AB521: Bill Text

AB521, s. 44 Section 44. 48.64 (4) (a) of the statutes is renumbered 48.64 (4) (a) 1. and amended to read:

AB521,34,17 48.64 (4) (a) 1. Any decision or order issued by an agency that affects the head of a foster, treatment foster, or group home or the children involved may be appealed to the department under fair hearing procedures established under department rules. The department shall, upon receipt of an appeal, give the head of the home reasonable notice and opportunity for a fair hearing. The department may make such additional investigation as the department considers necessary. The department shall give notice of the hearing to the head of the home and to the departmental subunit, county department, or child welfare agency that issued the decision or order. Each person receiving notice of the hearing is entitled to be represented at the hearing. The head of a home who receives notice of intent to remove the child under sub. (1m) and who requests a hearing under this paragraph is a party to the proceeding under this paragraph.

AB521,35,7 2. At all hearings conducted under this subsection paragraph, the head of the home, or a representative of the head of the home, shall have an adequate opportunity, notwithstanding s. 48.78 (2) (a), to examine all documents and records to be used at the hearing that are relevant to the issue of the child's removal at a reasonable time before the date of the hearing as well as during the hearing, except that the agency may redact information from documents and records to protect the identity of an individual who provided information under s. 48.981 (2). The head of home, or a representative of the head of home, shall also have adequate opportunity to bring witnesses, to establish all pertinent facts and circumstances, and to question or refute any testimony or evidence, including opportunity to confront and cross-examine adverse witnesses. The department shall grant a continuance for a reasonable period of time when an issue is raised for the first time during a hearing. This requirement may be waived with the consent of the parties.

AB521,35,21 3. The decision of the department shall be based exclusively on evidence introduced at the hearing. A transcript of testimony and exhibits, or an official report containing the substance of what transpired at the hearing, together with all papers and requests filed in the proceeding, and the findings of the hearing examiner shall constitute the exclusive record for decision by the department. The department shall make the record available at any reasonable time and at an accessible place to the head of the home or his or her representative. Decisions by the department shall specify the reasons for the decision and identify the supporting evidence. No person participating in an agency action being appealed may participate in the final administrative decision on that action. The department shall render its decision as soon as possible after the hearing and shall send a certified copy of its decision to the head of the home and to the departmental subunit, county department , or child welfare agency that issued the decision or order. The decision shall be binding on all parties concerned.

Note: Provides that a head of a foster, treatment foster, or group home who receives notice of intent to remove the child from the home and who appeals that determination under fair hearing procedures established by DHFS by rule is a party to the fair hearing proceeding. In addition, allows the head of the home, or his or her representative, to examine all documents and records, except that an agency may redact information from documents and records that are relevant to the child's removal in order to protect the identity of an individual who provided information in reporting suspected child abuse or neglect.

AB521, s. 45 Section 45. 48.64 (4) (c) of the statutes is amended to read:

AB521,36,13 48.64 (4) (c) The circuit court for the county where the child is placed dispositional order placing a child in a foster home, treatment foster home, or group home was entered or the voluntary agreement under s. 48.63 so placing a child was made has jurisdiction upon petition of any interested party over a child who is placed in a foster home, treatment foster home, or group home. The circuit court may call a hearing, at which the head of the home and the supervising agency under sub. (2) shall be present, for the purpose of reviewing any decision or order of that agency involving the placement and care of the child. If the child has been placed in a foster home, the foster parent may present relevant evidence at the hearing. The court shall determine the case so as to promote The petitioner has the burden of proving by clear and convincing evidence that the decision or order issued by the agency is not in the best interests of the child.

Note: Provides that the circuit court for the county in which a CHIPS dispositional order placing a child in a foster, treatment foster, or group home was entered or a voluntary agreement so placing a child was made has jurisdiction upon petition of any interested party over a child who is placed in a foster, treatment foster, or group home. This Section also provides that if the circuit court holds a hearing to review an agency decision or order involving the care of the child, the petitioner has the burden of proving by clear and convincing evidence that the decision or order is not in the best interests of the child.

AB521, s. 46 Section 46. 48.72 of the statutes is amended to read:

AB521,37,5 48.72 Appeal procedure. Except as provided in s. 48.715 (6) and (7), any person aggrieved by the department's refusal or failure to issue, renew, or continue a license or by any action taken by the department under s. 48.715 has the right to an administrative hearing provided for contested cases in ch. 227. To receive an administrative hearing under ch. 227, the aggrieved person shall send to the department a written request for a hearing under s. 227.44 within 10 days after the date of the department's refusal or failure to issue, renew, or continue a license or the department's action taken under s. 48.715. The department shall hold an administrative hearing under s. 227.44 within 30 days after receipt of the request for the administrative hearing unless the aggrieved person consents to an extension of that time period. Judicial review of the department's decision may be had by any party in the contested case as provided in ch. 227.

Note: Specifically grants the BMCW the right to judicial review of the administrative law judge's decision, in cases in which an administrative law judge has made a licensing decision that the BMCW disagrees with and wishes to appeal.

Section 48.72, stats., sets forth the appeal procedure of foster home licensing decisions. Under s. 48.72, stats., any person aggrieved by DHFS's refusal or failure to issue, renew, or continue a license has the right to an administrative hearing provided for contested cases in ch. 227, stats. Because this statute does not specify that the public licensing agency or child welfare agency also has a right to subsequent judicial review of the administrative law judge's decision on a licensing issue, the BMCW has taken the position that the BMCW does not have the right to challenge decisions of administrative law judges in circuit court.

AB521, s. 47 Section 47 . 48.78 (2) (a) of the statutes is amended to read:

AB521,37,11 48.78 (2) (a) No agency may make available for inspection or disclose the contents of any record kept or information received about an individual in its care or legal custody, except as provided under s. 48.371, 48.38 (5) (b) or (d) or (5m) (d), 48.432, 48.433, 48.48 (17) (bm), 48.57 (2m), 48.93, 48.981 (7), 938.51, or 938.78 or by order of the court.

Note: Permits a county department or DHFS to make available for inspection or disclose the contents of any record kept or information received about an individual in its care or legal custody in order to provide the notice as required under ss. 48.48 (17) (bm) and 48.57 (2m), as created by the bill when a child receiving child welfare services moves to another county.

AB521, s. 48 Section 48. 48.825 (3m) of the statutes is created to read:

AB521,38,2 48.825 (3m) No person may publish by a public medium an advertisement that violates this section. If the owner, agent, or employee of the public medium receives a copy of the license of the person or agency requesting the advertisement that indicates that the person or agency is licensed to provide adoption services in this state, there is a rebuttable presumption that the advertisement does not violate this section.

AB521, s. 49 Section 49. 48.825 (5) of the statutes is amended to read:

AB521,38,5 48.825 (5) Any person who violates sub. (2) or (3m) may be fined not more than $10,000 or imprisoned not more than 9 months or both.

Note: Prohibits any person from publishing by public medium an adoption advertisement that violates current law relating to advertising for adoption. Under this provision, if the owner, agent, or employee of the public medium receives a copy of the license of the person or agency requesting the advertisement that indicates that the person or agency is licensed to provide adoption services in this state, there is a rebuttable presumption that the advertisement does not violate the prohibition on certain advertising.

A person who violates this provision is subject to a penalty of a fine not to exceed $10,000 and imprisonment not to exceed 9 months.

AB521, s. 50 Section 50. 48.833 of the statutes is amended to read:

AB521,39,7 48.833 Placement of children for adoption by the department, county departments, and child welfare agencies. The department, a county department under s. 48.57 (1) (e) or (hm), or a child welfare agency licensed under s. 48.60 may place a child for adoption in a licensed foster home or a licensed treatment foster home without a court order if the department, county department under s. 48.57 (1) (e) or (hm) or the, or child welfare agency is the guardian of the child or makes the placement at the request of another agency which that is the guardian of the child and if the proposed adoptive parents have completed the preadoption preparation required under s. 48.84 (1) or the department, county department, or child welfare agency determines that the proposed adoptive parents are not required to complete that preparation. Before placing a child for adoption under this section, the department, county department, or child welfare agency making the placement shall consider the availability of a placement for adoption with a relative of the child who is identified in the child's permanency plan under s. 48.38 or 938.38 or who is otherwise known by the department, county department, or child welfare agency. When a child is placed under this section in a licensed foster home or a licensed treatment foster home for adoption, the department, county department , or child welfare agency making the placement shall enter into a written agreement with the proposed adoptive parent, which shall state the date on which the child is placed in the licensed foster home or licensed treatment foster home for adoption by the proposed adoptive parent.

AB521, s. 51 Section 51. 48.837 (1) of the statutes is amended to read:

AB521,39,14 48.837 (1) Adoptive In-state adoptive placement. A When the proposed adoptive parent or parents of a child reside in this state and are not relatives of the child, a parent having custody of a child and the proposed adoptive parent or parents of the child may petition the court for placement of the child for adoption in the home of a person who is not a relative of the child if the home is licensed as a foster home or treatment foster home under s. 48.62.

AB521, s. 52 Section 52. 48.837 (1m) of the statutes is created to read:

AB521,39,22 48.837 (1m) Out-of-state adoptive placement. Notwithstanding s. 48.988, when the proposed adoptive parent or parents of a child reside outside this state and are not relatives of the child, a parent having custody of a child and the proposed adoptive parent or parents of the child may petition the court for placement of the child for adoption in the home of the proposed adoptive parent or parents, if the home meets the criteria established by the laws of the other state for a preadoptive placement of a child in the home of a nonrelative.

Note: Creates a new provision, in the statute relating to preadoptive placement of a child in the home of proposed adoptive parents who are nonrelatives, that applies when the proposed adoptive parents live outside of Wisconsin. Under this provision, when the proposed adoptive parent or parents of a child reside outside this state and are not relatives of the child, a parent having custody of the child and the proposed adoptive parent or parents of the child may petition the juvenile court for placement of the child for adoption in the home of the proposed adoptive parent or parents, if the home meets the criteria established by the laws of the other state for a preadoptive placement of a child in the home of a nonrelative.

AB521, s. 53 Section 53. 48.837 (2) (d) of the statutes is created to read:

AB521,40,4 48.837 (2) (d) That the proposed adoptive parents have completed the preadoption preparation required under s. 48.84 (1) or are not required to complete that preparation.

AB521, s. 54 Section 54. 48.837 (4) (c) of the statutes is amended to read:

AB521,40,13 48.837 (4) (c) Shall, when the petition has been filed under sub. (1), order the department or a county department under s. 48.57 (1) (e) or (hm) to investigate the proposed adoptive placement, to interview each petitioner, to provide counseling if requested and to report its recommendation to the court at least 5 days before the hearing on the petition. If a licensed child welfare agency has investigated the proposed adoptive placement and interviewed the petitioners, the court may accept a report and recommendation from the child welfare agency in place of the court-ordered report required under this paragraph.

AB521, s. 55 Section 55. 48.837 (4) (cm) of the statutes is created to read:

AB521,40,19 48.837 (4) (cm) Shall, when the petition has been filed under sub. (1m), request the appropriate agency in the state where the proposed adoptive parent or parents reside to follow the procedure established by the laws of that state to ensure that the proposed adoptive home meets the criteria for a preadoptive placement of the child in the home of a nonrelative.

Note: Requires the juvenile court to request, rather than order, an out-of-state agency to ensure that the proposed adoptive home meets the criteria for a preadoptive placement of a child in the home of a nonrelative, when the proposed adoptive parents reside outside of Wisconsin and are seeking a preadoptive placement of the child in their home under s. 48.837 (1m) as created by the bill.

AB521, s. 56 Section 56. 48.837 (4) (e) of the statutes is amended to read:

AB521,41,12 48.837 (4) (e) Shall, before hearing the petitions under subs. (2) and (3), ascertain whether the child's paternity of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60 has been acknowledged under s. 767.62 (1) or a substantially similar law of another state or adjudicated in this state or another jurisdiction. If any person has filed a declaration of paternal interest under s. 48.025, the court shall determine the rights of that person. If the child's paternity has not been acknowledged or adjudicated and if no person has filed a declaration under s. 48.025, the court shall attempt to ascertain the paternity of the child and shall determine the rights of any person who may be the father of the child as provided under s. 48.423. The court may not proceed with the hearing on the petitions under this section unless the parental rights of the nonpetitioning parent, whether known or unknown, have been terminated.

Note: Provides that before holding a hearing on adoptive placement and TPR petitions filed by the child's parent and the proposed adoptive parent or parents, the court must ascertain whether the paternity of a nonmarital child has been established. If the child's paternity has not been established, the court must attempt to ascertain the paternity of the child and must determine the rights of any person who may be the father of the child. These rights are the rights that are set forth regarding alleged fathers' participation in TPR proceedings under s. 48.42 (2m) (b). As under current law, the court may not proceed with the hearing on the petitions unless the parental rights of the nonpetitioning parent have been terminated.

AB521, s. 57 Section 57. 48.839 (2) (b) of the statutes is amended to read:

AB521,42,5 48.839 (2) (b) If the guardian 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, if the department has been furnished with a copy of a home study recommending the guardian as an adoptive parent, if a licensed child welfare agency has been identified to provide the services required under sub. (5) and, if the guardian has filed the bond required under sub. (1), and if the guardian has completed the preadoption preparation required under s. 48.84 (1) or the department has determined that the guardian is not required to complete that preparation, the department shall certify to the U.S. immigration and naturalization service that all preadoptive requirements of this state that can be met before the child's arrival in the United States have been met.

AB521, s. 58 Section 58. 48.839 (2) (c) of the statutes is amended to read:

AB521,42,18 48.839 (2) (c) If the guardian 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, if the department has been furnished with a copy of a home study recommending the adoptive parents, if a licensed child welfare agency has been identified to provide the services required under sub. (5) and, if the guardian has filed the bond required under sub. (1), and if the guardian has completed the preadoption preparation required under s. 48.84 (1) or the department has determined that the guardian is not required to complete that preparation, the department shall certify to the U.S. immigration and naturalization service that all preadoptive requirements of this state that can be met prior to the child's arrival in the United States have been met.

AB521, s. 59 Section 59. 48.84 of the statutes is created to read:

AB521,43,6 48.84 Preadoption preparation for proposed adoptive parents. (1) Before a child may be placed under s. 48.833 for adoption by a proposed adoptive parent who has not previously adopted a child, before a proposed adoptive parent who has not previously adopted a child may petition for placement of a child for adoption under s. 48.837, and before a proposed adoptive parent who has not previously adopted a child may bring a child into this state for adoption under s. 48.839, the proposed adoptive parent shall complete the preadoption preparation required under this section. The preparation shall be provided by a licensed child welfare agency, a licensed private adoption agency, or a state-funded post-adoption resource center. If the proposed adoptive parent does not reside in this state, he or she may meet this requirement by obtaining equivalent preparation in his or her state of residence.

AB521,43,11 (2) The department shall promulgate rules establishing the number of hours of preadoption preparation that is required under sub. (1) and the topics covered under that preparation. The preparation shall include training on issues that may confront adoptive parents, in general, and that may confront adoptive parents of special needs children or foreign children.

AB521,43,17 (3) A proposed adoptive parent who petitions to adopt a child under s. 48.837 or 48.839 shall pay the costs of the preadoption preparation required under sub. (1). The county department of the county of residence of a proposed adoptive parent with whom a child is placed under s. 48.833, or, if the adoptive parent resides in a county with a population of 500,000 or more, the department, shall pay the costs of the preadoption preparation required under sub. (1).

Note: Requires a nonrelative proposed adoptive parent who is a first-time adoptive parent to obtain preadoption preparation on issues that may confront adoptive parents. The preparation may be provided by a licensed child welfare agency, a licensed private adoption agency, or a state-funded post-adoption resource center. If the proposed adoptive parent lives in another state, he or she may obtain equivalent preparation in that state. DHFS is required to promulgate rules on the number of hours of preadoption preparation that is required, as well as the topics to be covered.

This Section also requires the proposed adoptive parents to pay the costs of the required preadoption preparation, unless the child is being adopted from the child welfare system.

AB521, s. 60 Section 60. 48.91 (2) of the statutes is amended to read:

AB521,44,11 48.91 (2) In an adoption proceeding for a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60, the court shall establish whether the rights of any persons who have filed declarations of paternal interest under s. 48.025 have been determined or whether the child's paternity has been acknowledged under s. 767.62 (1) or a substantially similar law of another state or adjudicated in this state or in another jurisdiction. If the court finds that no such determination has been made child's paternity has not been acknowledged or adjudicated, the court shall proceed, prior to any action on the petition for adoption, to attempt to ascertain the paternity of the child and the rights of any person who has filed a declaration under s. 48.025 shall determine the rights of any person who may be the father of the child as provided under s. 48.423. The court may not proceed with the hearing on the petition for adoption unless the parental rights of the nonpetitioning parent, whether known or unknown, have been terminated.

Note: Provides that, at the final adoption hearing, the juvenile court must determine whether a nonmarital child's paternity has been established. If the child's paternity has not been established, the juvenile court must attempt to ascertain the paternity of the child and must determine the rights of any person who may be the father of the child. The bill specifies that the juvenile court may not proceed with the hearing on the petition for adoption unless the parental rights of the nonpetitioning parent have been terminated.

AB521, s. 61 Section 61. 48.913 (1) (c), (i) and (m) of the statutes are amended to read:

AB521,44,14 48.913 (1) (c) Maternity clothes for the child's birth mother, not to exceed a reasonable in an amount not to exceed $300.

AB521,44,18 (i) Living expenses of the child's birth mother, in an amount not to exceed $1,000 $5,000, if payment of the expenses by the proposed adoptive parents or a person acting on their behalf is necessary to protect the health and welfare of the birth mother or the fetus.

AB521,44,20 (m) A gift to the child's birth mother from the proposed adoptive parents, of no greater than $50 $100 in value.

Note: Under current law, the proposed adoptive parents of a child, or a person acting on behalf of the proposed adoptive parents, may pay the actual cost of various expenses, including the following:

• Maternity clothes for the child's birth mother, not to exceed a reasonable amount.

• Living expenses of the child's birth mother, in an amount not to exceed $1,000, if payment of the expenses by the proposed adoptive parents or a person acting on their behalf is necessary to protect the health and welfare of the birth mother or fetus.

• A gift to the child's birth mother from the proposed adoptive parents, of no greater than $50 in value.

This Section does the following:

• Provides that the cost for maternity clothes may not exceed $300.

• Increases the amount that may be paid for living expenses to $5,000.

• Increases the amount that may be paid for a gift to the birth mother to $100.

AB521, s. 62 Section 62. 808.04 (7m) of the statutes is amended to read:

AB521,45,7 808.04 (7m) An appeal from a judgment or order terminating parental rights or denying termination of parental rights shall be initiated by filing the notice required by s. 809.107 (2) within 30 days after the date of entry of the judgment or order appealed from. Notwithstanding s. 809.82 (2) (b), this time period may not be enlarged unless the judgment or order was entered as a result of a petition under s. 48.415 that was filed by a representative of the public under s. 48.09.

Note: Provides that the time in which to file a notice of appeal of a final judgment in a TPR case may be enlarged if the judgment or order was entered as a result of a petition for involuntary TPR filed by a district attorney, corporation counsel, or other representative of the public.

AB521, s. 63 Section 63. 808.04 (8) of the statutes is amended to read:

AB521,45,11 808.04 (8) If the record discloses that the judgment or order appealed from was entered after the notice of appeal or intent to appeal was filed, the notice of appeal shall be treated as filed after such that entry and on the day thereof of the entry.

Note: Current s. 808.04 (8), stats., provides that if the record discloses that the judgment or order appealed from was entered after the notice of appeal was filed, the notice of appeal shall be treated as filed after such entry and on the day thereof. Currently, this provision affects a few TPR cases each year when a notice of intent to appeal (which is required in TPR cases, under s. 809.107, stats.) is filed prior to the entry of the judgment or order. In those cases, the notice of intent to appeal is treated as being filed too early and in violation of s. 808.04 (8), stats.

This Section amends s. 808.04 (8), stats., to provide that if the record discloses that the judgment or order appealed from was entered after the notice of appeal or the notice of intent to appeal was filed, the notice shall be treated as filed after the entry and on the day of the entry.

AB521, s. 64 Section 64. 809.107 (5) (am) of the statutes is created to read:

AB521,46,6 809.107 (5) (am) Notice of abandonment of appeal. If the person who filed a notice of intent to appeal under sub. (2) and requested a transcript and case record under sub. (4) decides not to file a notice of appeal, that person shall notify the person required to be served under sub. (2) of this decision, within 30 days after the service of the transcript and case record under sub. (4).

Note: Requires a person who decides not to file a notice of appeal to provide notification to certain persons that an appeal will not be filed, within 30 days after service of the transcript on the person.

AB521, s. 65 Section 65. 809.82 (2) (b) of the statutes is amended to read:

AB521,46,10 809.82 (2) (b) Notwithstanding the provisions of par. (a), the time for filing a notice of appeal or cross-appeal of a final judgment or order, other than in an appeal under s. 809.30 or 809.32 or as provided under s. 808.04 (7m), may not be enlarged.

Note: Provides that the time in which to file notice of appeal of a final judgment in a TPR case may be enlarged as provided under s. 808.04 (7m), stats., as affected by the bill.

AB521, s. 66 Section 66. 938.27 (3) (b) 1. a. of the statutes is amended to read:

AB521,46,13 938.27 (3) (b) 1. a. A person who has filed a declaration of paternal interest under s. 48.025.

AB521, s. 67 Section 67. 938.27 (5) of the statutes is amended to read:

AB521,46,20 938.27 (5) Subject to sub. (3) (b), the court shall make every reasonable effort to identify and notify any person who has filed a declaration of paternal interest under s. 48.025, any person who has acknowledged paternity of the child under s. 767.62 (1), and any person who has been adjudged to be the biological father of the juvenile in a judicial proceeding unless the biological father's person's parental rights have been terminated.

Note: Makes the changes as provided in s. 48.27 (3) (b) 1. a. and (5), as affected by this bill, for the parallel provisions under the Juvenile Justice Code.

AB521, s. 68 Section 68 . 938.57 (2m) of the statutes is created to read:

AB521,47,8 938.57 (2m) A county department, as soon as practicable after learning that a person who is receiving juvenile welfare services under sub. (1) from the county department has changed his or her county of residence, shall provide notice of that change to the county department of the person's new county of residence. The notice shall include a brief, written description of the services offered or provided to the person by the county department and the name, telephone number, and address of a person to contact for more information.

Note: Requires notice when a person who is receiving juvenile welfare services moves from a county to another county. See the Note to s. 48.48 (17) (bm), stats., as created by this bill.

AB521, s. 69 Section 69 . 938.78 (2) (a) of the statutes is amended to read: