Notice is generally not required to be given, however, to a person who may be the
father of a child conceived as a result of a sexual assault if a physician attests to his or
her belief that a sexual assault has occurred or if the person who may be the father has
been convicted of sexual assault for conduct that may have led to the child's conception.
A person who is not given notice under this provision does not have standing to appear
and contest the termination of his parental rights.
If a man who alleges that he is the father of the child appears at the TPR hearing
and wishes to contest the termination of his parental rights, the juvenile court must set
a date for a hearing on the issue of paternity or, if all parties agree, the juvenile court may
immediately commence hearing testimony on the issue of paternity. The man must prove
paternity by clear and convincing evidence.
If the child is being placed for adoption, before holding a hearing on the adoptive
placement and TPR petitions, the juvenile court must ascertain whether the child's
paternity has been established. If any person has filed a declaration of paternal interest,
the juvenile court must determine the rights of that person. If the child's paternity has
not been established and if no person has filed a declaration, the juvenile court must
attempt to ascertain the paternity of the child. The juvenile court may not proceed with
the hearing on the adoptive placement or TPR petition unless the parental rights of the
nonpetitioning parent, whether known or unknown, have been terminated.
At the final adoption hearing, the juvenile court must establish whether the rights
of any persons who have filed declarations of paternal interest have been determined or
whether the child's paternity has been established. If the juvenile court finds that no such
determination has been made, the juvenile court must proceed to ascertain the paternity
of the child and the rights of any person who has filed a declaration before it may take
any action on the petition for adoption.
The bill modifies current law relating to declarations of paternal interest and
notification to putative fathers of TPR and adoption proceedings.
The bill makes various changes relating to declarations of paternal interest. The
bill generally requires a declaration to be filed before the child's birth or within 14 days
after the child's birth and permits a declaration to be revoked at any time. The bill also
requires a declaration or revocation to be verified upon oath or affirmation and, in the
case of a minor, to also be signed by the parent or guardian of the minor.
The bill requires DHFS to publicize information about declarations of paternal
interest in a manner calculated to provide maximum notice to all persons who might
claim to be the father of a nonmarital child.
The bill provides that a person who makes a false statement in a declaration,
revocation of a declaration, or response to a declaration that the person does not believe
is true is subject to prosecution for false swearing. False swearing is a Class A
misdemeanor punishable by a fine not to exceed $10,000 or imprisonment not to exceed
9 months, or both.
Also, a person who intentionally obtains, uses, or discloses information relating to
a declaration that is confidential may be fined up to $1,000 or imprisoned for up to 90
days, or both.
The bill also creates a new provision under which the petitioner in a proceeding to
terminate the parental rights of a person who may be the father of a nonmarital child
under one year of age must file with the TPR petition an affidavit signed by the child's
mother that identifies or describes the father. The petitioner is required to notify any man
alleged to be the father in the affidavit that he may file a declaration of paternal interest
within 21 days after the date on which the notification was mailed. If the mother cannot,
with reasonable diligence, be found, the petitioner must attach to the TPR petition a
statement of efforts made to locate the mother.
The bill creates alternative TPR notice requirements for a person who may be the
father of a nonmarital child under one year of age at the time the TPR petition is filed
whose paternity has not been established in a TPR proceeding concerning the child, if an
affidavit signed by the birth mother or a statement that the birth mother cannot be found,
as described above, is filed with the petition. In these cases, the bill requires notice to be
provided to all of the following:
1. A person who has filed an unrevoked declaration of paternal interest, within 14
days after the birth of the child or within 21 days after the notice of his right to file a
declaration is mailed, whichever is later.
2. A person who has lived in a familial relationship with the child and who may
be the father of the child.
The bill specifies that a person who is not entitled to actual notice of a TPR
proceeding under the bill does not have standing to appear and contest the petition,
present evidence relevant to the issue of disposition, or make alternative dispositional
recommendations.
Finally, the bill prohibits a mother who has completed an affidavit relating to the
identity of the child's father from attacking a TPR judgment on the basis that the father
was not identified correctly.
Grounds for TPR
The bill provides that the grounds for involuntary TPR apply to parents and to
persons who may be the parent of a child. In addition, the bill modifies the grounds in
current law for TPR, as follows:
• Failure to Assume Parental Responsibility: Substantial Parental
Relationship
Under current law, the ground of failure to assume parental responsibility is
established by proving by clear and convincing evidence that the parent has never had
a substantial parental relationship with the child. "Substantial parental relationship"
is defined as the acceptance and exercise of significant responsibility for the daily
supervision, education, protection, and care of the child.
In evaluating whether the person has had a substantial parental relationship with
the child, the juvenile court may consider whether the person has ever expressed concern
for or interest in the child's support, care, or well-being; whether the person has neglected
or refused to provide care or support; and whether, with respect to the father, the parent
has ever expressed concern for or interest in the mother's support, care, or well-being
during her pregnancy.
The bill changes this ground by providing that this ground is established by
proving by clear and convincing evidence that the parent has not had a substantial
parental relationship with the child.
• Prior Involuntary TPR to Another Child
Under current law, the ground of involuntary TPR to another child may be
established by proving by clear and convincing evidence both of the following:
• That the child who is the subject of the petition has been adjudged to be a child
in need of protection or services (CHIPS) because he or she has been abandoned or has
been the victim of abuse or because his or her parent has neglected, refused, or been
unable for reasons other than poverty to provide the necessary care, clothing, medical or
dental care, or shelter so as to seriously endanger the physical health of the child.
• That within three years of the CHIPS adjudication, a juvenile court has ordered
an involuntary TPR with respect to another child of the person.
The bill modifies the ground that requires a showing of prior involuntary TPR to
another child so that it may also apply to a child who is found to be CHIPS because he
or she is at risk of being abused or neglected.
• Continuing Need for Protection and Services
Under current law, the ground of continuing CHIPS may be established by proving
by clear and convincing evidence all of the following:
• That the child has been adjudged to be CHIPS and placed outside of his or her
home by a court.
• That the agency responsible for the care of the child and the family has made a
reasonable effort to provide the services ordered by the court.
• That the child has been outside the home for a cumulative period of six months
or longer pursuant to court orders; and that the parent has failed to meet the conditions
established for the safe return of the child to the home and there is a substantial
likelihood that the parent will not meet these conditions within the 12-month period
following the TPR fact-finding hearing.
The bill modifies the ground that requires a showing that the child is in continuing
need of protection or services so that the juvenile court must determine if the parent is
likely to meet the conditions set forth in the CHIPS order within the upcoming nine
months instead of the upcoming 12 months.
TPR Procedures
• Penalty for False Statement in TPR Proceeding
Under current law, a person may be convicted of perjury for orally making a false
statement under oath or affirmation. Perjury is a Class H felony, which is punishable by
a fine not to exceed $10,000 or imprisonment not to exceed 6 years, or both. In addition,
a person who makes or subscribes to a false statement under oath or affirmation may be
convicted of false swearing. False swearing is a Class H felony if the statement is required
or authorized by law or required by a public officer or governmental agency as a
prerequisite to official action. Otherwise, it is a Class A misdemeanor, which is
punishable by a fine not to exceed $10,000 or imprisonment not to exceed 9 months, or
both. There is no general penalty for making a false statement if it is not made under oath
or affirmation, although some statutes contain penalties for making a false statement
under specified conditions.
The bill creates a penalty for making a false statement or representation of
material fact in the course of a TPR proceeding with the intent to prevent a person who
is entitled to receive notice of the TPR proceeding from receiving notice. Under the bill,
making such a false statement or representation is punishable by a fine not to exceed
$10,000 or imprisonment not to exceed nine months, or both.
• Voluntary Consent to TPR by Telephone or Audiovisual Means
Under current law, a person may give voluntary consent to the termination of his
or her parental rights. If the juvenile court finds that it would be difficult or impossible
for the parent to appear in person at the hearing, the juvenile court may accept the
written consent of the parent given before an embassy or consul official, a military judge,
or a judge of any court of record in another county or state or a foreign jurisdiction. This
written consent must be accompanied by the signed findings of the embassy or consul
official or judge who accepted the consent. The findings must recite that the embassy or
consul official or judge, or an attorney who represents any of the parties, has questioned
the parent and found that the consent was informed and voluntary before the embassy
or consul official or judge accepted the consent of the parent.
This bill permits a parent who is unable to appear in person at the hearing to
provide testimony by telephone or through live audiovisual means, upon request of the
parent, unless good cause is shown. The telephone and audiovisual proceedings must
comply with s. 807.13, stats.
• Notice in Cases in Which a Child is Relinquished as a Newborn
Current law prohibits the state from seeking identifying information about the
parents of a newborn child whose custody was relinquished under the "safe haven law".
However, there is no provision in the notice portion of the CHIPS or TPR statute that
exempts the state from providing notice by personal service to the parents of such a child.
Because there is no provision for notice by publication in the CHIPS portion of the statute,
there is no notice option readily available in the case of a child relinquished as a newborn,
unless the parent has chosen to provide his or her identity to the person to whom the
parent relinquished the baby.
In addition, parents who relinquish their newborns are guaranteed anonymity
under the safe haven law, but the TPR and CHIPS notice provisions require parents to
be provided with notice of those proceedings by certified mail or by personal service of a
summons and a copy of the TPR and CHIPS petition. These notice provisions may
present considerable problems for the relinquishing parent, who may be under the
impression that she or he would have no further contact regarding the child.
This bill provides that notice of a TPR proceeding may be given to the parents of
a child whose custody was relinquished when he or she was less than 72 hours old by
publication in a newspaper instead of by personal service.
• Guardian ad Litem (GAL) for Parent in TPR Proceeding
Current law specifies when a juvenile court is required or permitted to appoint a
GAL to advocate for the best interests of a party in a proceeding under the Children's
Code, ch. 48, stats., and sets out the duties and responsibilities of a GAL in various types
of proceedings. Current statutes and case law authorize, but do not require, juvenile
courts to appoint GAL's for parents who are not competent to participate in TPR
proceedings.
This bill requires a juvenile court to appoint a GAL for a parent who is not
competent to participate in a TPR proceeding or to assist counsel or the juvenile court in
protecting the parent's rights in a TPR proceeding. The bill also directs a GAL of such
a parent, who is contesting the termination of his or her parental rights in a proceeding
that involves a child who has been found to be in need of protection or services, to provide
information to the juvenile court relating to the parent's competency to participate in the
proceeding and to provide assistance to the juvenile court and to the parent's adversary
counsel in protecting the parent's rights.
• Admissibility of Results of Examination of Parent in TPR Proceedings
Current law provides for mental, physical, psychological, or developmental
examinations, and alcohol and other drug abuse assessments, of various parties during
the course of proceeding under ch. 48, stats., including TPR proceedings.
Current law provides that a juvenile court in a CHIPS proceeding may order a
physical, psychological, mental, developmental, or alcohol and other drug abuse
evaluation of any parent or child and establishes procedures for doing so. Current law
is unclear regarding the admissibility of these evaluations as evidence in CHIPS and TPR
proceedings, or whether the client-patient privilege applies to these reports.
This bill specifies that statements made by a parent and the results of any tests
conducted and any diagnosis made in the course of an examination or assessment are not
privileged. The bill requires the juvenile court to inform a party of this provision at the
time the juvenile court orders the party to undergo the examination or assessment.
• Services Under Dispositional Order for Incarcerated Parent
The committee heard testimony regarding difficulty of providing services to an
incarcerated parent who is the subject of a dispositional order in a CHIPS case. In most
of these cases, the only involuntary ground for TPR of these individuals is continuing
CHIPS, under s. 48.415 (2), stats. This ground allows for a finding that grounds exist for
a TPR if the child is adjudged CHIPS and placed outside the home by a juvenile court;
the agency responsible for the care of the child and the family has made a reasonable
effort to provide the services ordered by the juvenile court; the child has been outside the
home for six months or longer; and the parent has failed to meet the conditions
established in the juvenile court order for the safe return of the child to the home and
there is a substantial likelihood that the parent will not meet those conditions within the
12-month period following the TPR fact-finding hearing. Any parent who would be
incarcerated for more than 12 months after the TPR fact-finding hearing would be
unable to complete the condition.
The committee discussed the difficulty of determining what efforts are considered
"reasonable" when the parent may be incarcerated for many years and would never be
able to provide a home for their child. The committee also discussed the resources
expended by agencies in working with parents who will never be able to be a placement
option for their child and whom the agency may not have access to while incarcerated.
The bill provides that services under a CHIPS dispositional order for a parent who
is serving a prison sentence must be limited during any period of incarceration to services
that are available within the correctional institution and requires the agency primarily
responsible for providing services to do all of the following:
• Advise the parent of services that may be available within the correctional
institution.
• Advise the correctional institution of the mandated services to be provided under
the juvenile court order and, if the child is placed outside the home, of the conditions
contained in the juvenile court order for the safe return of the child to the home.
• Monitor the parent's participation and progress in relevant services made
available to the parent within the correctional institution.
• Arrange for visitation between the parent and child if the court finds that
visitation is in the best interests of the child.
Appeals in TPR Proceedings
This bill makes several changes relating to appeals in TPR proceedings:
• Time for Filing of Notice of Appeal
Current law provides that if the judgment or order that is being appealed was
entered after the notice of appeal was filed, the notice of appeal is treated as if it were filed
after the judgment or order was entered. An appeal of a TPR judgment, however, is
initiated not by the filing of a notice of appeal but rather by the filing of a notice of intent
to appeal. Currently, in a few cases each year, the notice of intent to appeal is filed before
the TPR judgment is entered and is found to be filed too early in violation of current law.
This bill amends s. 808.04 (8), stats., to provide that if the record discloses that the
judgment or order appealed from was entered after the notice of appeal
or the notice of
intent to appeal was filed, the notice shall be treated as filed after the entry and on the
day of the entry.
• Notification That Appeal Will Not Be Filed
Under current law, in a TPR case, a person has 30 days from the date of the entry
of judgment to file a notice of intent to appeal. Within 15 days after filing this notice, the
person must request the transcript and juvenile court record. The clerk of circuit court
must serve a copy of the case record on the person filing the notice of intent to appeal
within 30 days after the juvenile court record is requested. Within 30 days after service
of the transcript, the person filing a notice of intent to appeal must file a notice of appeal,
and serve a copy of the notice on the required persons. Current law places no obligation
on that appellate counsel to notify the parties that a notice of appeal will not be filed.
This bill requires a person who decides not to file a notice of appeal to notify the
persons who would have been required to be served with the notice of appeal that the
appeal will not be pursued.
• State Public Defender Indigency Determinations in TPR appeals
Under current law, a representative of the State Public Defender must determine
indigency for all referrals made under ss. 809.30 [appeals in criminal cases and cases
under chs. 48, 51, 55, and 938, stats.], 974.06 (3) (b) [postconviction proceedings], and
974.07 (11) [motions for deoxyribonucleic acid (DNA) testing of certain evidence], except
for a referral of a child who is entitled to be represented by counsel under the Children's
Code, ch. 48, stats., or Juvenile Justice Code, ch. 938, stats., without a determination of
indigency. For these referrals, the representative of the State Public Defender may,
unless a request for redetermination of indigency has been filed, or the defendant's
request for representation states that his or her financial circumstances have materially
improved, rely upon a determination of indigency made for purposes of trial
representation.
This bill permits the State Public Defender representative to rely upon a
determination of indigency made for purposes of trial representation for referrals made
under s. 809.107, stats., relating to appeals in TPR proceedings, unless a request for a
redetermination is filed or the person's request for representation states that his or her
financial circumstances have materially improved.
• Continuing Representation in TPR Appeals
Currently, an attorney who represents a person in a TPR proceeding does not
automatically continue to represent the person during the appeal process.
Under this bill, an attorney who represents a person in a TPR proceeding continues
representation of that person during the appeal process 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.
• Written Notification of Time Limits for TPR Appeals
Current law provides that TPR judgments are final and appealable. However,
current law does not require notice of the applicable appeal time limits be given to a
person whose parental rights were terminated.
This bill requires the juvenile court that orders the termination of a person's
parental rights to provide written notification to the person of the time limits for appeal
of the judgment if the person is present in juvenile court when the order is granted. The
person must sign the written notification, indicating that he or she has been notified of
the time limits for filing an appeal under ss. 808.04 (7m) and 809.107, stats. The person's
counsel must file a copy of the signed, written notification with the court on the date on
which the judgment is granted.
• Enlargement of Time for Filing Notice of Appeal
Under current law relating to appellate procedure, the time for filing a notice of
appeal or cross-appeal of a final judgment or order in a TPR proceeding may not be
enlarged. In Gloria A. v. State, 195 Wis. 2d 268, 536 N.W.2d 396 (Ct. App. 1995), the court
of appeals held that the certain rules of appellate procedure that permit an enlargement
of time in which to file notice of appeal do not apply to TPR cases.
This bill provides that the time in which to file notice of appeal in a TPR case may
be enlarged if the judgment or order was entered as a result of a petition for an
involuntary TPR that was filed by a district attorney, corporation counsel, or other
representative of the public.
• Time Limit for Collateral Attack of TPR Judgment
Under current law, a person whose parental rights have been terminated may
petition for a rehearing on the grounds that new evidence has been discovered affecting
the advisability of the juvenile court's adjudication no later than one year after the date
on which the TPR judgment was entered. However, a parent who has consented to the
TPR or who did not contest the TPR petition may move for relief from the judgment no
later than 30 days after entry of the TPR judgment.
This bill prohibits any person, for any reason, from collaterally attacking a TPR
judgment more than one year after the date on which the time limit 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.
Adoption Provisions
• Adoption Expenses
Under current law, the proposed adoptive parents of a child, or a person acting on
behalf of the proposed adoptive parents, may pay the actual cost of any of the following:
• Preadoptive counseling for a birth parent of the child or an alleged or presumed
father of the child.
• Post-adoptive counseling for a birth parent of the child or an alleged or presumed
father of the child.
• Maternity clothes for the child's birth mother, not to exceed a reasonable amount.
• Local transportation expenses of a birth parent of the child that are related to
the pregnancy or adoption.
• Services provided by a licensed child welfare agency in connection with the
adoption.
