2017 Wisconsin Statutes & Annotations
Chapter 48. Children's code.
48.422 Hearing on the petition.

Universal Citation: WI Stat § 48.422 (2017)

48.422 Hearing on the petition.

(1) Except as provided in s. 48.42 (2g) (ag), the hearing on the petition to terminate parental rights shall be held within 30 days after the petition is filed. At the hearing on the petition to terminate parental rights the court shall determine whether any party wishes to contest the petition and inform the parties of their rights under sub. (4) and s. 48.423.

(2) Except as provided in s. 48.42 (2g) (ag), if the petition is contested the court shall set a date for a fact-finding hearing to be held within 45 days after the hearing on the petition, unless all of the necessary parties agree to commence with the hearing on the merits immediately.

(3) If the petition is not contested the court shall hear testimony in support of the allegations in the petition, including testimony as required in sub. (7).

(4) Any party who is necessary to the proceeding or whose rights may be affected by an order terminating parental rights shall be granted a jury trial upon request if the request is made before the end of the initial hearing on the petition.

(5) Any nonpetitioning party, including the child, shall be granted a continuance of the hearing for the purpose of consulting with an attorney on the request for a jury trial or concerning a request for the substitution of a judge.

(6)

(a) In the case of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803 and for whom paternity has not been established, or for whom a declaration of paternal interest has not been filed under s. 48.025 within 14 days after the date of birth of the child or, if s. 48.42 (1g) (b) applies, within 21 days after the date on which the notice under s. 48.42 (1g) (b) is mailed, the court shall hear testimony concerning the paternity of the child. Based on the testimony, the court shall determine whether all interested parties who are known have been notified under s. 48.42 (2) and (2g) (ag). If not, the court shall adjourn the hearing and order appropriate notice to be given.

(b) If the court determines that an unknown person may be the father of the child and notice to that person has not been waived under s. 48.42 (4) (b) 3., the court shall determine whether constructive notice will substantially increase the likelihood of notice to that person. If the court does determine that it would substantially increase the likelihood of notice and the petitioner has not already caused the notice to be published or the court determines that the publication used was not sufficient, the court shall adjourn the hearing for a period not to exceed 30 days and shall order constructive notice under s. 48.42 (4) (b). If the court determines that constructive notice will not substantially increase the likelihood of notice to that person, the court shall order that the hearing proceed.

(c) If paternity is adjudicated under this subchapter and parental rights are not terminated, the court may make and enforce such orders for the suitable care, custody and support of the child as a court having jurisdiction over actions affecting the family may make under ch. 767. If there is a finding by the court that the child is in need of protection or services, the court may make dispositional orders under s. 48.345.

(7) Before accepting an admission of the alleged facts in a petition, the court shall:

(a) Address the parties present and determine that the admission is made voluntarily with understanding of the nature of the acts alleged in the petition and the potential dispositions.

(b) Establish whether any promises or threats were made to elicit an admission and alert all unrepresented parties to the possibility that a lawyer may discover defenses or mitigating circumstances which would not be apparent to them.

(bm) Establish whether a proposed adoptive parent of the child has been identified. If a proposed adoptive parent of the child has been identified and the proposed adoptive parent is not a relative of the child, the court shall order the petitioner to submit a report to the court containing the information specified in s. 48.913 (7). The court shall review the report to determine whether any payments or agreement to make payments set forth in the report are coercive to the birth parent of the child or to an alleged to presumed father of the child or are impermissible under s. 48.913 (4). Making any payment to or on behalf of the birth parent of the child, an alleged or presumed father of the child or the child conditional in any part upon transfer or surrender of the child or the termination of parental rights or the finalization of the adoption creates a rebuttable presumption of coercion. Upon a finding of coercion, the court shall dismiss the petition or amend the agreement to delete any coercive conditions, if the parties agree to the amendment. Upon a finding that payments which are impermissible under s. 48.913 (4) have been made, the court may dismiss the petition and may refer the matter to the district attorney for prosecution under s. 948.24 (1). This paragraph does not apply if the petition was filed with a petition for adoptive placement under s. 48.837 (2).

(br) Establish whether any person has coerced a birth parent or any alleged or presumed father of the child in violation of s. 48.63 (3) (b) 5. Upon a finding of coercion, the court shall dismiss the petition.

(c) Make such inquiries as satisfactorily establish that there is a factual basis for the admission.

(8) If the petition for termination of parental rights is filed by an agency enumerated in s. 48.069 (1) or (2), the court shall order the agency to file a report with the court as provided in s. 48.425 (1), except that, if the child is an Indian child, the court may order the agency or request the tribal child welfare department of the Indian child's tribe to file that report.

(9)

(a) If a petition for termination of the rights of a birth parent, as defined under s. 48.432 (1) (am), is filed by a person other than an agency enumerated under s. 48.069 (1) or (2) or if the court waives the report required under s. 48.425, the court shall order any parent whose rights may be terminated to file with the court the information specified under s. 48.425 (1) (am).

(b) If a birth parent does not comply with par. (a), the court shall order any health care provider, as defined under s. 146.81 (1) (a) to (p), known to have provided care to the birth parent or parents to provide the court with any health care records of the birth parent or parents that are relevant to the child's medical condition or genetic history. A court order for the release of alcohol or drug abuse treatment records subject to 21 USC 1175 or 42 USC 4582 shall comply with 42 CFR 2.

History: 1979 c. 330; 1981 c. 359; 1983 a. 326; 1983 a. 447 ss. 10, 67; 1985 a. 176; 1997 a. 104; 2005 a. 293; 2005 a. 443 s. 265; 2007 a. 186; 2009 a. 28, 94.

The court erred by failing to inform parents of the right to jury trial and to representation by counsel. In re Termination of Parental Rights to M. A. M. 116 Wis. 2d 432, 342 N.W.2d 410 (1984).

Concurrent TPR/adoption proceedings under s. 48.835 are subject to the requirement under s. 48.422 that the initial hearing be held within 30 days of filing the petition. In re J.L.F. 168 Wis. 2d 634, 484 N.W.2d 359 (Ct. App. 1992).

A court's failure to inform parents of their rights under this section is not reversible error absent prejudice to the parents. Interest of Robert D. 181 Wis. 2d 887, 512 N.W.2d 227 (Ct. App. 1994).

Once 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 D.H.S.S. v. Julie A.B. 2002 WI 95, 255 Wis. 2d 170, 648 N.W.2d 402, 01-1692.

This section does not require the circuit court to advise nonpetitioning parties of the right under sub. (5) to a continuance to consult with counsel regarding judicial substitution. Steven V. v. Kelley H. 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 831, 02-2860.

A competency challenge based on the violation of the statutory time limitation of sub. (2) cannot be waived, even though it was not raised in the circuit court. Sheboygan County Department of Social Services v. Matthew S. 2005 WI 84, 282 Wis. 2d 150, 698 N.W.2d 631, 04-0901.

Any alternative to a parent's personal presence at a proceeding to terminate his or her parental rights must, unless the parent knowingly waives the right or the ministerial nature of the proceedings make personal-presence unnecessary, be functionally equivalent to personal presence. The parent must be able to assess the witnesses, confer with his or her lawyer, and, of course, hear everything that is going on. State v. Lavelle W. 2005 WI App 266, 288 Wis. 2d 504, 708 N.W.2d 698, 05-1604.

When every option to secure the physical presence in the courtroom of a deported father failed and a webcam system was used by which the father could see and hear the proceedings in the courtroom and be seen and heard by the local participants, the father was offered meaningful participation in termination proceedings, unlike the telephone connection used in Lavelle W. Waukesha County Dept. of Health & Human Services v. Teodoro E. 2008 WI App 16, 307 Wis. 2d 372, 745 N.W.2d 701, 07-2283.

While not required, circuit courts in TPR 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 DH&HS v. Andrea L. O. 2008 WI 46, 309 Wis. 2d 161, 749 N.W.2d 168, 07-0008.

A 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.

In order for no contest pleas at the grounds stage to be entered knowingly and intelligently, parents must understand that acceptance of their plea will result in a finding of parental unfitness. Sub. (7) requires, at the very least, that a court must inform the parent that at the 2nd step of the process, the court will hear evidence related to the disposition and then will either terminate the parent's rights or dismiss the petition if the evidence does not warrant termination. Additionally, the court must inform the parent that the best interests of the child shall be the prevailing factor considered by the court in determining the disposition. Oneida County Department of Social Services v. Therese S. 2008 WI App 159, 314 Wis. 2d 493, 762 N.W.2d 122, 08-1126.

No provision of the federal or state constitutions nor this section mandates that a parent's waiver of the right to a jury trial on the grounds for termination must be on the record during a personal colloquy with the judge. Here, although the court did not personally ask the mother whether she wished to waive her right to a jury trial, the record made clear that she did knowingly, intelligently, and voluntarily waive that right. That is the benchmark. Racine County Human Services Department v. Latanya D. K. 2013 WI App 28, 346 Wis. 2d 75, 828 N.W.2d 251, 12-1121.

Due process does not require appointment of counsel for indigent parents in every parental status termination proceeding. Lassiter v. Dept. of Social Services, 452 U.S. 18 (1981).

Judge or Jury? How Best to Preserve Due Process in Wisconsin Termination of Parental Rights Cases. Bloodworth. 2013 WLR 1039.

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