AB263: Bill Text

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:

AB263,14,5 48.422 (6) (a) In the case of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803 and for whom paternity has not been established, or for whom a declaration of paternal interest has not been filed under s. 48.025 within 14 days after the date of birth of the child or, if s. 48.42 (1g) (b) applies, within 21 days after the date on which the notice under s. 48.42 (1g) (b) is mailed, the court shall hear testimony concerning the paternity of the child. Based on the testimony, the court shall determine whether all interested parties who are known have been notified for whom notice is required under s. 48.42 (2) and (2g) (ag) have been notified. If not, the court shall adjourn the hearing and order appropriate notice to be given.

AB263,20 Section 20. 48.424 (title) of the statutes is amended to read:

AB263,14,7 48.424 (title) Fact-finding and dispositional hearing.

AB263,21 Section 21. 48.424 (1) (intro.) of the statutes is amended to read:

AB263,14,11 48.424 (1) (intro.) The purpose of the fact-finding portion of the fact-finding and dispositional hearing is to determine in cases in which the petition was contested at the hearing on the petition under s. 48.422 all of the following:

AB263,22 Section 22. 48.424 (2) (intro.) of the statutes is amended to read:

AB263,14,14 48.424 (2) (intro.) The fact-finding and dispositional hearing shall be conducted according to the procedure specified in s. 48.31 except as follows:

AB263,23 Section 23. 48.424 (3) of the statutes is amended to read:

AB263,14,20 48.424 (3) If the facts are determined by a jury, the jury may only The court shall decide whether any grounds for the termination of parental rights have been proved and, whether the allegations specified in s. 48.42 (1) (e) have been proved in cases involving the involuntary termination of parental rights to an Indian child. The court shall decide, and what disposition is in the best interest of the child.

AB263,24 Section 24. 48.424 (4) (intro.) of the statutes is amended to read:

AB263,15,7 48.424 (4) (intro.) The court shall hear all evidence relevant to the issues under sub. (1) and to the issue of disposition under s. 48.427 before making a determination of whether the parent is unfit. If grounds for the termination of parental rights are found by the court or jury, the court shall find the parent unfit. A finding of unfitness shall not preclude a dismissal of a petition under s. 48.427 (2). Except as provided in s. 48.23 (2) (b) 3., the The court shall then proceed immediately to hear evidence and motions related to the dispositions enumerated in make a disposition under s. 48.427. Except as provided in s. 48.42 (2g) (ag), the court may delay making a determination of whether the parent is unfit and making the disposition and set a date for a dispositional hearing by granting a continuance of no later longer than 45 days after the fact-finding hearing if any of the following apply:

AB263,25 Section 25. 48.424 (5) of the statutes is amended to read:

AB263,15,15 48.424 (5) If the court delays making a determination of whether the parent is unfit and making a permanent disposition under sub. (4), it may transfer temporary custody of the child to an agency for placement of the child until the fact-finding and dispositional hearing is continued. Placement of an Indian child under this subsection shall comply with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless the agency finds good cause, as described in s. 48.028 (7) (e), for departing from that order.

AB263,26 Section 26. 48.427 (1m) of the statutes is amended to read:

AB263,16,2 48.427 (1m) In addition to any evidence presented under sub. (1), the court shall give the foster parent or other physical custodian described in s. 48.62 (2) of the child a right to be heard at the dispositional portion of the fact-finding and dispositional hearing by permitting the foster parent or other physical custodian to make a written or oral statement during the dispositional portion of the fact-finding and dispositional hearing, or to submit a written statement prior to disposition, relevant to the issue of disposition. A foster parent or other physical custodian described in s. 48.62 (2) who receives notice of a hearing under s. 48.42 (2g) (a) and a right to be heard under this subsection does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and right to be heard.

AB263,27 Section 27. 48.828 of the statutes is created to read:

AB263,16,9 48.828 Consent to adoption. (1) Except as provided in subs. (2) and (3), 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 adoption of the child and to have disclaimed any rights that he may have to the child, including the right to notice of proceedings under this subchapter.

AB263,16,10 (2) Subsection (1) does not apply with respect to the adoption of an Indian child.

AB263,16,12 (3) Subsection (1) does not apply if, at the time a petition for adoption is filed, any of the following applies:

AB263,16,14 (a) An action or motion to determine if the person is the child's father has been filed and has not been resolved.

AB263,16,17 (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.

AB263,16,18 (c) The person meets the conditions specified in s. 48.423 (2).

AB263,28 Section 28 . 48.837 (5) of the statutes is amended to read:

AB263,17,3 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.

AB263,29 Section 29. 48.913 (1) (em) of the statutes is created to read:

AB263,17,7 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), operating lawfully under the laws of another state.

AB263,30 Section 30. Initial applicability.

AB263,17,14 (1) Elimination of jury trials and combining fact-finding and dispositional hearings in termination of parental rights proceedings. The treatment of ss. 48.31 (2) and (4), 48.415 (intro.) and (9) (a), 48.422 (1), (4), and (5), 48.424 (title), (1) (intro.), (2) (intro.), (3), (4) (intro.), and (5), and 48.427 (1m) first applies to a termination of parental rights proceeding in which the initial hearing under s. 48.422 (1) is held on the effective date of this subsection.

AB263,17,18 (2) Termination of parental rights. The treatment of ss. 48.41 (2) (cm), 48.415 (1) (a) 4. and 5. and (6) (b), 48.42 (2) (b) (intro.), 1., 2., and 3. and (bm) (intro.), 1., and 2., and 48.422 (6) (a) first applies to a termination of parental rights proceeding for which the petition is filed on the effective date of this subsection.