2023 Wisconsin Statutes & Annotations › Chapter 48 - Children's code. › 48.42 - Procedure.

48.42
Procedure.
(1)
Petition. A proceeding for the termination of parental rights shall be initiated by petition which may be filed by the child's parent, an agency or a person authorized to file a petition under s. 48.25 or 48.835. The petition shall be entitled “In the interest of .......... (child's name), a person under the age of 18" and shall set forth with specificity:
(a)
The name, birth date or anticipated birth date, and address of the child and whether the child has been adopted.
(b)
The names and addresses of the child's parent or parents, guardian and legal custodian.
(bm)
The information required under s. 822.29 (1).
(c)
One of the following:
1.
A statement that consent will be given to termination of parental rights as provided in s. 48.41.
2.
A statement of the grounds for involuntary termination of parental rights under s. 48.415 and a statement of the facts and circumstances which the petitioner alleges establish these grounds.
(d)
A statement of whether the child may be subject to the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and, if the child may be subject to that act, the names of the child's Indian custodian, if any, and tribe, if known.
(e)
If the petition is seeking the involuntary termination of parental rights to an Indian child, reliable and credible information showing that continued custody of the Indian child by the Indian child's parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child under s. 48.028 (4) (e) 1. and reliable and credible 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.
(1g)
Affidavit.
(a)
Except as provided in par. (c), if the petition is filed by a person or agency other than the district attorney, corporation counsel, or other appropriate official under s. 48.09; if the petition seeks to terminate the parental rights of a person who may be the father of a nonmarital child who is under one year of age at the time the petition is filed, who is not adopted or whose parents do not subsequently intermarry under s. 767.803, and whose paternity has not been established; and if the mother of the child has voluntarily consented to or seeks to voluntarily consent to the termination of her parental rights to the child, the petitioner may file with the petition an affidavit signed by the mother that includes all of the following:
1.
A statement that the mother has voluntarily consented to or seeks to voluntarily consent to the termination of her parental rights to the child.
2.
A statement acknowledging that the mother has been asked to identify the father of the child.
3.
A statement that the mother knows and is identifying the father or that she does not know the identity of the father.
4.
A statement identifying any man who has lived in a familial relationship with the child and who may be the father of the child.
5.
If the mother states that she knows and is identifying the father under subd. 3. or 4., the father's name, age, and last-known mailing address, and the last-known mailing address of the father's employer.
6.
If the mother states that she does not know the identity of the father, an explanation of why she is unable to identify him and a physical description of the father.
7.
A statement that the mother has been informed and understands that if she misidentifies the father, she is permanently barred from attacking the termination of the father's or her parental rights on the basis that the father was not correctly identified.
8.
A statement that the mother understands that she may be prosecuted under s. 946.32 (2) for false swearing if she makes a false statement that she does not believe is true in the affidavit under this paragraph.
9.
A statement that the mother has reviewed and understands the affidavit, the name of the person who explained the affidavit and the consequences of signing the affidavit to her, and a statement that the mother is signing the affidavit voluntarily.
(b)
The petitioner shall notify any man identified in the affidavit under par. (a) as an alleged father of his right to file a declaration of paternal interest under s. 48.025 before the birth of the child, within 14 days after the birth of the child, or within 21 days after the date on which the notice is mailed, whichever is later; of the birth date or anticipated birth date of the child; and of the consequences of filing or not filing a declaration of paternal interest. The petitioner shall include with the notice a copy of the form required to file a declaration of paternal interest under s. 48.025. The notice shall be sent by certified mail to the last-known address of the alleged father.
(c)
If an affidavit under par. (a) is not filed with the petition, notice shall be given to an alleged father under sub. (2).
(1m)
Visitation or contact rights.
(a)
If the petition filed under sub. (1) includes a statement of the grounds for involuntary termination of parental rights under sub. (1) (c) 2., the petitioner may, at the time the petition under sub. (1) is filed, also petition the court for a temporary order and an injunction prohibiting the person whose parental rights are sought to be terminated from visiting or contacting the child who is the subject of the petition under sub. (1). Any petition under this paragraph shall allege facts sufficient to show that prohibiting visitation or contact would be in the best interests of the child.
(b)
Subject to par. (e), the court may issue the temporary order ex parte or may refuse to issue the temporary order and hold a hearing on whether to issue an injunction. The temporary order is in effect until a hearing is held on the issuance of an injunction. The court shall hold a hearing on the issuance of an injunction on or before the date of the hearing on the petition to terminate parental rights under s. 48.422 (1).
(c)
Notwithstanding any other order under s. 48.355 (3), the court, subject to par. (e), may grant an injunction prohibiting the respondent from visiting or contacting the child if the court determines that the prohibition would be in the best interests of the child. An injunction under this subsection is effective according to its terms but may not remain in effect beyond the date the court dismisses the petition for termination of parental rights under s. 48.427 (2) or issues an order terminating parental rights under s. 48.427 (3).
(d)
A temporary order under par. (b) or an injunction under par. (c) suspends the portion of any order under s. 48.345, 48.363, 48.365, 938.345, 938.363 or 938.365 setting rules of parental visitation until the termination of the temporary order under par. (b) or injunction under par. (c).
(e)
1.
Except as provided in subd. 2., the court shall issue a temporary order and injunction prohibiting a parent of a child from visitation or contact with the child if the parent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of the child's other parent, and the conviction has not been reversed, set aside or vacated.
2.
Subdivision 1. does not apply if the court determines by clear and convincing evidence that the visitation or contact would be in the best interests of the child. The court shall consider the wishes of the child in making that determination.
(2)
Who must be summoned. Except as provided in sub. (2m), the petitioner shall cause the summons and petition to be served upon the following persons:
(a)
The parent or parents of the child, unless the child's parent has waived the right to notice under s. 48.41 (2) (d).
(b)
Except as provided in par. (bm), if the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803 and whose paternity has not been established:
1.
A person who has filed an unrevoked declaration of paternal interest under s. 48.025 before the birth of the child or within 14 days after the birth of the child.
2.
A person or persons alleged to the court to be the father of the child or who may, based upon the statements of the mother or other information presented to the court, be the father of the child unless that person has waived the right to notice under s. 48.41 (2) (c).
3.
A person who has lived in a familial relationship with the child and who may be the father of the child.
(bm)
If the child is a nonmarital child who is under one year of age at the time the petition is filed and who is not adopted or whose parents do not subsequently intermarry under s. 767.803 and whose paternity has not been established and if an affidavit under sub. (1g) (a) is filed with the petition:
1.
A person who has filed an unrevoked declaration of paternal interest under s. 48.025 before the birth of the child, within 14 days after the birth of the child, or within 21 days after a notice under sub. (1g) (b) is mailed, whichever is later.
2.
A person who has lived in a familial relationship with the child and who may be the father of the child.
(c)
The guardian, guardian ad litem, legal custodian, and Indian custodian of the child.
(d)
Any other person to whom notice is required to be given by ch. 822, excluding foster parents who shall be provided notice as required under sub. (2g).
(e)
To the child if the child is 12 years of age or older.
(2g)
Notice required.
(a)
In addition to causing the summons and petition to be served as required under sub. (2), the petitioner shall also notify any foster parent or other physical custodian described in s. 48.62 (2) of the child of all hearings on the petition. The first notice to any foster parent or other physical custodian described in s. 48.62 (2) shall be written, shall have a copy of the petition attached to it, shall state the nature, location, date, and time of the initial hearing and shall be mailed to the last-known address of the foster parent or other physical custodian described in s. 48.62 (2). Thereafter, notice of hearings may be given by telephone at least 72 hours before the time of the hearing. The person giving telephone notice shall place in the case file a signed statement of the time notice was given and the person to whom he or she spoke.
(ag)
In the case of an involuntary termination of parental rights to a child whom the petitioner knows or has reason to know is an Indian child, the petitioner shall cause the summons and petition to be served on the Indian child's parent and Indian custodian in the manner specified in s. 48.028 (4) (a). In like manner, the petitioner shall also notify the Indian child's tribe of all hearings on the petition. The first notice to an Indian child's tribe shall be written, shall have a copy of the petition attached to it, and shall state the nature, location, date, and time of the initial hearing. No hearing may be held on the petition until at least 10 days after receipt of notice of the hearing by the Indian child's parent, Indian custodian, and tribe or, if the identity or location of the Indian child's parent, Indian custodian, or tribe cannot be determined, until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the Indian child's parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for the hearing.
(am)
The court shall give a foster parent or other physical custodian described in s. 48.62 (2) who is notified of a hearing under par. (a) a right to be heard at the hearing by permitting the foster parent or other physical custodian to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, relevant to the issues to be determined at the hearing. A foster parent or other physical custodian described in s. 48.62 (2) who receives a notice of a hearing under par. (a) and a right to be heard under this paragraph 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.
(b)
Failure to give notice under par. (a) to a foster parent or other physical custodian described in s. 48.62 (2) does not deprive the court of jurisdiction in the proceeding. If a foster parent or other physical custodian described in s. 48.62 (2) is not given notice of a hearing under par. (a), that person may request a rehearing on the matter at any time prior to the entry of an order under s. 48.427 (2) or (3). If the request is made, the court shall order a rehearing.
(2m)
Notice not required.
(a)
Parent as a result of sexual assault. Except as provided in this paragraph, notice is not required to be given to a person who may be the father of a child conceived as a result of a sexual assault in violation of s. 940.225 (1), (2) or (3), 948.02 (1) or (2), 948.025, or 948.085 if a physician attests to his or her belief that a sexual assault as specified in this paragraph has occurred or if the person who may be the father of the child has been convicted of sexual assault as specified in this paragraph for conduct which may have led to the child's conception. A person who under this paragraph is not given notice does not have standing to appear and contest a petition for the termination of his parental rights, present evidence relevant to the issue of disposition, or make alternative dispositional recommendations. This paragraph does not apply to a person who may be the father of a child conceived as a result of a sexual assault in violation of s. 948.02 (1) or (2) if that person was under 18 years of age at the time of the sexual assault.
(b)
Parent of nonmarital child. A person who may be the father of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803 and whose paternity has not been established, by virtue of the fact that he has engaged in sexual intercourse with the mother of the child, is considered to be on notice that a pregnancy and a termination of parental rights proceeding concerning the child may occur, and has the duty to protect his own rights and interests. He is therefore entitled to actual notice of such a proceeding only as provided in sub. (2) (b) or (bm). A person who is not entitled to notice under sub. (2) (b) or (bm) does not have standing to appear and contest a petition for the termination of his parental rights, present evidence relevant to the issue of disposition, or make alternative dispositional recommendations.
(3)
Contents of summons. The summons shall:
(a)
Contain the name and birth date or anticipated birth date of the child, and the nature, location, date and time of the initial hearing.
(b)
Advise the party, if applicable, of his or her right to legal counsel, regardless of ability to pay under s. 48.23 and ch. 977.
(c)
Advise the parties of the possible result of the hearing and the consequences of failure to appear or respond.
(d)
Advise the parties that if the court terminates parental rights, a notice of intent to pursue relief from the judgment must be filed in the trial court within 30 days after the judgment is entered for the right to pursue such relief to be preserved.
(4)
Manner of serving summons and petition.
(a)
Personal service. Except as provided in this paragraph, par. (b), and sub. (2g) (ag), a copy of the summons and petition shall be served personally upon the parties specified in sub. (2), if known, at least 7 days before the date of the hearing. Service of summons is not required if the party submits to the jurisdiction of the court. Service upon parties who are not natural persons and upon persons under a disability shall be as prescribed in s. 801.11.
(b)
Constructive notice.
1.
If with reasonable diligence a party specified in sub. (2) cannot be served under par. (a), service shall be made by publication of the notice under subd. 4.
1m.
If the child's custody was relinquished under s. 48.195, service to the parents of the child may be made by publication of the notice under subd. 4.
2.
If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803 and paternity has not been conclusively determined from genetic test results under s. 767.804, acknowledged under s. 767.805 or a substantially similar law of another state, or adjudicated, the court may, as provided in s. 48.422 (6) (b), order publication of a notice under subd. 4.
3.
At the time the petition is filed, the petitioner may move the court for an order waiving the requirement of constructive notice to a person who, although his identity is unknown, may be the father of a nonmarital child.
4.
A notice published under this subsection shall be published as a class 1 notice under ch. 985. In determining which newspaper is likely to give notice as required under s. 985.02 (1), the petitioner or court shall consider the residence of the party, if known, or the residence of the relatives of the party, if known, or the last-known location of the party. If the party's post-office address is known or can, with due diligence, be ascertained, a copy of the summons and petition shall be mailed to the party upon or immediately prior to the first publication. The mailing may be omitted if the petitioner shows that the post-office address cannot be obtained with due diligence. Except as provided in subd. 5., the notice shall include the date, place and circuit court branch for the hearing, the court file number, the name, address and telephone number of the petitioner's attorney and information the court determines to be necessary to give effective notice to the party or parties. Such information shall include the following, if known:
a.
The name of the party or parties to whom notice is being given;
b.
A description of the party or parties;
c.
The former address of the party or parties;
d.
The approximate date and place of conception of the child; and
e.
The date and place of birth of the child.
5.
The notice shall not include the name of the mother unless the mother consents. The notice shall not include the name of the child unless the court finds that inclusion of the child's name is essential to give effective notice to the father.
(c)
Notice; additional information. The notice under par. (a) or (b) shall also inform the parties:
1.
That the parental rights of a parent or alleged parent who fails to appear may be terminated;
2.
Of the party's right to have an attorney present and that if a person desires to contest termination of parental rights and believes that he or she cannot afford an attorney, the person may ask the state public defender to represent him or her; and
3.
That if the court terminates parental rights, a notice of intent to pursue relief from the judgment must be filed in the trial court within 30 days after judgment is entered for the right to pursue such relief to be preserved.
(5)
Penalty. Any person who knowingly and willfully makes or causes to be made any false statement or representation of a material fact in the course of a proceeding under this section with an intent to deceive or mislead the court for the purpose of preventing a person who is entitled to receive notice of a proceeding under this section from receiving notice may be fined not more than $10,000 or imprisoned for not more than 9 months, or both. It is not a violation of this subsection for a person to refuse to make a statement or representation of material fact in the course of a proceeding under this section for the purpose of preventing a person who is entitled to receive notice of a proceeding under this section from receiving notice if, at the time of the refusal, the person stated that he or she feared that making such a statement or representation would place the person or another person at risk of domestic abuse, as defined in s. 813.12 (1) (am), or abuse, as defined in s. 813.122 (1) (a), and if the person proves that he or she refused to make such a statement or representation because of a recent overt act, attempt, or threat that caused him or her reasonably to believe that refusing to make such a statement or representation was the only means of preventing domestic abuse, as defined in s. 813.12 (1) (am), or abuse, as defined in s. 813.122 (1) (a), to himself or herself or to another.
History:  1973 c. 263; 1977 c. 354; 1979 c. 330; 1981 c. 81 s. 33; 1981 c. 391; 1983 a. 447; 1985 a. 94; Sup. Ct. Order, 136 Wis. 2d xxv (1987); 1987 a. 383; 1989 a. 86; 1993 a. 395, 446; 1995 a. 108, 225, 275, 352; 1997 a. 35, 80, 191, 237; 1999 a. 9, 83; 2005 a. 277, 293; 2005 a. 443 s. 265; 2007 a. 96, 97; 2009 a. 28, 79, 94; 2011 a. 257 s. 56; 2015 a. 373, 381; 2019 a. 95; 2021 a. 239.
Judicial Council Note, 1986: Subs. (3) (d) and (4) (c) are amended to require notice to the parties of the time and manner for initiating an appeal from a judgment terminating parental rights. [Re Order eff. 7-1-87]
Guardianship and termination of parental rights (TPR) proceedings are custody proceedings, guardianship and TPR determinations are custody determinations, and guardianship and TPR determinations are custody decrees, all governed by ch. 822. P.C. v. C.C., 161 Wis. 2d 277, 468 N.W.2d 190 (1991).
Sub. (2m) denies a putative father standing to contest the alleged grounds for termination when the child was conceived as the result of sexual assault. Ann M.M. v. Rob S., 176 Wis. 2d 673, 500 N.W.2d 649 (1993).
Sub. (2) (d) requires consideration in each case of whether ch. 822 applies but does not require the application of ch. 822 to intrastate cases. David S. v. Laura S., 179 Wis. 2d 114, 507 N.W.2d 94 (1993).
Sub. (2) is the exclusive statute for determining what parties may be summoned; intervention under s. 803.09 does not apply. David S. v. Laura S., 179 Wis. 2d 114, 507 N.W.2d 94 (1993).
Sexual assault under sub. (2m) does not include a violation of s. 948.09, sexual intercourse with a child age 16 or older. Duane N. v. Natalie T., 182 Wis. 2d 395, 513 N.W.2d 669 (Ct. App. 1994).
The doctrines of claim and issue preclusion may apply in termination of parental rights cases. Brown County Department of Human Services v. Terrance M., 2005 WI App 57, 280 Wis. 2d 396, 694 N.W.2d 458, 04-2379.
Section 48.415 (2) (a), the “continuing CHIPS ground” at issue in this case, was amended by 2017 Wis. Act 256. In this case, although the orders placing the respondent's children outside the home were first entered in CHIPS cases before s. 48.415 (2) (a) was amended, when the county filed petitions to terminate the respondent's parental rights (TPR) after that amendment took effect, the county was required to establish the elements for the continuing CHIPS ground as set forth in the amended version of s. 48.415 (2) (a). When the county filed the TPR petitions, the amended version of the continuing CHIPS ground was the only version of that ground that could form the basis of the TPR petitions pursuant to the dictates of sub. (1) (c) 2. and s. 48.415. Dane County Department of Human Services v. J.R., 2020 WI App 5, 390 Wis. 2d 326, 938 N.W.2d 614, 19-0820.