2017 Wisconsin Statutes & Annotations
Chapter 48. Children's code.
48.43 Court orders; contents and effect; review.

Universal Citation: WI Stat § 48.43 (2017)

48.43 Court orders; contents and effect; review.

(1) The court shall enter a judgment setting forth its findings and disposition in accordance with s. 48.426 in an order implementing the disposition chosen. If the court dismisses the petition under s. 48.427 (2), the order shall contain the reasons for dismissal. If the disposition is for the termination of parental rights under s. 48.427 (3), the order shall contain all of the following:

(a) The identity of any agency or individual that has received guardianship of the child or will receive guardianship or custody of the child upon termination and the identity of the agency which will be responsible for securing the adoption of the child or establishing the child in a permanent family setting.

(am) If the department or a county department receives guardianship or custody of the child under par. (a), an order ordering the child into the placement and care responsibility of the department or county department as required under 42 USC 672 (a) (2) and assigning the department or county department primary responsibility for providing services to the child.

(b) If the child will be in need of continued care and treatment after termination, the agencies and persons responsible.

(c) If an agency receives custody of the child under par. (a), the child's permanency plan prepared under s. 48.38 by the agency. If a permanency plan has not been prepared at the time the order is entered, or if the court enters an order that is not consistent with the permanency plan, the agency shall prepare a permanency plan that is consistent with the order or revise the permanency plan to conform to the order and shall file the plan with the court within 60 days from the date of the order.

(cm) If a permanency plan has previously been prepared for the child, a finding as to whether the agency primarily responsible for providing services to the child has made reasonable efforts to achieve the permanency goal of the child's permanency plan, including, if appropriate, through an out-of-state placement. The court shall make the findings specified in this paragraph on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which those findings are based in the order. An order that merely references this paragraph without documenting or referencing that specific information in the order or an amended order that retroactively corrects an earlier order that does not comply with this paragraph is not sufficient to comply with this paragraph.

(d) A finding that the termination of parental rights is in the best interests of the child.

(2) An order terminating parental rights permanently severs all legal rights and duties between the parent whose parental rights are terminated and the child and between the child and all persons whose relationship to the child is derived through that parent, except as follows:

(a) The relationship between the child and his or her siblings is not severed until that relationship is extinguished by an order of adoption as provided in s. 48.92 (2).

(b) A relative whose relationship to the child is derived through the parent whose parental rights are terminated is considered to be a relative of the child for purposes of placement of, and permanency planning for, the child until that relationship is extinguished by an order of adoption as provided in s. 48.92 (2).

(3) If only one parent consents under s. 48.41 or if the grounds specified in s. 48.415 are found to exist as to only one parent, the rights of only that parent may be terminated without affecting the rights of the other parent.

(4) A certified copy of the order terminating parental rights shall be furnished by the court to the agency given guardianship for placement for adoption of the child or to the person appointed as the guardian of the child under s. 48.977 (2). The court shall, upon request, furnish a certified copy of the child's birth certificate and a transcript of the testimony in the termination of parental rights hearing to the same person or agency.

(5)

(a) If the custodian specified in sub. (1) (a) is an agency, the agency shall report to the court on the status of the child at least once each year until the child is adopted or reaches 18 years of age, whichever is sooner. The agency shall file an annual report no less than 30 days before the anniversary of the date of the order. An agency may file an additional report at any time if it determines that more frequent reporting is appropriate. A report shall summarize the child's permanency plan and the recommendations of the review panel under s. 48.38 (5), if any, and shall describe any progress that has been made in finding a permanent placement for the child.

(b)

1. The court shall hold a hearing to review the permanency plan within 30 days after receiving a report under par. (a). At least 10 days before the date of the hearing, the court shall provide notice of the time, place, and purpose of the hearing to the agency that prepared the report, the child's guardian, the child, and the child's foster parent, the operator of the facility in which the child is living, or the relative with whom the child is living.

2. If the child's permanency plan includes a statement under s. 48.38 (4) (i) indicating that the child's age and developmental level are sufficient for the court to consult with the child regarding the child's permanency plan or if, notwithstanding a decision under s. 48.38 (4) (i) that it would not be appropriate for the court to consult with the child, the court determines that consultation with the child would be in the best interests of the child, the court shall consult with the child, in an age-appropriate and developmentally appropriate manner, regarding the child's permanency plan and any other matters the court finds appropriate. If none of those circumstances apply, the court may permit the child's caseworker, the child's counsel, or, subject to s. 48.235 (3) (a), the child's guardian ad litem to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, expressing the child's wishes, goals, and concerns regarding the permanency plan and those matters. If the court permits such a written or oral statement to be made or submitted, the court may nonetheless require the child's presence at the hearing.

2m. If the permanency goal of the child's permanency plan is placement of the child in a planned permanent living arrangement described in ss. 48.38 (4) (fg) 5., the agency that prepared the report shall present to the court specific information showing that intensive and ongoing efforts were made by the agency, including searching social media, to return the child to the child's home or to place the child for adoption, with a guardian, or with a fit and willing relative and that those efforts have proved unsuccessful and specific information showing the steps taken by the agency, including consultation with the child, to ascertain whether the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities and to ensure that the child's caregiver is applying the reasonable and prudent parent standard to decisions concerning the child's participation in those activities. In addition, at the hearing the court shall consult with the child about the permanency outcome desired by the child.

3. The court shall give a foster parent, operator of a facility, or relative who is notified of a hearing under subd. 1. a right to be heard at the hearing by permitting the foster parent, operator, or relative 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. The foster parent, operator of a facility, or relative 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.

(bm) If the order under sub. (1) involuntarily terminated parental rights to an Indian child, the court shall also provide notice of the hearing under par. (b) to the Indian child's tribe in the manner specified in s. 48.028 (4) (a). No hearing may be held under par. (b) until at least 10 days after receipt of notice of the hearing by the Indian child's tribe or, if the identity or location of the Indian child's tribe cannot be determined, until at least 15 days after receipt of notice of the hearing by the U.S. secretary of the interior. On request of the Indian child's tribe, the court shall grant a continuance of up to 20 additional days to enable the tribe to prepare for the hearing.

(c) Following the hearing, the court shall make all of the determinations specified under s. 48.38 (5) (c), except the determinations relating to the child's parents. The court may amend the order under sub. (1) to transfer the child's guardianship and custody to any agency specified under s. 48.427 (3m) (a) 1. to 4. or (am) that consents to the transfer, if the court determines that the transfer is in the child's best interest. If an Indian child's guardianship and custody are transferred under this paragraph, the agency consenting to the transfer shall comply with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c) in placing the child, unless the agency finds good cause, as described in s. 48.028 (7) (e), for departing from that order. If an order is amended, the agency that prepared the permanency plan shall revise the plan to conform to the order and shall file a copy of the revised plan with the court. Each plan filed under this paragraph shall be made a part of the court order.

(5m) Either the court or the agency that prepared the permanency plan shall furnish a copy of the original plan and each revised plan to the child, if he or she is 12 years of age or over, to the child's guardian, to the child's foster parent, the operator of the facility in which the child is living, or the relative with whom the child is living, and, if the order under sub. (1) involuntarily terminated parental rights to an Indian child, to the Indian child's tribe.

(6)

(a) Judgments under this subchapter terminating parental rights are final and are appealable under s. 808.03 (1) according to the procedure specified in s. 809.107 and are subject to a petition for rehearing or a motion for relief only as provided in s. 48.46 (1m) and (2) and, in the case of an Indian child, s. 48.028 (5) (c) and (6). The attorney representing a person during a proceeding under this subchapter shall continue representation of that person by filing a notice of intent to appeal under s. 809.107 (2), unless the attorney has been previously discharged during the proceeding by the person or by the trial court.

(b) The mother of a child who completes an affidavit under s. 48.42 (1g) may not collaterally attack a judgment terminating parental rights on the basis that the father of the child was not correctly identified.

(c) Except as provided in s. 48.028 (5) (c) and (6), in no event may any person, for any reason, collaterally attack a judgment terminating parental rights more than one year after the date on which the period for filing an appeal from the judgment has expired, or more than one year after the date on which all appeals from the judgment, if any were filed, have been decided, whichever is later.

(6m) If a person whose parental rights are terminated is present in court when the court grants the order terminating those rights, the court shall provide written notification to the person of the time periods for appeal of the judgment. The person shall sign the written notification, indicating that he or she has been notified of the time periods for filing an appeal under ss. 808.04 (7m) and 809.107. The person's counsel shall file a copy of the signed, written notification with the court on the date on which the judgment is granted.

(7)

(a) If the agency specified under sub. (1) (a) is the department, the department shall seek a permanent adoptive placement for the child or seek to enter into a subsidized guardianship agreement under s. 48.623 (2) with a proposed guardian of the child and petition the court for the appointment of that individual as the guardian of the child under s. 48.977 (2).

(b) If a permanent adoptive or subsidized guardianship placement is not in progress 2 years after entry of the order, the department may petition the court to transfer legal custody of the child to a county department, except that the department may not petition the court to transfer to a county department legal custody of a child who was initially taken into custody under s. 48.195 (1). The court shall transfer the child's legal custody to the county department specified in the petition. The department shall remain the child's guardian.

History: 1979 c. 330; 1983 a. 27, 219, 286; 1985 a. 70, 176, 332; Sup. Ct. Order, 136 Wis. 2d xxv (1987); 1987 a. 383; 1993 a. 395, 446; 1995 a. 275; 1997 a. 237; 2005 a. 232, 293, 296; 2007 a. 20, 199; 2009 a. 28, 79, 94; 2011 a. 181, 258; 2013 a. 20, 165; 2015 a. 128.

Parents whose rights have been terminated do not inherit from a child; the child's siblings, whether parental rights as to them have been terminated or not, are the child's heirs. Estate of Pamanet, 46 Wis. 2d 514, 175 N.W.2d 234 (1970).

The appeal process in a termination case must be commenced within 30 days after the order is entered. In Interest of J.D. 106 Wis. 2d 126, 315 N.W.2d 365 (1982).

Termination has the same effect on relationships between members of the biological parents' families and the child as it has on the parent-child relationship. Equitable considerations did not form a basis to allow biological grandparents to obtain visitation rights after termination and adoption. Elgin and Carol W. v. DHFS, 221 Wis. 2d 36, 584 N.W.2d 195 (Ct. App. 1998), 97-3595.

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