c. Section 48.837 (7), stats., which provides that the proposed adoptive parents in
an independent adoption by a nonrelative must pay the cost of any investigation of the
proposed adoptive placement ordered by the juvenile court, according to a fee schedule
established by DHFS based on ability to pay. That section also provides that if the
adoption is completed, the proposed adoptive parents must pay the cost of any foster care
provided for the child.
According to adoption practitioners, courts assigned to exercise jurisdiction under
the children's code (juvenile courts) throughout the state differ in the types of payments
which proposed adoptive parents are permitted to make on behalf of a birth parent.
The bill creates several new provisions regarding payments made by or on behalf
of adoptive or proposed adoptive parents to or on behalf of a birth parent of the child, an
alleged or presumed father of the child or the child, which are described below. These
provisions do not apply to foreign adoptions or to the adoption of a child by a relative of
the child. A criminal penalty, however, could apply in a relative adoption if it were shown
that a person placed or agreed to place his or her child for adoption with a relative for
anything other than the payments authorized or that a relative of a child gave anything
other than the payments authorized in order to receive the child for adoption.
The bill permits the proposed adoptive parents of a child, or a person acting on
behalf of the proposed adoptive parents, to pay the actual cost of any of the following:
a. Preadoptive counseling for a birth parent of the child or an alleged or presumed
father of the child.
b. Post-adoptive counseling for a birth parent of the child or an alleged or
presumed father of the child.
c. Maternity clothes for the child's birth mother, not to exceed a reasonable amount.
d. Local transportation expenses of a birth parent of the child that are related to
the pregnancy or adoption.
e. Services provided by a licensed child welfare agency in connection with the
adoption.
f. Medical and hospital care received by the child's birth mother in connection with
the pregnancy or birth of the child.
g. Medical and hospital care received by the child.
h. Legal and other services received by a birth parent of the child, an alleged or
presumed father of the child or the child in connection with the adoption.
i. Living expenses of the child's birth mother, in an amount not to exceed $1,000,
if payment of the living expenses by the proposed adoptive parents or a person acting on
their behalf is necessary to protect the health and welfare of the birth mother or the fetus.
j. Any investigation of the proposed adoptive home ordered by the juvenile court,
according to a fee schedule established by DHFS based on ability to pay.
k. If the adoption is completed, the cost of any foster care provided for the child.
L. Birthing classes.
m. A gift to the child's birth mother from the proposed adoptive parents, of no
greater than $50 in value.
2. Payment of expenses when the birth parent is residing in another state. The bill
also permits, in addition to the permissible payments described above, the proposed
adoptive parents of a child to pay an expense of a birth parent of the child or of an alleged
or presumed father of the child if the birth parent or the alleged or presumed father was
residing in another state when the payment was made and when the expense was
incurred and if all of the following apply:
a. The child was placed for adoption in this state in accordance with the interstate
compact on the placement of children (ICPC).
b. The state in which the birth parent or the alleged or presumed father was
residing when the payment was made permits the payment of that expense by the
proposed adoptive parents of the child.
c. The proposed adoptive parents provide all of the following to the juvenile court;
(1) A listing of the payments the proposed adoptive parents of the child or a person
acting on their behalf have made or have agreed to make to or on behalf of the birth parent
or the alleged or presumed father.
(2) A copy of the statutory provisions of the state in which the birth parent or the
alleged or presumed father was residing when those payments were made that permit
those payments to be made by the proposed adoptive parents of the child.
(3) A copy of all orders entered in the state in which the birth parent or the alleged
or presumed father was residing when those payments were made that relate to the
payment of expenses of the birth parent or the alleged or presumed father by the proposed
adoptive parents or a person acting on their behalf.
The information listed above must be provided to the juvenile court as follows:
a. If the parental rights of either parent of the child are terminated in this state,
the information must be provided at the hearing on the termination of parental rights
(TPR) petition.
b. If the parental rights of both parents of the child are terminated in another state
and the child is placed for adoption with a nonrelative in an independent adoptive
placement, the information must be provided with the petition for adoptive placement.
c. If the parental rights of both parents of the child have been terminated in
another state and the child is placed for adoption by an agency, the information must be
provided with the petition for adoption.
3. Methods by which payments may be made. The bill requires a payment by or
on behalf of a proposed adoptive parent to be made either directly to the provider of a good
or service or to the birth parent of the child or an alleged or presumed father of the child
as reimbursement of amounts previously paid by the birth parent or the alleged or
presumed father if documentation is provided showing that the birth parent or the
alleged or presumed father has made the previous payment.
4. Payments by proposed adoptive parents which are prohibited. The bill prohibits
the proposed adoptive parents of a child or a person acting on their behalf from making
any payments to or on behalf of a birth parent of the child, an alleged or presumed father
of the child or the child other than those listed as allowed under items 2. and 3., above.
5. Payments made after finalization of adoption. The bill permits the proposed
adoptive parents of a child or a person acting on their behalf to make any of the allowable
payments after finalization of the adoption (at which point the proposed adoptive parents
become "adoptive parents"), if the payments are included in the report to the juvenile
court described below or an amendment to the report which is filed with the juvenile
court.
6. Report regarding payments must be submitted to and reviewed by the juvenile
court. Under current law, a petition for independent adoptive placement with a
nonrelative must include any agreement between the birth parent and the proposed
adoptive parent that relates to the payment of any adoption-related expenses. The
juvenile court must review the agreement to determine whether any conditions specified
in the agreement are coercive to the birth parent. If the juvenile court finds coercion, the
juvenile court must dismiss the petition or amend the agreement to delete any coercive
conditions, if the parties agree to the amendment.
Also under current law, a petition for independent adoptive placement with a
nonrelative must include a report of all transfers of value related to the adoption made
or agreed to be made by the proposed adoptive parents or on their behalf. Current law,
however, does not specifically require the juvenile court to review the report or to take any
action if the juvenile court finds that improper payments have been or may be made.
Under current law, in an agency adoption, there is
no requirement that any
agreement or report regarding adoption-related payments be submitted to or reviewed
by the juvenile court.
The bill does all of the following:
a. For an agency adoption, requires the submission of the same information
regarding adoption-related payments and the same juvenile court review of that
information that is required for an independent adoptive placement with a nonrelative.
Specifically, the bill requires the juvenile court, at the hearing on a TPR petition which
is not filed with a petition for independent adoptive placement with a nonrelative, to
determine whether a proposed adoptive parent of a child who is not a relative of the child
has been identified. If a proposed adoptive parent has been identified, the juvenile court
must order the petitioner to submit a report of all adoption-related payments made by
or on behalf of the proposed adoptive parents to or on behalf of the birth parent of the
child, an alleged or presumed father of the child or the child. The juvenile court must
review that report to determine if any payments or agreement to make payments are
coercive to the birth parent or to an alleged or presumed father.
b. For agency adoptions and independent adoptions by a nonrelative, adds the
following items to the list of information which must be included in the report of
adoption-related payments made or agreed to be made by or on behalf of the proposed
adoptive parents:
(1) Payments to or on behalf of the child.
(2) Payments to or on behalf of an alleged or presumed father of the child.
(3) Payments made in connection with the pregnancy of the birth mother.
c. For agency adoptions and independent adoptions by a nonrelative, requires the
juvenile court to determine whether any payments or agreement to make payments are
impermissible, in addition to the current requirement to determine whether any
payments or agreement to make payments are coercive to the birth parent.
d. For agency adoptions and independent adoptions by a nonrelative, if the
juvenile court finds that impermissible payments have been made, authorizes the
juvenile court to dismiss the TPR petition or petition for adoptive placement and refer the
matter to the district attorney for prosecution under s. 948.24 (1), stats., which provides
criminal penalties for making or receiving impermissible payments related to adoption.
e. For agency adoptions and independent adoptions by a nonrelative, changes the
grounds for finding coercion of the birth parent or of an alleged or presumed father of the
child as follows:
Current law provides that "[m]aking the payment of the birth parent's expenses that
are permitted under s. 948.24 (1) (a) or (c) conditional in any part upon transfer or
surrender of the child or the termination of parental rights or the finalization of the
adoption creates a rebuttable presumption of coercion" (emphasis added).
The bill changes this provision to read as follows:
"Making any payment to or on behalf of the birth parent of the child, an alleged or
presumed father of the child or the child conditional in any part upon transfer or
surrender of the child or finalization of the adoption creates a rebuttable presumption of
coercion" (emphasis added).
7. Criminal penalties for unauthorized placement for adoption. Current law sets
forth criminal penalties which apply to a person who makes any payments that are not
authorized under s. 948.24 (1) (c), stats., in order to receive a child for adoption or who
places or agrees to place a child for adoption in exchange for any payments that are not
authorized under s. 948.24 (1) (a), stats. Specifically, current law provides that whoever
does any of the following is guilty of a Class D felony:
a. Places or agrees to place his or her child for adoption for anything exceeding the
actual cost of the hospital and medical expenses of the mother and the child incurred in
connection with the child's birth, and of the legal and other services rendered in
connection with the adoption [s. 948.24 (1) (a), stats.].
b. In order to receive a child for adoption, gives anything exceeding the actual cost
of the hospital and medical expenses of the mother and the child incurred in connection
with the child's birth, and of the legal and other services rendered in connection with the
adoption [s. 948.24 (1) (c), stats.].
The penalty for a Class D felony is a fine not to exceed $10,000 or imprisonment
not to exceed 5 years, or both.
The bill amends the criminal provisions to correspond to the changes the bill makes
in the children's code regarding payments related to adoption. Thus, under the bill,
making or receiving any of the payments authorized by the bill is not grounds for criminal
prosecution.
Under current law and the bill the criminal provisions do not apply to the adoption
of a foreign child under s. 48.839, stats.
Release of Identifying Information by Agency to Adoptive Parents and Birth Parents
Under current law, all records and papers pertaining to an adoption proceeding
must be kept in a locked file and may not be disclosed except by order of the court for good
cause shown or under any of 6 exceptions set forth in the statutes. The 6 exceptions are
as follows:
1. Section 48.93 (1g), stats., which requires a juvenile court, at the time the juvenile
court enters an order granting an adoption, to provide the adoptive parents with a copy
of the child's medical records or other medical information pertaining to the child, after
deleting the names and addresses of the child's birth parents and the identity of any
provider of health care to the child or the child's birth parents.
2. Section 48.93 (1r), stats., which requires any agency that has placed a child for
adoption, at the request of an adoptive parent or of the adoptee, after the adoptee has
reached 18 years of age, to provide the requester with certain medical or genetic
information and nonidentifying social history information.
3. Section 46.03 (29), stats., which authorizes DHFS to use in the media a picture
or description of a child in the guardianship of DHFS for the purpose of finding adoptive
parents for that child.
4. Section 48.432, stats., which authorizes the release of certain medical and
genetic information to certain persons upon request.
5. Section 48.433, stats., which authorizes the release of certain identifying
information about birth parents pursuant to the formal adoption search program
administered by DHFS.
6. Section 48.57 (1) (j), stats., which authorizes county departments providing child
welfare services to use in the media a picture or description of a child in its guardianship
for the purpose of finding adoptive parents for that child.
After an adoption is finalized, subject to the exceptions discussed above, an agency
may not release any identifying information about a birth parent or an adoptive parent.
It sometimes happens that, after the finalization of an adoption in which the birth
parents and adoptive parents did not reveal their identities to one another and chose to
remain anonymous, the birth parents or adoptive parents decide that they would like to
voluntarily disclose their identity. Typically, in that situation, the birth parent or
adoptive parent will ask the agency to provide his or her name and address to the other
party. Current law, however, prohibits an agency from releasing identifying information
after an adoption is finalized. Therefore, agencies often find themselves in the role of
acting as a conduit for information between birth parents and adoptive parents, a task
for which agencies generally receive no compensation and a service which is not
guaranteed to the parties. This bill is intended to address those situations by permitting
an agency to release identifying information as discussed below.
This bill creates a new exception to the statutory prohibition against disclosing
records and papers pertaining to an adoption proceeding. The bill requires an agency that
has placed a child for adoption or that was appointed the guardian of a child who was
adopted in an independent adoption to release information about the child's birth parents
to the child's adoptive parents, and to release information about the child's adoptive
parents to the child's birth parents, when authorized to do so, as described below.
Release of information to an adoptive parent; requirement for written
authorization. The bill requires an agency to provide to an adoptive parent of a child, at
the request of the adoptive parent, any available information about the identity and
location of a birth parent of the child if the agency has on file the unrevoked written
authorization of that birth parent to release that information to the adoptive parent.
The bill permits any birth parent whose child was adopted or placed for adoption
in this state to grant written authorization to the agency that placed the child for adoption
or that was appointed the guardian of the child in an independent adoption to release any
available information about the birth parent's identity and location to an adoptive parent
of the child.
Release of information to a birth parent; requirement for written authorization.
Similarly, the bill requires an agency to provide to a birth parent of a child, at the request
of the birth parent, any available information about the identity and location of an
adoptive parent of the child if the agency has on file the unrevoked written authorization
of that adoptive parent to release that information to the birth parent.
The bill permits any adoptive parent who has adopted a child in this state or who
has adopted a child who was placed for adoption with the adoptive parent in this state
to grant written authorization to the agency that placed the child for adoption or that was
appointed the guardian of the child in an independent adoption to release any available
information about the adoptive parent's identity and location to a birth parent of the
child.
Notarization required. The bill requires a written authorization for the release of
identifying information by an agency to be notarized.
Revocation of authorization. The bill permits a birth parent or an adoptive parent
to revoke a written authorization filed by the birth parent or adoptive parent at any time
by notifying the agency in writing.
Adoptee must be less than 21 years old. The bill authorizes the release of
information as described above only if the child who the agency placed for adoption, or
was appointed the guardian of, is less than 21 years of age.
Immunity from liability. The bill provides that any person, including the state or
any political subdivision of the state, who participates in good faith in any requirement
created by the bill is immune from any liability, civil or criminal, that results from his or
her actions. The bill further provides that in any proceeding, civil or criminal, the good
faith of any person participating in the requirements of the bill must be presumed.
Reasonable fees may be assessed. The bill permits an agency to assess reasonable
fees for responding to requests for information or requests by a birth parent or adoptive
parent to file a written authorization.
Agency may not contact parties who have not filed an authorization. The bill
prohibits agencies from contacting birth parents or adoptive parents for the purpose of
determining whether they wish to file a written authorization authorizing the release of
information about themselves. The bill, however, permits agencies to contact one time,
by mail, the birth parents or adoptive parents of a child who was adopted before the bill
becomes effective, to inform them of the new procedure for the release of identifying
information created by the bill.
Information provided to birth parent when parental rights are terminated. Under
current law, at the time a TPR order is entered, the juvenile court is required to inform
each birth parent whose rights have been terminated of the provisions of the law
governing the adoption search program administered by DHFS. The bill requires the
juvenile court at that time to also inform the birth parents of the statutory provisions
created by the bill relating to the release of identifying information to adoptive parents
and birth parents.
Adoption search program unaffected. This bill does not affect the adoption search
program under s. 48.433, stats., administered by DHFS.
Advertising Related To Adoption
Current law does not explicitly address advertising related to adoption. This bill
prohibits certain advertising relating to adoption. Specifically, the bill prohibits any
person except those listed below from doing any of the following:
1. Advertising for the purpose of finding a child to adopt.
2. Advertising that the person will find an adoptive home for a child or assist in
the adoption or adoptive placement of a child.
3. Advertising that the person will place a child for adoption.
Under the bill, "advertise" means to communicate by any public medium that
originates within this state, including by newspaper, periodical, telephone book listing,
outdoor advertising sign, radio or television.
The prohibition does not apply to any of the following:
1. DHFS.
2. A county department.
3. A child welfare agency licensed under s. 48.60, stats., to place children for
adoption.
4. An individual or agency providing adoption information exchange services
under s. 48.55, stats.
5. An individual or agency providing adoption information under s. 48.551, stats.
6. An individual who has received a favorable home study in this state or in another
jurisdiction.
7. An individual seeking to place his or her own child for adoption.
The bill provides that a person who violates the prohibitions on advertising created
by the bill may be fined not more than $10,000 or imprisoned for not more than 9 months
or both. (This is equivalent to the current punishment for a Class A misdemeanor.)
