In determining whether granting posttermination visitation, contact,
communication, or sharing of information as provided for in the agreement would be
in the best interests of the child, the juvenile court must consider: 1) whether the
child has substantial relationships with the person who would have visitation,
contact, communication, or sharing of information under the agreement, and
whether it would be harmful to the child not to preserve those relationships; 2) any
special needs of the child and how those special needs would be affected by visitation,
contact, communication, or sharing of information as provided for in the agreement;
3) the specific terms of the agreement and the likelihood that the parties will
cooperate in complying with the agreement; 4) the recommendations of the agency
and the child's guardian ad litem; and 5) any other factors that are relevant to the
best interests of the child.
Current law requires the juvenile court to consider certain factors in
determining whether TPR would be in the best interests of the child. One of those
factors is whether the child has substantial relationships with the parent or other
family members, and whether it would be harmful to the child to sever those
relationships. Recently, the Wisconsin Supreme Court held, in State v. Margaret H.,
200 WI 42, 234 Wis. 2d 606, 621, that the severance of substantial relationships
factor requires the juvenile court to examine the impact of a legal severance of those
relationships on the broader relationships existing between the child and his or her
family and that the juvenile court, in its discretion, may afford due weight to an
adoptive parent's stated intent to permit continued visitation between the child and
his or her pretermination family, even though such a promise is legally
unenforceable after TPR and adoption. This bill requires the juvenile court, in
evaluating that factor, to consider the terms of any posttermination contact
agreement under the bill that has been entered into with respect to the child and
permits the juvenile court to consider any other agreement by a proposed adoptive
parent to permit contact between the child and his or her pretermination family after
adoption of the child.
A posttermination contact agreement that has been approved by the juvenile
court is enforceable by the juvenile court. Before petitioning the juvenile court for
specific performance of the agreement, however, the petitioner must participate, or
attempt to participate, in good faith in mediation or other appropriate dispute
resolution proceedings to resolve the dispute giving rise to the filing of the petition.
If the juvenile court finds that a person is not in compliance with the agreement, that
enforcement of the agreement is in the best interests of the child, and that the
petitioner, before filing the petition, participated, or attempted to participate, in good
faith in mediation or other appropriate dispute resolution proceedings to resolve the
dispute giving rise to the filing of the petition, the juvenile court must issue an order
requiring specific performance of the agreement, which order is the sole remedy for
noncompliance with the agreement.
A posttermination contact agreement that has been approved by the juvenile
court may be terminated or modified by agreement of the parties if the juvenile court
finds that the termination or modification would be in the best interests of the child
or by the juvenile court if a party shows that the termination or modification would
be in the best interests of the child, or that there has been a substantial change in
circumstances since the entry of the last order affecting the agreement, and that the
petitioner, before filing the petition, participated, or attempted to participate, in good
faith in mediation or other appropriate dispute resolution proceedings to resolve the
dispute giving rise to the filing of the petition. An order to modify an approved
posttermination contact agreement may limit, restrict, condition, or decrease
visitation, contact, communication, or sharing of information between the child and
a birth relative of the child, but may not expand, enlarge, or increase that visitation,
contact, communication, or sharing of information or place any new obligations on
the adoptive parent or agency.
Finally, under current law, all records and papers pertaining to an adoption
proceeding may not be disclosed except under certain statutory exceptions or by
order of the juvenile court for good cause shown. This bill permits a proposed
adoptive parent whose home is the subject of an investigation to determine whether
the home is suitable for the child (home study) to request the agency conducting the
home study to disclose its report of the home study to another agency authorized to
place children for adoption, the state adoption information exchange, or the state
adoption center. Within ten days after receipt of such a request, the agency must
disclose the report to the person named in the request.
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:
AB214, s. 1
1Section
1. 48.425 (1) (h) of the statutes is created to read:
AB214,4,42
48.425
(1) (h) A statement as to whether a posttermination contact agreement
3has been entered into under s. 48.429. If such an agreement has been entered into,
4the agency shall attach a copy of the agreement to the report.
AB214, s. 2
5Section
2. 48.426 (3) (c) of the statutes is amended to read:
AB214,5,26
48.426
(3) (c) Whether the child has substantial relationships with the parent
7or other family members, and whether it would be harmful to the child to sever
these 8those relationships.
In determining whether it would be harmful to the child to sever
9those relationships, the court shall consider the terms of any posttermination contact
10agreement that has been entered into under s. 48.429 with respect to the child and
1may consider any other agreement by a proposed adoptive parent to permit contact
2between the child and the parent or other family members after adoption of the child.
AB214, s. 3
3Section
3. 48.428 (6) (a) of the statutes is renumbered 48.428 (6) and amended
4to read:
AB214,5,75
48.428
(6) Except as provided in par. (b), the The court may
order or prohibit
6visitation by grant posttermination contact privileges under s. 48.429 to a birth
7parent relative of a child placed in sustaining care.
AB214, s. 4
8Section
4. 48.428 (6) (b) of the statutes is repealed.
AB214, s. 5
9Section
5. 48.429 of the statutes is created to read:
AB214,5,11
1048.429 Posttermination contact privileges. (1) Definitions. In this
11section:
AB214,5,1312
(a) "Approved posttermination contact agreement" means a posttermination
13contact agreement that has been approved by the court under sub. (4).
AB214,5,1714
(b) "Birth relative" means a relative, as defined in s. 48.02 (15), by blood or
15marriage, and, in the case of an Indian child, also includes any additional person who
16is defined as a member of the Indian child's extended family by the law or custom of
17the Indian child's tribe.
AB214,5,2218
(c) "Posttermination contact agreement" means an agreement between a
19proposed adoptive parent of a child or, if at the time the agreement is entered into
20no proposed adoptive parent has been identified, the agency having guardianship,
21legal custody, or supervision of the child and a birth relative of the child that provides
22for any of the following after termination of parental rights to the child:
AB214,5,2323
1. Visitation between the child and a birth relative of the child.
AB214,5,2524
2. Future contact and communication between the child, adoptive parent, or
25agency and birth relative of the child.
AB214,6,2
13. The sharing of information about the child in the future between the adoptive
2parent or agency and a birth relative of the child.
AB214,6,43
4. The maintenance and sharing of the medical and genetic history of any birth
4relative who is a party to the agreement.
AB214,6,10
5(2) Posttermination contact agreements; when permitted. At any time before
6a termination of parental rights order is granted, a posttermination contact
7agreement may be entered into between the proposed adoptive parents of a child or,
8if at the time the agreement is entered into no proposed adoptive parent has been
9identified, the agency having guardianship, legal custody, or supervision of the child
10and a birth relative of the child if all of the following conditions are met:
AB214,6,1211
(a) The child is in the legal custody or under the supervision or guardianship
12of an agency.
AB214,6,1813
(b) The birth parent who is a party to the agreement has agreed to voluntarily
14consent to the termination of his or her parental rights under s. 48.41 or not to contest
15an involuntary termination of parental rights under s. 48.415, except that the
16condition under this paragraph is not met if the agreement to voluntarily consent to
17or not to contest the termination of parental rights is made after grounds for
18termination of parental rights are found under s. 48.424.
AB214,6,1919
(c) The child, if 12 years of age or over, consents to the terms of the agreement.
AB214,6,21
20(3) Provisions of posttermination contact agreement. A posttermination
21contact agreement shall contain all of the following provisions:
AB214,6,2522
(a) An acknowledgement by all birth relatives who are parties to the agreement
23that the termination of parental rights to and adoption of the child are irrevocable
24and that failure by a party to comply with the agreement is not grounds to revoke the
25termination of parental rights or adoption.
AB214,7,5
1(b) An acknowledgement by the proposed adoptive parents or, if at the time the
2agreement is entered into no proposed adoptive parent has been identified, the
3agency having guardianship, legal custody, or supervision of the child that the
4agreement is enforceable by any person who is permitted posttermination visitation,
5contact, communication, or sharing of information under the agreement.
AB214,7,106
(c) A statement by all parties to the agreement that the agreement was entered
7into voluntarily and with understanding of the terms of the agreement, that no
8promises or threats were made to coerce any person into entering into the agreement,
9and that the parties have not relied on any representations other than those
10contained in the agreement.
AB214,7,13
11(4) Approval of granting posttermination contact agreement. At the time a
12termination of parental rights order is granted, a court may approve a
13posttermination contact agreement if all of the following conditions are met:
AB214,7,1514
(a) The child and the birth parent meet the conditions specified in sub. (2) (a)
15to (c).
AB214,7,1616
(b) The agreement contains the provisions specified in sub. (3) (a) to (c).
AB214,7,2217
(c) The agreement is signed by all parties to the agreement including the birth
18parent and child, if 12 years of age or over. If a birth parent who is under 12 years
19of age or other birth relative who is a child is to be granted posttermination visitation,
20contact, communication, or sharing of information under the agreement, the parent,
21guardian, or legal custodian of the birth relative shall sign the agreement on behalf
22of the birth relative.
AB214,8,223
(d) The agency having guardianship, legal custody, or supervision of the child
24or the child's guardian ad litem files the agreement with the court. If the agency files
25the agreement, the agency shall comply with this paragraph by including in the court
1report under s. 48.425 (1) the statement under s. 48.425 (1) (h) and attaching the
2agreement to the court report.
AB214,8,73
(e) The court addresses all parties to the agreement and determines by clear
4and convincing evidence that the agreement was entered into voluntarily and with
5understanding of the terms of the agreement, that no promises or threats were made
6to coerce any person into entering into the agreement, and that the parties have not
7relied on any representations other than those contained in the agreement.
AB214,8,118
(f) The agency having guardianship, legal custody, or supervision of the child
9and the child's guardian ad litem submit to the court recommendations concerning
10the granting of posttermination visitation, contact, communication, or sharing of
11information as provided for in the agreement.
AB214,8,1712
(g) The court determines by clear and convincing evidence that granting
13posttermination visitation, contact, communication, or sharing of information as
14provided for in the agreement would be in the best interests of the child. In
15determining whether granting posttermination visitation, contact, communication,
16or sharing of information as provided for in the agreement would be in the best
17interests of the child, the court shall consider all of the following factors:
AB214,8,2118
1. Whether the child has substantial relationships with the person who would
19have visitation, contact, communication, or sharing of information under the
20agreement, and whether it would be harmful to the child not to preserve those
21relationships.
AB214,8,2422
2. Any special needs of the child and how those special needs would be affected
23by visitation, contact, communication, or sharing of information as provided for in
24the agreement.
AB214,9,2
13. The specific terms of the agreement and the likelihood that the parties will
2cooperate in complying with the agreement.
AB214,9,43
4. The recommendations of the agency having guardianship, legal custody, or
4supervision of the child and the child's guardian ad litem.
AB214,9,55
5. Any other factors that are relevant to the best interests of the child.
AB214,9,10
6(5) Later-identified proposed adoptive parents. If the child who is the subject
7of a posttermination contact agreement is placed for adoption in the home of a
8proposed adoptive parent who was not identified at the time the agreement was
9entered into, that posttermination contact agreement shall be binding on the
10proposed adoptive parent unless terminated or modified under sub. (7).
AB214,9,21
11(6) Enforcement of posttermination contact agreement. (a) A
12posttermination contact agreement is enforceable only if the agreement is approved
13by the court under sub. (4). Any party to an approved posttermination contact
14agreement may petition the court that approved the agreement for specific
15performance of the agreement. The petition shall allege facts sufficient to show that
16a person who is bound by the agreement is not in compliance with the agreement,
17that enforcement of the agreement is in the best interests of the child in light of the
18factors specified in sub. (4) (g), and that the petitioner, before filing the petition,
19participated, or attempted to participate, in good faith in mediation or other
20appropriate dispute resolution proceedings to resolve the dispute giving rise to the
21filing of the petition.
AB214,9,2522
(b) The court shall set a date and time for a hearing on a petition filed under
23par. (a) and shall provide notice of the hearing to the petitioner and to all other
24parties to the approved posttermination contact agreement and the agency that had
25guardianship, legal custody, or supervision of the child before the termination of
1parental rights. The hearing shall take place on a date that allows the persons
2notified of the hearing a reasonable time to prepare, but is no more than 30 days after
3the filing of the petition.
AB214,10,124
(c) If the court finds by clear and convincing evidence that any person bound
5by an approved posttermination contact agreement is not in compliance with the
6agreement, that enforcement of the agreement is in the best interests of the child in
7light of the factors specified in sub. (4) (g), and that the petitioner, before filing the
8petition, participated, or attempted to participate, in good faith in mediation or other
9appropriate dispute resolution proceedings to resolve the dispute giving rise to the
10filing of the petition, the court shall issue an order requiring specific performance of
11the agreement. An order for specific performance shall be the sole remedy for any
12noncompliance with the agreement.
AB214,10,1513
(d) A court may not award damages, costs, or attorney fees or revoke a
14termination of parental rights order or an order of adoption because a party to a
15posttermination contact agreement fails to comply with the agreement.
AB214,10,25
16(7) Termination or modification of posttermination contact agreement. (a)
17The parties to an approved posttermination contact agreement may agree to
18terminate or modify the agreement. If the parties agree to terminate or modify the
19agreement and if the child, if 12 years of age or over, consents to the termination or
20modification, the parties shall sign and file with the court that approved the
21agreement the modified agreement or a stipulation terminating the agreement. If,
22after reviewing the stipulation or modified agreement, the court finds by clear and
23convincing evidence that termination or modification of the agreement would be in
24the best interests of the child in light of the factors specified in sub. (4) (g), the court
25shall approve the termination or modification of the agreement.
AB214,11,9
1(b) 1. Any party to an approved posttermination contract agreement may
2petition the court that approved the agreement to terminate or modify the
3agreement. The petition shall allege facts sufficient to show that termination or
4modification of the agreement would be in the best interests of the child in light of
5the factors specified in sub. (4) (g), or that there has been a substantial change in
6circumstances since the entry of the last order affecting the agreement, and that the
7petitioner, before filing the petition, participated, or attempted to participate, in good
8faith in mediation or other appropriate dispute resolution proceedings to resolve the
9issue giving rise to the filing of the petition.
AB214,11,1610
2. The court shall set a date and time for a hearing on a petition under subd.
111. and shall provide notice of the hearing to the petitioner and to all other parties to
12the approved posttermination contact agreement and the agency that had
13guardianship, legal custody, or supervision of the child before the termination of
14parental rights. The hearing shall take place on a date that allows the persons
15notified of the hearing a reasonable time to prepare, but is no more than 30 days after
16the filing of the petition.
AB214,12,617
3. Notwithstanding s. 48.01 (1) (intro.), the court may terminate or modify the
18approved posttermination contact agreement if the court finds by clear and
19convincing evidence that termination or modification of the agreement would be in
20the best interests of the child in light of the factors specified in sub. (4) (g), or that
21there has been a substantial change in circumstances since the entry of the last order
22affecting the agreement, and that the petitioner, before filing the petition,
23participated, or attempted to participate, in good faith in mediation or other
24appropriate dispute resolution proceedings to resolve the issue giving rise to the
25filing of the petition. An order to modify an approved posttermination contact
1agreement may limit, restrict, condition, or decrease visitation, contact,
2communication, or sharing of information between the child and a birth relative of
3the child, but may not expand, enlarge, or increase that visitation, contact,
4communication, or sharing of information or place any new obligation on the
5adoptive parent or agency having guardianship, legal custody, or supervision of the
6child.
AB214, s. 6
7Section
6. 48.43 (2) (d) of the statutes is created to read:
AB214,12,98
48.43
(2) (d) A court may approve a posttermination contact agreement under
9s. 48.429.
AB214, s. 7
10Section
7. 48.92 (2) of the statutes is amended to read:
AB214,12,2211
48.92
(2) After the order of adoption is entered the relationship of parent and
12child between the adopted person and the adopted person's birth parents and the
13relationship between the adopted person and all persons whose relationship to the
14adopted person is derived through those birth parents shall be completely altered
15and all the rights, duties, and other legal consequences of those relationships shall
16cease to exist, unless the birth parent is the spouse of the adoptive parent, in which
17case those relationships shall be completely altered and those rights, duties, and
18other legal consequences shall cease to exist only with respect to the birth parent who
19is not the spouse of the adoptive parent and all persons whose relationship to the
20adopted person is derived through that birth parent. Notwithstanding the extinction
21of all parental rights under this subsection, a court may
approve a posttermination
22contact agreement under s. 48.429 or order reasonable visitation under s. 48.925.
AB214, s. 8
23Section
8. 48.93 (1d) of the statutes is amended to read:
AB214,13,224
48.93
(1d) All records and papers pertaining to an adoption proceeding shall
25be kept in a separate locked file and may not be disclosed except under sub. (1g)
or,
1(1r)
, or (2) (b), s. 48.432, 48.433, 48.434, 48.48 (17) (a) 9.
, or 48.57 (1) (j), or by order
2of the court for good cause shown.
AB214, s. 9
3Section
9. 48.93 (2) of the statutes is renumbered 48.93 (2) (b) and amended
4to read:
AB214,13,85
48.93
(2) (b) All correspondence and papers
, relating to the investigation
,
6which that are not a part of the court record, except those in the custody of agencies
7authorized to place children for adoption
, shall be transferred to the department and
8placed in its closed files.
AB214, s. 10
9Section
10. 48.93 (2) (a) of the statutes is created to read:
AB214,13,1610
48.93
(2) (a) A proposed adoptive parent whose home is the subject of an
11investigation under s. 48.837 (1r) (c) or (4) (c) or 48.88 (2) (a) may request the agency
12conducting the investigation to disclose its report of the investigation to any other
13agency authorized to place children for adoption, to the state adoption information
14exchange under s. 48.55, or to the state adoption center under s. 48.55. Within 10
15days after receipt of the request, the agency shall disclose the report to the person
16named in the request.
AB214,13,2118
(1)
Posttermination contact agreements. The treatment of sections 48.425 (1)
19(h), 48.426 (3) (c), 48.428 (6) (a) and (b), 48.429, 48.43 (2) (d), and 48.92 (2) of the
20statutes first applies to a termination of parental rights petition filed on the effective
21date of this subsection.
