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.
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. 49.32 (1) (b) or
49.345 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. 49.32 (1) (b) or
49.345 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), if the guardian has filed the bond required under
sub. (1), and if the guardian has completed the preadoption preparation required under
s. 48.84 (1) or the department has determined that the guardian is not required to complete that preparation, the department shall certify to the U.S. immigration and naturalization service that all preadoptive requirements of this state that can be met before the child's arrival in the United States have been met.
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), if the guardian has filed the bond required under
sub. (1), and if the guardian has completed the preadoption preparation required under
s. 48.84 (1) or the department has determined that the guardian is not required to complete that preparation, the department shall certify to the U.S. immigration and naturalization service that all preadoptive requirements of this state that can be met prior to the child's arrival in the United States have been met.
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.
48.84
48.84
Preadoption preparation for proposed adoptive parents. 48.84(1)(1) Before a child may be placed under
s. 48.833 for adoption by a proposed adoptive parent who has not previously adopted a child, before a proposed adoptive parent who has not previously adopted a child may petition for placement of a child for adoption under
s. 48.837, and before a proposed adoptive parent who has not previously adopted a child may bring a child into this state for adoption under
s. 48.839, the proposed adoptive parent shall complete the preadoption preparation required under this section. The preparation shall be provided by a licensed child welfare agency, a licensed private adoption agency, the state adoption information exchange under
s. 48.55, the state adoption center under
s. 48.55, a state-funded foster care and adoption resource center, a state-funded postadoption resource center, a technical college district school, or an institution or college campus within the University of Wisconsin System. If the proposed adoptive parent does not reside in this state, he or she may meet this requirement by obtaining equivalent preparation in his or her state of residence.
48.84(2)
(2) The department shall promulgate rules establishing the number of hours of preadoption preparation that is required under
sub. (1) and the topics covered under that preparation. The preparation shall include training on issues that may confront adoptive parents, in general, and that may confront adoptive parents of special needs children or foreign children.
48.84(3)
(3) A proposed adoptive parent who petitions to adopt a child under
s. 48.837 or
48.839 or with whom a child is placed under
s. 48.833 (2) shall pay the costs of the preadoption preparation required under
sub. (1). The department shall pay the costs of the preadoption preparation required under
sub. (1) for a proposed adoptive parent with whom a child is placed under
s. 48.833 (1).
48.84 History
History: 2005 a. 293;
2007 a. 20,
186.
48.84 Cross-reference
Cross-reference: See also s.
DCF 51.10, Wis. adm. code.
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. In making a recommendation under this subsection with respect to an Indian child, the guardian shall comply with the order of placement preference under
s. 48.028 (7) (a) or, if applicable,
s. 48.028 (7) (c).
