|
Wis. Stat.
§ 48.42
This document has been updated.
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.
(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 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.
(c)
The guardian, guardian ad litem and legal custodian 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.
(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. 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.
(c)
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.
|