AB150: Bill Text

LRB-1628/1

GMM:wlj:jm

2013 - 2014 LEGISLATURE

2013 Assembly BILL 150

April 15, 2013 - Introduced by Joint Legislative Council. Referred to Committee on Family Law.

AB150,2,6 An Act to repeal 48.428 (6) (b); to renumber 938.02 (1); to renumber and amend 48.33 (5), 48.428 (6) (a), 48.93 (2) and 938.33 (5); to amend 48.028 (2) (b) and (c), 48.028 (2) (f), 48.028 (3) (f), 48.23 (2g), 48.255 (1) (c), 48.355 (2) (b) 2., 48.357 (1) (am) 1., 48.357 (1) (c) 2., 48.357 (2m) (b), 48.38 (4) (fg) 2., 48.426 (3) (c), 48.83 (1), 48.837 (1r) (c), 48.88 (2) (a) (intro.), 48.92 (2), 48.93 (1d), 938.028 (3) (f), 938.255 (1) (c), 938.355 (2) (b) 2., 938.357 (1) (am) 1., 938.357 (1) (c) 2., 938.357 (2m) (b) and 938.38 (4) (fg) 2.; and to create 48.02 (1c), 48.028 (2) (i), 48.33 (5) (b), 48.355 (2) (b) 2g., 48.357 (1) (am) 1r., 48.357 (1) (c) 2g., 48.357 (2m) (bg), 48.425 (1) (h), 48.429, 48.43 (2) (d), 48.88 (2) (d), 48.93 (1m), 48.93 (2) (a), 938.02 (1c), 938.028 (2) (f), 938.33 (5) (b), 938.355 (2) (b) 2g., 938.357 (1) (am) 1r., 938.357 (1) (c) 2g. and 938.357 (2m) (bg) of the statutes; relating to: posttermination of parental rights contact between a child and a birth relative of the child; disclosure of the name and address of an out-of-home placement of a child; sharing of home study reports with another agency; elimination of home studies for certain proposed adoptive parents; disclosure of the name and last-known address of a proposed adoptive parent of a child to an agency that is determining the availability of an adoptive placement for a sibling of the child; providing full faith and credit to a tribal court proceeding for a suspension of parental rights or an adoption under tribal law or custom; and jurisdiction over and venue for an adoption petition.

Analysis by the Legislative Reference Bureau

This bill is explained in the Notes provided by the Joint Legislative Council in the bill.

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 Permanency for Young Children in the Child Welfare System.

Posttermination Contact Agreement

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-like 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.

Also under current law, the juvenile court is required 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. The Wisconsin Supreme Court held, in State v. Margaret H., 2000 WI 42, 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 bill permits a posttermination contact agreement to be entered into between the proposed adoptive parents or guardian of a child and a 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.

Terms of the Agreement

Under the bill, a posttermination contact agreement may provide for any of the following:

1. Visitation between the child and a relative of the child.

2. Future contact and communication between the child, adoptive parent, or guardian and a relative of the child.

3. The sharing of information about the child in the future between the adoptive parent or guardian and a relative of the child.

4. The maintenance and sharing of the medical and genetic history of any relative who is a party to the agreement.

A posttermination contact agreement must contain: 1) an acknowledgement by all 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 guardian 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.

Approval of the Agreement

Under the bill, at the time a TPR order is granted, a juvenile court may approve a posttermination contact agreement if: 1) the child and the parent meet the conditions for entering into the agreement; 2) the agreement contains the required provisions; 3) the parties to the agreement, including the 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; 7) the juvenile court determines that the relative will not undermine the adoptive parents' or guardian's relationship with the child; and 8) 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.

The bill requires the juvenile court, in evaluating the TPR factor of a child's substantial relationship with pretermination family members, to consider the terms of any posttermination contact agreement 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 or guardian to permit contact between the child and his or her pretermination family after adoption of the child.

Enforcement of the Agreement

Under the bill, 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.

Termination or Modification of the Agreement

The bill provides that a posttermination contact agreement that has been approved by the juvenile court may be terminated or modified by agreement of the parties, which the juvenile court must approve if it finds that the termination or modification would be in the best interests of the child.

The juvenile court may also terminate or modify an agreement 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 upon a petition 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 relative of the child, but may not expand that visitation, contact, communication, or sharing of information or place any new obligations on the adoptive parent or guardian.

Sharing of Home Study Report

Under current law, 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.

The bill 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 ask 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.

Disclosure of Name and Address of an Out-of-Home Placement

Under current law, if a child or juvenile is removed from the home and placed in custody, the child in need of protection or services (CHIPS) petition or petition filed under the Juvenile Justice Code must include the place where the child or juvenile is being held unless there is reasonable cause to believe disclosure would result in imminent danger to the child, juvenile, or physical custodian.

Also, before a child is adjudged to be in need of protection or services, the Department of Children and Families (DCF), a county department of human or social services (county department), or a child welfare agency must submit a report to the juvenile court that includes the name and address of the foster parent if the report recommends out-of-home placement (court report). A copy of the court report must be given to the child's parent or guardian. However, the juvenile court may order that the name and address of the foster parent be withheld and not included in the copy of the court report given to the child's parent or guardian if the juvenile court finds that disclosure would result in imminent danger to the child or to the foster parent. The juvenile court must hold a hearing on this matter prior to ordering that the information be withheld.

The juvenile court may also order the name and address of a foster parent be withheld in the copy of the dispositional order given to the child's parent or guardian if the juvenile court holds a hearing and finds that disclosure would result in imminent harm to the child or foster parent. Current law does not include a confidentiality provision for withholding this information if there is a change in out-of-home placement.

This bill creates a procedure for a juvenile court to order the name and address of any out-of-home placement to be withheld from the copy of the CHIPS petition, petition filed under the Juvenile Justice Code, court report, or dispositional order that is given to a child or juvenile's parent or guardian if, after holding a hearing on the matter with notice given to the parent or guardian, the juvenile court finds that disclosure is not in the best interests of the child.

Likewise, the bill also permits the name and address of a proposed out-of-home placement to be withheld from the change-in-placement notice given to the child or juvenile's parent or guardian, and if the child or juvenile is an Indian child or Indian juvenile, the Indian child or Indian juvenile's parent or Indian custodian, if the person or agency primarily responsible for implementing the dispositional order, the district attorney, or the corporation counsel reasonably believes that withholding this information is in the best interests of the child. The juvenile court must then hold a hearing on this matter after giving notice to the child or juvenile's parent or guardian, and if the child or juvenile is an Indian child or juvenile, the Indian child or juvenile's custodian and tribe. The juvenile court must order that this information be disclosed if it finds that withholding the information is not in the best interests of the child or juvenile.

Home Study of An Adoptive Parent

Under current law, after an adoption petition is filed, the juvenile court must order an investigation to determine whether the child is a proper subject for adoption and whether the proposed adoptive parent's home is suitable for the child. The home of a proposed adoptive parent must be investigated for adoption purposes even if the proposed adoptive parent has obtained a license to operate a foster home.

This bill eliminates the requirement for a home study to be conducted for purposes of an adoption if all of the following apply: 1) the proposed adoptive parent's home is a foster home certified to provide level 2 care; 2) the proposed adoptive parent is licensed to operate his or her home as a foster home certified to provide level 2 care and the license is effective at the time the adoption petition is filed; 3) the proposed adoptive parent has never had a license to operate a foster home revoked or suspended; 4) the child to be adopted has resided in the home for 12 consecutive months or more immediately prior to the filing of the adoption petition; and 5) the foster home investigation was conducted in accordance with standards established by DCF for investigating a foster home that will be converting into an adoptive home.

Disclosure of Last-Known Address of an Adoptive Parent or Proposed Adoptive Parent

Current law requires DCF, a county department, or a child welfare agency to include in a child's permanency plan, which is a plan designed to ensure that the child quickly attains a placement or home providing long-term stability, a statement as to the availability of a safe and appropriate placement for the child with a foster parent, adoptive parent, or proposed adoptive parent of a sibling of the child. Current law also requires DCF, a county department, or a child welfare agency, before placing for adoption a child who has a sibling who has been adopted or has been placed for adoption, to consider the availability of a placement for adoption with an adoptive parent or proposed adoptive parent of a sibling of the child who is identified in the child's permanency plan or who is otherwise known by DCF, the county department, or the child welfare agency. However, those records and papers must be kept in a separate locked file and may not be disclosed except under certain exceptions or by order of the juvenile court for good cause shown.

This bill permits records and papers pertaining to an adoption proceeding to be disclosed for purposes of determining the availability of a placement for a child with an adoptive parent or proposed adoptive parent of a sibling of the child.

Tribal Court Proceeding for a Suspension of Parental Rights or an Adoption Under Tribal Law or Custom

In 2009, Wisconsin incorporated the Federal Indian Child Welfare Act (ICWA) in the Children's Code and the Juvenile Justice Code.

In very general terms, ICWA applies to certain child custody proceedings in state courts involving an Indian child, and requires certain notices, findings, and placement preferences in state court child custody proceedings under certain circumstances. ICWA provides for tribal court jurisdiction in some circumstances and also provides a process for a tribe to assume exclusive jurisdiction of a state court's child custody proceeding under certain circumstances.

ICWA accords full faith and credit by the state to a tribal court's Indian child custody proceeding, just as the state would to a judicial proceeding of any other governmental entity.

An "Indian child custody proceeding" in a state court means an action for an adoptive placement, an out-of-home care placement, a preadoptive placement, or a TPR. That definition, however, does not include a proceeding in a tribal court for a suspension, rather than a termination, of parental rights, or an adoption under tribal law or custom.

This bill provides definitions for an "adoption under tribal law or custom" and a "suspension of parental rights," and provides that such actions by a tribal court are accorded full faith and credit by a state court.

Jurisdiction and Venue for an Adoption Petition

Under current law, the juvenile court of the county where the proposed adoptive parent or child resides, upon the filing of a petition for adoption or for the adoptive placement of a child, has jurisdiction over the child until the adoption petition is withdrawn, denied, or granted. Similarly, the venue for an adoption petition is the county where the proposed adoptive parent or child resides at the time that the petition is filed. The juvenile court may, however, transfer the case to another juvenile court in the county in which the proposed adoptive parents reside.

This bill extends jurisdiction over and venue for an adoption petition to the juvenile court in the county where the TPR petition was filed.

AB150,1 Section 1. 48.02 (1c) of the statutes is created to read:

AB150,7,3 48.02 (1c) "Adoption under tribal law or custom" means an adoption recognized by an Indian child's tribe that gives a child a permanent parent-child relationship with an individual other than a biological parent.