2023 - 2024 LEGISLATURE
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2023 ASSEMBLY BILL 107
March 14, 2023 - Introduced by Representatives MAXEY, ARMSTRONG, ALLEN,
BEHNKE, BRANDTJEN, KNODL, MURPHY, MURSAU, ROZAR, WICHGERS and
RETTINGER, cosponsored by Senators JACQUE, CABRAL-GUEVARA and TOMCZYK.
Referred to Committee on Family Law.
1 AN ACT to amend 48.41 (1), 48.42 (2) (a), 48.46 (2), 48.837 (5) and 48.91 (3); and
2 to create 48.41 (2) (bm) and 48.913 (1) (em) of the statutes; relating to: a
3 disclaimer of parental rights and payments allowed in connection with an
4 adoption.
Analysis by the Legislative Reference Bureau
This bill provides a method by which a mother, father, or alleged or presumed
father may disclaim his or her parental rights with respect to a child under the age
of one who is not an Indian child in writing as an alternative to appearing in court
to consent to the termination of his or her parental rights. The bill also allows
payments to be made to a licensed out-of-state private child placing agency for
services provided in connection with an adoption.
Disclaimer of parental rights
Subject to certain exceptions, current law generally requires a birth parent to
appear in court to consent to the termination of his or her parental rights. This bill
adds an exception that allows a mother, father, or alleged or presumed father to avoid
appearing in court if he or she files with the court an affidavit disclaiming his or her
parental rights with respect to a child under the age of one and if no participant in
the court proceeding knows or has reason to know that the child is an Indian child.
A minor may use such an affidavit of disclaimer only after the TPR petition has been
filed, he or she has been offered legal counseling, and he or she has been appointed
a guardian ad litem and only if the guardian ad litem approves the disclaimer. The
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ASSEMBLY BILL 107
affidavit must comply with certain requirements, including that it must be
witnessed and notarized and must include a statement that the parent understands
the effect of an order to terminate parental rights and that he or she voluntarily
disclaims any rights that he or she may have to the child. The bill requires the court
to review the affidavit and make findings on whether it meets all of the requirements.
Under the bill, the affidavit containing a disclaimer of parental rights may be
executed before the birth of the child by the father or alleged or presumed father but
not the mother and may be executed by either parent 120 hours or more after the
birth until the child's first birthday; however, the affidavit may not be executed by
either parent from birth until 120 hours after the birth or on or after the child's first
birthday.
Under the bill, if executed by the father or alleged or presumed father before
the child's birth, the disclaimer is revokable for any reason until 72 hours after
execution or 120 hours after the birth, whichever is later. If executed by the mother,
the disclaimer is revocable for any reason until 72 hours after execution. If not
revoked by the applicable time limit, the disclaimer is irrevocable unless obtained
by fraud or duress. Under the bill, no action to invalidate a disclaimer, including an
action based on fraud or duress, may be commenced more than three months after
the affidavit was executed. If parental rights to a child are terminated based upon
such a disclaimer of parental rights, the bill prohibits a court from entering an order
granting adoption of the child until three months have passed since the affidavit was
executed.
The bill requires the agency making the placement of the child for adoption,
whether the agency is the Department of Children and Families, the county
department of human services or social services, or a licensed child welfare agency,
to offer both counseling and legal counseling to the person disclaiming his or her
parental rights, at the agency's expense, prior to execution of the affidavit. The
person must acknowledge in the affidavit that he or she has been offered these
counseling and legal counseling sessions and whether or not he or she accepted them.
Payments relating to adoption
This bill allows payments to be made to an out-of-state private child placing
agency that is licensed in the state in which it operates for services provided in
connection with an adoption and, where applicable, in compliance with the federal
Indian Child Welfare Act, as certified to DCF. Under the bill, a private child placing
agency means a private corporation, agency, foundation, institution, or charitable
organization, or any private person or attorney, that facilitates, causes, or is involved
in the placement of a child from one state to another state. Current law allows
payments for such services only to a child welfare agency licensed in this state.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
1 SECTION 1. 48.41 (1) of the statutes is amended to read:
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1 48.41 (1) The court may terminate the parental rights of a parent after the
2 parent has given his or her consent as specified in this section. When such voluntary
3 consent is given as provided in this section sub. (2) (a), (b), or (c) to (e) or when an
4 affidavit of disclaimer of parental rights executed under sub. (2) (bm) is irrevocable,
5 the judge may proceed immediately to a disposition of the matter after considering
6 the standard and factors specified in s. 48.426.
7 SECTION 2. 48.41 (2) (bm) of the statutes is created to read:
8 48.41 (2) (bm) 1. Subject to subd. 1m., a mother, father, or presumed or alleged
9 father may consent to the termination of any parental rights that he or she may have
10 with respect to a child who is under one year of age if no participant in the court
11 proceeding, including the mother, father, or presumed or alleged father, knows or has
12 reason to know that the child is an Indian child by the method provided in par. (a)
13 or (b) or by filing with the court an affidavit of disclaimer of parental rights that is
14 signed by 2 witnesses and notarized and that meets the requirements under subds.
15 2. to 8.
16 1m. A minor may consent to the termination of any parental rights that he or
17 she may have with respect to a child by using an affidavit of disclaimer under subd.
18 1. only after the petition to terminate parental rights has been filed, the agency has
19 offered the minor legal counseling under subd. 11., and he or she has been appointed
20 a guardian ad litem and only if the guardian ad litem approves the disclaimer.
21 2. All of the following apply to the affidavit of disclaimer of parental rights
22 under subd. 1.:
23 a. The affidavit may not be executed after the birth of the child until 120 hours
24 after the birth of the child and may not be executed on or after the child's first
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1 birthday. The father or presumed or alleged father may, but the mother may not,
2 execute the affidavit before the birth of the child.
3 b. If executed by the father or presumed or alleged father, the affidavit is
4 revocable for any reason until 72 hours after execution or 120 hours after the birth
5 of the child, whichever is later, as provided under subd. 9. If executed by the mother,
6 the affidavit is revocable for any reason until 72 hours after execution, as provided
7 in subd. 9.
8 c. The affidavit is irrevocable if not revoked for any reason by the mother,
9 father, or presumed or alleged father by the applicable time limit provided under
10 subd. 2. b., unless it was obtained by fraud or duress.
11 d. Except as provided in s. 48.028 (5) (b) and (c) and (6), no action to invalidate
12 the affidavit, including an action based on fraud or duress, may be commenced more
13 than 3 months after the date the affidavit was executed.
14 3. An affidavit under subd. 1. shall contain all of the following:
15 a. The name, county of residence, and age of the parent whose parental rights
16 are being terminated.
17 b. The name, age, and birth date of the child, if born.
18 c. The names and addresses of the guardians of the person whose parental
19 rights are being terminated, if that person is a minor, and of the estate of the child,
20 if any.
21 d. A statement of whether the person whose parental rights are being
22 terminated is or is not presently obligated by court order to make payments for the
23 support of the child.
24 e. A full description and statement of value of all property the child owns or
25 possesses.
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1 f. An allegation that termination of parental rights is in the best interest of the
2 child.
3 g. The name and county of residence of any other parent or presumed or alleged
4 father or a statement that the child has no other parent or presumed or alleged
5 father.
6 h. If applicable, a statement that the parental rights of the other parent or
7 presumed or alleged father have been terminated by death or court order.
8 i. A statement containing the information and understandings specified in
9 subd. 4.
10 j. A statement that there is or is not any reason to believe that the child is an
11 Indian child.
12 k. The date and time that the affidavit is executed.
13 4. An affidavit under subd. 1. shall contain a statement in substantially the
14 following form:
15 “I have been informed of and understand all of the following:
16 A. That a court order terminating parental rights will permanently end all
17 legal rights and duties that exist between me and the child, such as the duty to
18 support, the right to custody and visitation, and the right to inherit.
19 B. That there are parenting-related services that would be available to me if
20 I chose not to consent to the termination of my parental rights.
21 C. That this affidavit may not be executed less than 120 hours after the birth
22 of the child, on or after the child's first birthday, or by the child's mother before the
23 birth of the child.
24 D. That the child's father or presumed or alleged father has the right to revoke
25 an affidavit of disclaimer for any reason until 72 hours after execution or 120 hours
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1 after the birth of the child, whichever is later, and the child's mother may revoke the
2 affidavit for any reason until 72 hours after execution.
3 E. That the affidavit is irrevocable if not revoked for any reason by the mother,
4 father, or presumed or alleged father by the applicable time limit under D., above,
5 unless it was obtained by fraud or duress.
6 F. That no action to invalidate the affidavit, including an action based on fraud
7 or duress, may be commenced more than 3 months after the date the affidavit was
8 executed.
9 G. Prior to executing this affidavit I have been offered counseling at the
10 expense of the agency that is placing the child for adoption. I have accepted/refused
11 (circle one) this counseling.
12 H. If I am younger than 18 years of age, prior to executing this affidavit I have
13 been offered legal counseling at the expense of the agency that is placing the child
14 for adoption. I have accepted/refused (circle one) this legal counseling.”
15 5. An affidavit under subd. 1. shall contain a statement that the person whose
16 parental rights are being terminated voluntarily disclaims any rights that he or she
17 may have to the child, including the right to notice of proceedings under this chapter.
18 6. If a guardian has not been appointed under s. 48.979, an affidavit under
19 subd. 1. may contain the nomination of the department, a county department
20 authorized to accept guardianship under s. 48.57 (1) (e) or (hm), or a child welfare
21 agency licensed under s. 48.61 (5) to accept guardianship to serve as guardian of the
22 child and the nominated guardian's address.
23 6m. The person disclaiming his or her parental rights shall choose at least one
24 of the witnesses to the affidavit, and that witness shall certify that he or she was
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1 chosen by that person. Each witness to the affidavit shall certify to all of the
2 following:
3 a. That he or she has no professional or fiduciary interest in the disclaimer or
4 the adoption of the child.
5 b. That he or she has knowledge of the relationship between the person
6 disclaiming his or her parental rights and the child.
7 c. That he or she has discussed the decision to execute the affidavit with the
8 person disclaiming his or her parental rights and that, to the best of the witness's
9 knowledge, the affidavit is being signed voluntarily.
10 d. That he or she is neutral.
11 7. A copy of the affidavit shall be provided to the person whose parental rights
12 are being terminated at the time he or she signs the affidavit.
13 8. The affidavit may not contain terms for post-termination contact between
14 the child and the person whose parental rights are to be terminated as a condition
15 of the disclaimer of parental rights.
16 9. To revoke a disclaimer of parental rights in an affidavit under subd. 1., the
17 mother, father, or presumed or alleged father shall sign a statement revoking the
18 disclaimer of parental rights that is notarized. A copy of the revocation shall be filed
19 with the clerk of court. A revocation is not valid unless it is executed by the father
20 or presumed or alleged father before 72 hours after execution of the affidavit or 120
21 hours after the birth of the child, whichever is later, or executed by the mother before
22 72 hours after execution of the affidavit.
23 10. The agency that is making the placement of the child for adoption shall offer
24 counseling to a mother, father, or presumed or alleged father who intends to execute
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1 an affidavit under this paragraph prior to executing the affidavit with a counselor
2 who is qualified to provide such counseling.
3 11. The agency that is making the placement of the child for adoption shall offer
4 to a mother, father, or presumed or alleged father who is a minor and who intends
5 to execute an affidavit under this paragraph legal counseling with an attorney who
6 does not represent the agency or adoptive parents prior to executing the affidavit.
7 12. An affidavit of disclaimer of parental rights under this paragraph is not
8 effective if it would violate s. 48.028 or the federal Indian Child Welfare Act, 25 USC
9 1901 to 1963, or any regulations promulgated thereunder or if the agency responsible
10 for securing the adoption of the child knows or has reason to know the child is an
11 Indian child.
12 13. The court shall review an affidavit of disclaimer of parental rights to ensure
13 it meets the requirements under subds. 2 to 8. The court shall make findings on the
14 record stating whether the affidavit meets those requirements and whether all
15 participants in the court proceeding, including the mother, father, or presumed or
16 alleged father, have stated that they do not know or have reason to know that the
17 child is an Indian child.
18 SECTION 3. 48.42 (2) (a) of the statutes is amended to read:
19 48.42 (2) (a) The parent or parents of the child, unless the child's parent has
20 waived the right to notice under s. 48.41 (2) (d), or the child's parent or presumed or
21 alleged father has waived the right to notice under s. 48.41 (2) (bm).
22 SECTION 4. 48.46 (2) of the statutes is amended to read:
23 48.46 (2) A parent who has consented to the termination of his or her parental
24 rights under s. 48.41 or who did not contest the petition initiating the proceeding in
25 which his or her parental rights were terminated may move the court for relief from