AB631: Bill Text

2021 - 2022 LEGISLATURE

2021 Assembly BILL 631

October 21, 2021 - Introduced by Representatives Dittrich, Novak, Mursau, Gundrum, Subeck, Snyder, Thiesfeldt and Tusler, cosponsored by Senators Ballweg and Marklein. Referred to Committee on Family Law.

AB631,1,8 An Act to renumber 48.195 (6); to renumber and amend 48.195 (1) and 48.195 (3) (a); to amend 48.14 (2) (a), 48.14 (2) (b), 48.185 (2), 48.195 (2) (a), 48.195 (2) (b), 48.195 (3) (title), 48.195 (3) (b), 48.195 (4) (a), 48.195 (4) (b), 48.205 (1) (intro.), 48.21 (4) (intro.), 48.355 (2d) (b) 5., 48.415 (1m), 48.417 (3), 48.417 (4), 69.14 (3) (a) (intro.) and 69.14 (3) (c); and to create 48.195 (1) (b), 48.195 (1m), 48.195 (2) (d) 8., 48.195 (2) (e), 48.195 (3) (a) 2. to 8., 48.195 (3) (am), 48.195 (6) (b), 48.205 (1) (bd), 48.21 (4m), 48.417 (1m), 69.14 (1) (i), 69.14 (3) (bm) and 69.14 (3) (d) of the statutes; relating to: various changes to the safe haven law.

Analysis by the Legislative Reference Bureau

Relinquishment of a newborn under the Safe Haven law

Under current law, a parent may relinquish a newborn child who is 72 hours old or younger to a law enforcement officer, emergency medical services practitioner, or hospital staff member, and that person is required to protect the health and safety of the child and deliver the child to the intake worker for the juvenile court. Once the child is in the custody of the intake worker, the juvenile court must determine whether to continue to hold the newborn child in custody and, within 30 days of that determination, to establish a permanency plan for the child that ensures a placement or home for the child that provides long-term stability. Under current law, the juvenile court may terminate parental rights of the parents of a child who has been relinquished. Under current law, a parent who relinquishes a newborn in this manner is entitled to anonymity. This law is commonly referred to as the safe haven law.

This bill makes various changes to the safe haven law. The bill applies the safe haven law to a newborn child who is 30 days old or less, and allows a parent of an Indian child to relinquish the child to a tribal official.

The bill requires a person who takes custody of a relinquished child to make a reasonable effort to provide the relinquishing parent with a brochure that includes a statement of the parent's right to remain anonymous, the steps to take if the parent changes his or her mind about relinquishment, an explanation of the importance of knowing the child's social and health history, an explanation of the importance to an Indian child of maintaining a social and cultural connection to his or her tribe, and a form on which to provide identifying information for each parent and information about the child's social and health history and tribal affiliation, if any.

Under the bill, a person who takes custody of a relinquished child must make a reasonable effort to solicit certain information about the social and health history of the child and any tribal affiliation of the child and, if the parent declines to provide the information solicited, must encourage the parent to submit the information to the county or, in Milwaukee County, to DCF at a later date. Under the bill, a person who obtains information relating to the tribal affiliation of a relinquished child must promptly transmit the information to the appropriate child welfare department, and the bill requires the child welfare department that obtains information relating to the tribal affiliation of a relinquished child to promptly transmit the information to the tribal agent of the child's tribe.

Under the bill, after the juvenile court finds that a relinquished newborn child should continue to be held in custody, the court must transfer guardianship and legal custody of the child to the appropriate public adoption agency for placement in a licensed foster home, and the court must include in the continuation of custody order a finding that there is probable cause to believe that the newborn has been relinquished. The proposed adoptive parent must sign a statement acknowledging that the proposed adoptive parent understands that there is no guarantee that the adoption will be finalized. The bill specifies that any child welfare proceeding regarding an Indian child who has been relinquished under the safe haven law must comply with the state and federal Indian Child Welfare Acts.

Under the bill, the district attorney, corporation counsel, or other official designated by a county must file a petition to terminate the parental rights of a parent of a relinquished newborn child or, if a petition has already been filed, to join in the petition. Under the bill, the petition must be filed in the county in which the relinquishment occurred no sooner than 30 days after the date on which the child was relinquished and no later than 60 days after the date on which the juvenile court found probable cause to believe that the child was relinquished.

Birth records for relinquished newborns

Under current law, a birth record must be prepared and filed within five days after an infant's birth. In the case of an infant with unknown parents (foundling), any person who assumes custody of the foundling must file a birth record within five days after assuming custody. A birth record for a foundling is not required to contain the name of the mother or the father of the infant but is required to be marked foundling by the local registrar. Currently, if the birth record filed at the time of birth for a foundling is found or the foundling is adopted and the adoptive parents sign a birth record giving their names as the adoptive parents, the state registrar is required to impound the foundling birth record.

The bill clarifies that a person must file a foundling birth record for an infant who is relinquished under the safe haven law in addition to filing a foundling birth record for a live born infant of unknown parentage. The bill requires any person who is required to file a foundling birth record and either files or knows of the filing of a birth record at the time of birth to notify the state registrar that the birth record filed at the time of birth and the foundling birth record are for the same infant so that the state registrar may impound a birth record. Under the bill, when a birth record filed at the time of birth is located for a foundling or if a person notifies the state registrar of the birth record filed at the time of birth for a foundling, the state registrar must impound the birth record filed at the time of birth instead of the foundling birth record. The bill maintains the current requirement for the state registrar to impound the foundling birth record for foundlings who are adopted and for whom the adoptive parents sign a birth record giving their names as the adoptive parents.

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:

AB631,1 Section 1. 48.14 (2) (a) of the statutes is amended to read:

AB631,3,3 48.14 (2) (a) For a minor, where parental rights have been terminated under subch. VIII; or.

AB631,2 Section 2. 48.14 (2) (b) of the statutes is amended to read:

AB631,3,9 48.14 (2) (b) The appointment and removal of a guardian of the person for a child under ss. 48.427, 48.43, 48.831, 48.832, 48.839 (4) (a), 48.977, and 48.978, and for a child found to be in need of protection or services under s. 48.13 because the child is without a parent or guardian or because custody of the child has been relinquished under s. 48.195 (1).

AB631,3 Section 3. 48.185 (2) of the statutes is amended to read:

AB631,4,13 48.185 (2) In an action under s. 48.41, venue shall be in the county where the birth parent or child resides at the time that the petition is filed. Subject to sub. (5), venue for any proceeding under s. 48.977, or any proceeding under subch. VIII when the child has been placed outside the home pursuant to a dispositional order under s. 48.345 or 48.347, shall be in the county where the dispositional order was issued, unless the child's county of residence has changed or the parent of the child has resided in a different county of this state for 6 months. In either case, the Venue for any proceeding under s. 48.13 (2m) concerning a child whose custody has been relinquished under s. 48.195 (1) shall be in the county in which the relinquishment occurred. Notwithstanding the venue specified in this subsection, the court may, upon a motion and for good cause shown, transfer the case any action or proceeding specified in this subsection, along with all appropriate records, to the county of residence of the child or parent.

AB631,4 Section 4. 48.195 (1) of the statutes is renumbered 48.195 (1) (a) and amended to read:

AB631,5,10 48.195 (1) (a) In addition to being taken into custody under s. 48.19, a child whom a law enforcement officer, emergency medical services practitioner, as defined in s. 256.01 (5), or hospital staff member reasonably believes to be 72 hours 30 days old or younger may be taken into custody under circumstances in which a parent of the child relinquishes custody of the child to the law enforcement officer, emergency medical services practitioner, or hospital staff member and does not express an intent to return for the child. If a parent who wishes to relinquish custody of his or her child under this subsection paragraph is unable to travel to a sheriff's office, police station, fire station, hospital, or other place where a law enforcement officer, emergency medical services practitioner, or hospital staff member is located, the parent may dial the telephone number “911" or, in an area in which the telephone number “911" is not available, the number for an emergency medical service provider, and the person receiving the call shall dispatch a law enforcement officer or emergency medical services practitioner to meet the parent and take the child into custody. A law enforcement officer, emergency medical services practitioner, or hospital staff member who takes a child into custody under this subsection shall take any action necessary to protect the health and safety of the child, shall, within 24 hours after taking the child into custody, deliver the child to the intake worker under s. 48.20, and shall, within 5 days after taking the child into custody, file a birth record for the child under s. 69.14 (3).

AB631,5 Section 5. 48.195 (1) (b) of the statutes is created to read:

AB631,5,20 48.195 (1) (b) In addition to being taken into custody under par. (a) or s. 48.19, an Indian child whom a tribal official reasonably believes to be 30 days old or younger may be taken into custody under circumstances in which a parent of the Indian child relinquishes custody of the child to the tribal official and does not express an intent to return for the child. A tribal official who takes an Indian child into custody under this paragraph shall take any action necessary to protect the health and safety of the child, shall, within 24 hours after taking the child into custody, deliver the child to the intake worker under s. 48.20, and shall, within 5 days after taking the child into custody, file a birth record for the child under s. 69.14 (3).

AB631,6 Section 6. 48.195 (1m) of the statutes is created to read:

AB631,6,2 48.195 (1m) Indian child. If the intake worker to whom a child is delivered as provided in sub. (1) knows or has reason to know that the child is an Indian child, the intake worker shall notify the Indian child's tribe as provided in s. 48.028 (4) (a), and s. 48.028 and the federal Indian Child Welfare Act, 25 USC 1901 to 1963, shall apply to any Indian child custody proceeding involving the Indian child.

AB631,7 Section 7 . 48.195 (2) (a) of the statutes is amended to read:

AB631,6,14 48.195 (2) (a) Except as provided in this paragraph, a parent who relinquishes custody of a child under sub. (1) and any person who assists the parent in that relinquishment have the right to remain anonymous. The exercise of that right shall not affect the manner in which a law enforcement officer, emergency medical services practitioner, as defined in s. 256.01 (5), or hospital staff member performs his or her duties under this section. No person may induce or coerce or attempt to induce or coerce or, except as provided under sub. (3) (am), induce or attempt to induce a parent or person assisting a parent who wishes to remain anonymous into revealing his or her identity, unless the person has reasonable cause to suspect that the child has been the victim of abuse or neglect or that the person assisting the parent is coercing the parent into relinquishing custody of the child.

AB631,8 Section 8. 48.195 (2) (b) of the statutes is amended to read:

AB631,6,23 48.195 (2) (b) A parent who relinquishes custody of a child under sub. (1) and any person who assists the parent in that relinquishment may leave the presence of the law enforcement officer, emergency medical services practitioner, as defined in s. 256.01 (5), or hospital staff member, or tribal official who took custody of the child at any time, and no person may follow or pursue the parent or person assisting the parent, unless the person has reasonable cause to suspect that the child has been the victim of abuse or neglect or that the person assisting the parent has coerced the parent into relinquishing custody of the child.

AB631,9 Section 9 . 48.195 (2) (d) 8. of the statutes is created to read:

AB631,7,3 48.195 (2) (d) 8. In the case of a child who the person has reason to believe is an Indian child, the tribal agent, as defined in s. 48.981 (1) (i), of the Indian child's tribe.

AB631,10 Section 10 . 48.195 (2) (e) of the statutes is created to read:

AB631,7,12 48.195 (2) (e) Notwithstanding par. (d), a person who obtains information relating to the tribal affiliation of a child relinquished under sub. (1) shall promptly transmit the information to the county department in the county where the child was relinquished or, if the child was relinquished in a county having a population of 750,000 or more, to the department. The department or a county department that obtains information relating to the tribal affiliation of a child relinquished under sub. (1) shall promptly transmit the information to the tribal agent, as defined in s. 48.981 (1) (i), of the Indian child's tribe.

AB631,11 Section 11 . 48.195 (3) (title) of the statutes is amended to read:

AB631,7,14 48.195 (3) (title) Information for parent; information regarding child.

AB631,12 Section 12 . 48.195 (3) (a) of the statutes is renumbered 48.195 (3) (a) (intro.) and amended to read:

AB631,7,21 48.195 (3) (a) (intro.) Subject to par. (b), a law enforcement officer, emergency medical services practitioner, as defined in s. 256.01 (5), or hospital staff member, or tribal official who takes a child into custody under sub. (1) shall make available to the parent who relinquishes custody of the child the and any person present with the parent during relinquishment a brochure that includes all of the following:

AB631,7,23 1. The maternal and child health toll-free telephone number maintained by the department under 42 USC 705 (a) (5) (E).

AB631,13 Section 13 . 48.195 (3) (a) 2. to 8. of the statutes are created to read:

AB631,7,25 48.195 (3) (a) 2. A statement advising the parent of all of the following:

AB631,8,1 a. That the parent has the right to remain anonymous.

AB631,8,4 b. That the provision of any identifying information is voluntary on the part of the parent, and the choice to not provide that information will not affect the parent's ability to relinquish the child.

AB631,8,6 c. That any identifying information provided by the parent will be treated as confidential.

AB631,8,8 3. An explanation of the steps the parent is required to take if the parent changes his or her mind about relinquishing the child.

AB631,8,10 4. An explanation of the importance to the future well-being of a child of knowing information regarding the child's social and health history.

AB631,8,13 5. An explanation of the importance to an Indian child of maintaining a social and cultural connection to the Indian child's tribe and clan and the potential benefits of tribal enrollment.

AB631,8,14 6. A form on which to provide all of the following information:

AB631,8,16 a. The name, address, telephone number, and any other identifying information of each parent and any person assisting a parent in the relinquishment.

AB631,8,17 b. Information on the ethnicity and race of the child.

AB631,8,19 c. Information regarding any tribal affiliation of the child, including the identity, tribal affiliation, and birth dates of the child's parents and grandparents.

AB631,8,21 d. Information regarding the social and health history of the child and of each parent.

AB631,8,25 7. A postage-paid envelope addressed to the county department of the county in which the relinquishment occurs or, if the relinquishment occurs in a county having a population of 750,000 or more, the department, and instructions to use the envelope to return the completed forms.

AB631,14 Section 14. 48.195 (3) (am) of the statutes is created to read:

AB631,9,5 48.195 (3) (am) Subject to par. (b), a law enforcement officer, emergency medical services practitioner, hospital staff member, or tribal official who takes a child into custody under sub. (1) shall, at the time of taking custody of the child, make a reasonable effort to do all of the following:

AB631,9,7 1. Review the information provided under par. (a) 1. to 5. with, or play a video recording of that information for, the parent who relinquishes custody of the child.

AB631,9,9 2. Read aloud or play a video recording of the explanation under par. (a) 5. for the parent who relinquishes custody of the child.

AB631,9,13 3. Assist the parent in completing the form described in par. (a) 6. and in returning the completed form to the county department of the county in which the relinquishment occurs or, if the relinquishment occurs in a county having a population of 750,000 or more, the department.

AB631,9,16 4. If the parent declines to review the materials under subd. 1. or to complete the form under subd. 3., encourage the parent to take the materials, to review them at a later time, and to return the completed form in the return envelope.

AB631,15 Section 15 . 48.195 (3) (b) of the statutes is amended to read:

AB631,9,24 48.195 (3) (b) The decision decisions whether to accept the information made available under par. (a) is, to engage in the review of that information under par. (am) 1., and to provide the information under par. (am) 3. or 4. are entirely voluntary on the part of the parent. No person may induce or coerce or attempt to induce or coerce or, except as provided in par. (am), induce or attempt to induce any parent into accepting that the information made available under par. (a), engaging in the review under par. (am) 1., or providing the information under par. (am) 3. or 4.

AB631,16 Section 16 . 48.195 (4) (a) of the statutes is amended to read:

AB631,10,10 48.195 (4) (a) Any parent who relinquishes custody of his or her child under sub. (1) and any person who assists the parent in that relinquishment are immune from any civil or criminal liability for any good faith act or omission in connection with that relinquishment. The immunity granted under this paragraph includes immunity for exercising the right to remain anonymous under sub. (2) (a), the right to leave at any time under sub. (2) (b), and the right not to accept any information under sub. (3) (b), the right not to engage in the review under sub. (3) (am) 1., and the right not to complete the form under sub. (3) (am) 3. and immunity from prosecution under s. 948.20 for abandonment of a child or under s. 948.21 for neglecting a child.

AB631,17 Section 17. 48.195 (4) (b) of the statutes is amended to read:

AB631,10,18 48.195 (4) (b) Any law enforcement officer, emergency medical services practitioner, as defined in s. 256.01 (5), or hospital staff member, or tribal official who takes a child into custody under sub. (1) is immune from any civil liability to the child's parents, or any criminal liability, for any good faith act or omission occurring solely in connection with the act of receiving custody of the child from the child's parents, but is not immune from any civil or criminal liability for any act or omission occurring in subsequently providing care for the child.

AB631,18 Section 18 . 48.195 (6) of the statutes is renumbered 48.195 (6) (a).

AB631,19 Section 19 . 48.195 (6) (b) of the statutes is created to read:

AB631,11,3 48.195 (6) (b) The department shall develop written materials for inclusion in the brochure under sub. (3) (a) and a video recording of the information under sub. (3) (a) 1. to 5. The department shall consult with the Indian tribes in this state in developing the materials described in sub. (3) (a) 5. and the portion of the form under sub. (3) (a) 6. described in sub. (3) (a) 6. c. To the extent practicable, the department shall include in the portion of the form under sub. (3) (a) 6. described in sub. (3) (a) 6. c. the option for identification of an individual by a tribally issued identification number or other method that does not reveal the individual's name.

AB631,20 Section 20. 48.205 (1) (intro.) of the statutes is amended to read:

AB631,11,7 48.205 (1) (intro.) A child may be held under s. 48.207 (1), 48.208 or 48.209 if the intake worker determines that there is probable cause to believe the child is within the jurisdiction of the court and one of the following applies:

AB631,21 Section 21. 48.205 (1) (bd) of the statutes is created to read:

AB631,11,10 48.205 (1) (bd) Probable cause exists to believe that a parent of the child has relinquished custody of the child under s. 48.195 (1).

AB631,22 Section 22. 48.21 (4) (intro.) of the statutes is amended to read:

AB631,11,15 48.21 (4) Continuation of custody. (intro.) If Subject to sub. (4m), if the judge or circuit court commissioner finds that the child should be continued in custody under the criteria of s. 48.205, he or she 48.205 (bd), the judge or circuit court commissioner shall enter one of the following orders:

AB631,23 Section 23. 48.21 (4m) of the statutes is created to read:

AB631,12,5 48.21 (4m) Continuation of custody; relinquished newborn child. If the judge or circuit court commissioner finds that a child who has been taken into custody under s. 48.195 (1) should be continued in custody under the criteria of s. 48.205, the judge or circuit court commissioner shall transfer guardianship and legal custody of the child to the department, a child welfare agency licensed under s. 48.61 (5), or a county department authorized to accept guardianship under s. 48.57 (1) (e) or (hm), order the department, child welfare agency, or county department to place the child for adoption under s. 48.833, and include in the continuation of custody order a finding that there is probable cause to believe that a parent of the child has relinquished custody of the child as described in s. 48.13 (2m). The department, child welfare agency, or county department making the placement shall require any proposed adoptive parent to sign a statement acknowledging that the proposed adoptive parent understands that there is no guarantee that the adoption will be finalized.

AB631,24 Section 24. 48.355 (2d) (b) 5. of the statutes is amended to read:

AB631,12,10 48.355 (2d) (b) 5. That the parent has been found under s. 48.13 (2m) to have relinquished custody of the child under s. 48.195 (1) when the child was 72 hours 30 days old or younger, as evidenced by a final order of a court of competent jurisdiction making that finding.

AB631,25 Section 25. 48.415 (1m) of the statutes is amended to read:

AB631,12,15 48.415 (1m) Relinquishment. Relinquishment, which shall be established by proving that a court of competent jurisdiction has found under s. 48.13 (2m) that the parent has relinquished custody of the child under s. 48.195 (1) when the child was 72 hours 30 days old or younger.