48.424 Fact-finding hearing.

(1) The purpose of the fact-finding hearing is to determine in cases in which the petition was contested at the hearing on the petition under s. 48.422 all of the following:

(a) Whether grounds exist for the termination of parental rights.

(b) Whether the allegations specified in s. 48.42 (1) (e) have been proved in cases involving the involuntary termination of parental rights to an Indian child.

(2) The fact-finding hearing shall be conducted according to the procedure specified in s. 48.31 except as follows:

(a) The court may exclude the child from the hearing.

(b) The hearing shall be closed to the public.

(3) If the facts are determined by a jury, the jury may only decide whether any grounds for the termination of parental rights have been proved and whether the allegations specified in s. 48.42 (1) (e) have been proved in cases involving the involuntary termination of parental rights to an Indian child. The court shall decide what disposition is in the best interest of the child.

(4) If grounds for the termination of parental rights are found by the court or jury, the court shall find the parent unfit. A finding of unfitness shall not preclude a dismissal of a petition under s. 48.427 (2). Except as provided in s. 48.23 (2) (b) 3., the court shall then proceed immediately to hear evidence and motions related to the dispositions enumerated in s. 48.427. Except as provided in s. 48.42 (2g) (ag), the court may delay making the disposition and set a date for a dispositional hearing no later than 45 days after the fact-finding hearing if any of the following apply:

(a) All parties to the proceeding agree.

(b) The court has not yet received a report to the court on the history of the child as provided in s. 48.425 and the court now orders an agency enumerated in s. 48.069 (1) or (2) to file that report with the court, or, in the case of an Indian child, now orders that agency or requests the tribal child welfare department of the Indian child's tribe to file such a report, before the court makes the disposition on the petition.

(5) If the court delays making a permanent disposition under sub. (4), it may transfer temporary custody of the child to an agency for placement of the child until the dispositional hearing. Placement of an Indian child under this subsection shall comply with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless the agency finds good cause, as described in s. 48.028 (7) (e), for departing from that order.

History: 1979 c. 330; 1987 a. 383; 2009 a. 94; 2013 a. 337.

Although the best interests of the child standard does not apply to the fact-finding hearing, the guardian ad litem can represent the interests of the child to develop the facts as they relate to whether the grounds for termination exist. When a jury is the fact-finder, the guardian ad litem should be permitted to exercise peremptory challenges in jury selection. Interest of C.E.W. 124 Wis. 2d 47, 368 N.W.2d 47 (1985).

Despite jury findings that grounds for termination exist, the court may dismiss a termination petition if evidence does not support the jury's finding or if the evidence of unfitness is not so egregious as to warrant termination; whether the evidence supports termination is a matter of discretion. In Interest of K.D.J. 163 Wis. 2d 90, 470 N.W.2d 914 (1991).

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.

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.

The circuit court is not obligated to inform the parent that by pleading no contest to grounds for termination the parent is waiving the constitutional right to parent or that the right to parent is a constitutional right. What is important is that the parent understands the import of the rights at stake rather than the sources from which they are derived. For a knowing, voluntary, and intelligent plea, the parent must be informed of the two independent dispositions available to the circuit court, dismissing the petition and terminating parental rights. Brown County Department of Human Services v. Brenda B. 2011 WI 6, 331 Wis. 2d 310, 795 N.W.2d 730, 10-0321.

Contrary to the Child's Best Interest: Children's Court Proceedings. Sowinski and Wiensch. Wis. Law. Apr. 2013.