1.25.230 Termination or Suspensiont of Parental Rights

(a) Termination of parental rights means that, pursuant to court order, all rights, powers, privileges, immunities, duties, and obligations existing between parent and child are permanently severed; however, tribal membership, rights, privileges, entitlements, or obligations shall not be affected by such termination.

(b) Termination of parental rights may be ordered only in a proceeding where the petition clearly states that the petitioner is seeking an order of termination of parental rights, and where the mother and father have been summoned to appear before the Children's Court. No termination of the parental rights of an unadjudicated or unacknowledged father may be ordered without evidence and findings as to paternity of the child to the satisfaction of the court.

(c) Suspension of Parental Rights means that pursuant to court order, all rights, powers, privileges, immunities, duties, and obligations existing between parent and child are suspended as agreed by biological parent; however tribal membership, rights, privileges, entitlements, or obligations shall not be affected by such suspension for the child(ren).

(d) Involuntary Termination. Termination of parental rights may be ordered only in cases where the court finds that one or more of the following grounds exists:

(1) Abandonment.

(A) The child has been left without provision for care or support and without reasonable expectation that a relative or other person would care for and support the child, and the petitioner has investigated and cannot locate the parent, or

(B) The child has been left by the parent with a relative or other person, or could reasonably expect that a relative or other person would provide for the child's care and support, or the child has been placed outside the parent's home by the order of a court of competent jurisdiction issued in a proceeding whereby the parent received either an oral or written warning that their parental rights may be terminated in subsequent proceedings, and in either case that the parent has failed to visit or communicate with the child for one year or longer, and that ninety days prior to the filing of the petition for termination of parental rights the parent was notified in a written notice to the parent's last known address that a petition would be filed; or

(2) Failure to remedy condition. The child has been under the jurisdiction of court or courts of competent jurisdiction for at least one year and the parent has made no progress in remedying the conditions requiring jurisdiction or the child has been under the jurisdiction of court or courts of competent jurisdiction for at least two years and it is unlikely that the parent will remedy the conditions requiring jurisdiction, and in either case that at least ninety days prior to the filing of a termination of parental rights petition that parent was warned that a petition would be filed; or

(3) Abuse. The child is under the jurisdiction of the court pursuant to Section 1.25.060(a)(1) and the Court finds that the facts establishing jurisdiction show a pattern of repeated or severe abuse; or

(4) Continuing denial of periods of physical placement. The parent has been denied all periods of physical placement or visitation rights by a court or courts of competent jurisdiction for a period of at least one year, the parent has been warned at least ninety days prior to the filing of a petition that a petition would be filed, and there is no currently pending action to modify the parent's physical placement or visitation rights in a court of competent jurisdiction.

(5) Failure to assume parental responsibility. The child is a non-marital child whose father has not subsequently adopted the child or married the child's mother and who has not established a substantial parental relationship with the child, meaning the acceptance and exercise of significant responsibilities for the daily supervision, education, protection, and care of the child, as evidenced by factors including but not limited to whether the father has ever expressed concern for or interest in the support, care, or well-being of the child or mother, and whether the father has neglected or refused to provide support.

(e) Voluntary Termination. The court may terminate the parental rights of a parent who has given his or her informed, voluntary consent as provided in this section.

(1) The parent appears personally at a hearing and gives his or her consent, the court explains the effect of a termination of parental rights, and the court has questioned the parent and found to its satisfaction that the consent is informed and voluntary.

(2) If the personal appearance of the parent before the court would be impossible or difficult, the court may accept written consent executed by the parent before an embassy or consular official, a military judge, or any judge of a court of record of another jurisdiction, and the consent is accompanied by the official's or judge's written findings that the parent was questioned and that the consent is informed and voluntary.

(3) A person who may be but has not been adjudicated the father of a non marital child may consent as in (1) or (2) by signing a written, notarized statement that he has been informed of and understands the effect of a termination of parental rights and voluntarily disclaims any rights he may have to the child, including the right of notice of further proceedings under this chapter.

(4) If the proceeding to terminate parental rights is held prior to an adoption proceeding in which the petitioner is the child's stepparent, the parent may consent to termination of rights as provided in (1) or (2) or by filing with the court an affidavit witnessed by two persons stating that he or she has been informed of and understands the effect of an order to terminate parental rights, and that he or she voluntarily disclaims all rights to the child, including the right to notice of further proceedings under this chapter.

(5) Any minor parent stating an intent to consent to the termination of parental rights shall have a guardian ad litem appointed for him or her by the court. The minor parent's consent to terminate rights shall not be accepted unless joined by his or her guardian ad litem. The consent of the guardian ad litem shall preclude later attack on the validity of the consent on the grounds of incompetence or minority.

(f) Petition.

(1) A petition for termination of parental rights may only be filed by a child's parent or by the child welfare coordinator.

(2) The petition commencing a proceeding for termination of parental rights shall set forth the following facts:

(A) The name, birth date, and address of the child or children.

(B) The names, birth dates, and addresses of the child's parents, and the names and addresses of any guardian or custodian.

(C) A statement that consent to termination of parental rights will be given as provided by this chapter, or a statement that consent will not be given, a statement of the specific grounds for involuntary termination under this chapter, and a statement of facts which petitioner alleges establish the grounds.

(g) Summons. A summons shall be filed with the petition, and shall set forth the following:

(1) The name and birth date of the child.

(2) The nature, location, date, and time of the initial hearing.

(3) Advice that the party summoned has the right to legal counsel at the party's own expense.

(4) Advice that failure to respond or appear at the hearing may result in a termination of the party's parental rights.

(5) Name of petitioner, and name, address, and phone number of petitioner's attorney, if any, or of the petitioner if unrepresented.

(h) Service.

(1) The petitioner shall cause the summons and petition to be served on the parent or parents of the child; any person who may be the father of the child, based on statements of the person or the mother; the guardian, guardian ad litem, and custodian of the child, as applicable; the child, if 12 years of age or older.

(2) Personal service shall be accomplished as provided by the tribal court code no less than seven days prior to the initial hearing or, if personal service cannot with reasonable diligence be accomplished, by publication one time in a newspaper likely to give notice to the party, together with mailing of the summons and petition to the party's last known address. The published notice shall contain the following information:

(A) The name of the party or parties to whom notice is given.

(B) The former address of the party or parties.

(D) The date and place of the birth of the child.

(E) 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 is essential to give effective notice to the father.

(F) Advice that the parental rights of any parent or alleged parent who fails to appear may be terminated.

(G) Advice that any party has the right to representation by counsel at his or her own expense.

(3) Upon motion of petitioner, the court may waive constructive notice to any person whose identity is unknown but may be the father of the child if such notice appears unlikely to give the father effective notice.

(i) Initial Hearing.

(1) An initial hearing shall be held on a petition to terminate parental rights no later than 30 days after the filing of the petition. At the hearing the court shall determine whether any party wishes to contest the petition and shall inform the parties of their rights under Section 1.25.170(c).

(2) If the petition is contested the court shall set a date for a fact finding hearing no later than 45 days after the date of the initial hearing, unless all parties consent to an immediate hearing, in which case the court may immediately so proceed.

(3) If the petition is not contested, the court shall set a date for a dispositional hearing no later than 45 days from the date of the initial hearing, unless all parties consent to an immediate hearing and the report required by Section 1.25.230(j) has been filed, in which case the court may immediately so proceed.

(4) Any non-petitioning party shall be granted a continuance for the purpose of consulting legal counsel.

(5) A guardian ad litem shall be appointed for the child in any contested proceeding under this section.

(6) The court shall determine whether all interested parties, including parties who may be the child's father, have been notified. If the court determines that an unknown person may be the father of the child, the court shall further determine whether constructive notice will substantially increase the likelihood of actual notice to that person. If the court so determines, it shall adjourn the hearing and order such notice to be given. If the court determines that constructive notice will not substantially increase the likelihood of actual notice, the court shall order that the hearing proceed.

(j) Fact Finding Hearing.

(1) At the fact finding hearing the court shall determine whether the facts alleged in a petition that has been contested are true beyond a reasonable doubt. If the court so finds, it shall proceed immediately to a dispositional hearing unless all parties agree to a delay or unless the report required in Section 1.25.230(j) has not been completed, in which case the court shall set a hearing date no later than 45 days after the fact-finding hearing.

(2) If disposition is delayed, the court may enter an interim disposition under Section 1.25.190(a).

(k) Disposition.

(1) Prior to disposition, the child welfare coordinator shall prepare a report to the court including a complete social, adjudicatory, and dispositional history of the child and the parent, a statement of feasible alternative dispositions, if any, and a statement applying the standards and factors contained in Section 1.25.230(j)(2). The report shall include a description of efforts made to prevent removal of the child from the home and efforts made, if any, to return the child, and to remedy the conditions resulting in the termination proceeding. If the report recommends termination of both parents, or of the only living or known parent, the report shall include a statement of the child's likelihood of adoption, listing factors that might prevent it and factors that might facilitate it, and the interim plan and designated guardian recommended pending adoption. The report shall also contain a medical and genetic history of the child and birth parents on a form as provided by the Wisconsin Department of Health and Social Services.

(2) Court considerations. In making a decision about the appropriate disposition, the court shall consider the standard and factors enumerated in this section.

(A) Standard. The best interests of the child shall be the prevailing factor considered by the court in determining the disposition of all proceedings under this subchapter,

(B) Factors. In considering the best interests of the child under this section the court shall consider but not be limited to the following:

(i) The age and health of the child, both at the time of the disposition and, if applicable, at the time the child was removed from the home,

(ii) The wishes of the child,

(iii) The duration of the separation of the parent from the child,

(iv) Whether the child will be able to enter into a more stable and permanent family relationship as a result of the termination, taking into account the conditions of the child's current placement, the likelihood of future placements and the results of prior placements.

(3) Any party may present evidence relevant to disposition, and propose alternative dispositions. The court shall order either disposition listed below no later than ten days after a hearing on disposition.

(4) Upon a finding that grounds exist for a termination of parental rights the court shall order one of the following dispositions.

(A) The court may dismiss the petition.

(B) The court may order the termination of parental rights of one or both parents. If the rights of both parents or of the only living or known parent is terminated, the court shall transfer guardianship of the child to the child welfare coordinator, the Wisconsin Department of Health and Social Services, a relative of the child, with whom the child resides, if the relative has filed a petition for adoption, or an individual who has been appointed guardian of the child by a court of competent jurisdiction. The court may also transfer custody of the child to one of the agencies listed above or to a relative or other individual if the child has resided in the home of that individual for a meaningful period of time prior to the termination.

(5) The court shall inform any parent whose rights have been terminated of the provisions of 48.432 and 48.433, Wis. Stats.

(6) Any order under this section shall be reduced to writing and filed within 30 days of its rendition.

(l) Suspension of Parental Rights means that pursuant to court order, all rights, powers, privileges, immunities, duties, and obligations existing between parent and child are suspended as agreed by biological parent; however tribal membership, rights, privileges, entitlements, or obligations shall not be affected by such suspension for the child(ren).

(m) Petition for Suspension of Parental Rights.

(1) Any adult or agency possessing custody of a minor child may file a petition with the Clerk of Court seeking an order for the suspension of the parental rights of a parent of a child. The petition shall begin with the caption, “In re the Suspension of Parental Rights of (names of biological parents) to (name of child), born (birthdate of child).” The petition shall contain the following information:

(A) The name, address, and telephone number of the child’s tribe;

(B) The name, address, telephone number and age of the child’s parent whose parental rights are to be suspended;

(D) The name, address, and telephone number of any other relatives who may have an interest in the care, custody, and control of the minor child;

(E) A statement as to why an order for the suspension of parental rights of the parent is in the best interests of the child and the child’s tribe;

(F) A statement as to basis for the request of the suspension of parental rights, supported by medical, psychiatric, child protection worker, family member and/or psychological reports or testimony;

(G) A statement that no similar action is pending in a state or another tribal court having jurisdiction over the child.

(2) The petitioner shall sign the petition in the presence of a notary public and shall affirm under oath that the contents are true and correct except as to those matters based upon believe and, as to those matters, the petitioner reasonably believes them to be true.

(3) The petition shall be filed with the clerk of court, with copies served, by the petitioner, on the child welfare coordinator and the child’s parent(s); family member; caretaker, if any; and appropriate agencies of the Band which may have an interest in the proceeding or be of assistance to the Court in adjudicating the matter. The petition shall be served in the manner provided for in the Bad River Rules of Civil Procedure.

(n) Notice of Hearing on Petition to Suspend Parental Rights. Upon the filing of a petition seeking an order for the suspension of parental rights, the Clerk of Court shall schedule a hearing to be held thereon and shall cause written notice of such hearing to be served upon the petitioner; the child’s tribe; the child’s parent(s); family members; caretaker, if any; and appropriate agencies of the Band which may either have an interest in the proceedings or be of assistance to the court in adjudicating the matter. Such notice shall be served in the manner provided for in the Bad River Tribal Court Code, Section 1.11.040. A Guardian ad Litem shall be appointed to assist the Court in determining the best interests of the child. The petitioner(s), biological parents and Guardian ad Litem enjoy automatic party status.

(o) Hearing on Petition to Suspend Parental Rights.

(1)

(A) Attendance at hearing.

(B) The biological parent(s) and petitioner shall be present at the hearing in person or by telephone unless he or she has waived the right to appear in writing executed before the Clerk of Court or a notary and filed with the court, or unless the parent is unable to attend by reason of a medical condition as evidenced by a written statement from a licensed physician or other appropriate professional.

(2) Conduct of the hearing.

(A) The Court shall inform the parent(s) of their rights under this code and of the nature and consequences of the proceedings. In addition to any other rights afforded under the Indian Civil Rights Act, 25 U.S.C. Section 1301-03 (1968), as amended, or enumerated within the Tribal Code, petitioners, and other parties have the following rights:

(i) A biological parent has the right to refuse services provided by any social services agency, however, their refusal to accept services may have a significant impact on their ability to have contact with their child;

(ii) The parties have the right to have reasonable notice and to attend any hearing arising out of the filing of a petition for suspension of parental rights pursuant to Section 1.25.170. The biological parents and the petitioner have the right to be represented by counsel at their own expense at all proceedings;

(iii) The parties have the right to summon and cross-examine witnesses.

(iv) The biological parents and the petitioner have the right to seek independent medical, psychological or psychiatric evaluation of the child at their own expense.

(B) The Court shall further inform all other parties of their rights under the Tribal Code and pursuant to the Indian Civil Rights Act, 25 U.S.C., Section 1301-1303 (1968), as amended, including the right to summon and cross-examine witnesses.

(C) The Court shall hear evidence on the matter, if the Court determines that the biological parent(s) have given his, her or their informed and voluntary consent to the suspension of parental rights.

(D) The rules of evidence of the Tribal Court shall apply.

(E) The burden of proving the allegation of the petition shall be upon the petitioner and the standard of proof shall be clear and convincing evidence. There shall be a legal presumption of parent’s ability to parent until proven otherwise.

(F) The Court may continue the hearing, upon a showing of good cause, at the request of any party to the proceeding and enter such temporary orders, if any, as may be deemed just and reasonable to carry out the purposes of this Chapter.

(3) Findings on Petition to Suspend Parental Rights.

(A) In all cases, the court shall make specific written findings of fact, state separately its conclusions of law, and enter an appropriate judgment or order.

(B) The court may make findings that it is in the child’s best interest that a final order suspending the parental rights be entered and the court shall specify the basis of those findings.

(4) Final Order on Petition to Suspend Parental Rights.

(A) If the court determines that it is in the best interests of the child and the child’s tribe, it shall issue a final order for a suspension of parental rights. Such an order for the suspension of parental rights may include, but is not limited, to the following:

(i) A suspension of the parental rights of the parent, including the suspension of the right to the care, custody and control of the minor child and allowing the child to be adopted;

(ii) A suspension of the right of the parent to have contact with the minor child including contact in person, by mail, by telephone or through third parties or the order may allow for a contact agreement agreed upon by the parties to be ordered by the court;

(iii) Restraining a parent from contacting the minor child, the child’s foster parent, the child’s adoptive parent and/or the social services agency or agencies possessing information regarding the minor child, or by an agreement;

(iv) Ordering that the biological parents’ obligation to pay child support, except for arrearages, is hereby terminated;

(v) Ordering that any prior court order for custody, visitation or contact with the minor child is hereby terminated; and

(vi) Ordering that the parent shall have no standing to appear at any future legal proceedings involving the child.

(B) The suspension of parental rights doe not sever or affect in any way a child’s relationship to his/her tribe or any rights of inheritance from the biological parent(s). A suspension of parental rights does not require a change on the child’s birth certificate.

(C) The final order shall contain a statement regarding why it is in the best interests of the child and the child’s tribe to enter this order.

(D) Copies of any order for suspension of parental rights shall be served upon the parent and the agency or agencies having legal custody of the child and any other parties as directed by the court.

(E) Final orders for the suspension of parental rights may be reviewed by the court at the request of the biological parent, the agency or agencies possessing custody of the child only if one of the following occurs; if there is no final permanency order in effect after a period of one (1) year after the entry of the final order suspending parental rights; the adoption of the child fails; the adoptive parent is deceased; or if the adoptive parent(s) joins in the biological parents' request for review. Notice of this review shall be provided to all parties to the hearing at which the final suspension of parental rights order was issued.