SB461: Bill Text

2013 Senate BILL 461

December 23, 2013 - Introduced by Senators Leibham, Harris, Lassa, Miller, Lehman, Carpenter and L. Taylor, cosponsored by Representatives Kleefisch, Johnson, Tittl, Goyke, Sanfelippo, Kessler, Spiros, Hesselbein, Zepnick, Thiesfeldt, Milroy, Kulp, T. Larson, A. Ott, Berceau, Ohnstad, Ringhand, Vruwink, Sinicki, Bies, Richards, Pridemore, LeMahieu and Kaufert. Referred to Committee on Health and Human Services.

SB461,1,7 An Act to amend 48.825 (1) (a), 48.825 (2) (a), 48.825 (2) (b), 48.825 (2) (c), 48.825 (3) (a), 48.825 (3) (e), 48.979 (1) (a) and 48.979 (2); and to create 48.979 (1) (am), 48.979 (1m) and 948.25 of the statutes; relating to: advertising related to adoption or other permanent physical placements of a child, delegation of parental power regarding the care and custody of a child for more than one year, unauthorized interstate placements of children, requesting a study of adoption disruption and dissolution, and providing penalties.

Analysis by the Legislative Reference Bureau

Introduction

This bill makes various changes relating to advertising related to adoption or other permanent physical placements of a child, delegation of parental power regarding the care and custody of a child for more than one year, and unauthorized interstate placements of children. The bill also requests the Joint Legislative Council (JLC) to study adoption disruption and dissolution in this state.

Advertising related to adoption or other permanent physical placements

Under current law, subject to certain exceptions, no person may communicate by any public medium that originates within this state, including by newspaper, periodical, telephone book listing, outdoor advertising sign, radio, or television: 1) for the purpose of finding a child to adopt; 2) that the person will find an adoptive home for a child or arrange for or assist in the adoption of adoptive placement of a child; or 3) that the person will place a child for adoption (advertising related to adoption). That prohibition, however, does not apply to the Department of Children and Families (DCF), a county department of human services or social services that is authorized to place children for adoption (county department), or a child welfare agency that is licensed to place children for adoption; the State Adoption Information Exchange or the State Adoption Center; a foster care and adoption resource center or a postadoption resource center funded by this state; an individual who has received a favorable recommendation regarding his or her fitness to be an adoptive parent from DCF, a county department, a child welfare agency, or an entity of another jurisdiction that is authorized to conduct adoption home studies; or an individual seeking to place his or her own child for adoption.

This bill expands the prohibition against advertising related to adoption to include communicating by any computerized communication system, including by electronic mail, Internet site, Internet profile, or any similar medium of communication provided via the Internet.

The bill also expands the prohibition against advertising related to adoption to prohibit a person from advertising: 1) for the purpose of finding a child to otherwise take into permanent physical custody; 2) that the person will find any other permanent physical placement for a child or arrange for or assist in any other permanent physical placement of a child; or 3) that the person will place a child in any other permanent physical placement.

In addition, the bill limits the current exception to the prohibition against advertising related to adoption that permits an individual seeking to place his or her own child for adoption to permit such an individual to advertise for adoption only if the child is under one year of age.

Delegation of parental powers

Under current law, subject to certain exceptions, a parent who has legal custody of a child may, by a properly executed power of attorney, delegate to an agent, for no longer than one year, any of his or her powers regarding the care and custody of the child (parental powers).

This bill permits a parent who has legal custody of a child, by a properly executed power of attorney, to delegate to an agent, for longer than one year, any of his or her parental powers, but only if the court assigned to exercise jurisdiction under the Children's Code (juvenile court) approves that delegation.

Under the bill, a parent who wishes to delegate his or her parental powers to an agent for longer than one year, the agent to whom the parent wishes to delegate those powers, or an organization that is facilitating that delegation must file a petition with the juvenile court requesting the court's approval of that delegation. The petition must have a draft copy of the power of attorney delegating those powers attached to the petition and must state, among other things, all of the following: 1) the relationship of the agent to the child; 2) whether the parent wishes to delegate to the agent full parental power or partial parental power and, if the parent wishes to delegate partial parental power, the specific powers that the parent wishes to delegate and any limitations on those powers; 3) the proposed term of the delegation of parental powers, the reasons for the delegation of parental powers, and whether the parent proposes to provide any support to the agent during that term; and 4) facts and circumstances showing that the delegation of parental powers would be in the best interests of the child and that the person nominated as agent is fit, willing, and able to exercise those powers.

The juvenile court must hold a hearing on a petition requesting the court's approval of a proposed delegation of parental powers. In determining the appropriate disposition of such a petition, the juvenile court must consider the best interests of the child as the prevailing factor and must also consider whether the person nominated as agent would be fit, willing, and able to exercise the parental powers to be delegated, the reasons for the delegation of parental powers, and the amount of support that the parent is willing and able to provide to the agent during the term of the delegation of parental powers. If the juvenile court determines that the proposed delegation of parental powers is in the best interests of the child, the juvenile court may approve the proposed delegation of parental powers and may also designate an amount of support to be paid by the child's parents to the agent. If the juvenile court approves the proposed delegation of parental powers, the parent and the person nominated as agent may execute a power of attorney delegating those powers as approved by the juvenile court.

Under the bill, any person who delegates his or her powers regarding the care and custody of a child for longer than one year without first obtaining the approval of the juvenile court is subject to a fine not to exceed $10,000 or imprisonment not to exceed nine months, or both.

Unauthorized interstate placements of children

Under current law, the Interstate Compact on the Placement of Children and certain other statutory provisions govern the interstate placement of children.

This bill prohibits any person from sending a child out of this state, bringing a child into this state, or causing a child to be sent out of this state or brought into this state for the purpose of permanently transferring physical custody of the child to a person who is not a relative of the child. A person who violates that prohibition is subject to a fine not to exceed $10,000 or imprisonment not to exceed nine months, or both. That prohibition, however, does not apply to a placement of a child that is authorized under the Interstate Compact on the Placement of Children or any other statutory provisions governing the interstate placement of children or a placement of a child that is approved by a court of competent jurisdiction of the sending state or receiving state.

Study of adoption disruption and dissolution

Finally, the bill requests the JLC to study adoption disruption and dissolution in this state. If the JLC undertakes such a study, the JLC must do all of the following: 1) study the extent of adoption disruption and dissolution in this state and the efforts by DCF, counties, and child welfare agencies to prevent such disruption and dissolution; 2) recommend legislation to define adoption disruption and adoption dissolution, to prevent adoption disruption and adoption dissolution in this state, to require DCF, county departments, and child welfare agencies to track and report on disrupted or dissolved adoptions; 3) consider legislative options to prepare prospective adoptive parents for adoption and to support adoptive parents after an adoption; and 4) submit its findings, conclusions, and recommendations to the 2015 legislature when it commences.

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:

SB461,1 Section 1. 48.825 (1) (a) of the statutes is amended to read:

SB461,4,6 48.825 (1) (a) "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 , or by any computerized communication system, including by electronic mail, Internet site, Internet profile, or any similar medium of communication provided via the Internet.

SB461,2 Section 2. 48.825 (2) (a) of the statutes is amended to read:

SB461,4,9 48.825 (2) (a) Advertise for the purpose of finding a child to adopt or to otherwise take into permanent physical custody.

SB461,3 Section 3. 48.825 (2) (b) of the statutes is amended to read:

SB461,4,13 48.825 (2) (b) Advertise that the person will find an adoptive home or any other permanent physical placement for a child or arrange for or assist in the adoption or, adoptive placement, or any other permanent physical placement of a child.

SB461,4 Section 4. 48.825 (2) (c) of the statutes is amended to read:

SB461,4,16 48.825 (2) (c) Advertise that the person will place a child for adoption or in any other permanent physical placement.

SB461,5 Section 5. 48.825 (3) (a) of the statutes is amended to read:

SB461,5,3 48.825 (3) (a) The department, a county department, or a child welfare agency licensed under s. 48.60 to place children for adoption, in licensed foster homes or group homes, or in the homes of guardians under s. 48.977 (2).

SB461,6 Section 6. 48.825 (3) (e) of the statutes is amended to read:

SB461,5,6 48.825 (3) (e) An individual seeking to place his or her child under one year of age for adoption.

SB461,7 Section 7. 48.979 (1) (a) of the statutes is amended to read:

SB461,5,16 48.979 (1) (a) A parent who has legal custody of a child, by a power of attorney that is properly executed by all parents who have legal custody of the child, may delegate to an agent, for a period not to exceed one year as provided in par. (am), any of his or her powers regarding the care and custody of the child, except the power to consent to the marriage or adoption of the child, the performance or inducement of an abortion on or for the child, the termination of parental rights to the child, or the enlistment of the child in the U.S. armed forces. A delegation of powers under this paragraph does not deprive the parent of any of his or her powers regarding the care and custody of the child.

SB461,8 Section 8. 48.979 (1) (am) of the statutes is created to read:

SB461,5,21 48.979 (1) (am) A delegation of powers to an agent under par. (a) may remain in effect for no longer than one year, except that such a delegation may remain in effect for longer than one year if the delegation is approved by the court as provided in sub. (1m).

SB461,9 Section 9. 48.979 (1m) of the statutes is created to read:

SB461,6,5 48.979 (1m) (a) A parent who wishes a delegation of powers to an agent under sub. (1) (a) to remain in effect for longer than one year, the agent to whom the parent wishes to delegate those powers, or an organization that is facilitating that delegation shall file a petition with the court requesting the court's approval of that delegation. The petition shall be entitled "In the interest of .... (child's name), a person under the age of 18." The petitioner shall attach a draft copy of the power of attorney delegating those powers to the petition and shall state in the petition all of the following:

SB461,6,7 1. The name, address, and date of birth of the child who is the subject of the delegation of powers.

SB461,6,8 2. The names and addresses of the parents of the child.

SB461,6,10 3. The name and address of the person nominated as agent and the relationship of the agent to the child.

SB461,6,15 4. Whether the parent wishes to delegate to the agent full parental power regarding the care and custody of the child or partial parental power regarding the care and custody of the child and, if the parent wishes to delegate partial parental power, the specific powers that the parent wishes to delegate and any limitations on those powers.

SB461,6,18 5. The proposed term of the delegation of powers, the reasons for the delegation of powers, and whether the parent proposes to provide any support to the agent during that term. If so, the petition shall indicate the amount of that support.

SB461,6,21 6. Facts and circumstances showing that the delegation of powers would be in the best interests of the child and that the person nominated as agent is fit, willing, and able to exercise those powers.

SB461,6,24 7. If the delegation of powers is being facilitated by an entity, as defined in s. 48.685 (1) (b), facts and circumstances showing that the entity has complied with sub. (1) (b) and is permitted under sub. (1) (b) to facilitate that delegation.

SB461,7,2 8. The information required under s. 822.29 (1) and whether the child is subject to the jurisdiction of the court under s. 48.13, 48.14, 938.12, 938.13, or 938.14.

SB461,7,4 9. Whether the proceedings are subject to the Uniform Child Custody Jurisdiction and Enforcement Act under ch. 822.

SB461,7,6 10. Whether the child may be subject to the federal Indian Child Welfare Act, 25 USC 1901 to 1963.

SB461,7,16 (b) The court shall hold a hearing on a petition filed under par. (a) within 45 days after the filing of the petition. The petitioner shall cause the petition and notice of the time and place of the hearing to be served at least 10 days before the time of the hearing on the child, if 12 years of age or over; the child's guardian ad litem and counsel, if any; the parents of the child; the person nominated as agent; any guardian, legal custodian, and physical custodian of the child; and any organization that is facilitating the delegation of power. Notice shall be served in person or by 1st class mail. Notice is considered to be given by proof of personal service, by proof that the notice was mailed to the last-known address of the recipient, or, if the recipient is an adult, by the written admission of service of the person served.

SB461,7,24 (c) At the hearing the court shall first determine whether any party wishes to contest the petition. If the petition is not contested, the court shall immediately proceed to a fact-finding and dispositional hearing, unless an adjournment is requested. If the petition is contested or if an adjournment is requested, the court shall set a date for a fact-finding and dispositional hearing that allows reasonable time for the parties to prepare but is no more than 30 days after the initial hearing. At the fact-finding and dispositional hearing, any party may present evidence and argument relating to the allegations in the petition.

SB461,8,6 (d) In determining the appropriate disposition of a petition filed under par. (a), the best interests of the child shall be the prevailing factor to be considered by the court. The court shall also consider whether the person nominated as agent would be fit, willing, and able to exercise the powers to be delegated, the reasons for the delegation of powers, and the amount of support that the parent is willing and able to provide to the agent during the term of the delegation of powers.

SB461,8,9 (e) At the conclusion of the fact-finding and dispositional hearing, the court shall grant one of the following dispositions, unless the court adjourns the hearing under par. (f):

SB461,8,13 1. A disposition dismissing the petition if the court finds that the petitioner has not proved the allegations in the petition by clear and convincing evidence or determines that approval of the proposed delegation of powers is not in the best interests of the child.

SB461,8,20 2. A disposition approving the proposed delegation of powers, if the court finds that the petitioner has proved the allegations in the petition by clear and convincing evidence and determines that the proposed delegation of powers is in the best interests of the child. The disposition may also designate an amount of support to be paid by the child's parents to the agent. If the court approves the proposed delegation of powers, the parent and the person nominated as agent may execute a power of attorney delegating those powers as approved by the court.

SB461,9,3 (f) If at the conclusion of the fact-finding and dispositional hearing the court finds that the petitioner has proved the allegations in the petition by clear and convincing evidence, but that the person nominated as agent is not fit, willing, and able to serve as agent or that appointment of that person as agent would not be in the best interests of the child, the court may, in lieu of granting a disposition dismissing the petition under par. (e) 1., adjourn the hearing for not more than 30 days and request the petitioner or any other party to nominate a different person as agent.

SB461,9,7 (g) Any person who delegates his or her powers regarding the care and custody of a child for longer than one year without first obtaining the approval of the court as provided in this subsection is subject to a fine not to exceed $10,000 or imprisonment not to exceed 9 months, or both.

SB461,10 Section 10. 48.979 (2) of the statutes is amended to read:

SB461,9,10 48.979 (2) A power of attorney complies with sub. (1) (a) if the power of attorney substantially conforms to the following form:

SB461,9,11 power of attorney

SB461,9,12 delegating parental power

SB461,9,13 Authorized by s. 48.979, Wis. Stats.

SB461,9,14 NAME(S) OF CHILD(REN)

SB461,9,16 This power of attorney is for the purpose of providing for the care and custody of:

SB461,9,17 Name, address, and date of birth of child ....

SB461,9,18 Name, address, and date of birth of child ....

SB461,9,19 Name, address, and date of birth of child ....

SB461,9,20 DELEGATION OF POWER TO AGENT

SB461,9,25 I, .... (name and address of parent), state that I have legal custody of the child(ren) named above. (Only a parent who has legal custody may use this form.) A parent may not use this form to delegate parental powers regarding a child who is subject to the jurisdiction of the juvenile court under s. 48.13, 48.14, 938.12, 938.13, or 938.14, Wis. Stats.

SB461,10,1 I delegate my parental power to:

SB461,10,2 Name of agent ....

SB461,10,3 Agent's address ....

SB461,10,4 Agent's telephone number(s) ....

SB461,10,5 Agent's e-mail address ....

SB461,10,6 Relationship of agent to child(ren) ....

SB461,10,7 The parental power I am delegating is as follows:

SB461,10,8 FULL

SB461,10,10 (Check if you want to delegate full parental power regarding the care and custody of the child(ren) named above.)

SB461,10,12 .... Full parental power regarding the care and custody of the child(ren) named above