LRBs0100/2
GMM:jld/bjk/nwn:jf
2009 - 2010 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO 2009 ASSEMBLY BILL 214
August 19, 2009 - Offered by Committee on Children and Families.
AB214-ASA1,1,6
1An Act to repeal 48.428 (6) (b);
to renumber and amend 48.428 (6) (a) and
248.93 (2);
to amend 48.426 (3) (c), 48.92 (2) and 48.93 (1d); and
to create 48.425
3(1) (h), 48.429, 48.43 (2) (d) and 48.93 (2) (a) of the statutes;
relating to:
4posttermination of parental rights contact between a child and a birth relative
5of the child and disclosure of the report of an investigation of the home of a
6proposed adoptive parent on the request of the proposed adoptive parent.
Analysis by the Legislative Reference Bureau
Under current law, a termination of parental rights (TPR) order permanently
severs all legal rights and duties between a birth parent and the child. Current law
does, however, permit the court assigned to exercise jurisdiction under the Children's
Code (juvenile court) to order visitation by a birth parent of a child placed in
sustaining care following a TPR. Current law also permits the juvenile court, in the
case of a child who is adopted by a stepparent or relative, to grant reasonable
visitation rights to a relative of the child who has maintained a relationship similar
to a parent-child relationship with the child if the juvenile court determines that the
visitation is in the best interests of the child and that the relative will not undermine
the adoptive parents' relationship with the child.
This substitute amendment permits a posttermination contact agreement to be
entered into between the proposed adoptive parents of a child or, if at the time the
agreement is entered into no proposed adoptive parent has been identified, the
Department of Children and Families, a county department of human services or
social services, or a licensed child welfare agency having guardianship, legal custody,
or supervision of the child (collectively "agency") and a birth relative of the child at
any time before a TPR order is granted if: 1) the child is in the legal custody or under
the supervision or guardianship of an agency; and 2) the child, if 12 years of age or
over, consents to the terms of the agreement.
The substitute amendment permits any party to the TPR proceeding or any
birth relative of the child to propose a posttermination contact agreement if the birth
parent agrees to voluntarily consent to the TPR or not to contest an involuntary TPR
before grounds for TPR are found. If those circumstances do not apply, only the
proposed adoptive parents, the agency, the district attorney, corporation counsel, or
other official who filed the TPR petition, or the juvenile court may propose a
posttermination contact agreement.
A posttermination contact agreement may provide for any of the following:
1. Visitation between the child and a birth relative of the child.
2. Future contact and communication between the child, adoptive parent, or
agency and a birth relative of the child.
3. The sharing of information about the child in the future between the adoptive
parent or agency and a birth relative of the child.
4. The maintenance and sharing of the medical and genetic history of any birth
relative who is a party to the agreement.
A posttermination contact agreement must contain: 1) an acknowledgement by
all birth relatives who are parties to the agreement that the TPR and adoption are
irrevocable and that failure by a party to comply with the agreement is not grounds
to revoke the TPR or adoption; 2) an acknowledgement by the proposed adoptive
parents or agency that the agreement is enforceable by any person who is permitted
posttermination visitation, contact, communication, or sharing of information under
the agreement; and 3) a statement by all parties to the agreement that the agreement
was entered into voluntarily and with understanding of the terms of the agreement,
that no promises or threats were made to coerce any person into entering into the
agreement, and that the parties have not relied on any representations other than
those contained in the agreement.
At the time a TPR order is granted, a juvenile court may approve a
posttermination contact agreement if: 1) the child and the birth parent meet the
conditions for entering into the agreement; 2) the agreement contains the provisions
required under the substitute amendment; 3) the parties to the agreement including
the birth parent and child, if 12 years of age or over, sign the agreement; 4) the agency
or the child's guardian ad litem files the agreement; 5) the juvenile court addresses
all parties to the agreement and determines that the agreement was entered into
voluntarily and with understanding of the terms of the agreement, that no promises
or threats were made to coerce any person into entering into the agreement, and that
the parties have not relied on any representations other than those contained in the
agreement; 6) the agency and the child's guardian ad litem submit to the juvenile
court recommendations concerning the granting of posttermination visitation,
contact, communication, or sharing of information as provided for in the agreement;
and 7) the juvenile court determines that granting posttermination visitation,
contact, communication, or sharing of information as provided for in the agreement
would be in the best interests of the child.
In determining whether granting posttermination visitation, contact,
communication, or sharing of information as provided for in the agreement would be
in the best interests of the child, the juvenile court must consider: 1) whether the
child has substantial relationships with the person who would have visitation,
contact, communication, or sharing of information under the agreement, and
whether it would be harmful to the child not to preserve those relationships; 2) any
special needs of the child and how those special needs would be affected by visitation,
contact, communication, or sharing of information as provided for in the agreement;
3) the specific terms of the agreement and the likelihood that the parties will
cooperate in complying with the agreement; 4) the recommendations of the agency
and the child's guardian ad litem; and 5) any other factors that are relevant to the
best interests of the child.
Current law requires the juvenile court to consider certain factors in
determining whether TPR would be in the best interests of the child. One of those
factors is whether the child has substantial relationships with the parent or other
family members, and whether it would be harmful to the child to sever those
relationships. Recently, the Wisconsin Supreme Court held, in State v. Margaret H.,
200 WI 42, 234 Wis. 2d 606, 621, that the severance of substantial relationships
factor requires the juvenile court to examine the impact of a legal severance of those
relationships on the broader relationships existing between the child and his or her
family and that the juvenile court, in its discretion, may afford due weight to an
adoptive parent's stated intent to permit continued visitation between the child and
his or her pretermination family, even though such a promise is legally
unenforceable after TPR and adoption. This substitute amendment requires the
juvenile court, in evaluating that factor, to consider the terms of any posttermination
contact agreement under the substitute amendment that has been entered into with
respect to the child and permits the juvenile court to consider any other agreement
by a proposed adoptive parent to permit contact between the child and his or her
pretermination family after adoption of the child.
A posttermination contact agreement that has been approved by the juvenile
court is enforceable by the juvenile court. Before petitioning the juvenile court for
specific performance of the agreement, however, the petitioner must participate, or
attempt to participate, in good faith in mediation or other appropriate dispute
resolution proceedings to resolve the dispute giving rise to the filing of the petition.
If the juvenile court finds that a person is not in compliance with the agreement, that
enforcement of the agreement is in the best interests of the child, and that the
petitioner, before filing the petition, participated, or attempted to participate, in good
faith in mediation or other appropriate dispute resolution proceedings to resolve the
dispute giving rise to the filing of the petition, the juvenile court must issue an order
requiring specific performance of the agreement, which order is the sole remedy for
noncompliance with the agreement.
A posttermination contact agreement that has been approved by the juvenile
court may be terminated or modified by agreement of the parties if the juvenile court
finds that the termination or modification would be in the best interests of the child
or by the juvenile court if a party shows that the termination or modification would
be in the best interests of the child, or that there has been a substantial change in
circumstances since the entry of the last order affecting the agreement, and that the
petitioner, before filing the petition, participated, or attempted to participate, in good
faith in mediation or other appropriate dispute resolution proceedings to resolve the
dispute giving rise to the filing of the petition. An order to modify an approved
posttermination contact agreement may limit, restrict, condition, or decrease
visitation, contact, communication, or sharing of information between the child and
a birth relative of the child, but may not expand, enlarge, or increase that visitation,
contact, communication, or sharing of information or place any new obligations on
the adoptive parent or agency.
Finally, under current law, all records and papers pertaining to an adoption
proceeding may not be disclosed except under certain statutory exceptions or by
order of the juvenile court for good cause shown. This substitute amendment permits
a proposed adoptive parent whose home is the subject of an investigation to
determine whether the home is suitable for the child (home study) to request the
agency conducting the home study to disclose its report of the home study to another
agency authorized to place children for adoption, the state adoption information
exchange, or the state adoption center. Within ten days after receipt of such a
request, the agency must disclose the report to the person named in the request,
unless within those ten days the agency petitions the juvenile court for an order
permitting the agency not to disclose the report, to restrict the information to be
disclosed, or to defer disclosure of the report to a later date or for such other
appropriate relief as the agency may request and the juvenile court finds good cause
for granting the relief requested.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB214-ASA1,4,42
48.425
(1) (h) A statement as to whether a posttermination contact agreement
3has been entered into under s. 48.429. If such an agreement has been entered into,
4the agency shall attach a copy of the agreement to the report.
AB214-ASA1,5,56
48.426
(3) (c) Whether the child has substantial relationships with the parent
7or other family members, and whether it would be harmful to the child to sever
these
1those relationships.
In determining whether it would be harmful to the child to sever
2those relationships, the court shall consider the terms of any posttermination contact
3agreement that has been entered into under s. 48.429 with respect to the child and
4may consider any other agreement by a proposed adoptive parent to permit contact
5between the child and the parent or other family members after adoption of the child.
AB214-ASA1, s. 3
6Section
3. 48.428 (6) (a) of the statutes is renumbered 48.428 (6) and amended
7to read:
AB214-ASA1,5,108
48.428
(6) Except as provided in par. (b), the The court may
order or prohibit
9visitation by grant posttermination contact privileges under s. 48.429 to a birth
10parent relative of a child placed in sustaining care.
AB214-ASA1,5,14
1348.429 Posttermination contact privileges. (1) Definitions. In this
14section:
AB214-ASA1,5,1615
(a) "Approved posttermination contact agreement" means a posttermination
16contact agreement that has been approved by the court under sub. (4).
AB214-ASA1,5,2017
(b) "Birth relative" means a relative, as defined in s. 48.02 (15), by blood or
18marriage, and, in the case of an Indian child, also includes any additional person who
19is defined as a member of the Indian child's extended family by the law or custom of
20the Indian child's tribe.
AB214-ASA1,5,2521
(c) "Posttermination contact agreement" means an agreement between a
22proposed adoptive parent of a child or, if at the time the agreement is entered into
23no proposed adoptive parent has been identified, the agency having guardianship,
24legal custody, or supervision of the child and a birth relative of the child that provides
25for any of the following after termination of parental rights to the child:
AB214-ASA1,5,26
11. Visitation between the child and a birth relative of the child.
AB214-ASA1,6,32
2. Future contact and communication between the child, adoptive parent, or
3agency and birth relative of the child.
AB214-ASA1,6,54
3. The sharing of information about the child in the future between the adoptive
5parent or agency and a birth relative of the child.
AB214-ASA1,6,76
4. The maintenance and sharing of the medical and genetic history of any birth
7relative who is a party to the agreement.
AB214-ASA1,6,15
8(2) Posttermination contact agreements; when permitted. (a) Subject to par.
9(b), at any time before a termination of parental rights order is granted, a
10posttermination contact agreement may be entered into between the proposed
11adoptive parents of a child or, if at the time the agreement is entered into no proposed
12adoptive parent has been identified, the agency having guardianship, legal custody,
13or supervision of the child and a birth relative of the child if the child is in the legal
14custody or under the supervision or guardianship of an agency and the child, if 12
15years of age or over, consents to the terms of the agreement.
AB214-ASA1,6,2516
(b) If the birth parent who is a party to the agreement agrees to voluntarily
17consent to the termination of his or her parental rights under s. 48.41 or not to contest
18an involuntary termination of parental rights under s. 48.415 before grounds for
19termination of parental rights are found under s. 48.424, any party to the
20termination of parental rights proceeding or any birth relative of the child may
21propose a posttermination contact agreement. If those circumstances do not apply,
22only the proposed adoptive parents; the agency having guardianship, legal custody,
23or supervision of the child; the district attorney, corporation counsel, or other
24appropriate official designated under s. 48.09 who filed the petition; or the court, on
25its own motion, may propose a posttermination contact agreement.
AB214-ASA1,7,2
1(3) Provisions of posttermination contact agreement. A posttermination
2contact agreement shall contain all of the following provisions:
AB214-ASA1,7,63
(a) An acknowledgement by all birth relatives who are parties to the agreement
4that the termination of parental rights to and adoption of the child are irrevocable
5and that failure by a party to comply with the agreement is not grounds to revoke the
6termination of parental rights or adoption.
AB214-ASA1,7,117
(b) An acknowledgement by the proposed adoptive parents or, if at the time the
8agreement is entered into no proposed adoptive parent has been identified, the
9agency having guardianship, legal custody, or supervision of the child that the
10agreement is enforceable by any person who is permitted posttermination visitation,
11contact, communication, or sharing of information under the agreement.
AB214-ASA1,7,1612
(c) A statement by all parties to the agreement that the agreement was entered
13into voluntarily and with understanding of the terms of the agreement, that no
14promises or threats were made to coerce any person into entering into the agreement,
15and that the parties have not relied on any representations other than those
16contained in the agreement.
AB214-ASA1,7,19
17(4) Approval of granting posttermination contact agreement. At the time a
18termination of parental rights order is granted, a court may approve a
19posttermination contact agreement if all of the following conditions are met:
AB214-ASA1,7,2020
(a) The child and the birth parent meet the conditions specified in sub. (2).
AB214-ASA1,7,2121
(b) The agreement contains the provisions specified in sub. (3) (a) to (c).
AB214-ASA1,8,222
(c) The agreement is signed by all parties to the agreement including the birth
23parent and child, if 12 years of age or over. If a birth parent who is under 12 years
24of age or other birth relative who is a child is to be granted posttermination visitation,
25contact, communication, or sharing of information under the agreement, the parent,
1guardian, or legal custodian of the birth parent or birth relative shall sign the
2agreement on behalf of the birth parent or birth relative.
AB214-ASA1,8,73
(d) The agency having guardianship, legal custody, or supervision of the child
4or the child's guardian ad litem files the agreement with the court. If the agency files
5the agreement, the agency shall comply with this paragraph by including in the court
6report under s. 48.425 (1) the statement under s. 48.425 (1) (h) and attaching the
7agreement to the court report.
AB214-ASA1,8,128
(e) The court addresses all parties to the agreement and determines by clear
9and convincing evidence that the agreement was entered into voluntarily and with
10understanding of the terms of the agreement, that no promises or threats were made
11to coerce any person into entering into the agreement, and that the parties have not
12relied on any representations other than those contained in the agreement.
AB214-ASA1,8,1613
(f) The agency having guardianship, legal custody, or supervision of the child
14and the child's guardian ad litem submit to the court recommendations concerning
15the granting of posttermination visitation, contact, communication, or sharing of
16information as provided for in the agreement.
AB214-ASA1,8,2217
(g) The court determines by clear and convincing evidence that granting
18posttermination visitation, contact, communication, or sharing of information as
19provided for in the agreement would be in the best interests of the child. In
20determining whether granting posttermination visitation, contact, communication,
21or sharing of information as provided for in the agreement would be in the best
22interests of the child, the court shall consider all of the following factors:
AB214-ASA1,9,223
1. Whether the child has substantial relationships with the person who would
24have visitation, contact, communication, or sharing of information under the
1agreement, and whether it would be harmful to the child not to preserve those
2relationships.
AB214-ASA1,9,53
2. Any special needs of the child and how those special needs would be affected
4by visitation, contact, communication, or sharing of information as provided for in
5the agreement.
AB214-ASA1,9,76
3. The specific terms of the agreement and the likelihood that the parties will
7cooperate in complying with the agreement.
AB214-ASA1,9,98
4. The recommendations of the agency having guardianship, legal custody, or
9supervision of the child and the child's guardian ad litem.
AB214-ASA1,9,1010
5. Any other factors that are relevant to the best interests of the child.
AB214-ASA1,9,15
11(5) Later-identified proposed adoptive parents. If the child who is the subject
12of a posttermination contact agreement is placed for adoption in the home of a
13proposed adoptive parent who was not identified at the time the agreement was
14entered into, that posttermination contact agreement shall be binding on the
15proposed adoptive parent unless terminated or modified under sub. (7).
AB214-ASA1,9,25
16(6) Enforcement of posttermination contact agreement. (a) A
17posttermination contact agreement is enforceable only if the agreement is approved
18by the court under sub. (4). Any party to an approved posttermination contact
19agreement may petition the court that approved the agreement for specific
20performance of the agreement. The petition shall allege facts sufficient to show that
21a person who is bound by the agreement is not in compliance with the agreement,
22that enforcement of the agreement is in the best interests of the child in light of the
23factors specified in sub. (4) (g), and that the petitioner, before filing the petition,
24participated, or attempted to participate, in good faith in mediation or other
1appropriate dispute resolution proceedings to resolve the dispute giving rise to the
2filing of the petition.
AB214-ASA1,10,93
(b) The court shall set a date and time for a hearing on a petition filed under
4par. (a) and shall provide notice of the hearing to the petitioner and to all other
5parties to the approved posttermination contact agreement and the agency that had
6guardianship, legal custody, or supervision of the child before the termination of
7parental rights. The hearing shall take place on a date that allows the persons
8notified of the hearing a reasonable time to prepare, but is no more than 30 days after
9the filing of the petition.
AB214-ASA1,10,1810
(c) If the court finds by clear and convincing evidence that any person bound
11by an approved posttermination contact agreement is not in compliance with the
12agreement; that enforcement of the agreement is in the best interests of the child in
13light of the factors specified in sub. (4) (g); and that the petitioner, before filing the
14petition, participated, or attempted to participate, in good faith in mediation or other
15appropriate dispute resolution proceedings to resolve the dispute giving rise to the
16filing of the petition, the court shall issue an order requiring specific performance of
17the agreement. An order for specific performance shall be the sole remedy for any
18noncompliance with the agreement.
AB214-ASA1,10,2119
(d) A court may not award damages, costs, or attorney fees or revoke a
20termination of parental rights order or an order of adoption because a party to a
21posttermination contact agreement fails to comply with the agreement.
AB214-ASA1,11,6
22(7) Termination or modification of posttermination contact agreement. (a)
23The parties to an approved posttermination contact agreement may agree to
24terminate or modify the agreement. If the parties agree to terminate or modify the
25agreement and if the child, if 12 years of age or over, consents to the termination or
1modification, the parties shall sign and file with the court that approved the
2agreement the modified agreement or a stipulation terminating the agreement. If,
3after reviewing the stipulation or modified agreement, the court finds by clear and
4convincing evidence that termination or modification of the agreement would be in
5the best interests of the child in light of the factors specified in sub. (4) (g), the court
6shall, without a hearing, approve the termination or modification of the agreement.