Wisconsin Legislature: 1997 Wisconsin Act 104

Advertising Related To Adoption

Current law does not explicitly address advertising related to adoption. This bill prohibits certain advertising relating to adoption. Specifically, the bill prohibits any person except those listed below from doing any of the following:

1. Advertising for the purpose of finding a child to adopt.

2. Advertising that the person will find an adoptive home for a child or assist in the adoption or adoptive placement of a child.

3. Advertising that the person will place a child for adoption.

Under the bill, “advertise" means to communicate by any public medium that originates within this state, including by newspaper, periodical, telephone book listing, outdoor advertising sign, radio or television.

The prohibition does not apply to any of the following:

1. DHFS.

2. A county department.

3. A child welfare agency licensed under s. 48.60, stats., to place children for adoption.

4. An individual or agency providing adoption information exchange services under s. 48.55, stats.

5. An individual or agency providing adoption information under s. 48.551, stats.

6. An individual who has received a favorable home study in this state or in another jurisdiction.

7. An individual seeking to place his or her own child for adoption.

The bill provides that a person who violates the prohibitions on advertising created by the bill may be fined not more than $10,000 or imprisoned for not more than 9 months or both. (This is equivalent to the current punishment for a Class A misdemeanor.)

The bill also provides that the prohibition on advertising does not prohibit an attorney licensed to practice in this state from advertising his or her availability to practice or to provide services relating to the adoption of children.

Informational Resources on Adoption Instruction

The bill requires the department of public instruction (DPI) annually and upon request to disseminate to appropriate public school staff information about materials and services available through the state adoption center under s. 48.551, stats., which may serve as resources for instruction on adoption for pupils in grades kindergarten through 12.

School Age Parents Programs

Under current law, any school board may establish and receive state aid for a program for school age parents who are residents of the school district. A “school age parent" is defined as any person under the age of 21 who is not a high school graduate and who is a parent, an expectant parent or a person who has been pregnant within the immediately preceding 120 days.

A school age parents program must be designed to provide services and instruction to meet the needs of school age parents, including education on the skills required of a parent, family planning and “information on adoption services" [s. 115.92 (1), stats.].

Section 115.92 (3), stats., directs the state superintendent of public instruction to establish criteria for the approval of school age parents programs for the purpose of determining which programs are eligible for state aid. Those criteria are set forth in ch. PI 19, Wis. adm. code. The only mention of adoption in those criteria is in s. PI 19.03 (6) (b), Wis. adm. code, which provides that the services provided by a school age parents program must include “[p]rovision of social services to facilitate accessibility to needed resources including information on adoption resources".

This bill amends current law regarding school age parents programs by requiring those programs to provide “instruction on adoption and adoption services" rather than “information on adoption services". In addition, the bill specifies that the instruction on adoption and adoption services must include all of the following:

1. Information on the options available and the procedures followed in independent and agency adoptions, including current practices regarding a birth parent's involvement in the selection of an adoptive home and the sharing of information between birth parents and adoptive parents.

2. Information on the impact of adoption on birth parents and children who have been adopted.

3. An explanation that the adoption process may be initiated even after a child has been born and has left the hospital.

Who May Be Adopted

Current law provides that any minor who meets all of the following criteria may be adopted:

“(1) Except as provided under s. 48.839 (3) (b) [relating to certain cases involving the adoption of a child from a foreign country] or if an appointment of guardianship has been made under s. 48.831 [relating to appointment of a guardian for a child without a living parent for an adoptability finding], a minor whose parental rights have been terminated under subch. VIII [relating to TPR] or in another state or foreign jurisdiction.

(2) A minor who is present within this state at the time the petition for adoption is filed." [s. 48.81, stats.].

As interpreted by the Wisconsin Supreme Court in In the Interest of Angel Lace M., 184 Wis. 2d 492, 516 N.W.2d 678 (1994), s. 48.81 (1), stats., means that, unless one of the 2 statutory exceptions applies, the parental rights of both parents must be terminated before a child is eligible for adoption. Moreover, the Wisconsin Supreme Court also has held that a 3rd exception applies although not explicitly stated in s. 48.81 (1), stats., namely, that in cases of stepparent adoption, only one parent's parental rights must have been terminated. [Angel Lace 184 Wis. 2d. at 509, n.8.]

Current s. 48.81, stats., does not explicitly provide that a child whose parents are deceased may be adopted, although current s. 48.81, stats., provides that a TPR is not required if a guardian is appointed under s. 48.831, stats., for an adoptability finding for a child who is without a living parent. (The appointment of a guardian under s. 48.831, stats., is not required for children without a living parent.)

Also, current s. 48.81, stats., does not explicitly provide that a child who has been adopted in another state or nation may be readopted in Wisconsin. Such a provision is included in current s. 48.97, stats.

This bill permits any child who is present in this state at the time the petition for adoption is filed to be adopted if any of the following criteria are met:

1. Both of the child's parents are deceased.

2. The parental rights of both of the child's parents with respect to the child have been terminated under subch. VIII of ch. 48, stats., or in another state or a foreign jurisdiction.

3. The parental rights of one of the child's parents with respect to the child have been terminated under subch. VIII of ch. 48, stats., or in another state or a foreign jurisdiction and the child's other parent is deceased.

4. The spouse of the child's parent (the child's stepparent) with whom the child and the child's parent reside files the adoption petition and either: (a) the child's other parent is deceased; or (b) the parental rights of the child's other parent with respect to the child have been terminated under subch. VIII of ch. 48, stats., or in another state or a foreign jurisdiction.

5. Section 48.839 (3) (b), stats., applies, which provides that in certain cases involving the adoption of a child from a foreign country, a TPR is not required, but proof must be available to show that the child has been freed for adoption.

6. The child is being readopted under s. 48.97, stats.

Time For Filing Petition For Rehearing

Current law provides as follows:

1. Current s. 48.46 (1), stats., permits, except as discussed in item 2., below, a child whose status is adjudicated under ch. 48, stats., by the juvenile court or the parent, guardian or legal custodian of the child to petition the juvenile court for a rehearing on the ground that new evidence has been discovered affecting the advisability of the juvenile court's original adjudication. If there is a showing that such evidence exists, the juvenile court must order a new hearing. Such a petition must be filed within one year after the entering of the court's order.

2. Notwithstanding item 1., above, current s. 48.46 (2), stats., limits the remedies for relief from a TPR judgment or order when the aggrieved party is a parent whose parental rights were terminated voluntarily or who did not contest the TPR petition. In such cases, a motion for relief from the TPR judgment or order must be filed within 30 days after entry of the TPR judgment or order, unless the parent files a timely notice of intent to pursue relief from the TPR judgment or order within 30 days after the date of entry of the TPR judgment or order. In the latter case, the motion must be filed within 30 days after service of the transcript under s. 809.107 (4), stats. According to the judicial council note to the Supreme Court Order creating s. 48.46 (2), stats., the juvenile court must grant a rehearing under s. 48.46 (2), stats., 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 trial under s. 805.15 (3), stats. (that is, evidence has come to the moving party's notice after trial, the moving party's failure to discover the evidence earlier did not arise from a lack of diligence in seeking to discover it, the evidence is material and not cumulative and the new evidence would probably change the result); fraud, misrepresentation or other misconduct of an adverse party; the TPR judgment or order is void; or the TPR judgment or order is based upon a prior judgment which has been reversed or otherwise vacated. A motion under s. 48.46 (2), stats., and an appeal to the court of appeals are the exclusive remedies for such a parent to obtain a new hearing in a TPR proceeding.

This bill amends s. 48.46 (1), stats., as discussed in item 1., above, to provide an exception to the requirement that a petition for rehearing under s. 48.46 (1), stats., must be filed within one year after the entering of the court's order. Under the bill, a petition for a rehearing with respect to a TPR order or an order adjudicating paternity under subch. VIII of ch. 48, stats., based on newly discovered evidence must be filed within one year after the date on which the order is entered, unless within that one-year period a juvenile court in this state or a court in another jurisdiction enters an order granting adoption of the child, in which case the petition for rehearing must be filed before the date on which a juvenile court in Wisconsin or in another jurisdiction enters the order granting adoption of the child or within 30 days after the date on which the TPR order or paternity order is entered, whichever is later. Thus, such a petition may be filed up to one year after the TPR order or paternity order is entered unless the child is adopted within the year after the TPR order or paternity order is entered. In that case, such a petition cannot be filed after the adoption order is entered, unless the adoption order is entered less than 30 days after the date on which the TPR order or paternity order is entered, in which case the petition may be filed within 30 days after the date on which the TPR order or paternity order is entered. This provision does not apply to a TPR order if the parent consented to the TPR or did not contest the TPR petition; in that case, s. 48.46 (2), stats., applies.

Placement With Relative For Adoption

Under current s. 48.835 (2), stats., a parent having custody of a child may place the child for adoption in the home of a relative without a court order. Current s. 48.835 (2) stats., however, does not specify who the person with whom the child may be placed must be a relative of. Section 48.02 (15), stats., which defines “relative" for general purposes in ch. 48, stats., defines that term in terms of specific relationships, such as parent, grandparent, and so on, without specifying who the relationship is to. This bill specifies that the person with whom the child is placed under this provision must be a relative of the child.

Application of Interstate Compact on the Placement of Children

Current law provides that the ICPC does not apply to the sending or bringing of a child into a receiving state by a parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or a guardian and leaving the child with any such relative or nonagency guardian in the receiving state. This bill specifies that the ICPC does not apply to the sending or bringing of a child into a receiving state by the child's parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or guardian and leaving the child with any such relative or nonagency guardian in the receiving state. (This clarification is consistent with the ICPC.)

Time For Hearing on Termination of Parental Rights Petition Filed with Independent Adoptive Placement Petition

Under current law, if a petition for independent adoptive placement of a child with a person who is not a relative of the child (nonrelative) is filed under s. 48.837 (2), stats., a petition for TPR must be filed at the same time [s. 48.837 (3), stats.]. In such cases, juvenile court must schedule a hearing on both petitions within 60 days of the date of filing, except that the hearing may not be held before the birth of the child.

Under current law, if a TPR petition is filed in a case not involving an independent adoptive placement with a nonrelative, a juvenile court must hold a hearing on the TPR petition within 30 days after the petition is filed [s. 48.422 (1), stats.].

This bill provides that when a TPR petition is filed with a petition for independent adoptive placement of a child with a nonrelative under s. 48.837 (2), stats., a juvenile court must hold, rather than schedule, a hearing on both petitions within 30 days after the date of filing of the petitions, rather than within 60 days after that date, except that the hearing may not be held before the birth of the child.

Permanency Plan Documentation For Voluntary Preadoptive Placement

Under current law, for each child living in a foster home, treatment foster home, group home, child-caring institution (CCI), secure detention facility or shelter care facility, the agency that placed the child or arranged the placement or the agency assigned primary responsibility for providing services to a child found to be in need of protection or services must prepare a written permanency plan for the child if certain conditions exist. One of those conditions is that “the child was placed under a voluntary agreement between the agency and the child's parent under s. 48.63 (1)". Under s. 48.63 (1), stats., a child's parent or a child welfare agency licensed to place children may, pursuant to a written, voluntary agreement, place a child or negotiate or act as intermediary for the placement of a child in a foster home or treatment foster home. Thus, section 48.63 (1), stats., applies to the placement by an agency of a child in a foster home after the child is born, but before the child is placed for adoption.

Current law also provides that if a child who has been placed outside the home is living more than 60 miles from his or her home, the permanency plan must include documentation that placement within 60 miles of the child's home is either unavailable or inappropriate. According to staff at the division of children and family services in DHFS, this provision is based on Title IV‐E of the federal Social Security Act, 42 USC 670 to 679a, which requires that each child placed in a licensed foster home or licensed treatment foster home have a case plan designed to achieve placement “in close proximity to the parent's home consistent with the best interest and special needs of the child" [42 USC 675 (5) (A) (emphasis added)].

This bill permits a permanency plan to include documentation that placement more than 60 miles from a child's home is in the child's best interests. The bill also provides that the placement of a child in a licensed foster home or licensed treatment foster home more than 60 miles from the child's home is presumed to be in the best interests of the child if documentation is provided showing all of the following:

1. That the placement is made pursuant to a voluntary agreement under s. 48.63 (1), stats.

2. That the voluntary agreement provides that the child may be placed more than 60 miles from the child's home.

3. That the placement is made to facilitate the anticipated adoptive placement of the child under s. 48.833, stats., which governs adoptive placement of children by DHFS, county departments and child welfare agencies, or s. 48.837, stats., which governs independent adoptive placements of children with nonrelatives.

Removal of Child For Adoptive Placement

Under current law, if a child has been in a foster home, treatment foster home or group home for 6 months or more, the agency that placed the child (agency), that is, DHFS, department of corrections, a county department or a licensed child welfare agency authorized to place children in foster homes or treatment foster homes, must give the head of the home written notice of intent to remove the child, stating the reasons for the removal.

In such cases, current law provides that, unless the safety of the child requires it, a child may not be removed before the later of the following: (1) completion of the hearing under s. 48.64 (4) (a) or (c), stats., described below, if requested; or (2) 30 days after receipt of the notice of intent to remove.

Current s. 48.64 (4) (a), stats., provides, in pertinent part, that any decision or order issued by an agency that affects the head of a foster home, treatment foster home or group home or the children involved may be appealed to DHFS under fair hearing procedures. Thus, if the head of a foster home, treatment foster home or group home in which a child has been placed for 6 months or more requests such a hearing, then, assuming that safety considerations do not require immediate removal of the child under s. 48.19, stats., the child may not be removed until after completion of the administrative hearing or 30 days after the receipt of the notice of intent to remove, whichever is later.

Current s. 48.64 (4) (c), stats., provides, in pertinent part, that if an “interested party" files a petition with the circuit court for the county where a child is placed, the circuit court may call a hearing for the purpose of reviewing any decision or order of the supervising agency involving the placement and care of the child. The head of the foster home, treatment foster home or group home and the supervising agency must be present at such a hearing. If the child has been placed in a foster home, the foster parent may present relevant evidence at the hearing. If, after receiving a petition, a hearing is called by the court under s. 48.64 (4) (c), stats., and if the child has been in the foster home, treatment foster home or group home for 6 months or more, then, assuming safety considerations do not require immediate removal of the child under s. 48.19, stats., the child may not be removed until after completion of the court hearing or 30 days after the receipt of the notice of intent to remove, whichever is later.

This bill provides that if a child has been in a foster home, treatment foster home or group home for 6 months or more and if the reason for removal is to place the child for adoption under s. 48.833, stats., described below, the provision in current law that, absent safety considerations requiring immediate removal, the child may not be removed before completion of the hearing under s. 48.64 (4) (a) or (c), stats., if requested, or 30 days after the receipt of the notice of intent to remove, whichever is later, does not apply if written waivers of objection to the proposed removal are signed by all of the persons who have the right to request a hearing under s. 48.64 (4) (a) or (c), stats. (Section 48.833, stats., provides that an agency that is the guardian of a child or that is making a placement at the request of another agency that is the guardian of a child may place the child for adoption with a proposed adoptive parent who is licensed as a foster parent or treatment foster parent.)

104,1g Section 1g. 48.02 (15) of the statutes is amended to read:

48.02 (15) “Relative" means a parent, grandparent, stepparent, brother, sister, first cousin, nephew, niece, uncle or aunt. This relationship may be by consanguinity or direct affinity shall be by blood, marriage or adoption.

104,1m Section 1m. 48.38 (4) (d) of the statutes is renumbered 48.38 (4) (d) (intro.) and amended to read:

48.38 (4) (d) (intro.) If the child is living more than 60 miles from his or her home, documentation that placement within 60 miles of the child's home is either unavailable or inappropriate. or documentation that placement more than 60 miles from the child's home is in the child's best interests. The placement of a child in a licensed foster home or a licensed treatment foster home more than 60 miles from the child's home is presumed to be in the best interests of the child if documentation is provided which shows all of the following:

104,2 Section 2 . 48.38 (4) (d) 1., 2. and 3. of the statutes are created to read:

48.38 (4) (d) 1. That the placement is made pursuant to a voluntary agreement under s. 48.63 (1).

2. That the voluntary agreement provides that the child may be placed more than 60 miles from the child's home.

3. That the placement is made to facilitate the anticipated adoptive placement of the child under s. 48.833 or 48.837.

Note: Current law provides that if a child who has been placed outside the home is living more than 60 miles from his or her home, the permanency plan prepared for the child must include documentation that placement within 60 miles of the child's home is either unavailable or inappropriate.

Sections 1 [1m] and 2 permit a permanency plan to include documentation that placement more than 60 miles from a child's home is in the child's best interests and provide that the placement of a child in a licensed foster home or licensed treatment foster home more than 60 miles from the child's home is presumed to be in the best interests of the child if documentation is provided showing all of the following:

1. That the placement is made pursuant to a voluntary agreement under s. 48.63 (1), stats.

2. That the voluntary agreement provides that the child may be placed more than 60 miles from the child's home.

104,3 Section 3 . 48.422 (7) (bm) of the statutes is created to read:

48.422 (7) (bm) Establish whether a proposed adoptive parent of the child has been identified. If a proposed adoptive parent of the child has been identified and the proposed adoptive parent is not a relative of the child, the court shall order the petitioner to submit a report to the court containing the information specified in s. 48.913 (7). The court shall review the report to determine whether any payments or agreement to make payments set forth in the report are coercive to the birth parent of the child or to an alleged to presumed father of the child or are impermissible under s. 48.913 (4). Making any payment to or on behalf of the birth parent of the child, an alleged or presumed father of the child or the child conditional in any part upon transfer or surrender of the child or the termination of parental rights or the finalization of the adoption creates a rebuttable presumption of coercion. Upon a finding of coercion, the court shall dismiss the petition or amend the agreement to delete any coercive conditions, if the parties agree to the amendment. Upon a finding that payments which are impermissible under s. 48.913 (4) have been made, the court may dismiss the petition and may refer the matter to the district attorney for prosecution under s. 948.24 (1). This paragraph does not apply if the petition was filed with a petition for adoptive placement under s. 48.837 (2).

Note: This Section requires the juvenile court, at the hearing on a petition for TPR which is not filed with a petition for independent adoptive placement with a nonrelative, to determine whether a proposed adoptive parent of the child who is not a relative of the child has been identified. If the juvenile court so finds, the juvenile court must order the petitioner to submit a report regarding payments related to the adoption made by or on behalf of the proposed adoptive parents. The report requirements are set forth in detail in the Note following the Section creating s. 48.913, stats., below.

This Section requires the juvenile court to review the report and determine whether any payments or agreement to make payments are coercive to the birth parent or to an alleged or presumed father of the child. The Section provides that making any payment to or on behalf of the birth parent of the child, an alleged or presumed father of the child or the child conditional in any part upon transfer or surrender of the child or TPR or the finalization of the adoption creates a rebuttable presumption of coercion. The Section also provides that upon a finding of coercion, the juvenile court must either dismiss the petition for TPR or amend the agreement to delete any coercive conditions, if the parties agree to the amendment.

This Section also provides that, if the juvenile court finds that the proposed adoptive parent, or a person acting on behalf of the proposed adoptive parent, has made any payments in connection with the pregnancy, the birth of the child or the placement of the child with the proposed adoptive parents that are not permissible under the law, the juvenile court may dismiss the petition or refer the matter to the district attorney for prosecution under s. 948.24 (1), stats.

104,4 Section 4 . 48.427 (6) (a) of the statutes is amended to read:

48.427 (6) (a) Inform each birth parent, as defined under s. 48.432 (1) (am), whose rights have been terminated of the provisions of ss. 48.432 and, 48.433 and 48.434.

Note: Under current law, at the time a TPR order is entered, the juvenile court is required to inform each birth parent whose rights have been terminated of the provisions of the law governing the adoption search program administered by DHFS. This Section requires the juvenile court at that time to also inform the birth parents of the statutory provisions created by Section 5 of this bill.

104,5 Section 5 . 48.434 of the statutes is created to read:

48.434 Release of identifying information by an agency when authorization is granted. (1) Definitions. In this section: