REHEARING AND APPEAL
New evidence; relief from judgment terminating parental rights. 48.46(1)(1)
Except as provided in subs. (1m)
, and (3)
, the child whose status is adjudicated by the court, the parent, guardian, or legal custodian of that child, the guardian ad litem of an unborn child whose status is adjudicated by the court, or the expectant mother of that unborn child may at any time within one year after the entering of the court's order petition the court for a rehearing on the ground that new evidence has been discovered affecting the advisability of the court's original adjudication. Upon a showing that such evidence does exist, the court shall order a new hearing.
Except as provided in sub. (2)
, the parent, guardian or legal custodian of the child or the child whose status is adjudicated by the court in an order entered under s. 48.43
or an order adjudicating paternity under subch. VIII
may, within the time permitted under this subsection, petition the court for a rehearing on the ground that new evidence has been discovered affecting the advisability of the court's adjudication. Upon a showing that such evidence does exist, the court shall order a new hearing. A petition under this subsection shall be filed within one year after the date on which the order under s. 48.43
or order adjudicating paternity under subch. VIII
is entered, unless within that one-year period a court in this state or in another jurisdiction enters an order granting adoption of the child, in which case a petition under this subsection shall be filed before the date on which the order granting adoption is entered or within 30 days after the date on which the order under s. 48.43
or order adjudicating paternity under subch. VIII
is entered, whichever is later.
A parent who has consented to the termination of his or her parental rights under s. 48.41
or who did not contest the petition initiating the proceeding in which his or her parental rights were terminated may move the court for relief from the judgment on any of the grounds specified in s. 806.07 (1) (a)
. Any such motion shall be filed within 30 days after the entry of the judgment or order terminating parental rights, unless the parent files a timely notice of intent to pursue relief from the judgment under s. 808.04 (7m)
, in which case the motion shall be filed within the time permitted by s. 809.107 (5)
. A motion under this subsection does not affect the finality or suspend the operation of the judgment or order terminating parental rights. A parent who has consented to the termination of his or her parental rights to an Indian child under s. 48.41 (2) (e)
may also move for relief from the judgment under s. 48.028 (5) (c)
. Motions under this subsection or s. 48.028 (5) (c)
and appeals to the court of appeals shall be the exclusive remedies for such a parent to obtain a new hearing in a termination of parental rights proceeding.
An adoptive parent who has been granted adoption of a child under s. 48.91 (3)
may not petition the court for a rehearing under sub. (1)
or move the court under s. 806.07
for relief from the order granting adoption. A petition for termination of parental rights under s. 48.42
and an appeal to the court of appeals shall be the exclusive remedies for an adoptive parent who wishes to end his or her parental relationship with his or her adopted child.
History: 1977 c. 449
; 1979 c. 300
; 1987 a. 383
; Sup. Ct. Order, 146 Wis. 2d xxxiii (1988); 1995 a. 275
; 1997 a. 104
; 2009 a. 94
; 2013 a. 170
Judicial Council Note, 1988: Sub. (2) limits the remedies for relief from a judgment or order terminating parental rights when the aggrieved party is a parent whose rights were terminated by consent or who has failed to contest the petition. The motion for relief from the judgment or order must be filed within 40 days after entry of the judgment or order terminating parental rights, unless the appellate process is timely initiated, in which case the motion must be filed within 60 days after service of the transcript. The court must grant a rehearing upon a prima facie showing of one or more of the following grounds: mistake, inadvertence, surprise or excusable neglect; newly discovered evidence justifying a new hearing under s. 805.15 (3); fraud, misrepresentation or other misconduct of an adverse party; the judgment or order is void; the judgment or order is based upon a prior judgment which has been reversed or otherwise vacated. [Re Order effective Jan. 1, 1989]
Affidavits by a mother that she consented to a termination of her parental rights under duress and by her attorney as to what he expected to prove were not sufficient for a rehearing. Schroud v. Milwaukee County Department of Public Welfare, 53 Wis. 2d 650
, 193 N.W.2d 671
Motion for postdisposition relief and appeal. 48.465(1)(1)
Appeal by respondent.
A motion for postdisposition relief from a final order or judgment by a person subject to this chapter shall be made in the time and manner provided in ss. 809.30
. An appeal from a final order or judgment entered under this chapter or from an order denying a motion for postdisposition relief by a person subject to this chapter shall be taken in the time and manner provided in ss. 808.04 (3)
. The person shall file a motion for postdisposition relief in circuit court before a notice of appeal is filed unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised.
Appeal by state.
An appeal by the state from a final judgment or order under this chapter may be taken to the court of appeals within the time specified in s. 808.04 (4)
and in the manner provided for civil appeals under chs. 808
This section does not apply to a termination of parental rights case under s. 48.43
, to a parental consent to abortion case under s. 48.375 (7)
, or to a guardianship proceeding under s. 48.9795
History: 2009 a. 26
; 2019 a. 109
PURPOSE, DUTIES, AND AUTHORITY OF DEPARTMENT
Purpose of department.
The purpose of the department is to focus on integrating the child welfare, child care, and child support services provided in this state and the services provided under the Wisconsin Works program and on increasing collaboration and efficiency in providing those services.
History: 2007 a. 20
Duties of department.
The department shall do all of the following:
When ordered by the court, act as trustee of funds paid for the support of any child if appointed by the court or a circuit court commissioner under s. 767.82 (7)
Education and prevention.
Develop and maintain education and prevention programs that the department considers to be proper.
Promote the establishment of adequate child care facilities and services in this state by providing start-up grants to newly operating child care facilities and services under rules promulgated by the department.
With the assistance of the judicial conference, develop simplified forms for filing petitions for child abuse restraining orders and injunctions under s. 813.122
. The department shall provide these forms to clerks of circuit court without cost.
As part of its biennial budget request under s. 16.42
, submit a request for funding for child abuse prevention efforts in an amount equal to or greater than 1 percent of the total proposed budget of the department of corrections for the same biennium, as indicated by the estimate provided by the department of corrections under s. 301.03 (14)
Contract for the provision of a centralized unit for determining whether the cost of providing care for a child is eligible for reimbursement under 42 USC 670
Statewide automated child welfare information system.
Establish a statewide automated child welfare information system. Notwithstanding ss. 46.2895 (9)
, 48.396 (1)
and (2) (a)
, 48.78 (2) (a)
, 48.981 (7)
, 49.45 (4)
, 51.45 (14) (a)
, 55.22 (3)
, 252.11 (7)
, 253.07 (3) (c)
, 938.396 (1) (a)
, and 938.78 (2) (a)
, the department may enter the content of any record kept or information received by the department into the statewide automated child welfare information system, and a county department under s. 46.215
, or 46.23
, the department, or any other organization that has entered into an information sharing and access agreement with the department or any of those county departments and that has been approved for access to the statewide automated child welfare information system by the department may have access to information that is maintained in that system, if necessary to enable the county department, department, or organization to perform its duties under this chapter, ch. 46
, or 938
, or 42 USC 670
or to coordinate the delivery of services under this chapter, ch. 46
, or 938
, or 42 USC 670
. The department may also transfer information that is maintained in the system to a court under s. 48.396 (3) (bm)
, and the court and the director of state courts may allow access to that information as provided in s. 48.396 (3) (c) 2.
In addition, the department, a county department under s. 46.215
, or 46.23
or any other organization that has entered into an information sharing and access agreement, and that has been approved for access to the system, under this subsection may transfer information about a missing child that is maintained in the system to the National Center for Missing and Exploited Children under s. 48.78 (2m) (c)
or 938.78 (2m) (c)
Annually, prepare and transmit to the governor, and to the legislature under s. 13.172 (2)
, a report on all of the following, which shall be the subject of a public hearing, conducted no less often than annually, by the appropriate standing committees of the legislature:
The status of child abuse and neglect programs and on the status of unborn child abuse programs. The report shall include a full statistical analysis of the child abuse and neglect reports, and the unborn child abuse reports, made through the last calendar year, an evaluation of services offered under this section and their effectiveness, and recommendations for additional legislative and other action to fulfill the purpose of this section. The department shall provide statistical breakdowns by county, if requested by a county.
The number of adoptions under the special needs adoption program granted in the preceding calendar year and the costs to the state for services relating to those adoptions.
The number of children during the preceding calendar year who entered out-of-home care under the placement and care responsibility of a county department or the department under ch. 48
after finalization of an adoption or guardianship. For each child enumerated in the report, the report may include information concerning the length of the adoption or guardianship, the age of the child at the time of the adoption or guardianship, the age at which the child entered out-of-home care, the type of agency involved in making the adoptive or guardianship placement, and any other information determined necessary to better understand factors associated with a child entering out-of-home care after finalization of an adoption or guardianship.
Aggregated information from the summary reports transmitted to the governor and appropriate standing committees of the legislature in the preceding calendar year.
Trends identified by the department in the summary reports transmitted to the governor and appropriate standing committees of the legislature in the preceding calendar year.
Trends identified by the department based on in-depth practice reviews conducted by the department of incidents for which it received information under s. 48.981 (7) (cr) 2.
Changes in policies or practices that have been made to address any issues raised in the department's review of the incidents in the summary reports in the preceding calendar year and recommendations for any further changes in policies, practices, rules, or statutes that may be needed to address those issues.
Citizen review panels.
Transmit to the appropriate standing committees of the legislature under s. 13.172 (3)
any annual report sent to the department from a citizen review panel established or designated by the department or a county department, and any written response provided by the department to a citizen review panel.
Adolescent programming recommendations.
Identify and provide ways to improve coordination of adolescent and parent educational programs and services at the state and local levels by doing all of the following:
Identifying and recommending ways to eliminate governmental barriers to local development of coordinated educational programs and services for adolescents and parents of adolescents.
Identifying and recommending ways to support and involve parents of adolescents in the planning, coordination and delivery of services for adolescents.
Foster care public information.
Conduct a foster care public information campaign.
Authority of department.
The department shall have authority:
To promote the enforcement of the laws relating to nonmarital children, children in need of protection or services including developmentally disabled children and unborn children in need of protection or services and to take the initiative in all matters involving the interests of those children and unborn children when adequate provision for those interests is not made. This duty shall be discharged in cooperation with the courts, county departments, licensed child welfare agencies and with parents, expectant mothers and other individuals interested in the welfare of children and unborn children.
To assist in extending and strengthening child welfare services with appropriate federal agencies and in conformity with the federal social security act and in cooperation with parents, other individuals and other agencies so that all children needing such services are reached.
To accept gifts, grants, or donations of money or of property from private sources to be administered by the department for the execution of its functions. All moneys so received shall be paid into the general fund and may be appropriated from that fund as provided in s. 20.437 (1) (i)
To accept guardianship of children when appointed by the court, and to provide special treatment or care when directed by the court. A court may not direct the department to administer psychotropic medications to children who receive special treatment or care under this subsection.
To accept appointment by a tribal court in this state as guardian of a child for the purpose of making an adoptive placement for the child if all of the following conditions exist:
The child does not have parents or a guardian or the parental rights to the child have been terminated by a tribal court in accordance with procedures that are substantially equivalent to the procedures specified in subch. VIII
The tribal court has transferred the guardianship or legal custody, or both, of the child to the department, if the child does not have parents or a guardian.
The tribal court's judgment for termination of parental rights identifies the department as the agency that will receive guardianship or legal custody, or both, of the child upon termination, if the parental rights to the child have been terminated.
The tribal court has signed a written contract that addresses federal and state law and that provides that the tribal court will accept the return of the legal custody or the legal custody and guardianship of the child if the department petitions the tribal court to do so under s. 48.485 (2)
In order to discharge more effectively its responsibilities under this chapter and other relevant provisions of the statutes, to study causes and methods of prevention and treatment of problems among children and families and related social problems. The department may utilize all powers provided by the statutes, including the authority to accept grants of money or property from federal, state, or private sources, and enlist the cooperation of other appropriate agencies and state departments.
To place children under its guardianship for adoption.
To enter into agreements with Indian tribes in this state to implement the federal Indian Child Welfare Act, 25 USC 1901
To reimburse tribes and county departments, from the appropriation under s. 20.437 (1) (kz)
, for unexpected or unusually high-cost out-of-home care placements of Indian children by tribal courts, other than placements to which s. 938.485 (4)
applies. In this subsection, “unusually high-cost out-of-home care placements" means the amount by which the cost to a tribe or to a county department of out-of-home care placements of Indian children by tribal courts, other than placements to which s. 938.485 (4)
applies, exceeds $50,000 in a fiscal year.
To reimburse county departments, from the appropriations under s. 20.437 (1) (dd)
, for subsidized guardianship payments made under s. 48.623 (1)
, including guardianships of Indian children ordered by tribal courts.
To license foster homes as provided in s. 48.66 (1) (a)
for its own use or for the use of licensed child welfare agencies or, if requested to do so, for the use of county departments.
When notified of the birth or expected birth of a child who is or is likely to be a nonmarital child, to see that the interests of the child are safeguarded, that steps are taken to establish the child's paternity and that there is secured for the child, if possible, the care, support and education the child would receive if he or she were a marital child.
To enter into an agreement to assist in the cost of care of a child after legal adoption when the department has determined that such assistance is necessary to assure the child's adoption. Agreements under this paragraph shall be made in accordance with s. 48.975
. Payments shall be made from the appropriation under s. 20.437 (1) (dd)
This subsection shall be administered by the department according to criteria, standards and review procedures which it shall establish.
To promulgate rules for the payment of an allowance to children in its institutions and a cash grant to a child being discharged from its institutions.
To employ under the unclassified service in an office of the department that is located in a 1st class city a director of the office of urban development who shall be appointed by the secretary to serve at the pleasure of the secretary and who shall coordinate the provision of child welfare services in a county having a population of 750,000 or more with the implementation of the Wisconsin works program under ss. 49.141
in a county having a population of 750,000 or more.
In a county having a population of 750,000 or more, to administer child welfare services and to expend such amounts as may be necessary out of any moneys which may be appropriated for child welfare services by the legislature, which may be donated by individuals or private organizations or which may be otherwise provided. The department shall also have authority to do all of the following:
Investigate the conditions surrounding nonmarital children, children in need of protection or services and unborn children in need of protection or services within the county and to take every reasonable action within its power to secure for them the full benefit of all laws enacted for their benefit. Unless provided by another agency, the department shall offer social services to the caretaker of any child, and to the expectant mother of any unborn child, who is referred to the department under the conditions specified in this subdivision. This duty shall be discharged in cooperation with the court and with the public officers or boards legally responsible for the administration and enforcement of these laws.
Accept legal custody of children transferred to it by the court under s. 48.355
, to accept supervision over expectant mothers of unborn children who are placed under its supervision under s. 48.355
, and to provide special treatment or care for children and expectant mothers if ordered by the court and if providing special treatment or care is not the responsibility of the county department under s. 46.215
, or 51.437
. A court may not order the department to administer psychotropic medications to children and expectant mothers who receive special treatment or care under this subdivision.
Provide appropriate protection and services for children and the expectant mothers of unborn children in its care, including providing services for those children and their families and for those expectant mothers in their own homes, placing those children in licensed foster homes or group homes in this state or similar facilities regulated in another state within a reasonable proximity to the agency with legal custody, placing those children in the homes of guardians under s. 48.977 (2)
, placing those children in a qualifying residential family-based treatment facility with a parent or in similar facilities regulated in another state, or contracting for services for those children by licensed child welfare agencies in this state or a similar child welfare agency regulated in another state, except that the department may not purchase the educational component of private day treatment programs unless the department, the school board, as defined in s. 115.001 (7)
, and the state superintendent of public instruction all determine that an appropriate public education program is not available. Disputes between the department and the school district shall be resolved by the state superintendent of public instruction.
Provide for the moral and religious training of children in its care according to the religious belief of the child or of his or her parents.
Place children in a county children's home in the county, to accept guardianship of children when appointed by the court and to place children under its guardianship for adoption.
Contract with any parent or guardian or other person for the care and maintenance of any child.
Use in the media a picture or description of a child in its guardianship for the purpose of finding adoptive parents for that child.
Contract with the county department under s. 46.215
or with a licensed child welfare agency to provide any of the services that the department is authorized to provide under this chapter.
The requirement of statewide uniformity with respect to the organization and governance of human services does not apply to the administration of child welfare services under par. (a)
In performing the functions specified in par. (a)
, the department may avail itself of the cooperation of any individual or private agency or organization interested in the social welfare of children and unborn children in the county.
As soon as practicable after learning that a person who is receiving child welfare services under par. (a)
from the department has changed his or her county of residence, the department shall provide notice of that change to the county department of the person's new county of residence. The notice shall include a brief, written description of the services offered or provided to the person by the department and the name, telephone number, and address of a person to contact for more information.
From the appropriations under s. 20.437 (1) (cx)
, and (mx)
, the department may provide funding for the maintenance of any child who meets all of the following criteria:
Is enrolled in and regularly attending a secondary education classroom program leading to a high school diploma.