1997 WISCONSIN ACT 104
An Act to repeal 48.837 (1m) and 48.837 (2) (d); to renumber and amend 48.38 (4) (d); to consolidate, renumber and amend 48.837 (6) (b) (intro.), 1. and 2.; to amend 48.02 (15), 48.427 (6) (a), 48.46 (1), 48.64 (1m), 48.835 (2), 48.837 (4) (a), 48.90 (1) (a), 48.93 (1d), 48.988 (8) (a), 115.92 (1), 948.24 (1) (a) and 948.24 (1) (c); to repeal and recreate 48.81; and to create 48.38 (4) (d) 1., 2. and 3., 48.422 (7) (bm), 48.434, 48.46 (1m), 48.825, 48.913 and 115.355 of the statutes; relating to: the placement of a child with a relative for adoption and application of the interstate compact on the placement of children; the time by which a juvenile court must hold a hearing on a petition for adoptive placement of a child with a nonrelative and a petition to terminate parental rights that is filed with a petition for adoptive placement; removal of a child from a foster home, treatment foster home or group home for the purpose of placing the child by an agency for adoption; education about adoption and school age parents programs; who may be adopted; the filing of a petition for adoption by a relative of a child by adoption; including relatives by adoption in the definition of “relative" in the children's code; the documentation required in a permanency plan for preadoptive placement of a child in foster care or treatment foster care under a voluntary agreement; payments by an adoptive or proposed adoptive parent for the expenses of a birth parent or child; the release of identifying information by an agency that placed a child for adoption or that was appointed guardian of a child who was adopted; advertising related to adoption; the time by which a petition for a rehearing on the ground of new evidence must be filed in a juvenile court proceeding; and providing a penalty.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
Prefatory note: This bill was prepared for the joint legislative council's special committee on adoption laws.
Payment of Birth Parents' Expenses by Proposed Adoptive Parents
1. Payments by proposed adoptive parents which are allowed. Current law contains the following provisions relating to payments made by adoptive or proposed adoptive parents to or on behalf of a birth parent or child:
a. Section 948.24, stats., which prohibits any person from taking any of the following actions:
(1) Placing or agreeing to place his or her child for adoption for anything exceeding the actual cost of the hospital and medical expenses of the mother and the child incurred in connection with the child's birth and of the legal and other services rendered in connection with the adoption.
(2) Soliciting, negotiating or arranging the placement of a child for adoption for anything of value, except under s. 48.833, stats., relating to placement of children for adoption by the department of health and family services (DHFS), county departments of human services or social services (county departments) and licensed adoption agencies.
(3) Giving anything exceeding the actual cost of the hospital and medical expenses of the mother and the child incurred in connection with the child's birth and of the legal and other services rendered in connection with the adoption in order to receive a child for adoption.
The criminal prohibitions described above do not apply to adoptive placements under s. 48.839, stats., relating to foreign adoptions. Anyone who takes any of the prohibited actions is guilty of a Class D felony, which is punishable by a fine not to exceed $10,000 or imprisonment not to exceed 5 years, or both.
b. Section 48.837 (2) (d), stats., which provides that the petition for adoptive placement in an independent adoption by a nonrelative must include a report of all transfers of anything of value made or agreed to be made by the proposed adoptive parents or on their behalf in connection with the birth of the child, the placement of the child with the proposed adoptive parents, the medical or hospital care received by the child or by the child's mother in connection with the birth of the child and any other expenses, including the estimated legal expenses, of either the child's parent or the proposed adoptive parents.
c. Section 48.837 (7), stats., which provides that the proposed adoptive parents in an independent adoption by a nonrelative must pay the cost of any investigation of the proposed adoptive placement ordered by the juvenile court, according to a fee schedule established by DHFS based on ability to pay. That section also provides that if the adoption is completed, the proposed adoptive parents must pay the cost of any foster care provided for the child.
According to adoption practitioners, courts assigned to exercise jurisdiction under the children's code (juvenile courts) throughout the state differ in the types of payments which proposed adoptive parents are permitted to make on behalf of a birth parent.
The bill creates several new provisions regarding payments made by or on behalf of adoptive or proposed adoptive parents to or on behalf of a birth parent of the child, an alleged or presumed father of the child or the child, which are described below. These provisions do not apply to foreign adoptions or to the adoption of a child by a relative of the child. A criminal penalty, however, could apply in a relative adoption if it were shown that a person placed or agreed to place his or her child for adoption with a relative for anything other than the payments authorized or that a relative of a child gave anything other than the payments authorized in order to receive the child for adoption.
The bill permits the proposed adoptive parents of a child, or a person acting on behalf of the proposed adoptive parents, to pay the actual cost of any of the following:
a. Preadoptive counseling for a birth parent of the child or an alleged or presumed father of the child.
b. Post-adoptive counseling for a birth parent of the child or an alleged or presumed father of the child.
c. Maternity clothes for the child's birth mother, not to exceed a reasonable amount.
d. Local transportation expenses of a birth parent of the child that are related to the pregnancy or adoption.
e. Services provided by a licensed child welfare agency in connection with the adoption.
f. Medical and hospital care received by the child's birth mother in connection with the pregnancy or birth of the child.
g. Medical and hospital care received by the child.
h. Legal and other services received by a birth parent of the child, an alleged or presumed father of the child or the child in connection with the adoption.
i. Living expenses of the child's birth mother, in an amount not to exceed $1,000, if payment of the living expenses by the proposed adoptive parents or a person acting on their behalf is necessary to protect the health and welfare of the birth mother or the fetus.
j. Any investigation of the proposed adoptive home ordered by the juvenile court, according to a fee schedule established by DHFS based on ability to pay.
k. If the adoption is completed, the cost of any foster care provided for the child.
L. Birthing classes.
m. A gift to the child's birth mother from the proposed adoptive parents, of no greater than $50 in value.
2. Payment of expenses when the birth parent is residing in another state. The bill also permits, in addition to the permissible payments described above, the proposed adoptive parents of a child to pay an expense of a birth parent of the child or of an alleged or presumed father of the child if the birth parent or the alleged or presumed father was residing in another state when the payment was made and when the expense was incurred and if all of the following apply:
a. The child was placed for adoption in this state in accordance with the interstate compact on the placement of children (ICPC).
b. The state in which the birth parent or the alleged or presumed father was residing when the payment was made permits the payment of that expense by the proposed adoptive parents of the child.
c. The proposed adoptive parents provide all of the following to the juvenile court;
(1) A listing of the payments the proposed adoptive parents of the child or a person acting on their behalf have made or have agreed to make to or on behalf of the birth parent or the alleged or presumed father.
(2) A copy of the statutory provisions of the state in which the birth parent or the alleged or presumed father was residing when those payments were made that permit those payments to be made by the proposed adoptive parents of the child.
(3) A copy of all orders entered in the state in which the birth parent or the alleged or presumed father was residing when those payments were made that relate to the payment of expenses of the birth parent or the alleged or presumed father by the proposed adoptive parents or a person acting on their behalf.
The information listed above must be provided to the juvenile court as follows:
a. If the parental rights of either parent of the child are terminated in this state, the information must be provided at the hearing on the termination of parental rights (TPR) petition.
b. If the parental rights of both parents of the child are terminated in another state and the child is placed for adoption with a nonrelative in an independent adoptive placement, the information must be provided with the petition for adoptive placement.
c. If the parental rights of both parents of the child have been terminated in another state and the child is placed for adoption by an agency, the information must be provided with the petition for adoption.
3. Methods by which payments may be made. The bill requires a payment by or on behalf of a proposed adoptive parent to be made either directly to the provider of a good or service or to the birth parent of the child or an alleged or presumed father of the child as reimbursement of amounts previously paid by the birth parent or the alleged or presumed father if documentation is provided showing that the birth parent or the alleged or presumed father has made the previous payment.
4. Payments by proposed adoptive parents which are prohibited. The bill prohibits the proposed adoptive parents of a child or a person acting on their behalf from making any payments to or on behalf of a birth parent of the child, an alleged or presumed father of the child or the child other than those listed as allowed under items 2. and 3., above.
5. Payments made after finalization of adoption. The bill permits the proposed adoptive parents of a child or a person acting on their behalf to make any of the allowable payments after finalization of the adoption (at which point the proposed adoptive parents become “adoptive parents"), if the payments are included in the report to the juvenile court described below or an amendment to the report which is filed with the juvenile court.
6. Report regarding payments must be submitted to and reviewed by the juvenile court. Under current law, a petition for independent adoptive placement with a nonrelative must include any agreement between the birth parent and the proposed adoptive parent that relates to the payment of any adoption-related expenses. The juvenile court must review the agreement to determine whether any conditions specified in the agreement are coercive to the birth parent. If the juvenile court finds coercion, the juvenile court must dismiss the petition or amend the agreement to delete any coercive conditions, if the parties agree to the amendment.
Also under current law, a petition for independent adoptive placement with a nonrelative must include a report of all transfers of value related to the adoption made or agreed to be made by the proposed adoptive parents or on their behalf. Current law, however, does not specifically require the juvenile court to review the report or to take any action if the juvenile court finds that improper payments have been or may be made.
Under current law, in an agency adoption, there is no requirement that any agreement or report regarding adoption-related payments be submitted to or reviewed by the juvenile court.
The bill does all of the following:
a. For an agency adoption, requires the submission of the same information regarding adoption-related payments and the same juvenile court review of that information that is required for an independent adoptive placement with a nonrelative. Specifically, the bill requires the juvenile court, at the hearing on a TPR petition which is not filed with a petition for independent adoptive placement with a nonrelative, to determine whether a proposed adoptive parent of a child who is not a relative of the child has been identified. If a proposed adoptive parent has been identified, the juvenile court must order the petitioner to submit a report of all adoption-related payments made by or on behalf of the proposed adoptive parents to or on behalf of the birth parent of the child, an alleged or presumed father of the child or the child. The juvenile court must review that report to determine if any payments or agreement to make payments are coercive to the birth parent or to an alleged or presumed father.
b. For agency adoptions and independent adoptions by a nonrelative, adds the following items to the list of information which must be included in the report of adoption-related payments made or agreed to be made by or on behalf of the proposed adoptive parents:
(1) Payments to or on behalf of the child.
(2) Payments to or on behalf of an alleged or presumed father of the child.
(3) Payments made in connection with the pregnancy of the birth mother.
c. For agency adoptions and independent adoptions by a nonrelative, requires the juvenile court to determine whether any payments or agreement to make payments are impermissible, in addition to the current requirement to determine whether any payments or agreement to make payments are coercive to the birth parent.
d. For agency adoptions and independent adoptions by a nonrelative, if the juvenile court finds that impermissible payments have been made, authorizes the juvenile court to dismiss the TPR petition or petition for adoptive placement and refer the matter to the district attorney for prosecution under s. 948.24 (1), stats., which provides criminal penalties for making or receiving impermissible payments related to adoption.
e. For agency adoptions and independent adoptions by a nonrelative, changes the grounds for finding coercion of the birth parent or of an alleged or presumed father of the child as follows:
Current law provides that “[m]aking the payment of the birth parent's expenses that are permitted under s. 948.24 (1) (a) or (c) 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" (emphasis added).
The bill changes this provision to read as follows:
“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 finalization of the adoption creates a rebuttable presumption of coercion" (emphasis added).
7. Criminal penalties for unauthorized placement for adoption. Current law sets forth criminal penalties which apply to a person who makes any payments that are not authorized under s. 948.24 (1) (c), stats., in order to receive a child for adoption or who places or agrees to place a child for adoption in exchange for any payments that are not authorized under s. 948.24 (1) (a), stats. Specifically, current law provides that whoever does any of the following is guilty of a Class D felony:
a. Places or agrees to place his or her child for adoption for anything exceeding the actual cost of the hospital and medical expenses of the mother and the child incurred in connection with the child's birth, and of the legal and other services rendered in connection with the adoption [s. 948.24 (1) (a), stats.].
b. In order to receive a child for adoption, gives anything exceeding the actual cost of the hospital and medical expenses of the mother and the child incurred in connection with the child's birth, and of the legal and other services rendered in connection with the adoption [s. 948.24 (1) (c), stats.].
The penalty for a Class D felony is a fine not to exceed $10,000 or imprisonment not to exceed 5 years, or both.
The bill amends the criminal provisions to correspond to the changes the bill makes in the children's code regarding payments related to adoption. Thus, under the bill, making or receiving any of the payments authorized by the bill is not grounds for criminal prosecution.
Under current law and the bill the criminal provisions do not apply to the adoption of a foreign child under s. 48.839, stats.
Release of Identifying Information by Agency to Adoptive Parents and Birth Parents
Under current law, all records and papers pertaining to an adoption proceeding must be kept in a locked file and may not be disclosed except by order of the court for good cause shown or under any of 6 exceptions set forth in the statutes. The 6 exceptions are as follows:
1. Section 48.93 (1g), stats., which requires a juvenile court, at the time the juvenile court enters an order granting an adoption, to provide the adoptive parents with a copy of the child's medical records or other medical information pertaining to the child, after deleting the names and addresses of the child's birth parents and the identity of any provider of health care to the child or the child's birth parents.
2. Section 48.93 (1r), stats., which requires any agency that has placed a child for adoption, at the request of an adoptive parent or of the adoptee, after the adoptee has reached 18 years of age, to provide the requester with certain medical or genetic information and nonidentifying social history information.
3. Section 46.03 (29), stats., which authorizes DHFS to use in the media a picture or description of a child in the guardianship of DHFS for the purpose of finding adoptive parents for that child.
4. Section 48.432, stats., which authorizes the release of certain medical and genetic information to certain persons upon request.
5. Section 48.433, stats., which authorizes the release of certain identifying information about birth parents pursuant to the formal adoption search program administered by DHFS.
6. Section 48.57 (1) (j), stats., which authorizes county departments providing child welfare services to use in the media a picture or description of a child in its guardianship for the purpose of finding adoptive parents for that child.
After an adoption is finalized, subject to the exceptions discussed above, an agency may not release any identifying information about a birth parent or an adoptive parent. It sometimes happens that, after the finalization of an adoption in which the birth parents and adoptive parents did not reveal their identities to one another and chose to remain anonymous, the birth parents or adoptive parents decide that they would like to voluntarily disclose their identity. Typically, in that situation, the birth parent or adoptive parent will ask the agency to provide his or her name and address to the other party. Current law, however, prohibits an agency from releasing identifying information after an adoption is finalized. Therefore, agencies often find themselves in the role of acting as a conduit for information between birth parents and adoptive parents, a task for which agencies generally receive no compensation and a service which is not guaranteed to the parties. This bill is intended to address those situations by permitting an agency to release identifying information as discussed below.
This bill creates a new exception to the statutory prohibition against disclosing records and papers pertaining to an adoption proceeding. The bill requires an agency that has placed a child for adoption or that was appointed the guardian of a child who was adopted in an independent adoption to release information about the child's birth parents to the child's adoptive parents, and to release information about the child's adoptive parents to the child's birth parents, when authorized to do so, as described below.
Release of information to an adoptive parent; requirement for written authorization. The bill requires an agency to provide to an adoptive parent of a child, at the request of the adoptive parent, any available information about the identity and location of a birth parent of the child if the agency has on file the unrevoked written authorization of that birth parent to release that information to the adoptive parent.
The bill permits any birth parent whose child was adopted or placed for adoption in this state to grant written authorization to the agency that placed the child for adoption or that was appointed the guardian of the child in an independent adoption to release any available information about the birth parent's identity and location to an adoptive parent of the child.
Release of information to a birth parent; requirement for written authorization. Similarly, the bill requires an agency to provide to a birth parent of a child, at the request of the birth parent, any available information about the identity and location of an adoptive parent of the child if the agency has on file the unrevoked written authorization of that adoptive parent to release that information to the birth parent.
The bill permits any adoptive parent who has adopted a child in this state or who has adopted a child who was placed for adoption with the adoptive parent in this state to grant written authorization to the agency that placed the child for adoption or that was appointed the guardian of the child in an independent adoption to release any available information about the adoptive parent's identity and location to a birth parent of the child.
Notarization required. The bill requires a written authorization for the release of identifying information by an agency to be notarized.
Revocation of authorization. The bill permits a birth parent or an adoptive parent to revoke a written authorization filed by the birth parent or adoptive parent at any time by notifying the agency in writing.
Adoptee must be less than 21 years old. The bill authorizes the release of information as described above only if the child who the agency placed for adoption, or was appointed the guardian of, is less than 21 years of age.
Immunity from liability. The bill provides that any person, including the state or any political subdivision of the state, who participates in good faith in any requirement created by the bill is immune from any liability, civil or criminal, that results from his or her actions. The bill further provides that in any proceeding, civil or criminal, the good faith of any person participating in the requirements of the bill must be presumed.
Reasonable fees may be assessed. The bill permits an agency to assess reasonable fees for responding to requests for information or requests by a birth parent or adoptive parent to file a written authorization.
Agency may not contact parties who have not filed an authorization. The bill prohibits agencies from contacting birth parents or adoptive parents for the purpose of determining whether they wish to file a written authorization authorizing the release of information about themselves. The bill, however, permits agencies to contact one time, by mail, the birth parents or adoptive parents of a child who was adopted before the bill becomes effective, to inform them of the new procedure for the release of identifying information created by the bill.
Information provided to birth parent when parental rights are terminated. 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. The bill requires the juvenile court at that time to also inform the birth parents of the statutory provisions created by the bill relating to the release of identifying information to adoptive parents and birth parents.
Adoption search program unaffected. This bill does not affect the adoption search program under s. 48.433, stats., administered by DHFS.
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