State of Wisconsin
Department of Children and Families
Facilitating Public Adoptions and Adoption Assistance; Preadoption Training
The Wisconsin Department of Children and Families proposes to repeal ch. DCF 49 and DCF 49 Appendix A; to renumber ch. DCF 42; and to repeal and recreate chs. DCF 50 and 51, relating to facilitating public adoptions and adoption assistance; preadoption training. Analysis Prepared by the Department of Children and Families
Explanation of Department Authority
Section 48.55 (1), Stats., provides that the department shall establish a state adoption information exchange for the purpose of finding adoptive homes for children with special needs who do not have permanent homes and sub. (2), Stats., directs the department to promulgate rules governing the adoption information exchange. Section 48.84, Stats., as affected by 2015 Wisconsin Act 379, directs the department to promulgate rules establishing topics to be covered in preadoption preparation. The preparation shall include training on issues that may confront adoptive parents, in general, and that may confront adoptive parents of special needs children or foreign children. In all cases, the training shall cover the topics of attachment, trauma, neglect, and abuse, including sexual abuse. Section 48.97, Stats., as affected by 2015 Wisconsin Act 380, specifies the requirements for recognition of a foreign adoption. 2015 Wisconsin Act 380 repealed the requirement of department approval for recognition in Wisconsin of an adoption of a child from a foreign country by a resident of this state when the adoption was finalized in the child’s country. As a condition of approval of foreign adoption decrees, the department had required that the adoptive parents complete the training requirements in s. 48.84, Stats. Under s. 48.88 (2) (a), Stats., a court requires an investigation to determine whether a child is a proper subject for an adoption and whether a petitioner’s home is suitable for the child. The investigation shall be conducted using an assessment system that is approved by the department. If an agency has guardianship of a child, the court directs the agency to conduct or supplement the investigation, unless the agency has already filed its recommendation under s. 48.85, Stats., and has filed with the recommendation a report of the required investigation. Under s. 48.88 (2) (ag), Stats., if the child is an Indian child, the court may request the tribal child welfare department of the child’s tribe to conduct the investigation. If the tribal child welfare department agrees to conduct the investigation, the investigation may be accepted in lieu of the investigation under s. 48.88 (2) (a), Stats. Section 48.88 (2) (a) 2., Stats., requires the tribal child welfare department to use the department’s assessment system.
Section 48.975 (4m), Stats., provides that the department may recover an overpayment of adoption assistance from an adoptive parent who continues to receive adoption assistance for maintenance by reducing the amount of the adoptive parent’s monthly payment of adoption assistance for maintenance. The department may by rule specify other methods for recovering overpayments of adoption assistance. Section 48.975 (5), Stats., provides that the department shall promulgate rules necessary to implement adoption assistance, including all of the following: - A rule defining the extenuating circumstances under which an initial agreement to provide adoption assistance under sub. (4) (a) may be made after adoption. This definition shall include all circumstances under which federal statutes, regulations or guidelines provide that federal matching funds for adoption assistance are available to the state if an initial agreement is made after adoption, but may not include circumstances under which federal statutes, regulations or guidelines provide that federal matching funds for adoption assistance are not available if an initial agreement is made after adoption.
- A rule defining a child with special needs, which shall include a child who the department determines has, at the time of placement for adoption, moderate or intensive difficulty−of−care problems, as defined by the department, or who the department determines is, at the time of placement for adoption, at high risk of developing those problems.
- A rule defining the substantial change in circumstances under which adoptive or proposed adoptive parents may request that an agreement made under sub. (4) be amended to increase the amount of adoption assistance for maintenance. The definition shall include all of the following:
- Situations in which a child who was defined as a child with special needs based solely on being at high risk of developing moderate or intensive difficulty−of−care problems has developed those problems.
- Situations in which a child’s difficulty−of−care problems have increased from the moderate level to the intensive level as set forth in the department’s schedule of difficulty−of−care levels promulgated by rule.
- Rules establishing requirements for submitting a request under sub. (4) (b), criteria for determining the amount of the increase in adoption assistance for maintenance that the department shall offer if there has been a substantial change in circumstances and if there has been no substantiated report of abuse or neglect of the child by the adoptive or proposed adoptive parents, and the procedure to appeal the decision of the department regarding the request.
- Rules establishing the criteria for determining the amount of the decrease in adoption assistance for maintenance that the department shall offer under sub. (4) (bm) if a substantial change in circumstances no longer exists and the procedure to appeal the decision of the department regarding the decrease. The criteria shall provide that the amount of the decrease offered by the department under sub. (4) (bm) may not result in an amount of adoption assistance for maintenance that is less than the initial amount of adoption assistance for maintenance provided for the child under sub. (3) (a) 1., 2. or 3.
- A rule regarding when a child must be photolisted with the adoption information exchange under s. 48.55, Stats., in order to be eligible for adoption assistance. The rule may not require photolisting under any circumstances in which photolisting is not required by federal statutes, regulations or guidelines as a prerequisite for the state to receive federal matching funds for adoption assistance. Rules governing the provision of adoption assistance for the care of a child after the child attains 18 years of age.
Section 227.11 (2) (a) (intro.), Stats., expressly confers rule-making authority on each department to promulgate rules interpreting the provisions of any statute enforced or administered by the department. Summary of the Proposed Rule
Facilitating Public Adoptions
The proposed rules specify the process for approving prospective adoptive parents for a public adoption. The rules define “public adoption” as “the adoption of a child under the guardianship of the department, a county department, or a tribal child welfare department in this state if the adoption is under the laws of this state.” Under ss. 48.427 and 48.43 (5), Stats., a court my appoint a guardian of a child following the death or termination of the rights of the child’s parents. Under the proposed rules, the department will hold periodic informational meetings on public adoptions for prospective adoptive parents. Attendees receive a screening form to complete and submit to continue with the approval process. The department reviews the completed screening forms to determine if a home study of the prospective adoptive parents is likely to be approved and if the prospective adoptive parents would be a suitable match for the type of children who are legally free for public adoption or are at legal risk.
Eligible prospective adoptive parents may apply for a home study. Public adoption agencies use the home study process to determine if an applicant’s home is suitable for placement of a child for the purpose of a public adoption. The proposed rules incorporate the home study requirements in s. 48.88, Stats., as affected by 2015 Wisconsin Act 378 and provide the requirements that apply specifically to a home study for the purpose of public adoption. Prospective adoptive parents whose home study is approved may register with the adoption information exchange to search for a child to adopt. The adoption information exchange includes a web-based photolisting of children who are legally free for public adoption and may include children who are at legal risk under specified conditions. A matching service attempts to match the children with the prospective adoptive parents by providing information about registered prospective adoptive parents to public adoption agencies with photolisted children. A public adoption agency or placing agency determines if placement with specific prospective adoptive parents whose home study has been approved is in the best interest of the child for the purpose of the recommendation to the court.
The proposed rules clarify that comparable provisions in the current ss. DCF 51.04 to 51.08 apply to the approval of prospective adoptive parents of children under the guardianship of a public adoption agency whether or not the children have special needs that qualify them for adoption assistance. Adoption Assistance
Adoption assistance may be provided to adoptive or proposed adoptive parents of a child with special needs or at high risk of developing a special need when the department determines such assistance is necessary to assure the child’s adoption. Adoption assistance may include monthly payments by the department; medical assistance under Title XIX of the Social Security Act of 1935, as amended; or reimbursement of nonrecurring adoption expenses as allowed by law.
Under the current rules, the child must have at least one of 4 special needs. The proposed rules include these same special needs in s. DCF 50.09 (1) (b). In general terms, the special needs include that the child is 10 years of age or older, the child is a member of a sibling group of 3 or more children that must be placed together, the child belongs to a minority race, and the child has a certain level of needs or characteristics that increase the difficulty of caring for the child. The proposed rules add to the potential special needs that “the child is an Indian child as defined in s. 48.02 (8g), Stats.”
The proposed rules also update and clarify the rules on eligibility, the application process, the methods for determining the amount of adoption assistance, the adoption assistance agreement, amendments to the agreement to adjust the payment amount, notification and review requirements of the child and parental status, overpayment collection, and reviews and appeals.
