AB263: Bill Text

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 an adult mother or adult 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 who is not an Indian child. The affidavit must comply with certain requirements, including that it must be witnessed by two individuals 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.

Under the bill, the affidavit containing a disclaimer of parental rights may be executed before the birth of the child by the alleged or presumed father but not the mother, may not be executed by either parent between the birth and 72 hours after the birth, and may be executed by either parent 72 hours or more after the birth. If executed 72 hours or more after the birth of the child, or if not revoked by the alleged or presumed father before 72 hours after the birth of the child, 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 six months after the affidavit was executed, except that, if the petition to terminate parental rights is granted, no action to invalidate the disclaimer may be commenced later than the time limits allowed for filing a motion for relief from a judgment or order terminating parental rights.

Grounds for termination of parental rights

Under current law, in a proceeding for involuntary TPR, the juvenile court must determine whether grounds exist for TPR. One of the grounds for TPR under current law is failure to assume parental responsibility for a child, which is established by proving that the parent or the person who may be the parent of the child has not had a substantial parental relationship with the child. “Substantial parental relationship” is defined in current law as the acceptance and exercise of significant responsibility for the daily supervision, education, protection, and care of the child. In evaluating whether a person has had a substantial parental relationship with the child, current law allows the juvenile court to consider certain factors, including whether the person has expressed concern for or interest in the support, care, or well-being of the child and whether, with respect to a person who is or may be the father of the child, the person has expressed concern for or interest in the support, care, or well-being of the mother during her pregnancy.

This bill changes the factor related to expressing concern for or interest in the support, care, and well-being of the child to whether the person has provided care or support for the child. The bill eliminates the factor of whether the person has expressed concern for or interest in the support, care, or well-being of the mother during her pregnancy. The bill instead provides that proving that a person who is or may be the father of the child failed to provide care and support for the mother during her pregnancy, without reasonable cause, establishes abandonment of a child, which is a ground for TPR under current law. Also under the bill, proving that a parent has failed without reasonable cause to pay court-ordered payments of child support establishes abandonment of the child.

Rights of an alleged father

Under this bill, an alleged father of a nonmarital child whose paternity has not been established is entitled to actual notice of a TPR proceeding, and the resulting rights of standing in that proceeding, only if that person has filed a declaration of paternal interest. There are three types of alleged fathers of a nonmarital child who currently are entitled to TPR notice:

1. A person alleged to the court to be the father of the child or who may, based upon the statements of the mother or other information presented to the court, be the father of the child.

2. A person who has lived in a familial relationship with the child and who may be the father of the child.

3. A person who has filed a declaration of paternal interest.

The bill provides that a person who is eligible to but who fails to file a declaration of paternal interest in matters affecting a child is deemed to have irrevocably consented to the termination of any parental rights the person has to the child and to the child's adoption unless, at the time of the TPR or adoption petition, the person's paternity of the child was acknowledged or was in the process of being adjudicated. The bill makes no change to the requirements of notice or to a father's rights in a TPR or adoption proceeding with respect to an Indian child.

Under current law, any person claiming to be the father of a nonmarital child whose paternity has not been established may file with the Department of Children and Families a declaration of paternal interest in matters affecting the child. Generally, the declaration may be filed before the child's birth or within 14 days after the child's birth and may be revoked at any time. In certain cases a petitioner may file with the petition an affidavit signed by the mother that provides information identifying an alleged father, in which case the petitioner is required to send notice to the alleged father of his right to file a declaration of paternal interest. In that case, the alleged father has 21 days after receipt of such notice to file the declaration. Filing a declaration does not extend parental rights to the person filing the declaration, but it does entitle that person to notice of certain proceedings related to the child, including a TPR proceeding.

Under current law, a person who may be the father of a nonmarital child by virtue of the fact that the person had sexual intercourse with the mother of the child, whose paternity has not been established, is considered to be on notice that a pregnancy and a TPR proceeding might result and has the duty to protect his own rights and interests. Under current law, certain putative fathers are entitled to actual notice of a TPR proceeding involving the child. Under current law, a person who is not entitled to actual notice of a TPR proceeding does not have standing to appear and contest the petition, present evidence relevant to the issue of disposition, or make alternative dispositional recommendations unless the person appears at the hearing, establishes paternity, and proves certain facts relating to residing out of state and being deprived of the opportunity to preserve his paternal interests.

Payments relating to adoption

This bill allows payments to be made to an out-of-state private child placing agency for services provided in connection with an adoption. The bill defines a private child placing agency as 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.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB263,1 Section 1. 48.31 (2) of the statutes is amended to read:

AB263,5,24 48.31 (2) The A hearing on a termination of parental rights petition shall be to the court. A hearing on a petition under s. 48.13 or 48.133 shall be to the court unless the child, the child's parent, guardian, or legal custodian, the unborn child's guardian ad litem, or the expectant mother of the unborn child exercises the right to a jury trial by demanding a jury trial at any time before or during the plea hearing. If a jury trial is demanded in a proceeding under s. 48.13 or 48.133, the jury shall consist of 6 persons. If a jury trial is demanded in a proceeding under s. 48.42, the jury shall consist of 12 persons unless the parties agree to a lesser number. Chapters 756 and 805 shall govern the selection of jurors. If the hearing involves a child victim or witness, as defined in s. 950.02, the court may order that a deposition be taken by audiovisual means and allow the use of a recorded deposition under s. 967.04 (7) to (10) and, with the district attorney, shall comply with s. 971.105. At the conclusion of the a hearing on a termination of parental rights petition, the court shall make a determination of the facts. At the conclusion of a hearing on a petition under s. 48.13 or 48.133, the court or jury shall make a determination of the facts, except that in a case alleging a child or an unborn child to be in need of protection or services under s. 48.13 or 48.133, the court shall make the determination under s. 48.13 (intro.) or 48.133 relating to whether the child or unborn child is in need of protection or services that can be ordered by the court. If the court finds that the child or unborn child is not within the jurisdiction of the court or, in a case alleging a child or an unborn child to be in need of protection or services under s. 48.13 or 48.133, that the child or unborn child is not in need of protection or services that can be ordered by the court, or if the court or jury finds that the facts alleged in the petition have not been proved, the court shall dismiss the petition with prejudice.

AB263,2 Section 2. 48.31 (4) of the statutes is amended to read:

AB263,6,22 48.31 (4) The court shall make findings of fact and conclusions of law relating to the allegations of a petition filed under s. 48.42. The court or jury shall make findings of fact and the court shall make conclusions of law relating to the allegations of a petition filed under s. 48.13, or 48.133 or 48.42, except that the court shall make findings of fact relating to whether the child or unborn child is in need of protection or services which that can be ordered by the court. In cases alleging a child to be in need of protection or services under s. 48.13 (11), the court may not find that the child is suffering emotional damage unless a licensed physician specializing in psychiatry or a licensed psychologist appointed by the court to examine the child has testified at the hearing that in his or her opinion the condition exists, and adequate opportunity for the cross-examination of the physician or psychologist has been afforded. The judge may use the written reports if the right to have testimony presented is voluntarily, knowingly, and intelligently waived by the guardian ad litem or legal counsel for the child and the parent or guardian. In cases alleging a child to be in need of protection or services under s. 48.13 (11m) or an unborn child to be in need of protection or services under s. 48.133, the court may not find that the child or the expectant mother of the unborn child is in need of treatment and education for needs and problems related to the use or abuse of alcohol beverages, controlled substances, or controlled substance analogs and its medical, personal, family, or social effects unless an assessment for alcohol and other drug abuse that conforms to the criteria specified under s. 48.547 (4) has been conducted by an approved treatment facility.

AB263,3 Section 3. 48.41 (2) (bm) of the statutes is created to read:

AB263,7,3 48.41 (2) (bm) 1. An adult mother or adult 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 not an Indian child as provided in par. (a) or (b) or by filing with the court an affidavit of disclaimer of parental rights that is witnessed by 2 persons and notarized and that meets the requirements under subds. 2. to 7.

AB263,7,5 2. All of the following apply to the disclaimer of parental rights in an affidavit under subd. 1.:

AB263,7,8 a. The disclaimer may not be executed after the birth of the child until 72 hours after the birth of the child. The presumed or alleged father may, but the mother may not, execute the disclaimer before the birth of the child.

AB263,7,11 b. The disclaimer, if executed by the presumed or alleged father before the birth of the child, is revocable until 72 hours after the birth of the child, as provided under subd. 8.

AB263,7,14 c. The disclaimer is irrevocable if executed 72 hours or more after the birth of the child or if not revoked before 72 hours after the birth of the child, unless it was obtained by fraud or duress.

AB263,7,17 d. Except as provided in subd. 2. e. and s. 48.028 (5) (b) and (c) and (6), no action to invalidate the disclaimer, including an action based on fraud or duress, may be commenced more than 6 months after the date the affidavit was executed.

AB263,7,20 e. If the petition to terminate parental rights is granted, no action to invalidate the disclaimer may be commenced later than the time limits allowed for filing a motion for relief from judgment under s. 48.46 (2).

AB263,7,21 3. An affidavit under subd. 1. shall contain all of the following:

AB263,7,23 a. The name, county of residence, and age of the parent whose parental rights are being terminated.

AB263,7,24 b. The name, age, and birth date of the child, if born.

AB263,8,2 c. The names and addresses of the guardians of the person and of the estate of the child, if any.

AB263,8,5 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.

AB263,8,7 e. A full description and statement of value of all property the child owns or possesses.

AB263,8,9 f. An allegation that termination of parental rights is in the best interest of the child.

AB263,8,13 g. The name and county of residence of any other presumed or alleged parent, a statement that the parental rights of the other presumed or alleged parent have been terminated by death or court order, or a statement that the child has no presumed father.

AB263,8,15 h. A statement containing the information and understandings specified in subd. 4.

AB263,8,16 i. A statement that the child is not an Indian child.

AB263,8,19 4. An affidavit under subd. 1. shall contain a statement that the person whose parental rights are being terminated has been informed of and understands all of the following:

AB263,8,20 a. His or her potential parental rights and duties.

AB263,8,22 am. The parenting-related services that would be available to him or her if he or she chose not to consent to the termination of his or her parental rights.

AB263,8,23 b. The effect of an order to terminate parental rights.

AB263,8,25 c. That he or she voluntarily disclaims any rights that he or she may have to the child, including the right to notice of proceedings under this chapter.

AB263,9,2 d. That the disclaimer may not be executed less than 72 hours after the birth of the child or executed by the mother before the birth of the child.

AB263,9,4 e. That the presumed or alleged father has the right to revoke a disclaimer in an affidavit until 72 hours after the birth of the child.

AB263,9,7 f. That the disclaimer is irrevocable if the affidavit is executed 72 hours or more after the birth of the child or if not not revoked before 72 hours after the birth of the child, unless it was obtained by fraud or duress.

AB263,9,12 g. That no action to invalidate the disclaimer, including an action based on fraud or duress, may be commenced more than 6 months after the date the affidavit was executed, except that, if the petition to terminate parental rights is granted, no action to invalidate the disclaimer may be commenced later than the time limits allowed for filing a motion for relief from judgment under s. 48.46 (2).

AB263,9,13 5. An affidavit under subd. 1. may contain any of the following:

AB263,9,15 a. A waiver of process in a petition for termination of parental rights or a petition for termination of parental rights joined with a petition for adoption.

AB263,9,19 b. If a guardian has not been appointed under s. 48.977, 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 individual's address.

AB263,9,21 6. A copy of the affidavit shall be provided to the person at the time he or she signs the affidavit.

AB263,9,24 7. 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.

AB263,10,5 8. To revoke a disclaimer of parental rights in an affidavit under subd. 1., the alleged or presumed father shall sign a statement revoking the disclaimer of parental rights that is witnessed by 2 persons and notarized. A copy of the revocation shall be filed with the clerk of court. The revocation is not valid unless it is executed and filed before 72 hours after the birth of the child.

AB263,4 Section 4. 48.41 (2) (cm) of the statutes is created to read:

AB263,10,12 48.41 (2) (cm) 1. Except as provided in subd. 2., a person who is eligible to file a declaration of paternal interest in matters affecting a child under s. 48.025 and who fails to do so as provided in that section is deemed to have irrevocably consented to the termination of any parental rights that he may have and is deemed to have disclaimed any rights that he may have to the child, including the right to notice of proceedings under this subchapter.

AB263,10,14 2. Subdivision 1. does not apply if, at the time a petition under s. 48.42 is filed, any of the following applies:

AB263,10,16 a. An action or motion to determine if the person is the child's father has been filed and has not been resolved.

AB263,10,19 b. The person has been acknowledged as the child's father under s. 767.805 or a substantially similar law of another state and the acknowledgment has not been rescinded.

AB263,10,20 c. The person meets the conditions specified in s. 48.423 (2).

AB263,5 Section 5. 48.415 (intro.) of the statutes is amended to read:

AB263,11,9 48.415 Grounds for involuntary termination of parental rights. (intro.) At the fact-finding portion of the fact-finding and dispositional hearing the court or jury shall determine whether grounds exist for the termination of parental rights. If the child is an Indian child, the court or jury shall also determine at the fact-finding portion of the fact-finding and dispositional hearing whether continued custody of the Indian child by the Indian child's parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child under s. 48.028 (4) (e) 1. and whether active efforts under s. 48.028 (4) (e) 2. have been made to prevent the breakup of the Indian child's family and whether those efforts have proved unsuccessful, unless partial summary judgment on the grounds for termination of parental rights is granted, in which case the court shall make those determinations at the dispositional portion of the fact-finding and dispositional hearing. Grounds for termination of parental rights shall be one of the following:

AB263,6 Section 6. 48.415 (1) (a) 4. of the statutes is created to read:

AB263,11,13 48.415 (1) (a) 4. That a person who is or may be the father of the child failed without reasonable cause to provide care and support for the mother during her pregnancy.

AB263,7 Section 7. 48.415 (1) (a) 5. of the statutes is created to read:

AB263,11,16 48.415 (1) (a) 5. That the parent has failed without reasonable cause to pay court-ordered payments of child support.

AB263,8 Section 8. 48.415 (6) (b) of the statutes is amended to read:

AB263,12,2 48.415 (6) (b) In this subsection, “substantial parental relationship" means the acceptance and exercise of significant responsibility for the daily supervision, education, protection, and care of the child. In evaluating whether the person has had a substantial parental relationship with the child, the court may consider such factors, including, but not limited to, whether the person has expressed concern for or interest in the provided care or support , care or well-being of for the child, and whether the person has neglected or refused to provide care or support for the child and whether, with respect to a person who is or may be the father of the child, the person has expressed concern for or interest in the support, care or well-being of the mother during her pregnancy.

AB263,9 Section 9. 48.415 (9) (a) of the statutes is amended to read:

AB263,12,11 48.415 (9) (a) Parenthood as a result of sexual assault, which shall be established by proving that the child was conceived as a result of a sexual assault in violation of s. 940.225 (1), (2) or (3), 948.02 (1) or (2), 948.025, or 948.085. Conception as a result of sexual assault as specified in this paragraph may be proved by a final judgment of conviction or other evidence produced at the fact-finding portion of a fact-finding and dispositional hearing under s. 48.424 indicating that the person who may be the father of the child committed, during a possible time of conception, a sexual assault as specified in this paragraph against the mother of the child.

AB263,10 Section 10. 48.42 (2) (a) of the statutes is amended to read:

AB263,12,14 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) (bm) or (d).

AB263,11 Section 11. 48.42 (2) (b) (intro.) and 1. of the statutes are consolidated, renumbered 48.42 (2) (b) and amended to read:

AB263,12,21 48.42 (2) (b) Except as provided in par. (bm), if the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803 and whose paternity has not been established: 1. A , a person who has filed an unrevoked declaration of paternal interest under s. 48.025 before the birth of the child or within 14 days after the birth of the child.

AB263,12 Section 12. 48.42 (2) (b) 2. of the statutes is repealed.

AB263,13 Section 13. 48.42 (2) (b) 3. of the statutes is repealed.

AB263,14 Section 14. 48.42 (2) (bm) (intro.) and 1. of the statutes are consolidated, renumbered 48.42 (2) (bm) and amended to read:

AB263,13,7 48.42 (2) (bm) If the child is a nonmarital child who is under one year of age at the time the petition is filed and who is not adopted or whose parents do not subsequently intermarry under s. 767.803 and whose paternity has not been established and if an affidavit under sub. (1g) (a) is filed with the petition: 1. A , a person who has filed an unrevoked declaration of paternal interest under s. 48.025 before the birth of the child, within 14 days after the birth of the child, or within 21 days after a notice under sub. (1g) (b) is mailed, whichever is later.

AB263,15 Section 15. 48.42 (2) (bm) 2. of the statutes is repealed.

AB263,16 Section 16. 48.422 (1) of the statutes is amended to read:

AB263,13,14 48.422 (1) Except as provided in s. 48.42 (2g) (ag), the hearing on the petition to terminate parental rights shall be held within 30 days after the petition is filed. At the hearing on the petition to terminate parental rights the court shall determine whether any party wishes to contest the petition and inform the parties of their rights under sub. (4) and s. 48.423.

AB263,17 Section 17. 48.422 (4) of the statutes is repealed.

AB263,18 Section 18. 48.422 (5) of the statutes is amended to read:

AB263,13,19 48.422 (5) Any nonpetitioning party, including the child, shall be granted a continuance of the hearing for the purpose of consulting with an attorney on the request for a jury trial or concerning a request for the substitution of a judge.

AB263,19 Section 19. 48.422 (6) (a) of the statutes is amended to read: