Resources - A Practical Guide to the Indian Child Welfare Act; Native American Rights Fund

Wis. Stat. § 48.42

Wisconsin Statutes

Social Services

Chapter 48. Children's Code

Subchapter VIII. Termination of Parental Rights

§ 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 and address of the child.

(b) The names and addresses of the child's parent or parents, guardian and legal custodian.

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 1911 to 1963.

(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) If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60 and paternity has not been established:

1. A person who has filed a declaration of interest under s. 48.025.

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.

(d) Any other person to whom notice is required to be given by ch. 822, excluding foster parents and treatment 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, treatment 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, treatment 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, treatment 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.

(am) The court shall give a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) who is notified of a hearing under par. (a) an opportunity to be heard at the hearing by permitting the foster parent, treatment 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, treatment foster parent or other physical custodian described in s. 48.62 (2) who receives a notice of a hearing under par. (a) and an opportunity 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 opportunity to be heard.

(b) Failure to give notice under par. (a) to a foster parent, treatment 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, treatment 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. Except as provided in this subsection, 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) or 948.025 if a physician attests to his or her belief that a sexual assault as specified in this subsection has occurred or if the person who may be the father of the child has been convicted of sexual assault as specified in this subsection for conduct which may have lead to the child's conception. A person who under this subsection is not given notice does not have standing to appear and contest a petition for the termination of his parental rights. This subsection 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.

(3) Contents of summons. The summons shall:

(a) Contain the name and 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.

(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. 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, except that 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.

2. If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60 and paternity has not been acknowledged under s. 767.62(1) 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.

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.