AB521: Bill Text

AB521,24,10 48.42 (1g) Affidavit. (a) Except as provided in par. (c), if the petition is filed by a person or agency other than the district attorney, corporation counsel, or other appropriate official under s. 48.09; if the petition seeks to terminate the parental rights of a person who may be the father of a nonmarital child who is under one year of age at the time the petition is filed, who is not adopted or whose parents do not subsequently intermarry under s. 767.60, and whose paternity has not been established; and if the mother of the child has voluntarily consented to or seeks to voluntarily consent to the termination of her parental rights to the child, the petitioner shall file with the petition an affidavit signed by the mother that includes all of the following:

AB521,24,12 1. A statement that the mother has voluntarily consented to or seeks to voluntarily consent to the termination of her parental rights to the child.

AB521,24,14 2. A statement acknowledging that the mother has been asked to identify the father of the child.

AB521,24,16 3. A statement that the mother knows and is identifying the father or that she does not know the identity of the father.

AB521,24,18 4. A statement identifying any man who has lived in a familial relationship with the child and who may be the father of the child.

AB521,24,21 5. If the mother states that she knows and is identifying the father under subd. 3. or 4., the father's name, age, and last-known mailing address, and the last-known mailing address of the father's employer.

AB521,24,24 6. If the mother states that she does not know the identity of the father, an explanation of why she is unable to identify him and a physical description of the father.

AB521,25,4 7. A statement that the mother has been informed and understands that if she misidentifies the father, she is permanently barred from attacking the termination of the father's or her parental rights on the basis that the father was not correctly identified.

AB521,25,7 8. A statement that the mother understands that she may be prosecuted under s. 946.32 (2) for false swearing if she makes a false statement that she does not believe is true in the affidavit under this paragraph.

AB521,25,11 9. A statement that the mother has reviewed and understands the affidavit, the name of the person who explained the affidavit and the consequences of signing the affidavit to her, and a statement that the mother is signing the affidavit voluntarily.

AB521,25,20 (b) The petitioner shall notify any man identified in the affidavit under par. (a) as an alleged father of his right to file a declaration of paternal interest under s. 48.025 before the birth of the child, within 14 days after the birth of the child, or within 21 days after the date on which the notice is mailed, whichever is later; of the birth date or anticipated birth date of the child; and of the consequences of filing or not filing a declaration of paternal interest. The petitioner shall include with the notice a copy of the form required to file a declaration of paternal interest under s. 48.025. The notice shall be sent by certified mail to the last-known address of the alleged father.

AB521,26,2 (c) If the mother relinquished custody of the child under s. 48.195 and has not subsequently identified herself as the child's mother or if the petitioner cannot locate the mother with reasonable diligence, the petitioner shall attach to the petition a statement that the mother relinquished custody of the child under s. 48.195 and has not subsequently identified herself as the child's mother or of the efforts the petitioner made to locate the mother instead of filing the affidavit under sub. (1).

Note: Requires a petitioner, other than a district attorney, corporation counsel, or other appropriate official, for the involuntary TPR of an alleged father of a nonmarital child who is under one year of age to file with the petition an affidavit signed by the birth mother if the mother has voluntarily consented to or seeks to voluntarily consent to the termination of her parental rights to the child. The affidavit must include all of the following:

1. A statement that the mother has voluntarily consented to or seeks to voluntarily consent to the termination of her parental rights to the child.

2. A statement acknowledging that the mother has been asked to identify the father of the child.

3. A statement that the mother knows and is identifying the father or that she does not know the identity of the father.

4. A statement identifying any man who has lived in a familial relationship with the child and who may be the father of the child.

5. If the mother states that she knows the identity of the father and is identifying the father, the father's name, age, and last-known mailing address and the last-known mailing address of the father's employer.

6. If the mother states that she does not know the identity of the father, an explanation of why she is unable to identify him and a physical description of the father.

7. A statement that the mother has been informed and understands that if she misidentifies the father, she is permanently barred from attacking the TPR on the basis that the father was not correctly identified.

8. A statement that the mother understands that she may be prosecuted for false swearing if she makes a false statement that she does not believe is true.

9. A statement that the mother has reviewed and understands the affidavit, the name of the person who explained the affidavit and the consequences of signing it, and a statement that she is signing the affidavit voluntarily.

The petitioner must notify any man who is identified in the affidavit of his right to file a declaration of paternal interest before the birth of the child, within 14 days after the birth of the child, or within 21 days after the notice is mailed, whichever is later; of the birth date or anticipated birth date of the child; and of the consequences of filing or not filing a declaration. The mailing must include a form to file a declaration. The notice must be sent by certified mail to the man's last-known address.

AB521, s. 28 Section 28. 48.42 (2) (b) (intro.) of the statutes is amended to read:

AB521,26,6 48.42 (2) (b) (intro.) If Except as provided in par. (bm), if the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60 and whose paternity has not been established:

AB521, s. 29 Section 29. 48.42 (2) (b) 1. of the statutes is amended to read:

AB521,26,10 48.42 (2) (b) 1. A person who has filed a an unrevoked declaration of paternal interest under s. 48.025 before the birth of the child or within 14 days after the birth of the child.

Note: Amends the current notice requirements for alleged fathers to reflect the creation of s. 48.42 (2) (bm) and the new time limit for filing a declaration of paternal interest under s. 48.025 (2) (b) as created by the bill.

AB521, s. 30 Section 30 . 48.42 (2) (bm) of the statutes is created to read:

AB521,27,6 48.42 (2) (bm) If the child is a nonmarital child who is under one year of age at the time the petition is filed and who is not adopted or whose parents do not subsequently intermarry under s. 767.60 and whose paternity has not been established and if an affidavit under sub. (1g) (a) or a statement under sub. (1g) (c) is filed with the petition:

AB521,27,9 1. A person who has filed an unrevoked declaration of paternal interest under s. 48.025 before the birth of the child, within 14 days after the birth of the child, or within 21 days after a notice under sub. (1g) (b) is mailed, whichever is later.

AB521,27,11 2. A person who has lived in a familial relationship with the child and who may be the father of the child.

Note: Under current law, certain persons who may be the father of a nonmarital child whose paternity has not been established must be served with a summons and petition notifying the person of a TPR proceeding involving the child. Those persons include, in addition to a person who files a declaration of paternal interest, a person who is alleged to be the father of the child or who, based on statements made by the mother or other information, may be the father of the child, and a person who has lived in a familial relationship with the child and who may be the father of the child. A person who receives a summons and petition in a TPR proceeding has standing to appear and contest the TPR petition and, if grounds for TPR are found, may present evidence relevant to the disposition of the case and make alternative dispositional recommendations.

This Section creates a separate notice requirement for an alleged father in a TPR proceeding concerning a nonmarital child who is under one year of age at the time the petition is filed if an affidavit or a statement that an affidavit cannot be filed, as provided under s. 48.42 (1g), as created by the bill, is filed with the TPR petition. Under this circumstance, an alleged father must receive notice if one of the following conditions is met:

1. He has filed an unrevoked declaration of paternal interest before the birth of the child, within 14 days after the birth of the child, or within 21 days after the date a notice under s. 48.42 (1g) (c) was mailed, whichever is later.

2. He has lived in a familial relationship with the child and may be the father of the child.

AB521, s. 31 Section 31. 48.42 (2m) of the statutes is renumbered 48.42 (2m) (a) and amended to read:

AB521,28,14 48.42 (2m) (a) Parent as a result of sexual assault. Except as provided in this subsection paragraph, notice is not required to be given to a person who may be the father of a child conceived as a result of a sexual assault in violation of s. 940.225 (1), (2) or (3), 948.02 (1) or (2), or 948.025 if a physician attests to his or her belief that a sexual assault as specified in this subsection paragraph has occurred or if the person who may be the father of the child has been convicted of sexual assault as specified in this subsection paragraph for conduct which may have led to the child's conception. A person who under this subsection paragraph is not given notice does not have standing to appear and contest a petition for the termination of his parental rights, present evidence relevant to the issue of disposition, or make alternative dispositional recommendations. This subsection paragraph does not apply to a person who may be the father of a child conceived as a result of a sexual assault in violation of s. 948.02 (1) or (2) if that person was under 18 years of age at the time of the sexual assault.

AB521, s. 32 Section 32 . 48.42 (2m) (b) of the statutes is created to read:

AB521,29,2 48.42 (2m) (b) Parent of nonmarital child. A person who may be the father of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60 and whose paternity has not been established, by virtue of the fact that he has engaged in sexual intercourse with the mother of the child, is considered to be on notice that a pregnancy and a termination of parental rights proceeding concerning the child may occur, and has the duty to protect his own rights and interests. He is therefore entitled to actual notice of such a proceeding only as provided in sub. (2) (b) or (bm). A person who is not entitled to notice under sub. (2) (b) or (bm) does not have standing to appear and contest a petition for the termination of his parental rights, present evidence relevant to the issue of disposition, or make alternative dispositional recommendations.

Note: Provides that a person who may be the father of a nonmarital child who is under one year of age at the time the TPR petition was filed and whose paternity has not been established, by virtue of the fact that the person had sexual intercourse with the mother of the child, is considered to be on notice that a pregnancy and a TPR proceeding might result, has the duty to protect his own rights and interests, and, therefore, is entitled to actual notice of the TPR proceeding only as provided in the bill. In addition, specifies that 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.

AB521, s. 33 Section 33. 48.42 (3) (a) of the statutes is amended to read:

AB521,29,5 48.42 (3) (a) Contain the name and birth date or anticipated birth date of the child, and the nature, location, date and time of the initial hearing.

AB521, s. 34 Section 34. 48.42 (4) (a) of the statutes is amended to read:

AB521,29,12 48.42 (4) (a) Personal service. A Except as provided in this paragraph and par. (b), a copy of the summons and petition shall be served personally upon the parties specified in sub. (2), if known, at least 7 days before the date of the hearing, except that service. Service of summons is not required if the party submits to the jurisdiction of the court. Service upon parties who are not natural persons and upon persons under a disability shall be as prescribed in s. 801.11.

AB521, s. 35 Section 35. 48.42 (4) (b) 1m. of the statutes is created to read:

AB521,29,15 48.42 (4) (b) 1m. If the child's custody was relinquished under s. 48.195, service to the parents of the child may be made by publication of the notice under subd. 4.

Note: Under current law, a copy of a TPR summons and petition must be served personally upon the parties to the proceeding, if known, at least 7 days before the date of the TPR hearing. If with reasonable diligence a party cannot be personally served, service must be made by publication in a newspaper that is likely to give notice to the person affected. The juvenile court may also order that notice be given in a newspaper to an unknown father.

Also under current law, a parent of a child who is 72 hours old or younger may relinquish custody of the child to a law enforcement officer, emergency medical technician, or hospital staff person. A parent who relinquishes custody of a child and any person who assists the parent have the right to remain anonymous.

This Section allows notice of a TPR proceeding to be given by publication in a newspaper to the parents of a child whose custody was relinquished when the child was less than 72 hours old.

AB521, s. 36 Section 36. 48.42 (5) of the statutes is created to read:

AB521,30,7 48.42 (5) Penalty. Any person who knowingly and willfully makes or causes to be made any false statement or representation of a material fact in the course of a proceeding under this section with an intent to deceive or mislead the court for the purpose of preventing a person who is entitled to receive notice of a proceeding under this section from receiving notice may be fined not more than $10,000 or imprisoned for not more than 9 months, or both.

Note: Creates a penalty under which a person who knowingly and willfully makes or causes to be made a false statement or representation of material fact in the course of a TPR proceeding with an intent to deceive or mislead the juvenile court for the purpose of preventing a person who is entitled to receive notice of a TPR proceeding from receiving notice may be fined not more than $10,000 or imprisoned for not more than 9 months, or both.

AB521, s. 37 Section 37 . 48.422 (6) (a) of the statutes is amended to read:

AB521,30,17 48.422 (6) (a) If the child is In the case of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60 and for whom paternity has not been established, or for whom a declaration of paternal interest has not been filed under s. 48.025 within 14 days after the date of birth of the child or, if s. 48.42 (1g) (b) applies, within 21 days after the date on which the notice under s. 48.42 (1g) (b) is mailed, the court shall hear testimony concerning the paternity of the child. Based on the testimony, the court shall determine whether all interested parties who are known have been notified under s. 48.42 (2). If not, the court shall adjourn the hearing and order appropriate notice to be given.

Note: Under current law, if paternity has not been established at the time of a TPR fact-finding hearing regarding a nonmarital child, the juvenile court must hear testimony concerning the paternity of the child. Based on the testimony, the juvenile court must determine whether all interested parties who are known have been notified of the hearing. If not, the juvenile court must adjourn the hearing and order appropriate notice to be given.

This Section requires the juvenile court to determine whether all interested parties who are known have been notified of the hearing in cases in which a declaration of paternal interest has not been timely filed.

AB521, s. 38 Section 38 . 48.423 of the statutes is amended to read:

AB521,31,12 48.423 Rights of persons alleging paternity. If a man who alleges that he is the father of the child person appears at the hearing and wishes to contest the termination of his parental rights claims that he is the father of the child, the court shall set a date for a hearing on the issue of paternity or, if all parties agree, the court may immediately commence hearing testimony concerning the issue of paternity. The court shall inform the man person claiming to be the father of the child of any right to counsel under s. 48.23. The man person claiming to be the father of the child must prove paternity by clear and convincing evidence. A person who establishes his paternity of the child under this section may further participate in the termination of parental rights proceeding only if the person meets a condition specified in s. 48.42 (2) or (b) or (bm).

Note: Under current law, if a man who alleges that he is the father of the child appears at the hearing and wishes to contest the termination of his parental rights, the court must set a date for a hearing on the issue of paternity or, if the parties all agree, the court may immediately commence hearing testimony concerning the issue of paternity. The man must prove paternity by clear and convincing evidence.

Under this Section, the man may participate in the TPR proceeding only if he would be entitled to notice under s. 48.42 (2) (b) or (bm).

AB521, s. 39 Section 39. 48.43 (6) of the statutes is renumbered 48.43 (6) (a) and amended to read:

AB521,32,2 48.43 (6) (a) Judgments under this subchapter terminating parental rights are final and are appealable under s. 808.03 (1) according to the procedure specified in s. 809.107 and are subject to a petition for rehearing or a motion for relief only as provided in s. 48.46 (1m) and (2). The attorney representing a person during a proceeding under this subchapter shall continue representation of that person by filing a notice of intent to appeal under s. 809.107 (2), unless the attorney has been previously discharged during the proceeding by the person or by the trial court.

AB521, s. 40 Section 40 . 48.43 (6) (b) and (c) of the statutes are created to read:

AB521,32,6 48.43 (6) (b) The mother of a child who completes an affidavit under s. 48.42 (1g) may not collaterally attack a judgment terminating parental rights on the basis that the father of the child was not correctly identified.

AB521,32,11 (c) In no event may any person, for any reason, collaterally attack a judgment terminating parental rights more than one year after the date on which the time limit for filing an appeal from the judgment has expired, or more than one year after the date on which all appeals from the judgment, if any were filed, have been decided, whichever is later.

Note: Under current law, a parent who has consented to a TPR or a parent who did not contest a petition for an involuntary TPR and whose rights were terminated may file a motion with the juvenile court for relief from judgment. The motion must be based on specified grounds such as mistake, newly discovered evidence, or fraud. Such a motion must generally be filed within 30 days after the entry of the TPR judgment. A person may also appeal to the court of appeals.

Current law does not address the appeal rights of a person who was not a party in the TPR proceeding.

The bill modifies current law as follows:

• Requires an attorney who represents a person in a TPR proceeding to continue representation of that person during the appeal process by filing a notice of intent to appeal under s. 809.107 (2), unless the attorney has been previously discharged during the proceeding by the person or by the trial court.

• Prohibits any person, for any reason, from collaterally attacking a TPR judgment more than one year after the date on which the time limit for filing an appeal from the judgment has expired, or more than one year after the date on which all appeals from the judgment, if any were filed, have been decided.

• Prohibits a mother who has completed an affidavit under s. 48.42 (1g), stats., as created by the bill, relating to the identity of the child's father from attacking a TPR judgment on the basis that the father was not identified correctly.

AB521, s. 41 Section 41. 48.43 (6m) of the statutes is created to read:

AB521,33,4 48.43 (6m) If a person whose parental rights are terminated is present in court when the court grants the order terminating those rights, the court shall provide written notification to the person of the time limits for appeal of the judgment. The person shall sign the written notification, indicating that he or she has been notified of the time limits for filing an appeal under ss. 808.04 (7m) and 809.107. The person's counsel shall file a copy of the signed, written notification with the court on the date on which the judgment is granted.

Note: Requires the juvenile court that orders the termination of a person's parental rights to provide written notification to the person of the time limits for appeal of the judgment if the person is present in juvenile court when the order is granted. The person must sign the written notification, indicating that he or she has been notified of the time limits for filing an appeal under ss. 808.04 (7m) and 809.107, stats. The person's counsel shall file a copy of the signed, written notification with the juvenile court on the date on which the judgment is granted.

AB521, s. 42 Section 42 . 48.48 (17) (bm) of the statutes is created to read:

AB521,33,12 48.48 (17) (bm) As soon as practicable after learning that a person who is receiving child welfare services under par. (a) from the department has changed his or her county of residence, the department 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 department and the name, telephone number, and address of a person to contact for more information.

Note: Provides that as soon as practicable after learning that a person who is receiving child welfare services from DHFS has changed his or her county of residence from Milwaukee County, DHFS must provide notice of that change to the county department of that person's new county of residence.

The notice must include a brief, written description of the services offered or provided to the person by DHFS and the name, telephone number, and address of a person to contact for more information.

AB521, s. 43 Section 43 . 48.57 (2m) of the statutes is created to read:

AB521,34,3 48.57 (2m) A county department, as soon as practicable after learning that a person who is receiving child 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 or, if that new county of residence is a county having a population of 500,000 or more, the department. 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 child welfare services moves from a county other than Milwaukee County, to another county. See the Note to s. 48.48 (17) (bm), as created by this bill.

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: