AB41: Bill Text

LRB-1029/1

GMM&EHS:kjf:jm

2015 - 2016 LEGISLATURE

2015 Assembly BILL 41

February 17, 2015 - Introduced by Joint Legislative Council. Referred to Committee on Children and Families.

AB41,1,7 An Act to repeal 48.838 (3); to renumber and amend 48.839 (1) and 48.97; to amend 20.437 (1) (jj), 46.03 (18) (b), 46.10 (2), 48.36 (1) (a), 48.81 (6), 48.839 (2), 48.839 (3), 48.839 (4) (intro.), (a) and (c), 48.88 (2) (a) 4., 48.91 (3), 49.32 (1) (b), 49.345 (2), 54.52 (1), 301.03 (18) (b), 301.12 (2) and 632.896 (1) (c) 5.; and to create 48.839 (1d), 48.91 (4) and 48.97 (2) of the statutes; relating to: readoption of a child adopted by a resident of this state under an order of a court of a foreign jurisdiction.

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 Study Committee on Adoption Disruption and Dissolution.

Under current law, if a child who is a citizen of another country has been adopted in that country before being brought to Wisconsin, the adoption is legally recognized under state law only if the Department of Children and Families (DCF) first approved the placement of the child with the adoptive parents. As is the case with domestic adoptions, a home study must be completed in order for DCF to approve the placement, but other aspects of state adoption procedures are not required. The parents then may, but are not required to, readopt the child under Wisconsin procedures. The child must be readopted, however, in order to obtain a birth certificate that is recognized by the state for purposes such as obtaining a driver's license.

This bill requires that, when a child who is a citizen of another country has been adopted in that country by a parent who is a Wisconsin resident, the child must be readopted in Wisconsin. The bill provides that the readoption must follow the same procedure provided under current law for the adoption of a child by a resident of this state who has been appointed as guardian of the child by a court of the child's home country.

Under this procedure, the parents must file a certified copy of the foreign court's judgment with DCF and must post a $1,000 bond before bringing the child into the United States. DCF must then certify to U.S. Citizenship and Immigration Services in the Department of Homeland Security that all preadoptive requirements under Wisconsin law have been met, including that the child has been adopted by order of the foreign court, that the bond has been filed, that DCF has received a copy of a home study recommending the adoptive parents, that the adoptive parents are receiving services from a licensed adoption agency, and that the adoptive parents have received the preadoptive training required under current law. After bringing the child into Wisconsin, the parents are then required to file a petition to readopt the child within 60 days after that arrival. If the court is satisfied that the necessary procedural requirements have been met and that the foreign court order is effective, the court must recognize the adoption granted by the foreign court and must grant readoption of the child under Wisconsin law.

AB41,1 Section 1. 20.437 (1) (jj) of the statutes is amended to read:

AB41,2,9 20.437 (1) (jj) Searches for birth parents and adoption record information; foreign adoptions. The amounts in the schedule for paying the cost of searches for birth parents under ss. 48.432 (4) and 48.433 (6) and for paying the costs of reviewing, certifying, and approving foreign adoption documents under s. 48.838 (2) and (3). All moneys received as fees paid by persons requesting a search under s. 48.432 (3) (c) or (4), 48.433 (6), or 48.93 (1r) and paid by persons for the review, certification, and approval of foreign adoption documents under s. 48.838 (2) and (3) shall be credited to this appropriation.

AB41,2 Section 2. 46.03 (18) (b) of the statutes is amended to read:

AB41,3,8 46.03 (18) (b) Except as provided in s. 46.10 (14) (b) and (c), any person receiving services provided or purchased under par. (a) or the spouse of the person and, in the case of a minor, the parents of the person, and, in the case of a foreign child described in s. 48.839 (1) (1m) who became dependent on public funds for his or her primary support before an order granting his or her adoption, the resident of this state appointed guardian or granted adoption of the child by a foreign court who brought the child into this state for the purpose of adoption, shall be liable for the services in the amount of the fee established under par. (a). If a minor receives services without consent of a parent or guardian under s. 51.47, the department shall base the fee solely on the minor's ability to pay.

Note: This Section adjusts a cross-reference to the intercountry adoption procedure that is revised and renumbered under this bill and amends the reference to include an adoption granted by a court of the child's home country.

AB41,3 Section 3. 46.10 (2) of the statutes is amended to read:

AB41,4,15 46.10 (2) Except as provided in subs. (2m) and (14) (b) and (c), any person, including but not limited to a person admitted, committed, protected, or placed under s. 975.01, 1977 stats., s. 975.02, 1977 stats., s. 975.17, 1977 stats., s. 55.05 (5), 2003 stats., and 55.06, 2003 stats., and ss. 51.10, 51.13, 51.15, 51.20, 51.35 (3), 51.37 (5), 51.45 (10), (11), (12), and (13), 55.05, 55.055, 55.12, 55.13, 55.135, 971.14 (2) and (5), 971.17 (1), 975.06, and 980.06, receiving care, maintenance, services, and supplies provided by any institution in this state, including University of Wisconsin Hospitals and Clinics, in which the state is chargeable with all or part of the person's care, maintenance, services, and supplies, any person receiving care and services from a county department established under s. 51.42 or 51.437 or from a facility established under s. 49.73, and any person receiving treatment and services from a public or private agency under s. 980.06 (2) (c), 1997 stats., s. 980.08 (5), 2003 stats., or s. 971.17 (3) (d) or (4) (e) or 980.08 (4) (g) and the person's property and estate, including the homestead, and the spouse of the person, and the spouse's property and estate, including the homestead, and, in the case of a minor child, the parents of the person, and their property and estates, including their homestead, and, in the case of a foreign child described in s. 48.839 (1) (1m) who became dependent on public funds for his or her primary support before an order granting his or her adoption, the resident of this state appointed guardian or granted adoption of the child by a foreign court who brought the child into this state for the purpose of adoption, and his or her property and estate, including his or her homestead, shall be liable for the cost of the care, maintenance, services, and supplies in accordance with the fee schedule established by the department under s. 46.03 (18). If a spouse, widow or, minor, or an incapacitated person may be lawfully dependent upon the property for their his or her support, the court shall release all or such part of the property and estate from the charges that may be necessary to provide for those persons. The department shall make every reasonable effort to notify the liable persons as soon as possible after the beginning of the maintenance, but the notice or the receipt thereof of the notice is not a condition of liability.

Note: This Section adjusts a cross-reference to the intercountry adoption procedure that is revised and renumbered under this bill and amends the reference to include an adoption granted by a court of the child's home country.

AB41,4 Section 4. 48.36 (1) (a) of the statutes is amended to read:

AB41,5,8 48.36 (1) (a) If legal custody is transferred from the parent or guardian or the court otherwise designates an alternative placement for the child by a disposition made under s. 48.345 or by a change in placement under s. 48.357, the duty of the parent or guardian or, in the case of a transfer of guardianship and custody under s. 48.839 (4), the duty of the former guardian or parent to provide support shall continue even though the legal custodian or the placement designee may provide the support. A copy of the order transferring custody or designating alternative placement for the child shall be submitted to the agency or person receiving custody or placement and the agency or person may apply to the court for an order to compel the parent or guardian to provide the support. Support payments for residential services, when purchased or otherwise funded or provided by the department or a county department, shall be determined under s. 49.345 (14). Support payments for residential services, when purchased or otherwise funded by the department of health services or a county department under s. 51.42 or 51.437, shall be determined under s. 46.10 (14).

Note: This Section amends a cross-reference to the intercountry adoption procedure that is revised under this bill to include the parent in an adoption granted by a court of the child's home country.

AB41,5 Section 5. 48.81 (6) of the statutes is amended to read:

AB41,5,10 48.81 (6) The child is being readopted under s. 48.97 (2).

Note: This Section adjusts a cross-reference to the provision recognizing adoptions from other jurisdictions that is revised and renumbered under this bill.

AB41,6 Section 6. 48.838 (3) of the statutes is repealed.

Note: This Section removes the authority for DCF to charge a fee for approval of a placement under the procedure for statutory recognition of an adoption granted by a court of a foreign jurisdiction that is replaced in this bill by the requirement to readopt the child, for which the same fee is already allowed.

AB41,7 Section 7. 48.839 (1) of the statutes is renumbered 48.839 (1m) and amended to read:

AB41,6,2 48.839 (1m) Bond required. (a) Any Before a resident of this state who has been appointed by a court as guardian or granted adoption of a child who is a citizen of a foreign jurisdiction as guardian of a child who is a citizen by a court of that jurisdiction, before bringing may bring the child into this state for the purpose of adopting the child, the resident shall file with the department a $1,000 noncancelable bond in favor of this state, furnished by a surety company licensed to do business in this state. The condition of the bond shall be that the child will not become dependent on public funds for his or her primary support before he or she is adopted.

AB41,6,8 (b) By filing the bond required under par. (a), the child's guardian or parent and the surety submit to the jurisdiction of the court in the county in which the guardian or parent resides for purposes of liability on the bond, and appoint the clerk of the court as their agent upon whom any papers affecting their bond liability may be served. Their liability on the bond may be enforced without the commencement of an independent action.

AB41,6,15 (c) If upon affidavit of the department it appears to the court that the condition of the bond has been violated, the court shall order the guardian or parent and the surety to show cause why judgment on the bond should not be entered for the department. If neither the guardian or parent nor the surety appear for the hearing on the order to show cause, or if the court concludes after the hearing that the condition of the bond has been violated, the court shall enter judgment on the bond for the department against the guardian or parent and the surety.

AB41,6,22 (d) If custody of the child is transferred under sub. (4) (b) to a county department or child welfare agency before the child is adopted, the department shall periodically bill the guardian or parent and the surety under s. 49.32 (1) (b) or 49.345 for the cost of care and maintenance of the child until the child is adopted or becomes age 18, whichever is earlier. The guardian or parent and surety shall also be liable under the bond for costs incurred by the department in enforcing the bond against the guardian or parent and surety.

AB41,7,2 (e) This section does not preclude the department or any other agency given custody of a child under sub. (4) (b) from collecting under s. 49.32 (1) (b) or 49.345 from the former guardian or parent for costs in excess of the amount recovered under the bond incurred in enforcing the bond and providing care and maintenance for the child until he or she reaches age 18 or is adopted.

AB41,7,4 (f) The department may waive the bond requirement under this subsection par. (a).

Note: This Section and the following four Section incorporate readoption of a child by a resident of this state who has been granted an adoption in the child's home country into the procedure provided under current law for the adoption of a child by a resident of this state who has been appointed guardian of the child in the child's home country.

AB41,8 Section 8. 48.839 (1d) of the statutes is created to read:

AB41,7,6 48.839 (1d) Definitions. In this section:

AB41,7,9 (a) "Adoption" includes a readoption by a resident of this state who has been granted an adoption by a court of a foreign jurisdiction of a child who is a citizen of that jurisdiction.

AB41,7,11 (b) "Parent" means a resident of this state who has been granted an adoption by a court of a foreign jurisdiction of a child who is a citizen of that jurisdiction.

Note: This Section specifies that, for purposes of adopting a child who is a citizen of another country, the "adoption" procedure applies to "readoption" of a child who was adopted in the child's home country.

AB41,9 Section 9. 48.839 (2) of the statutes is amended to read:

AB41,8,5 48.839 (2) Evidence of availability for adoption required. (a) Any A resident of this state who has been appointed by a court as guardian or granted adoption of a child who is a citizen of a foreign jurisdiction as guardian of a child who is a citizen by a court of that jurisdiction and who intends to bring the child into this state for the purpose of adopting the child shall file with the department a certified copy of the judgment or order of a court of the foreign jurisdiction or other instrument having the effect under the laws of the foreign jurisdiction of freeing the child for adoption or of granting adoption to the parent. If the instrument is not a judgment or order of a court, the guardian or parent shall also file with the department a copy of the law under which the instrument was issued, unless the department waives this requirement. The guardian or parent shall also file English translations of the court judgment or order or other instrument and of the law. The department shall return the originals to the guardian or parent and keep on file a copy of each document.

AB41,8,18 (b) If the guardian or parent files a judgment or order of a court under par. (a), the department shall review the judgment or order. If the department determines that the judgment or order has the effect of freeing the child for adoption or of granting adoption to the parent, if the department has been furnished with a copy of a home study that was conducted as provided in s. 48.88 (2) recommending the guardian or parent as an adoptive parent, if a licensed child welfare agency has been identified to provide the services required under sub. (5), if the guardian or parent has filed the bond required under sub. (1) (1m), and if the guardian or parent has completed the preadoption preparation required under s. 48.84 (1) or the department has determined that the guardian   or parent is not required to complete that preparation, the department shall certify to the U.S. citizenship and immigration and naturalization service services that all preadoptive requirements of this state that can be met before the child's arrival in the United States have been met.

AB41,9,7 (c) If the guardian or parent files an instrument other than a judgment or order of a court under par. (a), the department shall review the instrument. If the department determines that the instrument has the effect under the laws of the foreign jurisdiction of freeing the child for adoption or of granting adoption to the parent, if the department has been furnished with a copy of a home study that was conducted as provided in s. 48.88 (2) recommending the adoptive parents, if a licensed child welfare agency has been identified to provide the services required under sub. (5), if the guardian or parent has filed the bond required under sub. (1) (1m), and if the guardian or parent has completed the preadoption preparation required under s. 48.84 (1) or the department has determined that the guardian or parent is not required to complete that preparation, the department shall certify to the U.S. citizenship and immigration and naturalization service services that all preadoptive requirements of this state that can be met prior to the child's arrival in the United States have been met.

AB41,10 Section 10. 48.839 (3) of the statutes is amended to read:

AB41,9,17 48.839 (3) Petition for adoption or termination of parental rights required. (a) Within 60 days after the arrival of a child brought into this state from a foreign jurisdiction for the purpose of adoption, the individual who is the child's guardian or parent shall file a petition to adopt the child, a petition to terminate parental rights to the child, or both. If only a petition to terminate parental rights to the child is filed under this paragraph, the individual guardian or parent shall file a petition for adoption within 60 days of the order terminating parental rights. The individual guardian or parent shall file with the court the documents filed with the department under sub. (2) (a).

AB41,9,20 (b) Except as provided in par. (a) and sub. (4) (a), the termination of a parent's parental rights to a child who is a citizen of a foreign jurisdiction is not required prior to the child's adoption by his or her guardian or parent.

AB41,9,25 (c) If a petition for adoption is filed under par. (a), the individual guardian or parent filing the petition shall file a copy of the petition with the department at the time the petition is filed with the court. If the individual guardian or parent filed an instrument other than a court order or judgment under sub. (2) (a), the department may make a recommendation to the court as to whether the instrument filed has the effect under the laws of the foreign jurisdiction of freeing the child for adoption or of granting adoption to the parent.

AB41,10,13 (d) If a petition for adoption is filed under par. (a) and the individual guardian or parent filing the petition filed an instrument other than a court order or judgment under sub. (2) (a), the court shall determine whether the instrument filed has the effect under the laws of the foreign jurisdiction of freeing the child for adoption or of granting adoption to the parent. The court shall presume that the instrument has that effect unless there are substantial irregularities on the face of the document or unless the department shows good cause for believing that the instrument does not have that effect. If the court determines that the instrument does not have the effect of freeing the child for adoption or of granting adoption to the parent, the court shall order the petitioner to file a petition to terminate parental rights under s. 48.42 within 10 days.

AB41,10,17 (e) If a petition for adoption is filed under par. (a) and the individual guardian or parent filing the petition filed a court order or judgment under sub. (2) (a), the court order or judgment shall be legally sufficient evidence that the child is free for adoption or has been adopted by the parent.

AB41,11 Section 11. 48.839 (4) (intro.), (a) and (c) of the statutes are amended to read:

AB41,10,21 48.839 (4) Transfer of guardianship; forfeiture of bond. (intro.) If a guardian or parent does not file a petition as required under sub. (3) (a) or (d), or if the petition for adoption under sub. (3) is withdrawn or denied, the court:

AB41,10,25 (a) Shall transfer guardianship of the child to the department, to a county department under s. 48.57 (1) (e) or (hm) or to a child welfare agency under s. 48.61 (5) and order the guardian or parent to file a petition for termination of parental rights under s. 48.42 within 10 days.

AB41,11,2 (c) Shall order the guardian or parent who filed the bond under sub. (1) (1m) (a) to show cause why the bond should not be forfeited.