Section 48.837. Placement of children with nonrelatives for adoption.

 

(1)   In-state adoptive placement. When the proposed adoptive parent or parents of a child reside in this state and are not relatives of the child, a parent having custody of a child and the proposed adoptive parent or parents of the child may petition the court for placement of the child for adoption in the home of the proposed adoptive parent or parents if the home is licensed as a foster home under s. 48.62 .

(1m)   Out-of-state adoptive placement. Subject to ss. 48.98 , 48.988 , and 48.99 , when the proposed adoptive parent or parents of a child reside outside this state and are not relatives of the child, a parent having custody of a child and the proposed adoptive parent or parents of the child may petition the court for placement of the child for adoption in the home of the proposed adoptive parent or parents, if the home meets the criteria established by the laws of the other state for a preadoptive placement of a child in the home of a nonrelative.

(1r)   Placement prior to petition.

(a) At the request of a parent having custody of a child and the proposed adoptive parent or parents of the child, the department, a county department under s. 48.57 (1) (e) or (hm) , or a child welfare agency licensed under s. 48.60 may place the child in the home of the proposed adoptive parent or parents prior to the filing of a petition under sub. (2) as provided in par. (b) or (c) , whichever is applicable, and par. (d) . In placing an Indian child for adoption under this paragraph, the department, county department, or child welfare agency shall comply with the order of placement preference under s. 48.028 (7) (a) or, if applicable, s. 48.028 (7) (c) , unless the department, county department, or child welfare agency finds good cause, as described in s. 48.028 (7) (e) , for departing from that order.

(b) The department, a county department under s. 48.57 (1) (e) or (hm) , or a child welfare agency licensed under s. 48.60 may place a child under par. (a) in the home of a proposed adoptive parent or parents who reside in this state if that home is licensed as a foster home under s. 48.62 and the investigation made under s. 48.75 (3) has been supplemented to evaluate whether the home is suitable for the child.

(c) The department, a county department under s. 48.57 (1) (e) or (hm) , or a child welfare agency licensed under s. 48.60 may place a child under par. (a) in the home of a proposed adoptive parent or parents who reside outside this state if the placement is made in compliance with s. 48.98 , 48.988 , or 48.99 , whichever is applicable, if the home meets the criteria established by the laws of the state where the proposed adoptive parent or parents reside for a preadoptive placement of a child in the home of a nonrelative, and if an appropriate agency in that state has completed an investigation of the home and filed a report and recommendation concerning the home with the department, county department, or licensed child welfare agency.

(d) Before a child may be placed under par. (a) , the department, county department, or child welfare agency making the placement and the proposed adoptive parent or parents shall enter into a written agreement that specifies who is financially responsible for the cost of providing care for the child prior to the finalization of the adoption and for the cost of returning the child to the parent who has custody of the child if the adoption is not finalized. Under the agreement, the department, county department, or child welfare agency or the proposed adoptive parent or parents, but not the birth parent of the child or any alleged or presumed father of the child, shall be financially responsible for those costs.

(e) Prior to termination of parental rights to the child, no person may coerce a birth parent of the child or any alleged or presumed father of the child into refraining from exercising his or her right to withdraw consent to the transfer or surrender of the child or to termination of his or her parental rights to the child, to have reasonable visitation or contact with the child, or to otherwise exercise his or her parental rights to the child.

(2)   Petition for placement. The petition for adoptive placement shall be verified and shall allege all of the following:

(a) The name, address and age of the child or the expected birth date of the child.

(b) The name, address and age of the birth parents and the proposed adoptive parents.

(c) The identity of any person or agency which solicited, negotiated or arranged the placement of the child with the proposed adoptive parents.

(d) That the proposed adoptive parents have completed the preadoption preparation required under s. 48.84 (1) or are not required to complete that preparation.

(e) If the child is an Indian child, the names and addresses of the Indian child's Indian custodian, if any, and tribe, if known.

(3)   Petition for termination of parental rights required. The petition under sub. (2) shall be filed with a petition under s. 48.42 for the voluntary consent to the termination of any existing rights of the petitioning parent or parents.

(4)   Responsibilities of court. On the filing of the petitions under this section the court:

(a) Shall hold a hearing within 30 days after the date of filing of the petitions, except that the hearing may not be held before the birth of the child.

(b) Shall appoint counsel or guardians ad litem when required under s. 48.23 .

(c) Shall, when the petition has been filed under sub. (1) , order the department or a county department under s. 48.57 (1) (e) or (hm) to investigate the proposed adoptive placement, to interview each petitioner, to provide counseling if requested, and to report its recommendation to the court at least 5 days before the hearing on the petition. If a licensed child welfare agency or, in the case of an Indian child, the tribal child welfare department of the Indian child's tribe has investigated the proposed adoptive placement and interviewed the petitioners, the court may accept a report and recommendation from the child welfare agency or tribal child welfare department in place of the court-ordered report required under this paragraph. In reporting its recommendations under this paragraph with respect to an Indian child, the department, a county department, or a child welfare agency shall comply with the order of placement preference under s. 48.028 (7) (a) or, if applicable, s. 48.028 (7) (c) , unless the department, county department, or child welfare agency finds good cause, as described in s. 48.028 (7) (e) , for departing from that order.

(cm) Shall, when the petition has been filed under sub. (1m) , request the appropriate agency in the state where the proposed adoptive parent or parents reside to follow the procedure established by the laws of that state to ensure that the proposed adoptive home meets the criteria for a preadoptive placement of the child in the home of a nonrelative.

(d) May, in the case of a child who has not been placed under sub. (1r) , order the department or a county department under s. 48.57 (1) (e) or (hm) , at the request of a petitioning parent or on its own motion after ordering the child taken into custody under s. 48.19 (1) (c) , to place the child, pending the hearing on the petition, in any home in this state that is licensed under s. 48.62 or in any home outside this state if the conditions under sub. (1r) (c) are met. In placing an Indian child for adoption under this paragraph, the department or county department shall comply with the order of placement preference under s. 48.028 (7) (a) or, if applicable, s. 48.028 (7) (c) , unless the department, county department, or child welfare agency finds good cause, as described in s. 48.028 (7) (e) , for departing from that order.

(dm) May, in the case of a child who has been placed under sub. (1r) , order the child to be maintained in the placement pending the hearing on the petition or order the department or a county department under s. 48.57 (1) (e) or (hm) , at the request of a petitioning parent or on its own motion after ordering the child taken into custody under s. 48.19 (1) (c) , to place the child, pending the hearing on the petition, in any home licensed under s. 48.62 except the home of the proposed adoptive parents or a relative of the proposed adoptive parents.

(e) Shall, before hearing the petitions under subs. (2) and (3) , ascertain whether the paternity of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803 has been acknowledged under s. 767.805 or a substantially similar law of another state or adjudicated in this state or another jurisdiction. If the child's paternity has not been acknowledged or adjudicated, the court shall attempt to ascertain the paternity of the child and shall determine the rights of any person who may be the father of the child as provided under s. 48.423 . The court may not proceed with the hearing on the petitions under this section unless the parental rights of the nonpetitioning parent, whether known or unknown, have been terminated.

(5)   Attendance at hearing. The child, if he or she is 12 years of age or over, and each petitioner shall attend the hearing on the petition under sub. (2) . The child, if he or she is 12 years of age or over, and each parent having custody of the child shall attend the hearing on the petition under sub. (3) . If the parent who has custody of the child consents and the court approves, the proposed adoptive parents may be present at the hearing on the petition under sub. (3) . The court may, for good cause, waive the requirement that the child attend either of the hearings.

(6)   Order of hearings.

(a) The court shall hold the hearing on the petition under sub. (2) before the hearing on the petition required under sub. (3) .

(b) At the beginning of the hearing held under sub. (2) , the court shall review the report that is submitted under s. 48.913 (6) . The court shall determine whether any payments or the conditions specified in any agreement to make payments are coercive to the birth parent of the child or to an alleged or presumed father of the child or are impermissible under s. 48.913 (4) . 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 the termination of parental rights or the finalization of the adoption creates a rebuttable presumption of coercion. Upon a finding of coercion, the court shall dismiss the petitions under subs. (2) and (3) or amend the agreement to delete any coercive conditions, if the parties agree to the amendment. Upon a finding that payments which are impermissible under s. 48.913 (4) have been made, the court may dismiss the petition and may refer the matter to the district attorney for prosecution under s. 948.24 (1) .

(br) At the hearing on the petition under sub. (2) , the court shall determine whether any person has coerced a birth parent or any alleged or presumed father of the child in violation of sub. (1r) (e) . Upon a finding of coercion, the court shall dismiss the petitions under subs. (2) and (3) .

(c) After the hearing on the petition under sub. (2) , the court shall make findings on the allegations of the petition and the report ordered under sub. (4) (c) and make a conclusion as to whether placement in the home is in the best interest of the child. In determining whether placement of an Indian child in the home is in the best interest of the Indian child, the court shall comply with the order of placement preference under s. 48.028 (7) (a) or, if applicable, s. 48.028 (7) (c) , unless the court finds good cause, as described in s. 48.028 (7) (e) , for departing from that order.

(d) If the proposed placement is approved, the court shall proceed immediately to a hearing on the petition required under sub. (3) . If the parental rights of the parent are terminated, the court shall appoint as guardian of the child the department, a county department under s. 48.57 (1) (e) or (hm) , or a child welfare agency licensed to accept guardianship under s. 48.61 (5) . If the child has not been placed with the proposed adoptive parent or parents under sub. (1r) or (4) (d) , the court shall order the child to be placed with the proposed adoptive parent or parents. If the child has been placed with the proposed adoptive parent or parents under sub. (1r) or (4) (d) , the court shall order the child to be maintained in that placement.

(7)   Investigation and care costs. The proposed adoptive parents shall pay the cost of any investigation ordered under sub. (4) (c) , according to a fee schedule established by the department based on ability to pay, and shall also, if the adoption is completed, pay the cost of any care provided for the child under sub. (4) (d) or (dm) .

(8)   Attorney representation. The same attorney may not represent the adoptive parents and the birth mother or birth father.

1981 c. 81 ; 1985 a. 176 ; 1989 a. 161 ; 1993 a. 446 ; 1997 a. 27 , 104 , 191 ; 2005 a. 293 ; 2005 a. 443 s. 265 ; 2007 a. 96 , 186 ; 2009 a. 28 , 94 , 339 ; 2015 a. 378 .

Note

1997 Wis. Act 104 , which affected this section, contains explanatory notes. Microsoft Windows NT 6.1.7601 Service Pack 1 Grandparents are not parties under this section. However, grandparent testimony may be necessary to determine the child's best interest. In Interest of Brandon S.S. 179 Wis. 2d 114 , 507 N.W.2d 94 (1993). Microsoft Windows NT 6.1.7601 Service Pack 1 Adoption and termination proceedings in Wisconsin: A reply proposing limiting judicial discretion. Cooper and Nelson, 66 MLR 641 (1983). Microsoft Windows NT 6.1.7601 Service Pack 1