Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB107 Compare Versions

Only one version of the bill is available at this time.

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1	1	LRB-1927/1
2	2	EHS:amn
3	3	2023 - 2024 LEGISLATURE
4	4	2023 ASSEMBLY BILL 107
5	5	March 14, 2023 - Introduced by Representatives MAXEY, ARMSTRONG, ALLEN,
6	6	BEHNKE, BRANDTJEN, KNODL, MURPHY, MURSAU, ROZAR, WICHGERS and
7	7	RETTINGER, cosponsored by Senators JACQUE, CABRAL-GUEVARA and TOMCZYK.
8	8	Referred to Committee on Family Law.
9	9	*AUTHORS SUBJECT TO CHANGE*
10	10	AN ACT to amend 48.41 (1), 48.42 (2) (a), 48.46 (2), 48.837 (5) and 48.91 (3); and
11	11	to create 48.41 (2) (bm) and 48.913 (1) (em) of the statutes; relating to: a
12	12	disclaimer of parental rights and payments allowed in connection with an
13	13	adoption.
14	14	Analysis by the Legislative Reference Bureau
15	15	This bill provides a method by which a mother, father, or alleged or presumed
16	16	father may disclaim his or her parental rights with respect to a child under the age
17	17	of one who is not an Indian child in writing as an alternative to appearing in court
18	18	to consent to the termination of his or her parental rights. The bill also allows
19	19	payments to be made to a licensed out-of-state private child placing agency for
20	20	services provided in connection with an adoption.
21	21	Disclaimer of parental rights
22	22	Subject to certain exceptions, current law generally requires a birth parent to
23	23	appear in court to consent to the termination of his or her parental rights. This bill
24	24	adds an exception that allows a mother, father, or alleged or presumed father to avoid
25	25	appearing in court if he or she files with the court an affidavit disclaiming his or her
26	26	parental rights with respect to a child under the age of one and if no participant in
27	27	the court proceeding knows or has reason to know that the child is an Indian child.
28	28	A minor may use such an affidavit of disclaimer only after the TPR petition has been
29	29	filed, he or she has been offered legal counseling, and he or she has been appointed
30	30	a guardian ad litem and only if the guardian ad litem approves the disclaimer. The
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34	34	4 - 2 -2023 - 2024 Legislature LRB-1927/1
35	35	EHS:amn
36	36	ASSEMBLY BILL 107
37	37	affidavit must comply with certain requirements, including that it must be
38	38	witnessed and notarized and must include a statement that the parent understands
39	39	the effect of an order to terminate parental rights and that he or she voluntarily
40	40	disclaims any rights that he or she may have to the child. The bill requires the court
41	41	to review the affidavit and make findings on whether it meets all of the requirements.
42	42	Under the bill, the affidavit containing a disclaimer of parental rights may be
43	43	executed before the birth of the child by the father or alleged or presumed father but
44	44	not the mother and may be executed by either parent 120 hours or more after the
45	45	birth until the child's first birthday; however, the affidavit may not be executed by
46	46	either parent from birth until 120 hours after the birth or on or after the child's first
47	47	birthday.
48	48	Under the bill, if executed by the father or alleged or presumed father before
49	49	the child's birth, the disclaimer is revokable for any reason until 72 hours after
50	50	execution or 120 hours after the birth, whichever is later. If executed by the mother,
51	51	the disclaimer is revocable for any reason until 72 hours after execution. If not
52	52	revoked by the applicable time limit, the disclaimer is irrevocable unless obtained
53	53	by fraud or duress. Under the bill, no action to invalidate a disclaimer, including an
54	54	action based on fraud or duress, may be commenced more than three months after
55	55	the affidavit was executed. If parental rights to a child are terminated based upon
56	56	such a disclaimer of parental rights, the bill prohibits a court from entering an order
57	57	granting adoption of the child until three months have passed since the affidavit was
58	58	executed.
59	59	The bill requires the agency making the placement of the child for adoption,
60	60	whether the agency is the Department of Children and Families, the county
61	61	department of human services or social services, or a licensed child welfare agency,
62	62	to offer both counseling and legal counseling to the person disclaiming his or her
63	63	parental rights, at the agency's expense, prior to execution of the affidavit. The
64	64	person must acknowledge in the affidavit that he or she has been offered these
65	65	counseling and legal counseling sessions and whether or not he or she accepted them.
66	66	Payments relating to adoption
67	67	This bill allows payments to be made to an out-of-state private child placing
68	68	agency that is licensed in the state in which it operates for services provided in
69	69	connection with an adoption and, where applicable, in compliance with the federal
70	70	Indian Child Welfare Act, as certified to DCF. Under the bill, a private child placing
71	71	agency means a private corporation, agency, foundation, institution, or charitable
72	72	organization, or any private person or attorney, that facilitates, causes, or is involved
73	73	in the placement of a child from one state to another state. Current law allows
74	74	payments for such services only to a child welfare agency licensed in this state.
75	75	The people of the state of Wisconsin, represented in senate and assembly, do
76	76	enact as follows:
77	77	SECTION 1. 48.41 (1) of the statutes is amended to read:1 - 3 -2023 - 2024 Legislature
78	78	LRB-1927/1
79	79	EHS:amn
80	80	SECTION 1
81	81	ASSEMBLY BILL 107
82	82	48.41 (1) The court may terminate the parental rights of a parent after the
83	83	parent has given his or her consent as specified in this section. When such voluntary
84	84	consent is given as provided in this section sub. (2) (a), (b), or (c) to (e) or when an
85	85	affidavit of disclaimer of parental rights executed under sub. (2) (bm) is irrevocable,
86	86	the judge may proceed immediately to a disposition of the matter after considering
87	87	the standard and factors specified in s. 48.426.
88	88	SECTION 2. 48.41 (2) (bm) of the statutes is created to read:
89	89	48.41 (2) (bm) 1. Subject to subd. 1m., a mother, father, or presumed or alleged
90	90	father may consent to the termination of any parental rights that he or she may have
91	91	with respect to a child who is under one year of age if no participant in the court
92	92	proceeding, including the mother, father, or presumed or alleged father, knows or has
93	93	reason to know that the child is an Indian child by the method provided in par. (a)
94	94	or (b) or by filing with the court an affidavit of disclaimer of parental rights that is
95	95	signed by 2 witnesses and notarized and that meets the requirements under subds.
96	96	2. to 8.
97	97	1m. A minor may consent to the termination of any parental rights that he or
98	98	she may have with respect to a child by using an affidavit of disclaimer under subd.
99	99	1. only after the petition to terminate parental rights has been filed, the agency has
100	100	offered the minor legal counseling under subd. 11., and he or she has been appointed
101	101	a guardian ad litem and only if the guardian ad litem approves the disclaimer.
102	102	2. All of the following apply to the affidavit of disclaimer of parental rights
103	103	under subd. 1.:
104	104	a. The affidavit may not be executed after the birth of the child until 120 hours
105	105	after the birth of the child and may not be executed on or after the child's first
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131	131	SECTION 2 ASSEMBLY BILL 107
132	132	birthday. The father or presumed or alleged father may, but the mother may not,
133	133	execute the affidavit before the birth of the child.
134	134	b. If executed by the father or presumed or alleged father, the affidavit is
135	135	revocable for any reason until 72 hours after execution or 120 hours after the birth
136	136	of the child, whichever is later, as provided under subd. 9. If executed by the mother,
137	137	the affidavit is revocable for any reason until 72 hours after execution, as provided
138	138	in subd. 9.
139	139	c. The affidavit is irrevocable if not revoked for any reason by the mother,
140	140	father, or presumed or alleged father by the applicable time limit provided under
141	141	subd. 2. b., unless it was obtained by fraud or duress.
142	142	d. Except as provided in s. 48.028 (5) (b) and (c) and (6), no action to invalidate
143	143	the affidavit, including an action based on fraud or duress, may be commenced more
144	144	than 3 months after the date the affidavit was executed.
145	145	3. An affidavit under subd. 1. shall contain all of the following:
146	146	a. The name, county of residence, and age of the parent whose parental rights
147	147	are being terminated.
148	148	b. The name, age, and birth date of the child, if born.
149	149	c. The names and addresses of the guardians of the person whose parental
150	150	rights are being terminated, if that person is a minor, and of the estate of the child,
151	151	if any.
152	152	d. A statement of whether the person whose parental rights are being
153	153	terminated is or is not presently obligated by court order to make payments for the
154	154	support of the child.
155	155	e. A full description and statement of value of all property the child owns or
156	156	possesses.
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184	184	SECTION 2
185	185	ASSEMBLY BILL 107
186	186	f. An allegation that termination of parental rights is in the best interest of the
187	187	child.
188	188	g. The name and county of residence of any other parent or presumed or alleged
189	189	father or a statement that the child has no other parent or presumed or alleged
190	190	father.
191	191	h. If applicable, a statement that the parental rights of the other parent or
192	192	presumed or alleged father have been terminated by death or court order.
193	193	i. A statement containing the information and understandings specified in
194	194	subd. 4.
195	195	j. A statement that there is or is not any reason to believe that the child is an
196	196	Indian child.
197	197	k. The date and time that the affidavit is executed.
198	198	4. An affidavit under subd. 1. shall contain a statement in substantially the
199	199	following form:
200	200	“I have been informed of and understand all of the following:
201	201	A. That a court order terminating parental rights will permanently end all
202	202	legal rights and duties that exist between me and the child, such as the duty to
203	203	support, the right to custody and visitation, and the right to inherit.
204	204	B. That there are parenting-related services that would be available to me if
205	205	I chose not to consent to the termination of my parental rights.
206	206	C. That this affidavit may not be executed less than 120 hours after the birth
207	207	of the child, on or after the child's first birthday, or by the child's mother before the
208	208	birth of the child.
209	209	D. That the child's father or presumed or alleged father has the right to revoke
210	210	an affidavit of disclaimer for any reason until 72 hours after execution or 120 hours
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237	237	SECTION 2 ASSEMBLY BILL 107
238	238	after the birth of the child, whichever is later, and the child's mother may revoke the
239	239	affidavit for any reason until 72 hours after execution.
240	240	E. That the affidavit is irrevocable if not revoked for any reason by the mother,
241	241	father, or presumed or alleged father by the applicable time limit under D., above,
242	242	unless it was obtained by fraud or duress.
243	243	F. That no action to invalidate the affidavit, including an action based on fraud
244	244	or duress, may be commenced more than 3 months after the date the affidavit was
245	245	executed.
246	246	G. Prior to executing this affidavit I have been offered counseling at the
247	247	expense of the agency that is placing the child for adoption. I have accepted/refused
248	248	(circle one) this counseling.
249	249	H. If I am younger than 18 years of age, prior to executing this affidavit I have
250	250	been offered legal counseling at the expense of the agency that is placing the child
251	251	for adoption. I have accepted/refused (circle one) this legal counseling.”
252	252	5. An affidavit under subd. 1. shall contain a statement that the person whose
253	253	parental rights are being terminated voluntarily disclaims any rights that he or she
254	254	may have to the child, including the right to notice of proceedings under this chapter.
255	255	6. If a guardian has not been appointed under s. 48.979, an affidavit under
256	256	subd. 1. may contain the nomination of the department, a county department
257	257	authorized to accept guardianship under s. 48.57 (1) (e) or (hm), or a child welfare
258	258	agency licensed under s. 48.61 (5) to accept guardianship to serve as guardian of the
259	259	child and the nominated guardian's address.
260	260	6m. The person disclaiming his or her parental rights shall choose at least one
261	261	of the witnesses to the affidavit, and that witness shall certify that he or she was
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288	288	SECTION 2
289	289	ASSEMBLY BILL 107
290	290	chosen by that person. Each witness to the affidavit shall certify to all of the
291	291	following:
292	292	a. That he or she has no professional or fiduciary interest in the disclaimer or
293	293	the adoption of the child.
294	294	b. That he or she has knowledge of the relationship between the person
295	295	disclaiming his or her parental rights and the child.
296	296	c. That he or she has discussed the decision to execute the affidavit with the
297	297	person disclaiming his or her parental rights and that, to the best of the witness's
298	298	knowledge, the affidavit is being signed voluntarily.
299	299	d. That he or she is neutral.
300	300	7. A copy of the affidavit shall be provided to the person whose parental rights
301	301	are being terminated at the time he or she signs the affidavit.
302	302	8. The affidavit may not contain terms for post-termination contact between
303	303	the child and the person whose parental rights are to be terminated as a condition
304	304	of the disclaimer of parental rights.
305	305	9. To revoke a disclaimer of parental rights in an affidavit under subd. 1., the
306	306	mother, father, or presumed or alleged father shall sign a statement revoking the
307	307	disclaimer of parental rights that is notarized. A copy of the revocation shall be filed
308	308	with the clerk of court. A revocation is not valid unless it is executed by the father
309	309	or presumed or alleged father before 72 hours after execution of the affidavit or 120
310	310	hours after the birth of the child, whichever is later, or executed by the mother before
311	311	72 hours after execution of the affidavit.
312	312	10. The agency that is making the placement of the child for adoption shall offer
313	313	counseling to a mother, father, or presumed or alleged father who intends to execute
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339	339	SECTION 2 ASSEMBLY BILL 107
340	340	an affidavit under this paragraph prior to executing the affidavit with a counselor
341	341	who is qualified to provide such counseling.
342	342	11. The agency that is making the placement of the child for adoption shall offer
343	343	to a mother, father, or presumed or alleged father who is a minor and who intends
344	344	to execute an affidavit under this paragraph legal counseling with an attorney who
345	345	does not represent the agency or adoptive parents prior to executing the affidavit.
346	346	12. An affidavit of disclaimer of parental rights under this paragraph is not
347	347	effective if it would violate s. 48.028 or the federal Indian Child Welfare Act, 25 USC
348	348	1901 to 1963, or any regulations promulgated thereunder or if the agency responsible
349	349	for securing the adoption of the child knows or has reason to know the child is an
350	350	Indian child.
351	351	13. The court shall review an affidavit of disclaimer of parental rights to ensure
352	352	it meets the requirements under subds. 2 to 8. The court shall make findings on the
353	353	record stating whether the affidavit meets those requirements and whether all
354	354	participants in the court proceeding, including the mother, father, or presumed or
355	355	alleged father, have stated that they do not know or have reason to know that the
356	356	child is an Indian child.
357	357	SECTION 3. 48.42 (2) (a) of the statutes is amended to read:
358	358	48.42 (2) (a) The parent or parents of the child, unless the child's parent has
359	359	waived the right to notice under s. 48.41 (2) (d), or the child's parent or presumed or
360	360	alleged father has waived the right to notice under s. 48.41 (2) (bm).
361	361	SECTION 4. 48.46 (2) of the statutes is amended to read:
362	362	48.46 (2) A parent who has consented to the termination of his or her parental
363	363	rights under s. 48.41 or who did not contest the petition initiating the proceeding in
364	364	which his or her parental rights were terminated may move the court for relief from
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392	392	SECTION 4
393	393	ASSEMBLY BILL 107
394	394	the judgment on any of the grounds specified in s. 806.07 (1) (a), (b), (c), (d) or (f). Any
395	395	such motion shall be filed within 30 days after the entry of the judgment or order
396	396	terminating parental rights, unless the parent files a timely notice of intent to
397	397	pursue relief from the judgment under s. 808.04 (7m), in which case the motion shall
398	398	be filed within the time permitted by s. 809.107 (5). A motion under this subsection
399	399	does not affect the finality or suspend the operation of the judgment or order
400	400	terminating parental rights. A parent who has consented to the termination of his
401	401	or her parental rights to an Indian child under s. 48.41 (2) (e) may also move for relief
402	402	from the judgment under s. 48.028 (5) (c) or (6). A parent who has consented to the
403	403	termination of his or her parental rights to a child by filing an affidavit of disclaimer
404	404	of parental rights under s. 48.41 (2) (bm) may also bring an action to invalidate the
405	405	affidavit as provided under s. 48.41 (2) (bm) 2. d. Motions under this subsection or
406	406	s. 48.028 (5) (c) or (6) or 48.41 (2) (bm) 2. d. and appeals to the court of appeals shall
407	407	be the exclusive remedies for such a parent to obtain a new hearing in a termination
408	408	of parental rights proceeding.
409	409	SECTION 5. 48.837 (5) of the statutes is amended to read:
410	410	48.837 (5) ATTENDANCE AT HEARING. The child, if he or she is 12 years of age or
411	411	over, and each petitioner shall attend the hearing on the petition under sub. (2). The
412	412	child, if he or she is 12 years of age or over, and each parent having custody of the child
413	413	shall attend the hearing on the petition under sub. (3), except that a parent who has
414	414	consented to the termination of his or her parental rights in writing under s. 48.41
415	415	(2) (b), (bm), or (d) is not required to attend the hearing. If the parent who has custody
416	416	of the child consents and the court approves, the proposed adoptive parents may be
417	417	present at the hearing on the petition under sub. (3). The court may, for good cause,
418	418	waive the requirement that the child attend either of the hearings.
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445	445	SECTION 6 ASSEMBLY BILL 107
446	446	SECTION 6. 48.91 (3) of the statutes is amended to read:
447	447	48.91 (3) If Subject to this subsection, if after the hearing and a study of the
448	448	report required by s. 48.88 and the recommendation required by s. 48.841 or 48.89,
449	449	the court is satisfied that the necessary consents or recommendations have been filed
450	450	and that the adoption is in the best interests of the child, the court shall make an
451	451	order granting the adoption. If parental rights to the child were terminated based
452	452	upon an affidavit under s. 48.41 (2) (bm), the court may not make an order granting
453	453	adoption until 3 months have passed since the date the affidavit was executed. In
454	454	determining whether the adoption is in the best interests of an Indian child, the court
455	455	shall comply with the order of placement preference under s. 48.028 (7) (a) or, if
456	456	applicable, s. 48.028 (7) (c), unless the court finds good cause, as described in s. 48.028
457	457	(7) (e), for departing from that order. The order may change the name of the minor
458	458	to that requested by petitioners.
459	459	SECTION 7. 48.913 (1) (em) of the statutes is created to read:
460	460	48.913 (1) (em) Services provided in connection with the adoption by a private
461	461	child placing agency, as defined in s. 48.99 (2) (p), that is licensed under the laws of
462	462	the state in which it operates, and, where applicable, in compliance with the federal
463	463	Indian Child Welfare Act, 25 USC 1901 to 1963, as certified to the department.
464	464	(END)
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