LRB-1479/2
EHS:kjf
2019 - 2020 LEGISLATURE
May 23, 2019 - Introduced by Senators Jacque,
Marklein and Wanggaard,
cosponsored by Representatives
Brandtjen, Fields, Wichgers, Kulp,
Mursau, Plumer, Quinn, Ramthun, Sanfelippo, Skowronski and Thiesfeldt.
Referred to Committee on Universities, Technical Colleges, Children and
Families.
SB232,1,9
1An Act to repeal 48.42 (2) (b) 2., 48.42 (2) (b) 3., 48.42 (2) (bm) 2. and 48.422 (4);
2to consolidate, renumber and amend 48.42 (2) (b) (intro.) and 1. and 48.42
3(2) (bm) (intro.) and 1.;
to amend 48.31 (2), 48.31 (4), 48.415 (intro.), 48.415 (6)
4(b), 48.415 (9) (a), 48.42 (2) (a), 48.422 (1), 48.422 (5), 48.422 (6) (a), 48.424
5(title), 48.424 (1) (intro.), 48.424 (2) (intro.), 48.424 (3), 48.424 (4) (intro.),
648.424 (5), 48.427 (1m) and 48.837 (5); and
to create 48.41 (2) (bm), 48.41 (2)
7(cm), 48.415 (1) (a) 4., 48.415 (1) (a) 5., 48.828 and 48.913 (1) (em) of the statutes;
8relating to: termination of parental rights; the rights of alleged fathers in
9certain proceedings; and payments allowed in connection with an adoption.
Analysis by the Legislative Reference Bureau
This bill makes a number of changes with respect to the termination of parental
rights, adoption, and the rights of various parties in those proceedings. Specifically,
the bill does all of the following:
1. Eliminates the right to a jury trial in a termination of parental rights (TPR)
proceeding and combines the fact-finding hearing and dispositional hearing in a
TPR proceeding.
2. Provides a method by which an adult mother or alleged or presumed father
may disclaim his or her parental rights with respect to a child who is not an Indian
child in writing as an alternative to appearing in court to consent to the termination
of his or her parental rights.
3. Makes changes to some of the grounds for involuntary TPR.
4. Provides that an alleged father of a nonmarital child whose paternity has not
been established is entitled to actual notice of a TPR proceeding, and the resulting
rights of standing in that proceeding, only if that person has filed a declaration of
paternal interest.
5. Allows payments to be made to an out-of-state private child placing agency
for services provided in connection with an adoption.
Termination of parental rights hearings
Under current law, if a petition to terminate a person's parental rights is filed,
the court assigned to exercise jurisdiction under the Children's Code (juvenile court)
must hold a fact-finding hearing to determine if there are any grounds for the TPR.
Under current law, any party to a TPR proceeding whose rights may be affected by
the TPR order may demand a jury trial for this fact-finding hearing. This bill
eliminates the right to a jury trial for the fact-finding hearing.
Under current law, if, at the fact-finding hearing, the juvenile court or jury
finds grounds for TPR, the juvenile court must find the parent to be unfit. The
juvenile court must then immediately hear evidence and motions on dispositions,
and make a disposition based on the best interest of the child. Generally, the juvenile
court is allowed to delay the dispositional hearing for up to 45 days after the
fact-finding hearing if all parties agree or if the court orders an agency to submit a
report on the child's history.
This bill combines the fact-finding and dispositional hearings by requiring the
juvenile court to hear all evidence relevant to TPR grounds and disposition before
making a determination as to whether the parent is unfit. If the juvenile court finds
the parent to be unfit, the bill requires the court to immediately make a disposition.
The bill allows the court to delay making both a determination of fitness and a
disposition by granting a continuance for no more than 45 days if all parties agree
or if the court orders an agency to submit a report on the child's history.
Disclaimer of parental rights
Subject to certain exceptions, current law generally requires a birth parent to
appear in court to consent to the termination of his or her parental rights. This bill
adds an exception that allows an adult mother or adult alleged or presumed father
to avoid appearing in court if he or she files with the court an affidavit disclaiming
his or her parental rights with respect to a child who is not an Indian child. The
affidavit must comply with certain requirements, including that it must be
witnessed by two individuals and notarized and must include a statement that the
parent understands the effect of an order to terminate parental rights and that he
or she voluntarily disclaims any rights that he or she may have to the child.
Under the bill, the affidavit containing a disclaimer of parental rights may be
executed before the birth of the child by the alleged or presumed father but not the
mother, may not be executed by either parent between the birth and 72 hours after
the birth, and may be executed by either parent 72 hours or more after the birth. If
executed 72 hours or more after the birth of the child, or if not revoked by the alleged
or presumed father before 72 hours after the birth of the child, the disclaimer is
irrevocable unless obtained by fraud or duress. Under the bill, no action to invalidate
a disclaimer, including an action based on fraud or duress, may be commenced more
than six months after the affidavit was executed, except that, if the petition to
terminate parental rights is granted, no action to invalidate the disclaimer may be
commenced later than the time limits allowed for filing a motion for relief from a
judgment or order terminating parental rights.
Grounds for termination of parental rights
Under current law, in a proceeding for involuntary TPR, the juvenile court must
determine whether grounds exist for TPR. One of the grounds for TPR under current
law is failure to assume parental responsibility for a child, which is established by
proving that the parent or the person who may be the parent of the child has not had
a substantial parental relationship with the child. “Substantial parental
relationship” is defined in current law as the acceptance and exercise of significant
responsibility for the daily supervision, education, protection, and care of the child.
In evaluating whether a person has had a substantial parental relationship with the
child, current law allows the juvenile court to consider certain factors, including
whether the person has expressed concern for or interest in the support, care, or
well-being of the child and whether, with respect to a person who is or may be the
father of the child, the person has expressed concern for or interest in the support,
care, or well-being of the mother during her pregnancy.
This bill changes the factor related to expressing concern for or interest in the
support, care, and well-being of the child to whether the person has provided care
or support for the child. The bill eliminates the factor of whether the person has
expressed concern for or interest in the support, care, or well-being of the mother
during her pregnancy. The bill instead provides that proving that a person who is
or may be the father of the child failed to provide care and support for the mother
during her pregnancy, without reasonable cause, establishes abandonment of a
child, which is a ground for TPR under current law. Also under the bill, proving that
a parent has failed without reasonable cause to pay court-ordered payments of child
support establishes abandonment of the child.
Rights of an alleged father
Under this bill, an alleged father of a nonmarital child whose paternity has not
been established is entitled to actual notice of a TPR proceeding, and the resulting
rights of standing in that proceeding, only if that person has filed a declaration of
paternal interest. There are three types of alleged fathers of a nonmarital child who
currently are entitled to TPR notice:
1. A person alleged to the court to be the father of the child or who may, based
upon the statements of the mother or other information presented to the court, be the
father of the child.
2. A person who has lived in a familial relationship with the child and who may
be the father of the child.
3. A person who has filed a declaration of paternal interest.
The bill provides that a person who is eligible to but who fails to file a
declaration of paternal interest in matters affecting a child is deemed to have
irrevocably consented to the termination of any parental rights the person has to the
child and to the child's adoption unless, at the time of the TPR or adoption petition,
the person's paternity of the child was acknowledged or was in the process of being
adjudicated. The bill makes no change to the requirements of notice or to a father's
rights in a TPR or adoption proceeding with respect to an Indian child.
Under current law, any person claiming to be the father of a nonmarital child
whose paternity has not been established may file with the Department of Children
and Families a declaration of paternal interest in matters affecting the child.
Generally, the declaration may be filed before the child's birth or within 14 days after
the child's birth and may be revoked at any time. In certain cases a petitioner may
file with the petition an affidavit signed by the mother that provides information
identifying an alleged father, in which case the petitioner is required to send notice
to the alleged father of his right to file a declaration of paternal interest. In that case,
the alleged father has 21 days after receipt of such notice to file the declaration.
Filing a declaration does not extend parental rights to the person filing the
declaration, but it does entitle that person to notice of certain proceedings related to
the child, including a TPR proceeding.
Under current law, a person who may be the father of a nonmarital child by
virtue of the fact that the person had sexual intercourse with the mother of the child,
whose paternity has not been established, is considered to be on notice that a
pregnancy and a TPR proceeding might result and has the duty to protect his own
rights and interests. Under current law, certain putative fathers are entitled to
actual notice of a TPR proceeding involving the child. Under current law, a person
who is not entitled to actual notice of a TPR proceeding does not have standing to
appear and contest the petition, present evidence relevant to the issue of disposition,
or make alternative dispositional recommendations unless the person appears at the
hearing, establishes paternity, and proves certain facts relating to residing out of
state and being deprived of the opportunity to preserve his paternal interests.
Payments relating to adoption
This bill allows payments to be made to an out-of-state private child placing
agency for services provided in connection with an adoption. The bill defines a
private child placing agency as a private corporation, agency, foundation, institution,
or charitable organization, or any private person or attorney, that facilitates, causes,
or is involved in the placement of a child from one state to another state. Current
law allows payments for such services only to a child welfare agency licensed in this
state.
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:
SB232,1
1Section
1. 48.31 (2) of the statutes is amended to read:
SB232,5,24
148.31
(2) The A hearing
on a termination of parental rights petition shall be
2to the court
. A hearing on a petition under s. 48.13 or 48.133 shall be to the court 3unless the child, the child's parent, guardian, or legal custodian, the unborn child's
4guardian ad litem, or the expectant mother of the unborn child exercises the right
5to a jury trial by demanding a jury trial at any time before or during the plea hearing.
6If a jury trial is demanded in a proceeding under s. 48.13 or 48.133, the jury shall
7consist of 6 persons.
If a jury trial is demanded in a proceeding under s. 48.42, the
8jury shall consist of 12 persons unless the parties agree to a lesser number. Chapters
9756 and 805 shall govern the selection of jurors. If the hearing involves a child victim
10or witness, as defined in s. 950.02, the court may order that a deposition be taken by
11audiovisual means and allow the use of a recorded deposition under s. 967.04 (7) to
12(10) and, with the district attorney, shall comply with s. 971.105. At the conclusion
13of
the a hearing
on a termination of parental rights petition, the court
shall make a
14determination of the facts. At the conclusion of a hearing on a petition under s. 48.13
15or 48.133, the court or jury shall make a determination of the facts, except that in a
16case alleging a child or an unborn child to be in need of protection or services under
17s. 48.13 or 48.133, the court shall make the determination under s. 48.13 (intro.) or
1848.133 relating to whether the child or unborn child is in need of protection or
19services that can be ordered by the court. If the court finds that the child or unborn
20child is not within the jurisdiction of the court or, in a case alleging a child or an
21unborn child to be in need of protection or services under s. 48.13 or 48.133, that the
22child or unborn child is not in need of protection or services that can be ordered by
23the court, or if the court or jury finds that the facts alleged in the petition have not
24been proved, the court shall dismiss the petition with prejudice.
SB232,2
25Section
2. 48.31 (4) of the statutes is amended to read:
SB232,6,22
148.31
(4) The court
shall make findings of fact and conclusions of law relating
2to the allegations of a petition filed under s. 48.42. The court or jury shall make
3findings of fact and the court shall make conclusions of law relating to the allegations
4of a petition filed under s. 48.13
, or 48.133
or 48.42, except that the court shall make
5findings of fact relating to whether the child or unborn child is in need of protection
6or services
which that can be ordered by the court. In cases alleging a child to be in
7need of protection or services under s. 48.13 (11), the court may not find that the child
8is suffering emotional damage unless a licensed physician specializing in psychiatry
9or a licensed psychologist appointed by the court to examine the child has testified
10at the hearing that in his or her opinion the condition exists, and adequate
11opportunity for the cross-examination of the physician or psychologist has been
12afforded. The judge may use the written reports if the right to have testimony
13presented is voluntarily, knowingly
, and intelligently waived by the guardian ad
14litem or legal counsel for the child and the parent or guardian. In cases alleging a
15child to be in need of protection or services under s. 48.13 (11m) or an unborn child
16to be in need of protection or services under s. 48.133, the court may not find that the
17child or the expectant mother of the unborn child is in need of treatment and
18education for needs and problems related to the use or abuse of alcohol beverages,
19controlled substances
, or controlled substance analogs and its medical, personal,
20family
, or social effects unless an assessment for alcohol and other drug abuse that
21conforms to the criteria specified under s. 48.547 (4) has been conducted by an
22approved treatment facility.
SB232,3
23Section
3. 48.41 (2) (bm) of the statutes is created to read:
SB232,7,324
48.41
(2) (bm) 1. An adult mother or adult presumed or alleged father may
25consent to the termination of any parental rights that he or she may have with
1respect to a child who is not an Indian child as provided in par. (a) or (b) or by filing
2with the court an affidavit of disclaimer of parental rights that is witnessed by 2
3persons and notarized and that meets the requirements under subds. 2. to 7.
SB232,7,54
2. All of the following apply to the disclaimer of parental rights in an affidavit
5under subd. 1.:
SB232,7,86
a. The disclaimer may not be executed after the birth of the child until 72 hours
7after the birth of the child. The presumed or alleged father may, but the mother may
8not, execute the disclaimer before the birth of the child.
SB232,7,119
b. The disclaimer, if executed by the presumed or alleged father before the birth
10of the child, is revocable until 72 hours after the birth of the child, as provided under
11subd. 8.
SB232,7,1412
c. The disclaimer is irrevocable if executed 72 hours or more after the birth of
13the child or if not revoked before 72 hours after the birth of the child, unless it was
14obtained by fraud or duress.
SB232,7,1715
d. Except as provided in subd. 2. e. and s. 48.028 (5) (b) and (c) and (6), no action
16to invalidate the disclaimer, including an action based on fraud or duress, may be
17commenced more than 6 months after the date the affidavit was executed.
SB232,7,2018
e. If the petition to terminate parental rights is granted, no action to invalidate
19the disclaimer may be commenced later than the time limits allowed for filing a
20motion for relief from judgment under s. 48.46 (2).
SB232,7,2121
3. An affidavit under subd. 1. shall contain all of the following:
SB232,7,2322
a. The name, county of residence, and age of the parent whose parental rights
23are being terminated.
SB232,7,2424
b. The name, age, and birth date of the child, if born.
SB232,8,2
1c. The names and addresses of the guardians of the person and of the estate of
2the child, if any.
SB232,8,53
d. A statement of whether the person whose parental rights are being
4terminated is or is not presently obligated by court order to make payments for the
5support of the child.
SB232,8,76
e. A full description and statement of value of all property the child owns or
7possesses.
SB232,8,98
f. An allegation that termination of parental rights is in the best interest of the
9child.
SB232,8,1310
g. The name and county of residence of any other presumed or alleged parent,
11a statement that the parental rights of the other presumed or alleged parent have
12been terminated by death or court order, or a statement that the child has no
13presumed father.
SB232,8,1514
h. A statement containing the information and understandings specified in
15subd. 4.
SB232,8,1616
i. A statement that the child is not an Indian child.
SB232,8,1917
4. An affidavit under subd. 1. shall contain a statement that the person whose
18parental rights are being terminated has been informed of and understands all of the
19following:
SB232,8,2020
a. His or her potential parental rights and duties.
SB232,8,2221
am. The parenting-related services that would be available to him or her if he
22or she chose not to consent to the termination of his or her parental rights.
SB232,8,2323
b. The effect of an order to terminate parental rights.
SB232,8,2524
c. That he or she voluntarily disclaims any rights that he or she may have to
25the child, including the right to notice of proceedings under this chapter.
SB232,9,2
1d. That the disclaimer may not be executed less than 72 hours after the birth
2of the child or executed by the mother before the birth of the child.
SB232,9,43
e. That the presumed or alleged father has the right to revoke a disclaimer in
4an affidavit until 72 hours after the birth of the child.
SB232,9,75
f. That the disclaimer is irrevocable if the affidavit is executed 72 hours or more
6after the birth of the child or if not not revoked before 72 hours after the birth of the
7child, unless it was obtained by fraud or duress.