.38(2)(g) (g) The child’s parent is placed in a foster home, group home, residential care center for children and youth, juvenile detention facility, shelter care facility, or supervised independent living arrangement and the child is residing with that parent.

48.38(2m) (2m) Consultation with child 14 or over. The agency responsible for preparing the permanency plan for a child 14 years of age or over shall prepare the plan and any revisions of the plan in consultation with the child and, at the option of the child, with not more than 2 persons selected by the child who are members of any child and family team convened for the child, except that the child may not select his or her caregiver or caseworker to consult in the preparation or revision of the permanency plan and the agency may reject a person selected by the child if the agency has good cause to believe that the person would not act in the best interests of the child. The agency may designate one of the persons selected by the child to be the child’s adviser and, as necessary, the child’s advocate, with respect to application of the reasonable and prudent parent standard to decisions concerning the child’s participation in age or developmentally appropriate activities.

48.38(3) (3) Time. Subject to sub. (4m) (a), the agency shall file the permanency plan with the court within 60 days after the date on which the child was first removed from his or her home, except that if the child is held for less than 60 days in a juvenile detention facility, juvenile portion of a county jail, or a shelter care facility, no permanency plan is required if the child is returned to his or her home within that period.

48.38(3m) (3m) Family permanency team. If a child is placed in a qualified residential treatment program, the agency that placed the child or arranged the placement or the agency assigned primary responsibility for providing services to the child under s. 48.355 (2) (b) 6g. shall invite all of the following to participate in permanency planning and may invite others at the agency’s discretion:

48.38(3m)(a) (a) All appropriate biological family members, relatives, and like-kin of the child, as determined by the agency. Notwithstanding s. 48.02 (12c), in this paragraph, “like-kin” may include an individual who is or previously was the child’s licensed foster parent.

48.38(3m)(b) (b) Appropriate professionals who serve as a resource for the family of the child, such as teachers, medical or mental health providers who have treated the child, or clergy.

48.38(3m)(c) (c) Others identified by a child over the age of 14 as provided under sub. (2m).

48.38(4) (4) Contents of plan. The permanency plan shall include all of the following:

48.38(4)(ag) (ag) The name, address, and telephone number of the child’s parent, guardian, and legal custodian.

48.38(4)(am) (am) The date on which the child was removed from his or her home and the date on which the child was placed in out-of-home care.

48.38(4)(ar) (ar) A description of the services offered and any services provided in an effort to prevent the removal of the child from his or her home, while assuring that the health and safety of the child are the paramount concerns, and to achieve the goal of the permanency plan, except that the permanency plan is not required to include a description of the services offered or provided with respect to a parent of the child to prevent the removal of the child from the home or to achieve the permanency goal of returning the child safely to his or her home if any of the following applies:

48.38(4)(ar)1. 1. Any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies to that parent.

48.38(4)(ar)2. 2. The child has attained 18 years of age.

48.38(4)(b) (b) The basis for the decision to hold the child in custody or to place the child outside of his or her home.

48.38(4)(bm) (bm) A statement as to the availability of a safe and appropriate placement with a fit and willing relative of the child and, if a decision is made not to place the child with an available relative, a statement as to why placement with the relative is not safe or appropriate.

48.38(4)(br) (br)

48.38(4)(br)1. 1. In this paragraph, “sibling” means a person who is a brother or sister of the child, whether by blood, marriage, or adoption, including a person who was a brother or sister of a child before the person was adopted or parental rights to the person were terminated.

48.38(4)(br)2. 2. If the child has one or more siblings who have also been removed from the home, a description of the efforts made to place the child in a placement that enables the sibling group to remain together and, if a decision is made not to place the child and his or her siblings in a joint placement, a statement as to why a joint placement would be contrary to the safety or well-being of the child or any of those siblings and a description of the efforts made to provide for frequent visitation or other ongoing interaction between the child and those siblings. If a decision is made not to provide for that visitation or interaction, the permanency plan shall include a statement as to why that visitation or interaction would be contrary to the safety or well-being of the child or any of those siblings.

48.38(4)(c) (c) The location and type of facility in which the child is currently held or placed, and the location and type of facility in which the child will be placed.

48.38(4)(d) (d) If the child is living more than 60 miles from his or her home, documentation that placement within 60 miles of the child’s home is either unavailable or inappropriate or documentation that placement more than 60 miles from the child’s home is in the child’s best interests. The placement of a child in a licensed foster home more than 60 miles from the child’s home is presumed to be in the best interests of the child if documentation is provided which shows all of the following:

48.38(4)(d)1. 1. That the placement is made pursuant to a voluntary agreement under s. 48.63 (1) (a).

48.38(4)(d)2. 2. That the voluntary agreement provides that the child may be placed more than 60 miles from the child’s home.

48.38(4)(d)3. 3. That the placement is made to facilitate the anticipated adoptive placement of the child under s. 48.833 or 48.837.

48.38(4)(dg) (dg) Information about the child’s education, including all of the following:

48.38(4)(dg)1. 1. The name and address of the school in which the child is or was most recently enrolled.

48.38(4)(dg)2. 2. Any special education programs in which the child is or was previously enrolled.

48.38(4)(dg)3. 3. The grade level in which the child is or was most recently enrolled and all information that is available concerning the child’s grade level performance.

48.38(4)(dg)4. 4. A summary of all available education records relating to the child that are relevant to any education goals included in the education services plan prepared under s. 48.33 (1) (e).

48.38(4)(dm) (dm) If as a result of the placement the child has been or will be transferred from the school in which the child is or most recently was enrolled, documentation that a placement that would maintain the child in that school is either unavailable or inappropriate or that a placement that would result in the child’s transfer to another school would be in the child’s best interests.