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.
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.
