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2023 - 2024 LEGISLATURE
2023 ASSEMBLY BILL 107
March 14, 2023 - Introduced by Representatives MAXEY, ARMSTRONG, ALLEN,
BEHNKE, BRANDTJEN, KNODL, MURPHY, MURSAU, ROZAR, WICHGERS and
RETTINGER, cosponsored by Senators JACQUE, CABRAL-GUEVARA and TOMCZYK.
Referred to Committee on Family Law.
***AUTHORS SUBJECT TO CHANGE***
AN ACT to amend 48.41 (1), 48.42 (2) (a), 48.46 (2), 48.837 (5) and 48.91 (3); and
to create 48.41 (2) (bm) and 48.913 (1) (em) of the statutes; relating to: a
disclaimer of parental rights and payments allowed in connection with an
adoption.
Analysis by the Legislative Reference Bureau
This bill provides a method by which a mother, father, or alleged or presumed
father may disclaim his or her parental rights with respect to a child under the age
of one who is not an Indian child in writing as an alternative to appearing in court
to consent to the termination of his or her parental rights. The bill also allows
payments to be made to a licensed out-of-state private child placing agency for
services provided in connection with an adoption.
Disclaimer of parental rights
Subject to certain exceptions, current law generally requires a birth parent to
appear in court to consent to the termination of his or her parental rights. This bill
adds an exception that allows a mother, father, or alleged or presumed father to avoid
appearing in court if he or she files with the court an affidavit disclaiming his or her
parental rights with respect to a child under the age of one and if no participant in
the court proceeding knows or has reason to know that the child is an Indian child.
A minor may use such an affidavit of disclaimer only after the TPR petition has been
filed, he or she has been offered legal counseling, and he or she has been appointed
a guardian ad litem and only if the guardian ad litem approves the disclaimer. The
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affidavit must comply with certain requirements, including that it must be
witnessed and notarized and must include a statement that the parent understands
the effect of an order to terminate parental rights and that he or she voluntarily
disclaims any rights that he or she may have to the child. The bill requires the court
to review the affidavit and make findings on whether it meets all of the requirements.
Under the bill, the affidavit containing a disclaimer of parental rights may be
executed before the birth of the child by the father or alleged or presumed father but
not the mother and may be executed by either parent 120 hours or more after the
birth until the child's first birthday; however, the affidavit may not be executed by
either parent from birth until 120 hours after the birth or on or after the child's first
birthday.
Under the bill, if executed by the father or alleged or presumed father before
the child's birth, the disclaimer is revokable for any reason until 72 hours after
execution or 120 hours after the birth, whichever is later. If executed by the mother,
the disclaimer is revocable for any reason until 72 hours after execution. If not
revoked by the applicable time limit, the disclaimer is irrevocable unless obtained
by fraud or duress. Under the bill, no action to invalidate a disclaimer, including an
action based on fraud or duress, may be commenced more than three months after
the affidavit was executed. If parental rights to a child are terminated based upon
such a disclaimer of parental rights, the bill prohibits a court from entering an order
granting adoption of the child until three months have passed since the affidavit was
executed.
The bill requires the agency making the placement of the child for adoption,
whether the agency is the Department of Children and Families, the county
department of human services or social services, or a licensed child welfare agency,
to offer both counseling and legal counseling to the person disclaiming his or her
parental rights, at the agency's expense, prior to execution of the affidavit. The
person must acknowledge in the affidavit that he or she has been offered these
counseling and legal counseling sessions and whether or not he or she accepted them.
Payments relating to adoption
This bill allows payments to be made to an out-of-state private child placing
agency that is licensed in the state in which it operates for services provided in
connection with an adoption and, where applicable, in compliance with the federal
Indian Child Welfare Act, as certified to DCF. Under the bill, a private child placing
agency means a private corporation, agency, foundation, institution, or charitable
organization, or any private person or attorney, that facilitates, causes, or is involved
in the placement of a child from one state to another state. Current law allows
payments for such services only to a child welfare agency licensed in this state.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SECTION 1. 48.41 (1) of the statutes is amended to read:1 - 3 -2023 - 2024 Legislature
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48.41 (1) The court may terminate the parental rights of a parent after the
parent has given his or her consent as specified in this section. When such voluntary
consent is given as provided in this section sub. (2) (a), (b), or (c) to (e) or when an
affidavit of disclaimer of parental rights executed under sub. (2) (bm) is irrevocable,
the judge may proceed immediately to a disposition of the matter after considering
the standard and factors specified in s. 48.426.
SECTION 2. 48.41 (2) (bm) of the statutes is created to read:
48.41 (2) (bm) 1. Subject to subd. 1m., a mother, father, or presumed or alleged
father may consent to the termination of any parental rights that he or she may have
with respect to a child who is under one year of age if no participant in the court
proceeding, including the mother, father, or presumed or alleged father, knows or has
reason to know that the child is an Indian child by the method provided in par. (a)
or (b) or by filing with the court an affidavit of disclaimer of parental rights that is
signed by 2 witnesses and notarized and that meets the requirements under subds.
2. to 8.
1m. A minor may consent to the termination of any parental rights that he or
she may have with respect to a child by using an affidavit of disclaimer under subd.
1. only after the petition to terminate parental rights has been filed, the agency has
offered the minor legal counseling under subd. 11., and he or she has been appointed
a guardian ad litem and only if the guardian ad litem approves the disclaimer.
2. All of the following apply to the affidavit of disclaimer of parental rights
under subd. 1.:
a. The affidavit may not be executed after the birth of the child until 120 hours
after the birth of the child and may not be executed on or after the child's first
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birthday. The father or presumed or alleged father may, but the mother may not,
execute the affidavit before the birth of the child.
b. If executed by the father or presumed or alleged father, the affidavit is
revocable for any reason until 72 hours after execution or 120 hours after the birth
of the child, whichever is later, as provided under subd. 9. If executed by the mother,
the affidavit is revocable for any reason until 72 hours after execution, as provided
in subd. 9.
c. The affidavit is irrevocable if not revoked for any reason by the mother,
father, or presumed or alleged father by the applicable time limit provided under
subd. 2. b., unless it was obtained by fraud or duress.
d. Except as provided in s. 48.028 (5) (b) and (c) and (6), no action to invalidate
the affidavit, including an action based on fraud or duress, may be commenced more
than 3 months after the date the affidavit was executed.
3. An affidavit under subd. 1. shall contain all of the following:
a. The name, county of residence, and age of the parent whose parental rights
are being terminated.
b. The name, age, and birth date of the child, if born.
c. The names and addresses of the guardians of the person whose parental
rights are being terminated, if that person is a minor, and of the estate of the child,
if any.
d. A statement of whether the person whose parental rights are being
terminated is or is not presently obligated by court order to make payments for the
support of the child.
e. A full description and statement of value of all property the child owns or
possesses.
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f. An allegation that termination of parental rights is in the best interest of the
child.
g. The name and county of residence of any other parent or presumed or alleged
father or a statement that the child has no other parent or presumed or alleged
father.
h. If applicable, a statement that the parental rights of the other parent or
presumed or alleged father have been terminated by death or court order.
i. A statement containing the information and understandings specified in
subd. 4.
j. A statement that there is or is not any reason to believe that the child is an
Indian child.
k. The date and time that the affidavit is executed.
4. An affidavit under subd. 1. shall contain a statement in substantially the
following form:
“I have been informed of and understand all of the following:
A. That a court order terminating parental rights will permanently end all
legal rights and duties that exist between me and the child, such as the duty to
support, the right to custody and visitation, and the right to inherit.
B. That there are parenting-related services that would be available to me if
I chose not to consent to the termination of my parental rights.
C. That this affidavit may not be executed less than 120 hours after the birth
of the child, on or after the child's first birthday, or by the child's mother before the
birth of the child.
D. That the child's father or presumed or alleged father has the right to revoke
an affidavit of disclaimer for any reason until 72 hours after execution or 120 hours
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after the birth of the child, whichever is later, and the child's mother may revoke the
affidavit for any reason until 72 hours after execution.
E. That the affidavit is irrevocable if not revoked for any reason by the mother,
father, or presumed or alleged father by the applicable time limit under D., above,
unless it was obtained by fraud or duress.
F. That no action to invalidate the affidavit, including an action based on fraud
or duress, may be commenced more than 3 months after the date the affidavit was
executed.
G. Prior to executing this affidavit I have been offered counseling at the
expense of the agency that is placing the child for adoption. I have accepted/refused
(circle one) this counseling.
H. If I am younger than 18 years of age, prior to executing this affidavit I have
been offered legal counseling at the expense of the agency that is placing the child
for adoption. I have accepted/refused (circle one) this legal counseling.”
5. An affidavit under subd. 1. shall contain a statement that the person whose
parental rights are being terminated voluntarily disclaims any rights that he or she
may have to the child, including the right to notice of proceedings under this chapter.
6. If a guardian has not been appointed under s. 48.979, an affidavit under
subd. 1. may contain the nomination of the department, a county department
authorized to accept guardianship under s. 48.57 (1) (e) or (hm), or a child welfare
agency licensed under s. 48.61 (5) to accept guardianship to serve as guardian of the
child and the nominated guardian's address.
6m. The person disclaiming his or her parental rights shall choose at least one
of the witnesses to the affidavit, and that witness shall certify that he or she was
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chosen by that person. Each witness to the affidavit shall certify to all of the
following:
a. That he or she has no professional or fiduciary interest in the disclaimer or
the adoption of the child.
b. That he or she has knowledge of the relationship between the person
disclaiming his or her parental rights and the child.
c. That he or she has discussed the decision to execute the affidavit with the
person disclaiming his or her parental rights and that, to the best of the witness's
knowledge, the affidavit is being signed voluntarily.
d. That he or she is neutral.
7. A copy of the affidavit shall be provided to the person whose parental rights
are being terminated at the time he or she signs the affidavit.
8. The affidavit may not contain terms for post-termination contact between
the child and the person whose parental rights are to be terminated as a condition
of the disclaimer of parental rights.
9. To revoke a disclaimer of parental rights in an affidavit under subd. 1., the
mother, father, or presumed or alleged father shall sign a statement revoking the
disclaimer of parental rights that is notarized. A copy of the revocation shall be filed
with the clerk of court. A revocation is not valid unless it is executed by the father
or presumed or alleged father before 72 hours after execution of the affidavit or 120
hours after the birth of the child, whichever is later, or executed by the mother before
72 hours after execution of the affidavit.
10. The agency that is making the placement of the child for adoption shall offer
counseling to a mother, father, or presumed or alleged father who intends to execute
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an affidavit under this paragraph prior to executing the affidavit with a counselor
who is qualified to provide such counseling.
11. The agency that is making the placement of the child for adoption shall offer
to a mother, father, or presumed or alleged father who is a minor and who intends
to execute an affidavit under this paragraph legal counseling with an attorney who
does not represent the agency or adoptive parents prior to executing the affidavit.
12. An affidavit of disclaimer of parental rights under this paragraph is not
effective if it would violate s. 48.028 or the federal Indian Child Welfare Act, 25 USC
1901 to 1963, or any regulations promulgated thereunder or if the agency responsible
for securing the adoption of the child knows or has reason to know the child is an
Indian child.
13. The court shall review an affidavit of disclaimer of parental rights to ensure
it meets the requirements under subds. 2 to 8. The court shall make findings on the
record stating whether the affidavit meets those requirements and whether all
participants in the court proceeding, including the mother, father, or presumed or
alleged father, have stated that they do not know or have reason to know that the
child is an Indian child.
SECTION 3. 48.42 (2) (a) of the statutes is amended to read:
48.42 (2) (a) The parent or parents of the child, unless the child's parent has
waived the right to notice under s. 48.41 (2) (d), or the child's parent or presumed or
alleged father has waived the right to notice under s. 48.41 (2) (bm).
SECTION 4. 48.46 (2) of the statutes is amended to read:
48.46 (2) A parent who has consented to the termination of his or her parental
rights under s. 48.41 or who did not contest the petition initiating the proceeding in
which his or her parental rights were terminated may move the court for relief from
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the judgment on any of the grounds specified in s. 806.07 (1) (a), (b), (c), (d) or (f). Any
such motion shall be filed within 30 days after the entry of the judgment or order
terminating parental rights, unless the parent files a timely notice of intent to
pursue relief from the judgment under s. 808.04 (7m), in which case the motion shall
be filed within the time permitted by s. 809.107 (5). A motion under this subsection
does not affect the finality or suspend the operation of the judgment or order
terminating parental rights. A parent who has consented to the termination of his
or her parental rights to an Indian child under s. 48.41 (2) (e) may also move for relief
from the judgment under s. 48.028 (5) (c) or (6). A parent who has consented to the
termination of his or her parental rights to a child by filing an affidavit of disclaimer
of parental rights under s. 48.41 (2) (bm) may also bring an action to invalidate the
affidavit as provided under s. 48.41 (2) (bm) 2. d. Motions under this subsection or
s. 48.028 (5) (c) or (6) or 48.41 (2) (bm) 2. d. and appeals to the court of appeals shall
be the exclusive remedies for such a parent to obtain a new hearing in a termination
of parental rights proceeding.
SECTION 5. 48.837 (5) of the statutes is amended to read:
48.837 (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), except that a parent who has
consented to the termination of his or her parental rights in writing under s. 48.41
(2) (b), (bm), or (d) is not required to attend the hearing. 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.
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SECTION 6 ASSEMBLY BILL 107
SECTION 6. 48.91 (3) of the statutes is amended to read:
48.91 (3) If Subject to this subsection, if after the hearing and a study of the
report required by s. 48.88 and the recommendation required by s. 48.841 or 48.89,
the court is satisfied that the necessary consents or recommendations have been filed
and that the adoption is in the best interests of the child, the court shall make an
order granting the adoption. If parental rights to the child were terminated based
upon an affidavit under s. 48.41 (2) (bm), the court may not make an order granting
adoption until 3 months have passed since the date the affidavit was executed. In
determining whether the adoption is in the best interests of an 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. The order may change the name of the minor
to that requested by petitioners.
SECTION 7. 48.913 (1) (em) of the statutes is created to read:
48.913 (1) (em) Services provided in connection with the adoption by a private
child placing agency, as defined in s. 48.99 (2) (p), that is licensed under the laws of
the state in which it operates, and, where applicable, in compliance with the federal
Indian Child Welfare Act, 25 USC 1901 to 1963, as certified to the department.
(END)
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