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.
48.839(4)(b)
(b) Shall transfer legal custody of the child to the department, in a county having a population of 500,000 or more, to a county department or to a child welfare agency licensed under
s. 48.60.
48.839(4)(c)
(c) Shall order the guardian who filed the bond under
sub. (1) (a) to show cause why the bond should not be forfeited.
48.839(4)(d)
(d) May order that physical custody of the child remain with a suitable individual with whom the child has been living.
48.839(5)
(5) Child welfare services required. Any child welfare agency licensed under
s. 48.60 that negotiates or arranges the placement of a child for adoption under this section shall provide services to the child and to the proposed adoptive parents until the child's adoption is final.
48.841
48.841
Persons required to file recommendation as to adoption. 48.841(1)(1) No adoption of a minor may be ordered without the written recommendation, favorable or unfavorable, of the guardian of the minor, if there is one, as set forth in
s. 48.85.
48.841(2)
(2) If the guardian refuses or neglects to file its recommendation within the time specified in
s. 48.85, the court may proceed as though the guardian had filed a favorable recommendation.
48.85
48.85
Recommendation of guardian. 48.85(1)
(1) At least 10 days prior to the hearing, the guardian shall file its recommendation with the court.
48.85(2)
(2) The guardian's recommendation shall be presumed to be in the best interests of the child unless the fair preponderance of the credible evidence is to the contrary. If the guardian's recommendation is in opposition to the granting of the petition, the court shall take testimony as to whether or not the proposed adoption is in the best interests of the child.
48.85(3)
(3) At the conclusion of the hearing, the court shall enter its order in accordance with
s. 48.91 (3).
48.85 History
History: 1973 c. 263.
48.871
48.871
Filing of recommendation by guardian. In the case of a recommendation by a guardian, the guardian shall file with its recommendation satisfactory evidence of its authority to file such recommendation relative to the adoption of the minor. In the case where the parents' rights have been judicially terminated, this evidence shall be a certified copy of the order terminating their rights and appointing the guardian. In other cases of a guardian appointed by a court, this evidence shall be a certified copy of the order appointing it guardian. In the case of a guardian having the authority to consent or file its recommendation under an instrument other than a court order, valid under the laws of another state, that instrument shall serve as evidence of the authority to consent or file its recommendation.
48.88
48.88
Notice of hearing; investigation. 48.88(1)
(1) In this section, unless otherwise qualified, "agency" means any public or private entity except an individual.
48.88(1m)
(1m) Upon the filing of a petition for adoption, the court shall schedule a hearing within 90 days of the filing. Notice of the hearing shall be mailed, not later than 3 days from the date of the order for hearing and investigation, to the guardian of the child, if any, to the agency making the investigation under
sub. (2), to the department when its recommendation is required by
s. 48.89 and to the child if the child is 12 years of age or over.
48.88(2)(a)(a) Except as provided under
par. (c), when a petition to adopt a child is filed, the court shall order an investigation to determine whether the child is a proper subject for adoption and whether the petitioner's home is suitable for the child. The court shall order one of the following to conduct the investigation:
48.88(2)(a)1.
1. If an agency has guardianship of the child, the guardianship agency, unless the agency has already filed its recommendation under
s. 48.85 and has filed with the recommendation a report of an investigation as required under this paragraph.
48.88(2)(a)2.
2. If no agency has guardianship of the child and a relative other than a stepparent has filed the petition for adoption, the department, a county department under
s. 48.57 (1) (e) or
(hm) or a licensed child welfare agency.
48.88(2)(a)4.
4. If the child is a citizen of a foreign jurisdiction and is under the guardianship of an individual, the agency which conducted the home study required under federal law prior to the child's entry into the United States.
48.88(2)(b)
(b) The agency making the investigation shall file its report with the court at least 10 days before the hearing unless the time is reduced for good cause shown by the petitioner. The report shall be part of the record of the proceedings.
48.88(2)(c)
(c) If a stepparent has filed a petition for adoption and no agency has guardianship of the child, the court shall order the department, in a county having a population of 500,000 or more, or a county department or, with the consent of the department in a county having a population of less than 500,000 or a licensed child welfare agency, order the department or the child welfare agency to conduct a screening, consisting of no more than one interview with the petitioner and a check of the petitioner's background through public records, including records maintained by the department or any county department under
s. 48.981. The department, county department or child welfare agency that conducts the screening shall file a report of the screening with the court within 30 days. After reviewing the report, the court may proceed to act on the petition, may order the department in a county having a population of 500,000 or more or the county department to conduct an investigation as described under
par. (a) (intro.) or may order the department in a county having a population of less than 500,000 or a licensed child welfare agency to make the investigation if the department or child welfare agency consents.
48.88(3)
(3) If the report of the investigation is unfavorable or if it discloses a situation which, in the opinion of the court, raises a serious question as to the suitability of the proposed adoption, the court may appoint a guardian ad litem for the minor whose adoption is proposed. The guardian ad litem may have witnesses subpoenaed and present proof at the hearing.
48.89
48.89
Recommendation of the department. 48.89(1)
(1) The recommendation of the department is required for the adoption of a child if the child is not under the guardianship of a county department under
s. 48.57 (1) (e) or
(hm) or a child welfare agency under
s. 48.61 (5).
48.89(2)
(2) The department shall make its recommendation to the court at least 10 days before the hearing unless the time is extended by the court. The recommendation shall be part of the record of the proceedings.
48.89(3)
(3) The recommendation of the department shall not be required if the recommendation of the department, a licensed child welfare agency or a county department under
s. 48.57 (1) (e) or
(hm) is required by
s. 48.841, if a report of an investigation by the department, a county department under
s. 48.57 (1) (e) or
(hm) or a licensed child welfare agency is required by
s. 48.88 (2) (a) 2. or if one of the petitioners is a relative of the child.
48.90
48.90
Filing of adoption petition; preadoption residence. 48.90(1)(1) A petition for adoption may be filed at any time if:
48.90(1)(a)
(a) One of the petitioners is a relative of the child by blood or by adoption, excluding parents whose parental rights have been terminated and persons whose relationship to the child is derived through such parents.
48.90(1)(b)
(b) The petitioner is the child's stepparent.
48.90(1)(c)
(c) The petition is accompanied by a written approval of the guardian.
48.90(1)(d)
(d) The petitioner is the proposed adoptive parent with whom the child has been placed under
s. 48.839.
