2017 - 2018 LEGISLATURE
March 2, 2017 - Introduced by
Joint Legislative Council. Referred to Committee
on Children and Families.
1An Act to renumber
48.195 (6); to renumber and amend
48.195 (3) (a); to
48.13 (2m), 48.195 (2) (a), 48.195 (3) (title), 48.195 (3) (b), 48.195 (4) (a), 3
48.355 (2d) (b) 5. and 48.415 (1m); and to create
48.195 (2) (d) 8., 48.195 (2) (e), 4
48.195 (3) (a) 2. to 8., 48.195 (3) (am), 48.195 (4m) and 48.195 (6) (b) of the 5
statutes; relating to: the collection and sharing of information regarding an
6Indian child relinquished under the safe haven law and restoration of physical
7custody of an Indian child less than 11 days of age to a parent.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the Joint Legislative Council in
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Joint Legislative Council prefatory note: This bill was prepared for the Joint
Legislative Council's Special Committee on State-Tribal Relations. This bill makes
various changes to the information that is collected and shared when a child under the
age of 72 hours is relinquished under the safe haven law and requires the physical
custody of an Indian child so relinquished to be restored to a biological parent upon
request when the child is less than 11 days old.
Information regarding a relinquished child
Under current law, a parent of a child under the age of 72 hours may anonymously
relinquish the child to a law enforcement officer, an emergency medical technician, or a
hospital staff member (commonly referred to as the “safe haven law"). The person who
takes custody of the child must deliver the child to the intake worker of the court assigned
to exercise jurisdiction under the Children's Code (juvenile court), who must place the
child in temporary physical custody pending the commencement of child in need of
protection or services proceedings in the juvenile court. The parent and the person who
takes the child into custody are immune from civil and criminal liability for any good faith
act or omission related to the relinquishment.
Under current law, no one may pursue or attempt to locate or ascertain the identity
of a parent who has relinquished a child under the safe haven law. The two exceptions
to this prohibition are in cases in which there is reasonable cause to believe that the child
has been the victim of abuse or neglect or that the parent was coerced into relinquishing
the child. In addition, with certain exceptions, a person who obtains any information
relating to the relinquishment of a child is required to keep that information confidential.
Also under current law, a proceeding related to the termination of parental rights
to an Indian child or to the out-of-home placement of an Indian child is subject to the
federal Indian Child Welfare Act (ICWA) and the Wisconsin Indian Child Welfare Act
(WICWA). “Indian child" is defined under ICWA and WICWA as an unmarried person
under the age of 18 years who is a member of an Indian tribe or who is both eligible for
membership in an Indian tribe and the biological child of a member of an Indian tribe.
Among other provisions, ICWA and WICWA give the tribal court, rather than the juvenile
court, primary jurisdiction in such proceedings and establish standards and procedural
requirements for such proceedings.
This bill makes the following changes to the safe haven law:
1. Requires a person who takes custody of a relinquished child to make a
reasonable effort to do all of the following:
a. Provide the relinquishing parent with a brochure, prepared by the Department
of Children and Families, that includes a statement of the parent's right to remain
anonymous, an explanation of the importance of knowing the child's social and health
history, an explanation of the importance to an Indian child of maintaining a social and
cultural connection to his or her tribe, and a form on which to provide the name, address,
telephone number, and any other identifying information of each parent and any person
assisting a parent in the relinquishment, information on the ethnicity and race of the
child, information regarding any tribal affiliation for the child, and information
regarding the social and health history of the child and of each parent.
b. Solicit certain information from the parent regarding the child's social and
health history and any tribal affiliation of the child.
c. If the parent declines to provide the information solicited, encourage the parent
to submit the information to the county or, in Milwaukee County, to DCF at a later date.
2. Authorizes a person who has information regarding a relinquished child whom
the person has reason to believe is an Indian child to release that information to the tribal
agent of the Indian child's tribe.
3. Requires a person who obtains information relating to the tribal affiliation of
a relinquished child to promptly transmit the information to the county department in
the county where the child was relinquished or, if the child was relinquished in
Milwaukee County, to DCF, and requires DCF or a county department that obtains
information relating to the tribal affiliation of a relinquished child to promptly transmit
the information to the tribal agent of the child's tribe.
Restoration of physical custody of an Indian child
Current law grants the juvenile court exclusive original jurisdiction over a child
who is alleged to be in need of protection or services (CHIPS) and whose parent has
relinquished custody of the child under the safe haven law. Current law also provides
that relinquishment of a child under the safe haven law is a ground for involuntary
termination of parental rights (TPR), except that, with respect to an Indian child, extra
fact-finding is required related to the effect on the Indian child of continued custody and
efforts to prevent the breakup of the Indian child's family.
Under this bill, on the request of the parent of an Indian child less than 11 days old
who was relinquished under the safe haven law, the county department or, in Milwaukee
County, DCF, must restore physical custody to the parent without conditions or further
proceedings. The bill also eliminates relinquishment as a basis of the juvenile court's
CHIPS jurisdiction over an Indian child whose parent has had custody restored in this
way and eliminates relinquishment as a ground for involuntary TPR to such a child.
However, the bill specifies that this requirement to restore physical custody does not
prevent the child from being taken into and held in custody in order to prevent imminent
physical harm or damage to the child.
48.13 (2m) of the statutes is amended to read:
Whose parent has relinquished custody of the child under s. 48.195 3
(1) and has not had physical custody restored under s. 48.195 (4m) (a)
48.195 (2) (a) of the statutes is amended to read:
(a) Except as provided in this paragraph, a parent who relinquishes 6
custody of a child under sub. (1) and any person who assists the parent in that 7
relinquishment have the right to remain anonymous. The exercise of that right shall 8
not affect the manner in which a law enforcement officer, emergency medical 9
technician, or hospital staff member performs his or her duties under this section. 10
No person may induce or
coerce or attempt to
coerce or, except as provided
11under sub. (3) (am), induce or attempt to induce
a parent or person assisting a parent 12
who wishes to remain anonymous into revealing his or her identity, unless the person 13
has reasonable cause to suspect that the child has been the victim of abuse or neglect 14
or that the person assisting the parent is coercing the parent into relinquishing 15
custody of the child.
48.195 (2) (d) 8. of the statutes is created to read:
(d) 8. In the case of a child whom the person has reason to believe 2
is an Indian child, the tribal agent, as defined in s. 48.981 (1) (i), of the Indian child's 3
48.195 (2) (e) of the statutes is created to read:
(e) Notwithstanding par. (d), a person who obtains information 6
relating to the tribal affiliation of a child relinquished under sub. (1) shall promptly 7
transmit the information to the county department in the county where the child was 8
relinquished or, if the child was relinquished in a county having a population of 9
750,000 or more, to the department. The department or a county department that 10
obtains information relating to the tribal affiliation of a child relinquished under 11
sub. (1) shall promptly transmit the information to the tribal agent, as defined in s. 12
48.981 (1) (i), of the Indian child's tribe.
48.195 (3) (title) of the statutes is amended to read:
(title) Information for parent; information regarding child.
48.195 (3) (a) of the statutes is renumbered 48.195 (3) (a) (intro.) 16
and amended to read:
(a) (intro.) Subject to par. (b), a law enforcement officer, emergency 18
medical technician, or hospital staff member who takes a child into custody under 19
sub. (1) shall make available to the parent who relinquishes custody of the child the 20and any person present with the parent during relinquishment a brochure that
21includes all of the following:
maternal and child health toll-free telephone number maintained by the 23
department under 42 USC 705
(a) (5) (E).
48.195 (3) (a) 2. to 8. of the statutes are created to read:
(a) 2. A statement advising the parent of all of the following:
a. That the parent has a right to remain anonymous.
b. That the provision of any identifying information is voluntary on the part of 3
the parent and the choice to not provide that information will not affect the parent's 4
ability to relinquish the child.
c. That any identifying information provided by the parent will be treated as 6
3. An explanation that, on the request of a biological parent of an Indian child 8
who has been relinquished under sub. (1), a county department or, in a county having 9
a population of 750,000 or more, the department is required to restore physical 10
custody of the child to the biological parent without conditions or further proceedings 11
if the biological parent provides evidence to the satisfaction of the county department 12
or department that all of the following apply:
a. The person is the child's biological parent.
b. The child is an Indian child.
c. The child has not attained the age of 11 days.
4. An explanation of the importance to the future well-being of a child of 17
knowing information regarding the child's social and health history.
5. An explanation of the importance to an Indian child of maintaining a social 19
and cultural connection to the Indian child's tribe and clan and the potential benefits 20
of tribal enrollment.
6. A form on which to provide all of the following information: