Amendment SSA2-AB214

LRBs0364/1

GMM:jld/bjk/nwn:jf

2009 - 2010 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 2, TO 2009 ASSEMBLY BILL 214

April 19, 2010 - Offered by Senator Darling.

AB214-SSA2,1,6 An Act to repeal 48.428 (6) (b); to renumber and amend 48.428 (6) (a) and 48.93 (2); to amend 48.426 (3) (c), 48.92 (2) and 48.93 (1d); and to create 48.425 (1) (h), 48.429, 48.43 (2) (d) and 48.93 (2) (a) of the statutes; relating to: posttermination of parental rights contact between a child and a birth relative of the child and disclosure of the report of an investigation of the home of a proposed 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, the juvenile court, or, in the case of an Indian child, the Indian child's tribe 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, subject to certain exceptions under current law, 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, the child's guardian ad litem, or, in the case of an Indian child, the tribal child welfare department of the Indian child's tribe 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, the child's guardian ad litem, and, in the case of an Indian child, the Indian child's tribe 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, the child's guardian ad litem, and, in the case of an Indian child, the Indian child's tribe; 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 formal or informal 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 formal or informal 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 formal or informal 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-SSA2, s. 1 Section 1. 48.425 (1) (h) of the statutes is created to read:

AB214-SSA2,4,5 48.425 (1) (h) A statement as to whether a posttermination contact agreement has been entered into under s. 48.429. If such an agreement has been entered into, the agency or tribal child welfare department shall attach a copy of the agreement to the report.

AB214-SSA2, s. 2 Section 2. 48.426 (3) (c) of the statutes is amended to read:

AB214-SSA2,5,8 48.426 (3) (c) Whether the child has substantial relationships with the parent or other family members, and whether it would be harmful to the child to sever these those relationships. In determining whether it would be harmful to the child to sever those relationships, the court shall consider the terms of any posttermination contact agreement that has been entered into under s. 48.429 with respect to the child and may consider any other agreement by a proposed adoptive parent to permit contact between the child and the parent or other family members after adoption of the child.

AB214-SSA2, s. 3 Section 3. 48.428 (6) (a) of the statutes is renumbered 48.428 (6) and amended to read:

AB214-SSA2,5,13 48.428 (6) Except as provided in par. (b), the The court may order or prohibit visitation by grant posttermination contact privileges under s. 48.429 to a birth parent relative of a child placed in sustaining care.

AB214-SSA2, s. 4 Section 4. 48.428 (6) (b) of the statutes is repealed.

AB214-SSA2, s. 5 Section 5. 48.429 of the statutes is created to read:

AB214-SSA2,5,17 48.429 Posttermination contact privileges. (1) Definitions. In this section:

AB214-SSA2,5,19 (a) "Approved posttermination contact agreement" means a posttermination contact agreement that has been approved by the court under sub. (4).

AB214-SSA2,5,22 (b) "Birth relative" means a relative, as defined in s. 48.02 (15), by blood or marriage, and, in the case of an Indian child, also includes an extended family member, as defined in s. 48.028 (2) (am).

AB214-SSA2,6,2 (c) "Posttermination contact agreement" means an agreement between a proposed adoptive parent of a child or, if at the time the agreement is entered into no proposed adoptive parent has been identified, the agency having guardianship, legal custody, or supervision of the child and a birth relative of the child that provides for any of the following after termination of parental rights to the child:

AB214-SSA2,6,3 1. Visitation between the child and a birth relative of the child.

AB214-SSA2,6,5 2. Future contact and communication between the child, adoptive parent, or agency and birth relative of the child.

AB214-SSA2,6,7 3. The sharing of information about the child in the future between the adoptive parent or agency and a birth relative of the child.

AB214-SSA2,6,9 4. The maintenance and sharing of the medical and genetic history of any birth relative who is a party to the agreement.

AB214-SSA2,6,17 (2) Posttermination contact agreements; when permitted. (a) Subject to par. (b), at any time before a termination of parental rights order is granted, a posttermination contact agreement may 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 agency having guardianship, legal custody, or supervision of the child and a birth relative of the child if the child is in the legal custody or under the supervision or guardianship of an agency and the child, if 12 years of age or over, consents to the terms of the agreement.

AB214-SSA2,7,3 (b) If the birth parent who is a party to the agreement agrees to voluntarily consent to the termination of his or her parental rights under s. 48.41 or not to contest an involuntary termination of parental rights under s. 48.415 before grounds for termination of parental rights are found under s. 48.424, any party to the termination of parental rights proceeding or any birth relative of the child may propose a posttermination contact agreement. If those circumstances do not apply, only the proposed adoptive parents; the agency having guardianship, legal custody, or supervision of the child; the district attorney, corporation counsel, or other appropriate official designated under s. 48.09 who filed the petition; the court, on its own motion; or, in the case of an Indian child, the Indian child's tribe, may propose a posttermination contact agreement.

AB214-SSA2,7,5 (3) Provisions of posttermination contact agreement. A posttermination contact agreement shall contain all of the following provisions:

AB214-SSA2,7,10 (a) An acknowledgement by all birth relatives who are parties to the agreement that, subject to ss. 48.028 (5) (c) and (6) and 48.46 (1m) and (2), the termination of parental rights to and adoption of the child are irrevocable and that failure by a party to comply with the agreement is not grounds to revoke the termination of parental rights or adoption.

AB214-SSA2,7,15 (b) An acknowledgement by the proposed adoptive parents or, if at the time the agreement is entered into no proposed adoptive parent has been identified, the agency having guardianship, legal custody, or supervision of the child that the agreement is enforceable by any person who is permitted posttermination visitation, contact, communication, or sharing of information under the agreement.

AB214-SSA2,7,20 (c) 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.

AB214-SSA2,7,23 (4) Approval of granting posttermination contact agreement. At the time a termination of parental rights order is granted, a court may approve a posttermination contact agreement if all of the following conditions are met:

AB214-SSA2,7,24 (a) The child and the birth parent meet the conditions specified in sub. (2).

AB214-SSA2,7,25 (b) The agreement contains the provisions specified in sub. (3) (a) to (c).

AB214-SSA2,8,6 (c) The agreement is signed by all parties to the agreement including the birth parent and child, if 12 years of age or over. If a birth parent who is under 12 years of age or other birth relative who is a child is to be granted posttermination visitation, contact, communication, or sharing of information under the agreement, the parent, guardian, legal custodian, or Indian custodian of the birth parent or other birth relative shall sign the agreement on behalf of the birth parent or other birth relative.

AB214-SSA2,8,13 (d) The agency having guardianship, legal custody, or supervision of the child, the child's guardian ad litem or, in the case of an Indian child, the tribal child welfare department of the Indian child's tribe files the agreement with the court. If the agency or tribal child welfare department files the agreement, the agency or tribal child welfare department shall comply with this paragraph by including in the court report under s. 48.425 (1) the statement under s. 48.425 (1) (h) and attaching the agreement to the court report.

AB214-SSA2,8,18 (e) The court addresses all parties to the agreement and determines by clear and convincing evidence 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.

AB214-SSA2,8,23 (f) The agency having guardianship, legal custody, or supervision of the child, the child's guardian ad litem, and, in the case of an Indian child, the Indian child's tribe submit to the court recommendations concerning the granting of posttermination visitation, contact, communication, or sharing of information as provided for in the agreement.

AB214-SSA2,9,4 (g) The court determines by clear and convincing evidence 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 court shall consider all of the following factors:

AB214-SSA2,9,8 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.

AB214-SSA2,9,11 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.