48.424 AnnotationAlthough the best interests of the child standard does not apply to the fact-finding hearing, the guardian ad litem can represent the interests of the child to develop the facts as they relate to whether the grounds for termination exist. When a jury is the fact-finder, the guardian ad litem should be permitted to exercise peremptory challenges in jury selection. Waukesha County Department of Social Services v. C.E.W., 124 Wis. 2d 47, 368 N.W.2d 47 (1985). 48.424 AnnotationDespite jury findings that grounds for termination exist, the court may dismiss a termination petition if evidence does not support the jury’s finding or if the evidence of unfitness is not so egregious as to warrant termination; whether the evidence supports termination is a matter of discretion. B.L.J. v. Polk County Department of Social Services, 163 Wis. 2d 90, 470 N.W.2d 914 (1991). 48.424 AnnotationOnce 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 Department of Health & Human Services v. Julie A.B., 2002 WI 95, 255 Wis. 2d 170, 648 N.W.2d 402, 01-1692. 48.424 AnnotationWhile not required, circuit courts in termination of parental rights proceedings are urged to consider personally engaging the parent in a colloquy explaining that a stipulation to an element withdraws that element from the jury’s consideration and determining that the withdrawal of that element from the jury is knowing and voluntary. Walworth County Department of Health & Human Services v. Andrea L.O., 2008 WI 46, 309 Wis. 2d 161, 749 N.W.2d 168, 07-0008. 48.424 AnnotationA parent was deprived of the right to a jury trial when the court, rather than the jury, answered one of the verdict questions on an element of parental unfitness. Although counsel had stipulated that the element was satisfied, the parent had not agreed to the stipulation in open court, the required documentary evidence of the element was missing from the record, and the evidence adduced was not so “ample” as to make the element “undisputed and undisputable.” Manitowoc County Human Services Department v. Allen J., 2008 WI App 137, 314 Wis. 2d 100, 757 N.W.2d 842, 07-1494. 48.424 AnnotationThe circuit court is not obligated to inform the parent that by pleading no contest to grounds for termination the parent is waiving the constitutional right to parent or that the right to parent is a constitutional right. What is important is that the parent understands the import of the rights at stake rather than the sources from which they are derived. For a knowing, voluntary, and intelligent plea, the parent must be informed of the two independent dispositions available to the circuit court, dismissing the petition and terminating parental rights. Brown County Department of Human Services v. Brenda B., 2011 WI 6, 331 Wis. 2d 310, 795 N.W.2d 730, 10-0321. 48.424 AnnotationContrary to the Child’s Best Interest: Jury Trials in Children’s Court Proceedings. Sowinski & Wiensch. Wis. Law. Apr. 2013.
48.42548.425 Court report by an agency. 48.425(1)(1) If the court orders an agency enumerated under s. 48.069 (1) or (2) to file a report under s. 48.422 (8) or 48.424 (4) (b) or requests the tribal child welfare department of an Indian child’s tribe to file such a report, the agency or tribal child welfare department, if that department consents, shall file a report with the court which shall include: 48.425(1)(am)(am) A medical record of the child on a form provided by the department which shall include: 48.425(1)(am)1.1. The medical and genetic history of the birth parents and any medical and genetic information furnished by the birth parents about the child’s grandparents, aunts, uncles, brothers and sisters. 48.425(1)(am)2.2. A report of any medical examination which either birth parent had within one year before the date of the petition. 48.425(1)(am)3.3. A report describing the child’s prenatal care and medical condition at birth. 48.425(1)(am)4.4. The medical and genetic history of the child and any other relevant medical and genetic information. 48.425(1)(b)(b) A statement of the facts supporting the need for termination. 48.425(1)(c)(c) If the child has been previously adjudicated to be in need of protection and services, a statement of the steps the agency or person responsible for provision of services has taken to remedy the conditions responsible for court intervention and the parent’s response to and cooperation with these services. If the child has been removed from the home, the report shall also include a statement of the reasons why the child cannot be returned safely to the family and the steps the person or agency has taken to effect this return. If a permanency plan has previously been prepared for the child, the report shall also include specific information showing that the agency primarily responsible for providing services to the child has made reasonable efforts to achieve the goal of the child’s permanency plan, including, if appropriate, through an out-of-state placement. 48.425(1)(cm)(cm) If the petition 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. 48.425(1)(d)(d) A statement of other appropriate services, if any, which might allow the child to return safely to the home of the parent. 48.425(1)(e)(e) A statement applying the standards and factors enumerated in s. 48.426 (2) and (3) to the case before the court. 48.425(1)(f)(f) If the report recommends that the parental rights of both of the child’s parents or the child’s only living or known parent are to be terminated, the report shall contain a statement of the likelihood that the child will be adopted. This statement shall be prepared by an agency designated in s. 48.427 (3m) (a) 1. to 4. or (am) and include a presentation of the factors that might prevent adoption, those that would facilitate adoption, and the agency that would be responsible for accomplishing the adoption. 48.425(1)(g)(g) If an agency designated under s. 48.427 (3m) (a) 1. to 4. or (am) determines that it is unlikely that the child will be adopted, or if adoption would not be in the best interests of the child, the report shall include a plan for placing the child in a permanent family setting. The plan shall include a recommendation as to the agency to be named guardian of the child, a recommendation that the person appointed as the guardian of the child under s. 48.977 (2) continue to be the guardian of the child, or a recommendation that a guardian be appointed for the child under s. 48.977 (2). 48.425(1m)(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 for the termination of parental rights. 48.425(2)(2) The court may waive the report required under this section if consent is given under s. 48.41, but shall order the birth parent or parents to provide the department with the information specified under sub. (1) (am). 48.425(3)(3) The court may order a report as specified under this section to be prepared by an agency in those cases where the petition is filed by someone other than an agency. 48.42648.426 Standard and factors. 48.426(1)(1) Court considerations. 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. 48.426(2)(2) Standard. 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. 48.426(3)(3) Factors. In considering the best interests of the child under this section the court shall consider but not be limited to the following: 48.426(3)(a)(a) The likelihood of the child’s adoption after termination. 48.426(3)(b)(b) 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. 48.426(3)(c)(c) 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. 48.426(3)(e)(e) The duration of the separation of the parent from the child. 48.426(3)(f)(f) 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. 48.426 HistoryHistory: 1979 c. 330. 48.426 AnnotationWhen 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. David S. v. Laura S., 179 Wis. 2d 114, 507 N.W.2d 94 (1993). 48.426 AnnotationA 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, 99-1441. 48.427(1)(1) 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) to (3p) within 10 days. 48.427(1m)(1m) 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. 48.427(2)(2) The court may dismiss the petition if it finds that the evidence does not warrant the termination of parental rights. 48.427(3)(3) The court may enter an order terminating the parental rights of one or both parents. 48.427(3m)(3m) 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: 48.427(3m)(a)(a) Transfer guardianship and custody of the child pending adoptive placement to: 48.427(3m)(a)5.5. 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 provider or is receiving payments under s. 48.62 (4) for providing care and maintenance for the child. 48.427(3m)(a)6.6. An individual who has been appointed guardian of the child by a court of a foreign jurisdiction. 48.427(3m)(am)(am) 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. 48.427(3m)(b)(b) Transfer guardianship of the child to one of the agencies specified under par. (a) 1. to 4. 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. 48.427(3m)(c)(c) Appoint a guardian under s. 48.977 and transfer guardianship and custody of the child to the guardian. 48.427(3p)(3p) 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) or (b). If the court enters an order under this subsection, the court shall terminate the guardianship under s. 48.977. 48.427(5)(5) In placing an Indian child in a preadoptive placement following a transfer of guardianship and custody under sub. (3m) or (3p), the court or an agency specified in sub. (3m) (a) 1. to 4. or (am) 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. 48.427(6)(6) If an order is entered under sub. (3), the court shall: 48.427(6)(b)1.1. The name and date of birth of the child whose birth parent’s rights have been terminated. 48.427(6)(b)2.2. The names and current addresses of the child’s birth parents, guardian and legal custodian. 48.427(6)(b)4.4. 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. 48.427(7)(a)(a) 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). 48.427(7)(b)(b) 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). 48.427 AnnotationOnce 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 Department of Health & Human Services v. Julie A.B., 2002 WI 95, 255 Wis. 2d 170, 648 N.W.2d 402, 01-1692. 48.427 AnnotationThe 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 were complete, and the court had made the required rulings, failure to enter a written order implicated the court’s competency. Dane County Department of Human Services v. Dyanne M., 2007 WI App 129, 301 Wis. 2d 731, 731 N.W.2d 360, 06-2919. 48.427 AnnotationSub. (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, 10-0321. 48.4348.43 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: 48.43(1)(a)(a) 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. 48.43(1)(am)(am) 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. 48.43(1)(b)(b) If the child will be in need of continued care and treatment after termination, the agencies and persons responsible. 48.43(1)(c)(c) 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. 48.43(1)(cm)(cm) 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. 48.43(1)(d)(d) A finding that the termination of parental rights is in the best interests of the child. 48.43(2)(2) 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: 48.43(2)(a)(a) 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). 48.43(2)(b)(b) 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). 48.43(3)(3) 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. 48.43(4)(4) 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. 48.43(5)(a)(a) 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. 48.43(5)(b)1.1. 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 or like-kin with whom the child is living. 48.43(5)(b)2.2. 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.
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Chs. 46-58, Charitable, Curative, Reformatory and Penal Institutions and Agencies
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