Wisconsin Legislature: 104,10

48.46 (1m) Except as provided in sub. (2), the parent, guardian or legal custodian of the child or the child whose status is adjudicated by the court in an order entered under s. 48.43 or an order adjudicating paternity under subch. VIII may, within the time permitted under this subsection, petition the court for a rehearing on the ground that new evidence has been discovered affecting the advisability of the court's adjudication. Upon a showing that such evidence does exist, the court shall order a new hearing. A petition under this subsection shall be filed within one year after the date on which the order under s. 48.43 or order adjudicating paternity under subch. VIII is entered, unless within that one-year period a court in this state or in another jurisdiction enters an order granting adoption of the child, in which case a petition under this subsection shall be filed before the date on which the order granting adoption is entered or within 30 days after the date on which the order under s. 48.43 or order adjudicating paternity under subch. VIII is entered, whichever is later.

Note: Sections 6 and 7 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 juvenile court's order. Under Section 7, a petition for 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.

104,8 Section 8 . 48.64 (1m) of the statutes is amended to read:

48.64 (1m) Foster home, treatment foster home and group home agreements. If an agency places a child in a foster home or, treatment foster home or group home under a court order or voluntary agreement under s. 48.63, the agency shall enter into a written agreement with the head of the home. The agreement shall provide that the agency shall have access at all times to the child and the home, and that the child will be released to the agency whenever, in the opinion of the agency placing the child or the department, the best interests of the child require it. If a child has been in a foster home, treatment foster home or group home for 6 months or more, the agency shall give the head of the home written notice of intent to remove the child, stating the reasons for the removal. The child shall may not be removed before completion of the hearing under sub. (4) (a) or (c), if requested, or 30 days after the receipt of the notice, whichever is later, unless the safety of the child requires it or, in a case in which the reason for removal is to place the child for adoption under s. 48.833, unless all of the persons who have the right to request a hearing under sub. (4) (a) or (c) sign written waivers of objection to the proposed removal. If the safety of the child requires earlier removal, s. 48.19 shall apply. If an agency removes a child from an adoptive placement, the head of the home shall have no claim against the placing agency for the expense of care, clothing or medical treatment.

Note: This Section 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., 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. (Sections 48.64 (4) (a) and (c) and 48.833, stats., are discussed in the Prefatory note to the bill.)

104,9 Section 9 . 48.81 of the statutes is repealed and recreated to read:

48.81 Who may be adopted. Any child who is present in this state at the time the petition for adoption is filed may 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 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 or in another state or a foreign jurisdiction and the child's other parent is deceased.

(4) The person filing the petition for adoption is the spouse of the child's parent with whom the child and the child's parent reside and either of the following applies:

(a) The child's other parent is deceased.

(b) The parental rights of the child's other parent with respect to the child have been terminated under subch. VIII or in another state or a foreign jurisdiction.

(5) Section 48.839 (3) (b) applies.

(6) The child is being readopted under s. 48.97.

Note: This Section repeals and recreates the provision under current law 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.].

Comments regarding a decision of the Wisconsin Supreme Court interpreting s. 48.81, stats., and further comments on s. 48.81, stats., are included in the Prefatory note to the bill.

This Section 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.

104,10 Section 10 . 48.825 of the statutes is created to read:

48.825 Advertising related to adoption. (1) In this section:

(a) “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.

(b) “Another jurisdiction" means a state of the United States other than Wisconsin, the District of Columbia, the Commonwealth of Puerto Rico, any territory or insular possession subject to the jurisdiction of the United States or a federally recognized American Indian tribe or band.

(2) Except as provided in sub. (3), no person may do any of the following:

(a) Advertise for the purpose of finding a child to adopt.

(b) Advertise that the person will find an adoptive home for a child or arrange for or assist in the adoption or adoptive placement of a child.

(3) This section does not apply to any of the following:

(a) The department, a county department or a child welfare agency licensed under s. 48.60 to place children for adoption.

(b) An individual or agency providing adoption information exchange services under s. 48.55.

(d) An individual who has received a favorable recommendation regarding his or her fitness to be an adoptive parent in this state from the department, a county department or a child welfare agency licensed under s. 48.60 or in another jurisdiction from an entity authorized by that jurisdiction to conduct studies of potential adoptive homes.

(e) An individual seeking to place his or her child for adoption.

(4) Nothing in this section prohibits an attorney licensed to practice in this state from advertising his or her availability to practice or provide services relating to the adoption of children.

(5) Any person who violates sub. (2) may be fined not more than $10,000 or imprisoned not more than 9 months or both.

Note: Current law does not explicitly address advertising related to adoption. This Section prohibits certain advertising relating to adoption. Specifically, this Section 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 this Section, “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.

This Section provides that a person who violates the prohibitions on advertising created by this Section 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.)

This Section 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.

104,11 Section 11 . 48.835 (2) of the statutes is amended to read:

48.835 (2) Adoptive placement. A parent having custody of a child may place the child for adoption in the home of a relative of the child without a court order.

Note: 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 Section specifies that the person with whom the child is placed under this provision must be a relative of the child.

104,12 Section 12 . 48.837 (1m) of the statutes is repealed.

Note: This Section repeals the provision in current law which requires a petition for adoptive placement in an independent adoption by a nonrelative to include any agreement between the birth parent and adoptive parent that relates to certain payments. The repealed provision reads as follows:

“48.837 (1m) Written agreement. Any agreement between the birth parent and adoptive parent that relates to the payment of any expenses described in sub. (2) (d) shall be in writing, with the amount and purpose of the expenses enumerated, and made part of the petition filed under sub. (2).".

The repealed provision is replaced with s. 48.913 (6) and (7), stats., as created by this bill.

104,13 Section 13 . 48.837 (2) (d) of the statutes is repealed.

Note: This Section repeals the provision in current law which requires a petition for adoptive placement in an independent adoption by a nonrelative to include a report of certain transfers of value made or agreed to be made by the proposed adoptive parents or on their behalf. The repealed provision reads as follows:

“48.837 (2) (d) 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. The report shall be itemized and shall show the services relating to the adoption or to the placement of the child for adoption which were received by the proposed adoptive parents, by either parent, by the child or by any other person to whom payment was made by or on behalf of the proposed adoptive parents. The report shall also include the dates of each payment, the names and addresses of each attorney, doctor, hospital, agency or other person or organization receiving any funds from the proposed adoptive parents in connection with the adoption or the placement of the child with them.".

The repealed provision is replaced with s. 48.913 (6) and (7), stats., as created by this bill.

104,14 Section 14 . 48.837 (4) (a) of the statutes is amended to read:

48.837 (4) (a) Notwithstanding s. 48.422 (1), shall schedule Shall hold a hearing within 60 days of 30 days after the date of filing of the petitions, except that the hearing may not be held before the birth of the child.

Note: This Section provides that when a TPR petition is filed with a petition for independent adoptive placement of a child with a nonrelative, 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.

104,15 Section 15 . 48.837 (6) (b) (intro.), 1. and 2. of the statutes are consolidated, renumbered 48.837 (6) (b) and amended to read:

48.837 (6) (b) At the beginning of the hearing held under sub. (2), the court shall review any agreement that is attached to the petition in accordance with sub. (1m) the report that is submitted under s. 48.913 (6). The court shall determine whether any payments or the conditions specified in the any agreement to make payments are coercive to the birth parent of the child or to an alleged or presumed father of the child or are impermissible under s. 48.913 (4). Making the any payment to or on behalf of the birth parent's expenses that are permitted under s. 948.24 (1) (a) or (c) 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 do one of the following: 1. Dismiss dismiss the petitions under subs. (2) and (3). 2. Amend or amend the agreement under sub. (1m) 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).

Note: This Section does all of the following:

1. Changes cross-references in current law to reflect changes made by the bill.

2. Provides that making any payments 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 the transfer or surrender of the child or the TPR or the finalization of the adoption creates a rebuttable presumption of coercion. Current law applies the presumption only to the payment of the birth parent's expenses that are permitted under s. 948.24 (1) (a) or (c), stats.

3. 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.

104,15m Section 15m. 48.90 (1) (a) of the statutes is amended to read:

48.90 (1) (a) One of the petitioners is a relative of the child by blood or by adoption, excluding parents whose parental rights have been terminated and persons whose relationship to the child is derived through such parents.

104,16 Section 16 . 48.913 of the statutes is created to read:

48.913 Payments by adoptive or proposed adoptive parents to a birth parent or child or on behalf of a birth parent or child. (1) Payments allowed. The proposed adoptive parents of a child, or a person acting on behalf of the proposed adoptive parents, may 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.

(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. Medical and hospital care does not include lost wages or living expenses.

(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.