LRB-1628/1
GMM:wlj:jm
2013 - 2014 LEGISLATURE
April 15, 2013 - Introduced by
Joint Legislative Council. Referred to Committee
on Family Law.
AB150,2,6
1An Act to repeal 48.428 (6) (b);
to renumber 938.02 (1);
to renumber and
2amend 48.33 (5), 48.428 (6) (a), 48.93 (2) and 938.33 (5);
to amend 48.028 (2)
3(b) and (c), 48.028 (2) (f), 48.028 (3) (f), 48.23 (2g), 48.255 (1) (c), 48.355 (2) (b)
42., 48.357 (1) (am) 1., 48.357 (1) (c) 2., 48.357 (2m) (b), 48.38 (4) (fg) 2., 48.426
5(3) (c), 48.83 (1), 48.837 (1r) (c), 48.88 (2) (a) (intro.), 48.92 (2), 48.93 (1d),
6938.028 (3) (f), 938.255 (1) (c), 938.355 (2) (b) 2., 938.357 (1) (am) 1., 938.357 (1)
7(c) 2., 938.357 (2m) (b) and 938.38 (4) (fg) 2.; and
to create 48.02 (1c), 48.028
8(2) (i), 48.33 (5) (b), 48.355 (2) (b) 2g., 48.357 (1) (am) 1r., 48.357 (1) (c) 2g., 48.357
9(2m) (bg), 48.425 (1) (h), 48.429, 48.43 (2) (d), 48.88 (2) (d), 48.93 (1m), 48.93 (2)
10(a), 938.02 (1c), 938.028 (2) (f), 938.33 (5) (b), 938.355 (2) (b) 2g., 938.357 (1) (am)
111r., 938.357 (1) (c) 2g. and 938.357 (2m) (bg) of the statutes;
relating to:
12posttermination of parental rights contact between a child and a birth relative
13of the child; disclosure of the name and address of an out-of-home placement
14of a child; sharing of home study reports with another agency; elimination of
1home studies for certain proposed adoptive parents; disclosure of the name and
2last-known address of a proposed adoptive parent of a child to an agency that
3is determining the availability of an adoptive placement for a sibling of the
4child; providing full faith and credit to a tribal court proceeding for a suspension
5of parental rights or an adoption under tribal law or custom; and jurisdiction
6over 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
1Section
1. 48.02 (1c) of the statutes is created to read:
AB150,7,3
148.02
(1c) "Adoption under tribal law or custom" means an adoption recognized
2by an Indian child's tribe that gives a child a permanent parent-child relationship
3with an individual other than a biological parent.
Note: This Section provides a definition in the Children's Code for an "adoption
under tribal law or custom."
AB150,2
4Section
2. 48.028 (2) (b) and (c) of the statutes are amended to read:
AB150,7,75
48.028
(2) (b) "Former Indian custodian" means a person who was the Indian
6custodian of an Indian child before termination
or suspension of parental rights to
7and adoption of the Indian child.
AB150,7,108
(c) "Former parent" means a person who was the parent of an Indian child
9before termination
or suspension of parental rights to and adoption of the Indian
10child.
Note: This Section modifies the definitions of "former Indian custodian" and
"former parent" in the Wisconsin Indian Child Welfare Act (WICWA) to specify that a
former parent or former Indian custodian in a state court proceeding includes a person
who had parental rights or custodial responsibilities prior to a suspension of parental
rights by a tribal court.
AB150,3
11Section
3. 48.028 (2) (f) of the statutes is amended to read:
AB150,7,1612
48.028
(2) (f) "Preadoptive placement" means the temporary placement of an
13Indian child in a foster home, group home, or residential care center for children and
14youth, in the home of a relative other than a parent, or in the home of a guardian after
15a termination
or suspension of parental rights but prior to or in lieu of an adoptive
16placement.
Note: This Section specifies that a preadoptive placement in a state court
proceeding under WICWA includes placement after a suspension of parental rights by a
tribal court.
AB150,4
17Section
4. 48.028 (2) (i) of the statutes is created to read: