2017 Wisconsin Statutes & Annotations
Chapter 48. Children's code.
48.46 New evidence; relief from judgment terminating parental rights.

Universal Citation: WI Stat § 48.46 (2017)

48.46 New evidence; relief from judgment terminating parental rights.

(1) Except as provided in subs. (1m), (2), and (3), the child whose status is adjudicated by the court, the parent, guardian, or legal custodian of that child, the guardian ad litem of an unborn child whose status is adjudicated by the court, or the expectant mother of that unborn child may at any time within one year after the entering of the court's order petition the court for a rehearing on the ground that new evidence has been discovered affecting the advisability of the court's original adjudication. Upon a showing that such evidence does exist, the court shall order a new hearing.

(1m) Except as provided in sub. (2), the parent, guardian or legal custodian of the child or the child whose status is adjudicated by the court in an order entered under s. 48.43 or an order adjudicating paternity under subch. VIII may, within the time permitted under this subsection, petition the court for a rehearing on the ground that new evidence has been discovered affecting the advisability of the court's adjudication. Upon a showing that such evidence does exist, the court shall order a new hearing. A petition under this subsection shall be filed within one year after the date on which the order under s. 48.43 or order adjudicating paternity under subch. VIII is entered, unless within that one-year period a court in this state or in another jurisdiction enters an order granting adoption of the child, in which case a petition under this subsection shall be filed before the date on which the order granting adoption is entered or within 30 days after the date on which the order under s. 48.43 or order adjudicating paternity under subch. VIII is entered, whichever is later.

(2) A parent who has consented to the termination of his or her parental rights under s. 48.41 or who did not contest the petition initiating the proceeding in which his or her parental rights were terminated may move the court for relief from the judgment on any of the grounds specified in s. 806.07 (1) (a), (b), (c), (d) or (f). Any such motion shall be filed within 30 days after the entry of the judgment or order terminating parental rights, unless the parent files a timely notice of intent to pursue relief from the judgment under s. 808.04 (7m), in which case the motion shall be filed within the time permitted by s. 809.107 (5). A motion under this subsection does not affect the finality or suspend the operation of the judgment or order terminating parental rights. A parent who has consented to the termination of his or her parental rights to an Indian child under s. 48.41 (2) (e) may also move for relief from the judgment under s. 48.028 (5) (c) or (6). Motions under this subsection or s. 48.028 (5) (c) or (6) and appeals to the court of appeals shall be the exclusive remedies for such a parent to obtain a new hearing in a termination of parental rights proceeding.

(3) An adoptive parent who has been granted adoption of a child under s. 48.91 (3) may not petition the court for a rehearing under sub. (1) or move the court under s. 806.07 for relief from the order granting adoption. A petition for termination of parental rights under s. 48.42 and an appeal to the court of appeals shall be the exclusive remedies for an adoptive parent who wishes to end his or her parental relationship with his or her adopted child.

History: 1977 c. 449; 1979 c. 300; 1987 a. 383; Sup. Ct. Order, 146 Wis. 2d xxxiii (1988); 1995 a. 275; 1997 a. 104, 114, 252, 292; 2009 a. 94; 2013 a. 170.

Judicial Council Note, 1988: Sub. (2) limits the remedies for relief from a judgment or order terminating parental rights when the aggrieved party is a parent whose rights were terminated by consent or who has failed to contest the petition. The motion for relief from the judgment or order must be filed within 40 days after entry of the judgment or order terminating parental rights, unless the appellate process is timely initiated, in which case the motion must be filed within 60 days after service of the transcript. The court must grant a rehearing upon a prima facie showing of one or more of the following grounds: mistake, inadvertence, surprise or excusable neglect; newly discovered evidence justifying a new hearing under s. 805.15 (3); fraud, misrepresentation or other misconduct of an adverse party; the judgment or order is void; the judgment or order is based upon a prior judgment which has been reversed or otherwise vacated. [Re Order effective Jan. 1, 1989]

Affidavits by a mother that she consented to a termination of her parental rights under duress and by her attorney as to what he expected to prove were not sufficient for a rehearing. Schroud v. Milwaukee County Department of Public Welfare, 53 Wis. 2d 650, 193 N.W.2d 671 (1972).

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