48.825 Note
NOTE: 1997 Wis. Act 104, which affected this section, contains explanatory notes.
48.83
48.83
Jurisdiction and venue. 48.83(1)
(1) The court of the county where the proposed adoptive parent or child resides, upon the filing of a petition for adoption or for the adoptive placement of a child, has jurisdiction over the child until the petition is withdrawn, denied or granted. Venue shall be in the county where the proposed adoptive parent or child resides at the time the petition is filed. The court may transfer the case to a court in the county in which the proposed adoptive parents reside.
48.83(2)
(2) If the adoption is denied, jurisdiction over the child shall immediately revert to the court which appointed the guardian, unless the appointing court is a court of another state or foreign jurisdiction, in which case the court of the county where the child is shall have jurisdiction.
48.831
48.831
Appointment of guardian for child without a living parent for adoptability finding. 48.831(1)
(1)
Type of guardianship. This section may be used for the appointment of a guardian of a child who does not have a living parent if a finding as to the adoptability of a child is sought. Except as provided in
ss. 48.977 and
48.978,
ch. 880 applies to the appointment of a guardian for a child who does not have a living parent for all other purposes. An appointment of a guardian of the estate of a child who does not have a living parent shall be conducted in accordance with the procedures specified in
ch. 880.
48.831(1m)
(1m) Petition. Any of the following may file a petition for appointment of a guardian for a child who is believed to be in need of protection or services because he or she is without a living parent as described under
s. 48.13 (1):
48.831(1m)(d)
(d) A relative or family member of the child or a person whom the child has resided with and who has also acted as a parent of the child.
48.831(1m)(e)
(e) A guardian appointed under
ch. 880 whose resignation as guardian has been accepted by a court under
s. 880.17 (1).
48.831(2)
(2) Report. If the department, county department or child welfare agency files a petition, it shall submit a report to the court containing as much of the information specified under
s. 48.425 (1) (a) and
(am) as is reasonably ascertainable and, if applicable, the information specified under
s. 48.425 (1) (g). If the petition is filed by a relative or other person specified under
sub. (1m) (d), the court shall order the department or a child welfare agency, if the department or agency consents, or a county department to file a report containing the information specified in this subsection. The department, county department or child welfare agency shall file the report at least 5 days before the date of the fact-finding hearing on the petition.
48.831(3)
(3) Fact-finding hearing. The court shall hold a fact-finding hearing on the petition, at which any party may present evidence relevant to the issue of whether the child has a living parent. If the court finds that the child has a living parent, the court shall dismiss the petition or grant the petitioner leave to amend the petition to a petition under
s. 48.42 (1).
48.831(4)(a)(a) If the court, at the conclusion of the fact-finding hearing, finds that the child has no living parent, the court shall proceed to a dispositional hearing. Any party may present evidence, including expert testimony, relevant to the issue of disposition. In determining the appropriate disposition, the court shall consider any factors under
s. 48.426 (3) (a) to
(d) that are applicable.
48.831(4)(b)
(b) If the court finds that adoption is in the child's best interest, the court shall order that the child be placed in the guardianship and custody of one of the following:
48.831(4)(c)
(c) If the court finds that adoption is not in the child's best interest, the court shall order that the child be placed in the guardianship of the department and place the child in the custody of a county department or, in a county having a population of 500,000 or more, the department or an agency under contract with the department.
48.831(4)(e)
(e) The court shall order the custodian appointed under
par. (b) or
(c) to prepare a permanency plan under
s. 48.38 for the child within 60 days after the date of the order. A permanency plan ordered under this paragraph is subject to review under
s. 48.38 (5). In preparing a permanency plan, the department, county department or child welfare agency need not include any information specified in
s. 48.38 (4) that relates to the child's parents or returning the child to his or her home. In reviewing a permanency plan, a court or panel need not make any determination under
s. 48.38 (5) (c) that relates to the child's parents or returning the child to his or her home.
48.832
48.832
Transfer of guardianship upon revocation of guardian's license or contract. If the department revokes the license of a county department licensed under
s. 48.57 (1) (hm) to accept guardianship, or of a child welfare agency licensed under
s. 48.61 (5) to accept guardianship, or if the department terminates the contract of a county department licensed under
s. 48.57 (1) (e) to accept guardianship, the department shall file a motion in the court that appointed the guardian for each child in the guardianship of the county department or agency, requesting that the court transfer guardianship and custody of the child. The motion may specify a county department or child welfare agency that has consented to accept guardianship of the child. The court shall transfer guardianship and custody of the child either to the county department or child welfare agency specified in the motion or to another county department under
s. 48.57 (1) (e) or
(hm) or a child welfare agency under
s. 48.61 (5) which consents to the transfer. If no county department or child welfare agency consents, the court shall transfer guardianship and custody of the child to the department.
48.832 History
History: 1989 a. 161;
1997 a. 27.
48.833
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 child welfare agency is the guardian of the child or makes the placement at the request of another agency which is the guardian of the child. 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 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 adoptive parent.
48.835
48.835
Placement of children with relatives for adoption. 48.835(1)(1)
Definition. In this section and
s. 48.837, "custody" means physical custody of a child by the child's parent not in violation of a custody order issued by a court. "Custody" does not include physical custody of a child during a period of physical placement with a parent who does not have legal custody of the child.
48.835(2)
(2) Adoptive placement. A parent having custody of a child may place the child for adoption in the home of a relative of the child without a court order.
48.835(3)
(3) Petition for termination of parental rights required; exception. 48.835(3)(a)(a) If the child's parent has not filed a petition for the termination of parental rights under
s. 48.42, the relative with whom the child is placed shall file a petition for the termination of the parents' rights at the same time the petition for adoption is filed, except as provided under
par. (b).
48.835(3)(b)
(b) If the person filing the adoption petition is a stepparent with whom the child and the child's parent reside, the stepparent shall file only a petition to terminate the parental rights of the parent who does not have custody of the child.
48.835(4)
(4) Hearings. Notwithstanding
s. 48.90 (1) (a), the court may hold the hearing on the adoption petition immediately after entering the order to terminate parental rights under
s. 48.427 (3).
48.835 Annotation
Concurrent TPR/adoption proceedings under s. 48.835 are subject to the requirement under s. 48.422 that the initial hearing be held within 30 days of filing the petition. In re J.L.F.
168 Wis. 2d 634,
484 N.W.2d 359 (Ct. App. 1992).
48.835 Annotation
Grandparents excluded from petitioning under s. 48.90 (1) (a) had no standing under this section to object to the adoption of their grandchildren. Adoption of J.C.G.
177 Wis. 2d 424,
501 N.W.2d 908 (Ct. App. 1993).
48.837
48.837
Placement of children with nonrelatives for adoption. 48.837(1)(1)
Adoptive placement. 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.
48.837(2)
(2) Petition for placement. The petition for adoptive placement shall be verified and shall allege all of the following:
48.837(2)(a)
(a) The name, address and age of the child or the expected birth date of the child.
48.837(2)(b)
(b) The name, address and age of the birth parents and the proposed adoptive parents.
48.837(2)(c)
(c) The identity of any person or agency which solicited, negotiated or arranged the placement of the child with the proposed adoptive parents.
48.837(3)
(3) Petition for termination of parental rights required. The petition under
sub. (2) shall be filed with a petition under
s. 48.42 for the voluntary consent to the termination of any existing rights of the petitioning parent or parents.
48.837(4)
(4) Responsibilities of court. On the filing of the petitions under this section the court:
48.837(4)(a)
(a) Shall hold a hearing within 30 days after the date of filing of the petitions, except that the hearing may not be held before the birth of the child.
48.837(4)(b)
(b) Shall appoint counsel or guardians ad litem when required under
s. 48.23.
48.837(4)(c)
(c) Shall 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.
48.837(4)(d)
(d) May, at the request of a petitioning parent, or on its own motion after ordering the child taken into custody under
s. 48.19 (1) (c), order the department or a county department under
s. 48.57 (1) (e) or
(hm) to place the child, pending the hearing on the petition, in any home licensed under
s. 48.62 except the home of the proposed adoptive parents or a relative of the proposed adoptive parents.
48.837(4)(e)
(e) Shall, before hearing the petitions under
subs. (2) and
(3), ascertain 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 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. 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.
48.837(5)
(5) Attendance at hearing. The child, if he or she is 12 years of age or over, and each petitioner shall attend the hearing on the petition under
sub. (2). The child, if he or she is 12 years of age or over, and each parent having custody of the child shall attend the hearing on the petition under
sub. (3). If the parent who has custody of the child consents and the court approves, the proposed adoptive parents may be present at the hearing on the petition under
sub. (3). The court may, for good cause, waive the requirement that the child attend either of the hearings.
48.837(6)(a)(a) The court shall hold the hearing on the petition under
sub. (2) before the hearing on the petition required under
sub. (3).
48.837(6)(b)
(b) At the beginning of the hearing held under
sub. (2), the court shall review the report that is submitted under
s. 48.913 (6). The court shall determine whether any payments or the conditions specified in any agreement to make payments are coercive to the birth parent of the child or to an alleged or presumed father of the child or are impermissible under
s. 48.913 (4). Making any payment to or on behalf of the birth parent of the child, an alleged or presumed father of the child or the child conditional in any part upon transfer or surrender of the child or the termination of parental rights or the finalization of the adoption creates a rebuttable presumption of coercion. Upon a finding of coercion, the court shall dismiss the petitions under
subs. (2) and
(3) or amend the agreement to delete any coercive conditions, if the parties agree to the amendment. Upon a finding that payments which are impermissible under
s. 48.913 (4) have been made, the court may dismiss the petition and may refer the matter to the district attorney for prosecution under
s. 948.24 (1).
48.837(6)(c)
(c) After the hearing on the petition under
sub. (2), the court shall make findings on the allegations of the petition and the report ordered under
sub. (4) (c) and make a conclusion as to whether placement in the home is in the best interest of the child.
48.837(6)(d)
(d) If the proposed placement is approved, the court shall proceed immediately to a hearing on the petition required under
sub. (3). If the parental rights of the parent are terminated, the court shall order the child placed with the proposed adoptive parent or parents and appoint as guardian of the child the department, a county department under
s. 48.57 (1) (e) or
(hm) or a child welfare agency licensed to accept guardianship under
s. 48.61 (5).
48.837(7)
(7) Investigation and care costs. The proposed adoptive parents shall pay the cost of any investigation ordered under
sub. (4) (c), according to a fee schedule established by the department based on ability to pay, and shall also, if the adoption is completed, pay the cost of any care provided for the child under
sub. (4) (d).
48.837(8)
(8) Attorney representation. The same attorney may not represent the adoptive parents and the birth mother or birth father.
48.837 Note
NOTE: 1997 Wis. Act 104, which affected this section, contains explanatory notes.
48.837 Annotation
Grandparents are not parties under this section. However, grandparent testimony may be necessary to determine the child's best interest. In Interest of Brandon S.S.
179 Wis. 2d 114,
507 N.W.2d 94 (1993).
48.837 Annotation
Adoption and termination proceedings in Wisconsin: A reply proposing limiting judicial discretion. Cooper and Nelson, 66 MLR 641 (1983).
48.838
48.838
Foreign adoption fees. 48.838(1)
(1) In this section, "foreign adoption" means the adoption of a child, who is a citizen of a foreign country, in accordance with any of the types of adoption procedures specified under this subchapter.
48.838(2)
(2) The department may charge a fee of not more than $75 to the adoptive parents for reviewing foreign adoption documents and for providing necessary certifications and approvals required by state and federal law.
48.838(3)
(3) The department may also charge a fee of not more than $75 to the adoptive parents for the review and certification of adoption documents, and for the provision of departmental approval of placements as specified in
s. 48.97, for adoptions that occur in a foreign country.
48.838 History
History: 1989 a. 31.
48.839
48.839
Adoption of foreign children. 48.839(1)(a)(a) Any resident of this state who has been appointed by a court of a foreign jurisdiction as guardian of a child who is a citizen of that jurisdiction, before bringing the child into this state for the purpose of adopting the child, 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.
48.839(1)(b)
(b) By filing the bond required under
par. (a), the child's guardian and the surety submit to the jurisdiction of the court in the county in which the guardian 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.
48.839(1)(c)
(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 and the surety to show cause why judgment on the bond should not be entered for the department. If neither the guardian 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 and the surety.
48.839(1)(d)
(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 and the surety under
s. 46.03 (18) (b) or
46.10 for the cost of care and maintenance of the child until the child is adopted or becomes age 18, whichever is earlier. The guardian and surety shall also be liable under the bond for costs incurred by the department in enforcing the bond against the guardian and surety.
48.839(1)(e)
(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. 46.03 (18) (b) or
46.10 from the former guardian 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.
48.839(1)(f)
(f) The department may waive the bond requirement under this subsection.
48.839(2)
(2) Evidence of availability for adoption required. 48.839(2)(a)(a) Any resident of this state who has been appointed by a court of a foreign jurisdiction as guardian of a child who is a citizen 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. If the instrument is not a judgment or order of a court, the guardian 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 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 and keep on file a copy of each document.
48.839(2)(b)
(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), 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.
48.839(2)(c)
(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), 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.
48.839(3)
(3) Petition for adoption or termination of parental rights required. 48.839(3)(a)(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 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 shall file a petition for adoption within 60 days of the order terminating parental rights. The individual guardian shall file with the court the documents filed with the department under
sub. (2) (a).
48.839(3)(b)
(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.
48.839(3)(c)
(c) If a petition for adoption is filed under
par. (a), the individual guardian 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 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.
48.839(3)(d)
(d) If a petition for adoption is filed under
par. (a) and the individual guardian 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. 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, the court shall order the petitioner to file a petition to terminate parental rights under
s. 48.42 within 10 days.
48.839(3)(e)
(e) If a petition for adoption is filed under
par. (a) and the individual guardian 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.
48.839(4)
(4) Transfer of guardianship; forfeiture of bond. If a guardian 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:
48.839(4)(a)
(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 to file a petition for termination of parental rights under
s. 48.42 within 10 days.
