12. Consequences for a Youth’s Future Family Life
A. Termination of Parental Rights
B. Contested Child Custody Between Parents
A delinquency adjudication can have a significant impact on a youth’s future legal relationship with his or her children, the ability to be a foster parent or to adopt a child, and the ability to care for the children of relatives.
A. Termination of Parental Rights
Some of the grounds for involuntary termination of parental rights may be proved by a “final judgment of conviction,” but none of the grounds specifically reference delinquency adjudications. Wis. Stat. §§ 48.415(8),(9m).
However, Wis. Stat. § 48.415(9), parenthood as a result of sexual assault, can be established by proof that the child was conceived as a result of a sexual assault in violation of Wis. Stat. §§ 940.225(1),(2),(3), 948.02(1),(2), 948.025, or 948.085. The proof can be a judgment of conviction or “other evidence” that the father sexually assaulted the mother during the possible time of conception. An adjudication of delinquency, based on a violation of one of these statutes, therefore, would be sufficient to prove grounds for termination of the father’s parental rights.
Also, delinquency dispositional orders sometimes include no-contact conditions or placements that make it difficult or impossible for a delinquent parent to maintain contact with a child, resulting in grounds for termination of parental rights under Wis. Stat. §§ 48.415(1),(2),(4),(6).
NOTE: The Court of Appeals has held that before juvenile court delinquency records can be introduced in a termination of parental rights (TPR) proceeding, the juvenile court must conduct an in-camera review of requested records to determine relevance, and to determine if the criteria set forth in State v. Herget, supra., 84 Wis. 2d 436, have been met. Courtney F. v. Ramiro M.C., supra, 269 Wis. 2d 709.
B. Contested Child Custody Between Parents
Family courts have authority to make “just and reasonable” decisions regarding a child’s legal custody and physical placement in paternity, divorce, annulment, legal separation or independent custody cases. Wis Stat. § 767.41(1). Custody decisions involve dozens of factors unrelated to delinquency proceedings. However, evidence that one parent has engaged in a pattern or serious incident of battery or abuse to the other parent, as defined by Wis. Stat. §§ 940.19, 940.20(1m), 813.12, 813.122, creates a rebuttable presumption that it is “detrimental to the child and contrary to the best interest of the child to award joint or sole legal custody to that party.” Wis. Stat. § 767.41(2)(d).
C. Foster Care
No government or private child welfare agency can license a foster home if the license applicant, or a non-client resident of the home, has been adjudicated delinquent or has a pending delinquency petition for one of a long list of “serious crimes” listed at Wis. Stat. § 48.685(1)(c).⁷⁴ Wis. Stat. § 48.685(4m)(a). However, Wis. Stat. § 48.685(5)(a) allows applicants with delinquency adjudications for serious crimes to show by clear and convincing evidence that they have been rehabilitated. Wis. Admin. Code § DCF 56.05(1)(f).
NOTE: Information from DCF on barring crimes and other offenses⁷⁵ states that some crimes are a permanent bar, and others allow rehabilitation after five years. However, the language of Wis. Stat. § 48.685(5)(bm) regarding permanent bars and delayed eligibility for rehabilitation applies only to foster care applicants who have been “convicted of” those serious crimes. Because Wis. Stat. § 48.685(4m)(a) and (b) carefully include delinquency adjudications, and (5)(bm) does not, it appears that the legislature did not intend to make a delinquency adjudication for a serious crime a permanent bar or subject to delayed eligibility for rehabilitation for foster care licensing.
D. Adoptions
The DCF, DSS, and child welfare and child placing agencies may only place children for adoption in licensed foster homes. Wis. Stat. § 48.833. Therefore, the requirements and restrictions for foster parents apply to adoptive placements.
The only exception to the requirement of a foster care license is when a parent with custody of a child places the child in the home of a relative with the goal of adoption. Wis. Stat. § 48.835(2). However, if a parent wants to place the child with a non-relative, it must be a licensed foster care home. Wis. Stat. § 48.837(1).
E. Subsidized Guardianship
There are many avenues for appointment of a guardian of the person for a child. Juvenile courts have authority to appoint guardians for children who have been adjudicated to be a child in need of protection of services (CHIPS) or an “uncontrollable” child, when they have been placed outside the home, and a court report recommends guardianship. In making the dispositional decision on guardianship, the court must consider “whether the person would be a suitable guardian of the child.” Wis. Stat. § 48.977(2)(a).
For families who need financial assistance to provide for the child, Wisconsin statutes authorize “subsidized guardianship” with monthly payments similar to foster care payments pursuant to Wis. Stat. § 48.977(3r). Subsidized guardianship may also be established if a child and proposed guardian meet the eligibility requirements in Wis. Stat. § 48.623, where a voluntary placement has been made. However, to qualify for subsidized guardianship payments, the applicant and other non-client residents of the home must pass the same background check as foster parents. Wis. Stat. § 48.623(1)(b)3. If they have a delinquency record for “serious crimes”⁷⁶ they are ineligible unless they can prove rehabilitation by clear and convincing evidence. Wis. Stat. §§ 48.685(5)(a), Wis. Admin. Code § DCF 55.03(1)(b)3.
NOTE: Wis Stat. § 48.685(5)(bm) makes rehabilitation unavailable to a subsidized guardianship applicant who “has been convicted of” most of the serious crimes. Because Wis. Stat. § 48.685(4m)(a),(b) carefully include delinquency adjudications, and (5)(bm) does not, it appears that the legislature did not intend to make a delinquency adjudication for a serious crime a permanent bar to subsidized guardianship.
F. Kinship Care
Kinship care is established when a relative other than a parent has custody and care of a child. It can be established through a voluntary placement, or a court-ordered placement.
If the placement is court-ordered and the relative seeks kinship payments, the relative must apply for a foster care license and meet the requirements of Wis. Stat. § 48.57(3m)(am)1, Wis. Admin. Code § DCF 58.03. This means that the requirements and restrictions for foster parents would apply to kinship payments. However, kinship statutes do provide another avenue for payment if an applicant is denied a foster care license. The kinship relative may apply for payments under Wis. Stat.§ 48.57(3m)(ap)3.
⁷⁴ “Serious crime" means any of the following: 1) A violation of s. 940.19 (3), 1999 stats; 2) A violation of s. 940.01, 940.02, 940.03, 940.05, 940.12, 940.19 (2), (4), (5), or (6), 940.198 (2), 940.22 (2) or (3), 940.225 (1), (2), or (3), 940.285 (2), 940.29, 940.295, 942.09 (2), 948.02 (1) or (2), 948.025, 948.03 (2) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051, 948.055, 948.06, 948.07, 948.08, 948.081, 948.085, 948.11 (2) (a) or (am), 948.12, 948.13, 948.21, 948.215, 948.30, or 948.53; 3) A violation of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies; 3r) For purposes of licensing a foster home for the placement of a child or of providing subsidized guardianship payments to an interim caretaker under s. 48.623 (6) (am) or to a person seeking those payments as a successor guardian under s. 48.623 (6) (bm), or of permitting a person to be a caregiver or nonclient resident of a licensed foster home, any violation listed in subd. 1. to 3. or sub. (5) (bm) 1. to ; 4) A violation of the law of any other state or United States jurisdiction that would be a violation listed in subd. 1., 2., 3., or 3r. if committed in this state.
⁷⁵ Barring Crimes and Other Offenses under Section 48.685, Stats., Foster Care and Subsidized Guardianship,8/19,Wisconsin Department of Children and Families, <https://dcf.wisconsin.gov/files/cwportal/fc/pdf/fc-sg-barredcrimes.pdf>
⁷⁶ See footnote 74.
