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) Except as provided in
s. 48.028 (3) (b), 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a petition for adoption or for the adoptive placement of a child, has jurisdiction over the child until the petition is withdrawn, denied, or granted.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. 54 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. 54.
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. 54 or
ch. 880, 2003 stats., whose resignation as guardian has been accepted by a court under
s. 54.54 (1) or
s. 880.17 (1), 2003 stats.
48.831(1r)
(1r) Notice. When a petition is filed under
sub. (1m), the court shall provide notice of the fact-finding hearing under
sub. (3) to all interested parties as provided in
s. 48.27 (6). If the court knows or has reason to know that the child is an Indian child, the court shall provide notice to the Indian child's Indian custodian, if any, and tribe, if known, in the manner specified in
s. 48.028 (4) (a). No hearing may be held under
sub. (3) until at least 10 days after receipt of the notice by the Indian child's Indian custodian and tribe or, if the identity or location of the Indian child's Indian custodian or tribe cannot be determined, until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the Indian child's Indian custodian or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for the hearing.
48.831(2)
(2) Report. If the department, county department, or child welfare agency files a petition, the court shall order the department, county department, or child welfare agency to file a report with 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. If the child is an Indian child, the court may order the department, county department, or child welfare agency, or request the tribal child welfare department of the Indian child's tribe, if that department consents, to file a report containing the information specified in this subsection. The department, county department, child welfare agency, or tribal child welfare department, if that department consents, 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)(cm)
(cm) If the child is an Indian child who is in the custody of an Indian custodian, the court may not remove the child from the custody of the Indian custodian under
par. (c) unless the court finds by clear and convincing evidence, including the testimony of one or more qualified expert witnesses, that continued custody of the Indian child by the Indian custodian is likely to result in serious emotional or physical damage to the child under
s. 48.028 (4) (d) 1. and the court finds that active efforts under
s. 48.028 (4) (d) 2. have been made to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful. In placing an Indian child following a transfer of guardianship and custody under
par. (b) or
(c), the custodian appointed under
par. (b) or
(c) shall comply with the order of placement preference under
s. 48.028 (7) (b) or, if applicable,
s. 48.028 (7) (c), unless there is good cause, as described in
s. 48.028 (7) (e), for departing from that order.
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. 48.833(1)(1)
Placement by department or county department. The department or a county department under
s. 48.57 (1) (e) or
(hm) may place a child for adoption in a licensed foster home without a court order under
s. 48.63 (3) (b) or if the department or county department is the guardian of the child or makes the placement at the request of another agency 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 or county department determines that the proposed adoptive parents are not required to complete that preparation. When a child is placed under this subsection in a licensed foster home for adoption, the department or county department 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 for adoption by the proposed adoptive parent.
48.833(2)
(2) Placement by child welfare agency. A child welfare agency licensed under
s. 48.60 may place a child for adoption in a licensed foster home without a court order under
s. 48.63 (3) (b) or if the child welfare agency is the guardian of the child or makes the placement at the request of another agency 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 child welfare agency determines that the proposed adoptive parents are not required to complete that preparation. When a child is placed under this subsection in a licensed foster home for adoption, the 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 for adoption by the proposed adoptive parent.
48.833(3)
(3) Indian child; placement preferences. In placing an Indian child for adoption under
sub. (1) or
(2), the department, county department, or child welfare agency shall comply with the order of placement preference under
s. 48.028 (7) (a) or, if applicable,
s. 48.028 (7) (c), unless the department, county department, or child welfare agency finds good cause, as described in
s. 48.028 (7) (e), for departing from that order.
48.834
48.834
Placement of children with relatives or siblings for adoption by the department, county departments, and child welfare agencies. 48.834(1)
(1)
Placement with relatives. Before placing a child for adoption under
s. 48.833, the department, county department under
s. 48.57 (1) (e) or
(hm), 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.
48.834(2)
(2) Placement with siblings. If a child who is being placed for adoption under
s. 48.833 has one or more siblings, as defined in
s. 48.38 (4) (br) 1., who have been adopted or who have been placed for adoption, the department, county department under
s. 48.57 (1) (e) or
(hm), or child welfare agency making the placement shall make reasonable efforts to place the child for adoption with an adoptive parent or proposed adoptive parent of such a sibling 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, unless the department, county department, or child welfare agency determines that a joint placement would be contrary to the safety or well-being of the child or any of those siblings, in which case the department, county department, or child welfare agency shall make reasonable efforts to provide for frequent visitation or other ongoing interaction between the child and the siblings, unless the department, county department, or child welfare agency determines that such visitation or interaction would be contrary to the safety or well-being of the child or any of those siblings.
48.834 History
History: 2005 a. 448;
2009 a. 79.
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)
In-state adoptive placement. 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 the proposed adoptive parent or parents if the home is licensed as a foster home under
s. 48.62.
48.837(1m)
(1m) Out-of-state adoptive placement. Subject to
ss. 48.98,
48.988, and
48.99, 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.
48.837(1r)(a)(a) At the request of a parent having custody of a child and the proposed adoptive parent or parents of the child, 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 the child in the home of the proposed adoptive parent or parents prior to the filing of a petition under
sub. (2) as provided in
par. (b) or
(c), whichever is applicable, and
par. (d). In placing an Indian child for adoption under this paragraph, the department, county department, or child welfare agency shall comply with the order of placement preference under
s. 48.028 (7) (a) or, if applicable,
s. 48.028 (7) (c), unless the department, county department, or child welfare agency finds good cause, as described in
s. 48.028 (7) (e), for departing from that order.
48.837(1r)(b)
(b) 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 under
par. (a) in the home of a proposed adoptive parent or parents who reside in this state if that home is licensed as a foster home under
s. 48.62.
48.837(1r)(c)
(c) 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 under
par. (a) in the home of a proposed adoptive parent or parents who reside outside this state if the placement is made in compliance with
s. 48.98,
48.988, or
48.99, whichever is applicable, if the home meets the criteria established by the laws of the state where the proposed adoptive parent or parents reside for a preadoptive placement of a child in the home of a nonrelative, and if an appropriate agency in that state has completed an investigation of the home and filed a report and recommendation concerning the home with the department, county department, or licensed child welfare agency.
48.837(1r)(d)
(d) Before a child may be placed under
par. (a), the department, county department, or child welfare agency making the placement and the proposed adoptive parent or parents shall enter into a written agreement that specifies who is financially responsible for the cost of providing care for the child prior to the finalization of the adoption and for the cost of returning the child to the parent who has custody of the child if the adoption is not finalized. Under the agreement, the department, county department, or child welfare agency or the proposed adoptive parent or parents, but not the birth parent of the child or any alleged or presumed father of the child, shall be financially responsible for those costs.
48.837(1r)(e)
(e) Prior to termination of parental rights to the child, no person may coerce a birth parent of the child or any alleged or presumed father of the child into refraining from exercising his or her right to withdraw consent to the transfer or surrender of the child or to termination of his or her parental rights to the child, to have reasonable visitation or contact with the child, or to otherwise exercise his or her parental rights to the child.
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(2)(d)
(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.
48.837(2)(e)
(e) If the child is an Indian child, the names and addresses of the Indian child's Indian custodian, if any, and tribe, if known.
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, 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 or, in the case of an Indian child, the tribal child welfare department of the Indian child's tribe has investigated the proposed adoptive placement and interviewed the petitioners, the court may accept a report and recommendation from the child welfare agency or tribal child welfare department in place of the court-ordered report required under this paragraph. In reporting its recommendations under this paragraph with respect to an Indian child, the department, a county department, or a child welfare agency shall comply with the order of placement preference under
s. 48.028 (7) (a) or, if applicable,
s. 48.028 (7) (c), unless the department, county department, or child welfare agency finds good cause, as described in
s. 48.028 (7) (e), for departing from that order.
48.837(4)(cm)
(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.
48.837(4)(d)
(d) May, in the case of a child who has not been placed under
sub. (1r), order the department or a county department under
s. 48.57 (1) (e) or
(hm), 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), to place the child, pending the hearing on the petition, in any home in this state that is licensed under
s. 48.62 or in any home outside this state if the conditions under
sub. (1r) (c) are met. In placing an Indian child for adoption under this paragraph, the department or county department shall comply with the order of placement preference under
s. 48.028 (7) (a) or, if applicable,
s. 48.028 (7) (c), unless the department, county department, or child welfare agency finds good cause, as described in
s. 48.028 (7) (e), for departing from that order.
48.837(4)(dm)
(dm) May, in the case of a child who has been placed under
sub. (1r), order the child to be maintained in the placement pending the hearing on the petition or order the department or a county department under
s. 48.57 (1) (e) or
(hm), 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), 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 paternity of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under
s. 767.803 has been acknowledged under
s. 767.805 or a substantially similar law of another state or adjudicated in this state or another jurisdiction. If the child's paternity has not been acknowledged or adjudicated, 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.
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)(br)
(br) At the hearing on the petition under
sub. (2), the court shall determine whether any person has coerced a birth parent or any alleged or presumed father of the child in violation of
sub. (1r) (e). Upon a finding of coercion, the court shall dismiss the petitions under
subs. (2) and
(3).
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. In determining whether placement of an Indian child in the home is in the best interest of the Indian child, the court shall comply with the order of placement preference under
s. 48.028 (7) (a) or, if applicable,
s. 48.028 (7) (c), unless the court finds good cause, as described in
s. 48.028 (7) (e), for departing from that order.
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 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). If the child has not been placed with the proposed adoptive parent or parents under
sub. (1r) or
(4) (d), the court shall order the child to be placed with the proposed adoptive parent or parents. If the child has been placed with the proposed adoptive parent or parents under
sub. (1r) or
(4) (d), the court shall order the child to be maintained in that placement.
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) or
(dm).
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.
