SB79 creates an administrative alternative to an in‑court consent for voluntarily terminating parental rights for non‑Indian children under age one: a notarized, two‑witness affidavit of disclaimer that a parent may sign (with narrow timing and revocation windows). The affidavit must include prescribed disclosures, witness certifications, and acknowledgments that counseling and, for minors, independent legal counseling were offered; the court must review the affidavit and make findings before proceeding.
The bill also expands the pool of payees for adoption‑related services by allowing payments to private child‑placing agencies licensed in other states — provided those agencies are certified to the Department of Children and Families and, where applicable, comply with the Indian Child Welfare Act. The statute builds in a three‑month waiting rule before an adoption order can be entered when parental rights were terminated by affidavit and preserves ICWA protections by making affidavits ineffective where ICWA applies.
At a Glance
What It Does
SB79 permits a mother, father, or presumed/alleged father to execute a notarized affidavit, witnessed by two people, disclaiming parental rights for a child under one as an alternative to appearing in court, subject to timing, revocation, and content rules. It also authorizes state payments for adoption services to out‑of‑state private child‑placing agencies that are licensed in their home state and certified to DCF.
Who It Affects
Birth parents (including minors), county departments and licensed child welfare agencies that place children for adoption, courts that must review and find the affidavit's sufficiency, prospective adoptive parents who may face a three‑month wait, and out‑of‑state private child‑placing agencies seeking payment from Wisconsin entities.
Why It Matters
The bill lowers a procedural barrier to voluntary termination for certain parents and expands who may be compensated for cross‑state placement services, while creating new duties for agencies and courts to verify affidavit integrity and ICWA compliance — shifting administrative and litigation risk.
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What This Bill Actually Does
SB79 adds a statutory pathway allowing a parent to disclaim parental rights by executing a written affidavit instead of appearing in court, but only for children under one year old and only when no participant has knowledge or reason to know the child is an Indian child. The affidavit must be signed in the presence of two witnesses, notarized, and must include specific information about the parent, the child, property and support obligations, and an explicit statement that the parent understands the legal consequences of termination.
The statute requires that the agency placing the child offer counseling at the agency’s expense and that minors be offered independent legal counseling before signing.
Timing and revocation rules are central to the mechanism. Fathers or presumed/alleged fathers may execute an affidavit before birth; mothers may not.
No affidavit may be executed until 120 hours after birth nor on or after the child’s first birthday. A father’s pre‑birth affidavit is revocable until the later of 72 hours after execution or 120 hours after birth; a mother’s affidavit is revocable for 72 hours after execution.
If not timely revoked, the affidavit is generally irrevocable except where obtained by fraud or duress, and any action to invalidate the affidavit must be commenced within three months of execution, subject to limited exceptions tied to ICWA.The court must review the affidavit to ensure it meets statutory requirements and make findings on the record that the affidavit is valid and that no participant has reason to know the child is an Indian child. If parental rights are terminated based on the affidavit, the court may not enter an adoption order until three months have passed from the date the affidavit was executed.
SB79 also makes conforming changes to notice and hearing rules so a parent who disclaims rights in writing need not attend the termination hearing.Separately, SB79 permits state payments for services connected to an adoption to be made to a private child‑placing agency that is licensed in the state where it operates, provided the agency is certified to DCF and, where applicable, complies with the federal Indian Child Welfare Act. The statute defines a private child‑placing agency broadly to include private entities or attorneys involved in interstate placements and ties payment eligibility to licensure and DCF certification.
The Five Things You Need to Know
The affidavit of disclaimer applies only to children under one year of age and is ineffective if there is knowledge or reason to know the child is an Indian child.
The father or presumed/alleged father may sign the affidavit before birth; the mother may not, and no affidavit may be signed until 120 hours after birth or on/after the child’s first birthday.
The affidavit must be signed by two witnesses (one chosen by the disclaiming parent), notarized, include prescribed disclosures and acknowledgments about counseling, and explicitly state the parent voluntarily disclaims rights.
A father’s pre‑birth affidavit can be revoked until the later of 72 hours after execution or 120 hours after birth; a mother’s affidavit can be revoked until 72 hours after execution; litigation to invalidate an affidavit generally must be filed within three months.
The court may not enter an adoption order based on a termination that relied on an affidavit until three months after the affidavit’s execution, and the bill allows payments to out‑of‑state private child‑placing agencies licensed in their state if certified to DCF and ICWA‑compliant where applicable.
Section-by-Section Breakdown
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Creates the affidavit disclaimer alternative to in‑court consent
This new paragraph lays out the affidavit option in detail: who can use it, timing windows, revocation rules, required contents, witness certification standards, counseling offers, and an ICWA exception. Practically, it codifies an administrative relinquishment mechanism but preserves court oversight by requiring the court to review the affidavit and make findings before proceeding to disposition. The provision tightly couples procedural safeguards (notary, two witnesses, written disclosures) with substantive limits (child under one, ICWA inapplicability) to define where the shortcut applies.
Permits immediate disposition when affidavit is irrevocable
Amendment to the disposition clause allows a judge to proceed immediately when voluntary consent is given under the new affidavit pathway and the affidavit is irrevocable. This changes timing dynamics in termination cases: once statutory revocation periods expire and the court finds the affidavit sufficient, the termination can move forward without further parental appearance, which shortens the procedural timeline but increases the importance of pre‑execution counseling and court review.
Restricts post‑termination relief and sets challenge window
The bill ties remedies for parents who used the affidavit to the statute’s narrow invalidation route: parents who consented via affidavit may move to invalidate the affidavit as provided in the new subsection but generally must initiate such actions within three months. By placing time limits and channeling relief through specific motions or appeals, the statute seeks to promote finality while allowing a short window for fraud or duress claims.
Waives hearing attendance and clarifies notice
The statute exempts a parent who consented via the new affidavit from the requirement to attend the hearing on termination and adjusts the notice waiver references. That reduces procedural burdens on disclaiming parents but shifts responsibility to agencies and courts to ensure the affidavit’s validity in the parent’s absence, which may require more detailed filings or recordkeeping to satisfy the court.
Three‑month bar before adoption order when affidavit used
This amendment prevents the court from entering an adoption order until three months after the affidavit’s execution when termination was based on the affidavit. The cooling‑off period creates a buffer for potential challenges to the affidavit and increases certainty that revocation windows have closed before final adoption, but it also delays finalization for adoptive parents and any permanency planning tied to an adoption decree.
Permits payments to out‑of‑state licensed private child‑placing agencies
The bill broadens eligible payees for adoption‑related services to include private child‑placing agencies licensed in the state where they operate, conditional on certification to DCF and, where relevant, compliance with ICWA. The definition of private child‑placing agency is intentionally broad (private organizations, persons, or attorneys involved in interstate placement), which may require DCF to develop clear certification standards and monitoring procedures to ensure licensure and ICWA conformity before state funds are disbursed.
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Explore Social Services in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Birth parents seeking an expedient relinquishment: The affidavit pathway removes the need for a court appearance, shortening the procedural burden for parents who want to terminate rights quickly, especially for parents (including some fathers) who can sign pre‑birth or very soon after birth.
- Out‑of‑state private child‑placing agencies: Agencies licensed in other states that obtain DCF certification become eligible for Wisconsin payments for services provided in interstate placements, expanding their market and reimbursement sources.
- Prospective adoptive parents: For cases where the affidavit is valid and unchallenged, the termination process can move faster to disposition (subject to the three‑month adoption wait), reducing prolonged uncertainty in some placements.
- County departments and licensed agencies: Agencies that place children retain discretion to offer the affidavit option and, by providing required counseling and documentation, can reduce the administrative load of coordinating parental court appearances.
- Courts (procedural predictability): When affidavits meet the statute’s requirements and challenge periods lapse, courts gain a clearer administrative record to support termination findings without conducting contested consent hearings.
Who Bears the Cost
- Placing agencies (including counties and DCF): Agencies must provide counseling and, for minors, legal counseling at the agency’s expense before affidavit execution, increasing up‑front costs and administrative obligations.
- Prospective adoptive parents (timing risk): The three‑month bar on entering adoption orders after affidavit execution delays finalization and may extend the period of uncertainty or require temporary arrangements.
- Courts and clerks: Courts must scrutinize affidavits, make findings on ICWA knowledge, and manage potential short‑window litigation to invalidate affidavits, increasing docket and fact‑finding burdens in termination cases.
- Indian tribes and tribal authorities: The affidavit pathway increases risk that ICWA jurisdictions will not be identified timely; tribes may need to step in with litigation or administrative processes to protect placement preferences.
- Out‑of‑state agencies seeking state payments: To receive payments, agencies must secure DCF certification and comply with ICWA where applicable, imposing administrative compliance tasks and possible new documentation requirements.
Key Issues
The Core Tension
The central dilemma is between reducing procedural barriers to voluntary relinquishment (speed, convenience, broader payees) and protecting substantive parental and tribal rights (ensuring informed consent, guarding against coercion or misidentification of Indian children). SB79 leans toward efficiency but relies heavily on agency counseling, witness attestations, and a short challenge window to prevent abuse — a trade‑off that will test agency capacity and court scrutiny.
SB79 attempts to streamline voluntary termination while preserving ICWA and fraud protections, but several practical tensions remain. The affidavit compresses the consent process into a short, document‑centric interaction; courts are asked to rely on the affidavit and witness certifications to determine voluntariness and ICWA inapplicability without the benefit of a live parent examination.
That shifts the point of risk from the courtroom to pre‑execution counseling and the agency’s intake procedures. Agencies must provide counseling and (for minors) separate legal counseling, but the statute does not set detailed standards for those sessions, so quality and independence of advice could vary and affect later challenges.
The three‑month limitation on actions to invalidate an affidavit and the three‑month wait before final adoption cut both ways: they promote finality but create a narrow window for addressing fraud, duress, or ICWA noncompliance. A successful challenge within three months can unwind a termination, with potentially destabilizing consequences for children and adoptive families.
Allowing payments to out‑of‑state private child‑placing agencies increases flexibility for interstate placements but raises oversight questions: DCF must certify licensure and ICWA compliance, yet cross‑jurisdictional differences in licensing, recordkeeping, and adoption practices complicate meaningful verification and monitoring.
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