LRB-2751/1
GMM:kjf:rs
2005 - 2006 LEGISLATURE
June 28, 2005 - Introduced by Joint Legislative Council. Referred to Committee
on Family Law.
AB521,2,2
1An Act to renumber 48.025 (3);
to renumber and amend 48.025 (2), 48.355
2(2) (b) 1., 48.41 (2) (b), 48.42 (2m), 48.43 (6) and 48.64 (4) (a);
to amend 46.03
3(7) (bm), 48.025 (1), 48.27 (3) (b) 1. a., 48.27 (5), 48.295 (1), 48.368 (1), 48.415
4(2) (a) 3., 48.415 (6) (a) and (b), 48.415 (10) (a), 48.42 (1) (a), 48.42 (2) (b) (intro.),
548.42 (2) (b) 1., 48.42 (3) (a), 48.42 (4) (a), 48.422 (6) (a), 48.423, 48.64 (4) (c),
648.72, 48.78 (2) (a), 48.825 (5), 48.833, 48.837 (1), 48.837 (4) (c), 48.837 (4) (e),
748.839 (2) (b), 48.839 (2) (c), 48.91 (2), 48.913 (1) (c), (i) and (m), 808.04 (7m),
8808.04 (8), 809.82 (2) (b), 938.27 (3) (b) 1. a., 938.27 (5), 938.78 (2) (a) and 977.07
9(1) (c); and
to create 48.025 (2) (b), 48.025 (2) (d), 48.025 (3) (a), 48.025 (3) (c)
10and (d), 48.025 (5), 48.025 (6), 48.235 (1) (g), 48.235 (5m), 48.295 (2c), 48.355 (2)
11(b) 1. a. to d., 48.40 (1r), 48.41 (2) (b) 2., 48.42 (1g), 48.42 (2) (bm), 48.42 (2m)
12(b), 48.42 (4) (b) 1m., 48.42 (5), 48.43 (6) (b) and (c), 48.43 (6m), 48.48 (17) (bm),
1348.57 (2m), 48.825 (3m), 48.837 (1m), 48.837 (2) (d), 48.837 (4) (cm), 48.84,
14809.107 (5) (am) and 938.57 (2m) of the statutes;
relating to: termination of
1parental rights and adoption, granting rule-making authority, and providing
2a penalty.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the Joint Legislative Council in
the bill.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
report concerning the proposed penalty and the costs or savings that are likely to
result if the bill is enacted.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Joint Legislative Council prefatory note: This bill was prepared for the Joint
Legislative Council's Special Committee on Adoption and Termination of Parental Rights
Law. The bill contains the following provisions:
Declarations of Paternal Interest
Under current law, a man claiming to be the father of a nonmarital child who is not
adopted and whose parents have not married ("nonmarital child") may file a declaration
of his interest in matters affecting the child ("declaration of paternal interest") with the
Department of Health and Family Services (DHFS). The declaration may be filed at any
time before the termination of the father's parental rights. The declaration must be in
writing and must be signed by the person declaring the paternal interest.
DHFS maintains a file containing records of declarations of paternal interest.
DHFS may not release these records except under a court order or to the Department of
Workforce Development (DWD) or a county child support agency upon request by DWD
or the child support agency for purposes of establishing paternity or enforcing child
support or upon request by any other person with a direct and tangible interest in the
record.
A person who files a declaration of paternal interest is entitled to receive notice of
a proceeding to terminate his parental rights to the child. In addition, all of the following
must receive notice of a termination of parental rights (TPR) proceeding under current
law:
• A person or persons alleged to the court assigned to exercise jurisdiction under
the Children's Code and Juvenile Justice Code (juvenile court) to be the father of the child
or who may, based upon the statements of the mother or other information presented to
the juvenile court, be the father of the child, unless that person has waived the right to
notice.
• A person who has lived in a familial relationship with the child and who may be
the father of the child.
Notice is generally not required to be given, however, to a person who may be the
father of a child conceived as a result of a sexual assault if a physician attests to his or
her belief that a sexual assault has occurred or if the person who may be the father has
been convicted of sexual assault for conduct that may have led to the child's conception.
A person who is not given notice under this provision does not have standing to appear
and contest the termination of his parental rights.
If a man who alleges that he is the father of the child appears at the TPR hearing
and wishes to contest the termination of his parental rights, the juvenile court must set
a date for a hearing on the issue of paternity or, if all parties agree, the juvenile court may
immediately commence hearing testimony on the issue of paternity. The man must prove
paternity by clear and convincing evidence.
If the child is being placed for adoption, before holding a hearing on the adoptive
placement and TPR petitions, the juvenile court must ascertain whether the child's
paternity has been established. If any person has filed a declaration of paternal interest,
the juvenile court must determine the rights of that person. If the child's paternity has
not been established and if no person has filed a declaration, the juvenile court must
attempt to ascertain the paternity of the child. The juvenile court may not proceed with
the hearing on the adoptive placement or TPR petition unless the parental rights of the
nonpetitioning parent, whether known or unknown, have been terminated.
At the final adoption hearing, the juvenile court must establish whether the rights
of any persons who have filed declarations of paternal interest have been determined or
whether the child's paternity has been established. If the juvenile court finds that no such
determination has been made, the juvenile court must proceed to ascertain the paternity
of the child and the rights of any person who has filed a declaration before it may take
any action on the petition for adoption.
The bill modifies current law relating to declarations of paternal interest and
notification to putative fathers of TPR and adoption proceedings.
The bill makes various changes relating to declarations of paternal interest. The
bill generally requires a declaration to be filed before the child's birth or within 14 days
after the child's birth and permits a declaration to be revoked at any time. The bill also
requires a declaration or revocation to be verified upon oath or affirmation and, in the
case of a minor, to also be signed by the parent or guardian of the minor.
The bill requires DHFS to publicize information about declarations of paternal
interest in a manner calculated to provide maximum notice to all persons who might
claim to be the father of a nonmarital child.
The bill provides that a person who makes a false statement in a declaration,
revocation of a declaration, or response to a declaration that the person does not believe
is true is subject to prosecution for false swearing. False swearing is a Class A
misdemeanor punishable by a fine not to exceed $10,000 or imprisonment not to exceed
9 months, or both.
Also, a person who intentionally obtains, uses, or discloses information relating to
a declaration that is confidential may be fined up to $1,000 or imprisoned for up to 90
days, or both.
The bill also creates a new provision under which the petitioner in a proceeding to
terminate the parental rights of a person who may be the father of a nonmarital child
under one year of age must file with the TPR petition an affidavit signed by the child's
mother that identifies or describes the father. The petitioner is required to notify any man
alleged to be the father in the affidavit that he may file a declaration of paternal interest
within 21 days after the date on which the notification was mailed. If the mother cannot,
with reasonable diligence, be found, the petitioner must attach to the TPR petition a
statement of efforts made to locate the mother.
The bill creates alternative TPR notice requirements for a person who may be the
father of a nonmarital child under one year of age at the time the TPR petition is filed
whose paternity has not been established in a TPR proceeding concerning the child, if an
affidavit signed by the birth mother or a statement that the birth mother cannot be found,
as described above, is filed with the petition. In these cases, the bill requires notice to be
provided to all of the following:
1. A person who has filed an unrevoked declaration of paternal interest, within 14
days after the birth of the child or within 21 days after the notice of his right to file a
declaration is mailed, whichever is later.
2. A person who has lived in a familial relationship with the child and who may
be the father of the child.
The bill specifies that a person who is not entitled to actual notice of a TPR
proceeding under the bill does not have standing to appear and contest the petition,
present evidence relevant to the issue of disposition, or make alternative dispositional
recommendations.
Finally, the bill prohibits a mother who has completed an affidavit relating to the
identity of the child's father from attacking a TPR judgment on the basis that the father
was not identified correctly.
Grounds for TPR
The bill provides that the grounds for involuntary TPR apply to parents and to
persons who may be the parent of a child. In addition, the bill modifies the grounds in
current law for TPR, as follows:
• Failure to Assume Parental Responsibility: Substantial Parental
Relationship
Under current law, the ground of failure to assume parental responsibility is
established by proving by clear and convincing evidence that the parent has never had
a substantial parental relationship with the child. "Substantial parental relationship"
is defined as the acceptance and exercise of significant responsibility for the daily
supervision, education, protection, and care of the child.
In evaluating whether the person has had a substantial parental relationship with
the child, the juvenile court may consider whether the person has ever expressed concern
for or interest in the child's support, care, or well-being; whether the person has neglected
or refused to provide care or support; and whether, with respect to the father, the parent
has ever expressed concern for or interest in the mother's support, care, or well-being
during her pregnancy.
The bill changes this ground by providing that this ground is established by
proving by clear and convincing evidence that the parent has not had a substantial
parental relationship with the child.
• Prior Involuntary TPR to Another Child
Under current law, the ground of involuntary TPR to another child may be
established by proving by clear and convincing evidence both of the following:
• That the child who is the subject of the petition has been adjudged to be a child
in need of protection or services (CHIPS) because he or she has been abandoned or has
been the victim of abuse or because his or her parent has neglected, refused, or been
unable for reasons other than poverty to provide the necessary care, clothing, medical or
dental care, or shelter so as to seriously endanger the physical health of the child.
• That within three years of the CHIPS adjudication, a juvenile court has ordered
an involuntary TPR with respect to another child of the person.
The bill modifies the ground that requires a showing of prior involuntary TPR to
another child so that it may also apply to a child who is found to be CHIPS because he
or she is at risk of being abused or neglected.
• Continuing Need for Protection and Services
Under current law, the ground of continuing CHIPS may be established by proving
by clear and convincing evidence all of the following:
• That the child has been adjudged to be CHIPS and placed outside of his or her
home by a court.
• That the agency responsible for the care of the child and the family has made a
reasonable effort to provide the services ordered by the court.
