References to Tribal Law, Tribal Court Orders, and Related Issues
The rules also make clarifications and corrections to references to equivalent tribal law, tribal court orders, and related issues including the following:
Changing “substantially similar Wisconsin tribal law” to “substantially similar law of a tribe located in Wisconsin.”
Changing “a substantially similar Wisconsin tribal court order” to “a substantially similar tribal court order” and defining “tribal court order” as an order of a tribal court located in Wisconsin.
Changing “under s. 48.977 (2), Stats., or under a substantially similar Wisconsin tribal law” to “under s. 48.977 (2), Stats., or under a tribal court order that is substantially similar to an order under s. 48.977, Stats.”
Adding “or a substantially similar tribal law or policy of a tribe, a bureau of Indian education-operated school, or a tribally controlled school located in Wisconsin” to a reference to an individualized education program under s. 115.787, Stats.
Adding “jurisdiction” and “United States jurisdiction” to background check provisions that refer to counties and states and adding contact information for the Wisconsin Tribal Court Judges Association to a note on contacting county clerks of court. Other
The rules also rename the defined term “like-kin” as “fictive kin” to avoid confusion with the term “like-kin” used in other child welfare contexts with a different meaning.
In addition, the rules repeal a requirement that a prospective guardian complete a form on any private health insurance coverage before guardianship is established because the information in the form has not been used.
Summary of Related Federal Law
There is no federal law on tribal administration of the subsidized guardianship program. General provisions on the subsidized guardianship program are in 42 USC 671 (a) (28) and 42 USC 673 (d). Summary of Data and Analytical Methodologies
Not applicable
Comparison to Adjacent States
Not applicable
Effect on Small Businesses
The proposed rule does not affect small businesses as defined in s. 227.114 (1), Stats. Analysis Used to Determine Effect on Small Businesses
The rule affects tribal child welfare agencies located in Wisconsin, children under the jurisdiction of a tribal court located in Wisconsin, subsidized guardians and proposed subsidized guardians of children under the jurisdiction of a tribal court located in Wisconsin, and county human and social service departments.
Agency Contact
Emily Erickson, Director
Bureau of Permanence and Out-of-Home Care
(608) 422-6961
Place Where Comments are to be Submitted and Deadline for Submission
Comments may be submitted to Elaine Pridgen, Department of Children and Families, 201 W. Washington Ave, P.O. Box 8916, Madison, WI, 53708-8916 or dcfpublichearing@wisconsin.gov. The comment deadline is March 4, 2024.
Rule Text
SECTION 1. DCF 55.01 (2) is amended to read:
DCF 55.01 (2) Guardianships under a Wisconsin tribal law court orders that is are substantially similar to orders under s. 48.977, Stats., and as provided for in an agreement that includes the purpose of making subsidized guardianship payments to a guardian of an Indian child and that is made between a the governing body of an Indian tribe and a county or, in a county having a population of 750,000 or more or in the circumstances specified in s. 48.43 (7) (a) or 48.485 (1), Stats., between a the governing body of an Indian tribe and the department. SECTION 2. DCF 55.01 (3) is created to read:
DCF 55.01 (3) Guardianships under tribal court orders that are substantially similar to orders under s. 48.977, Stats., and as provided for in an agreement that is made between the governing body of an Indian tribe and the department and that allows the Indian tribe to administer subsidized guardianships. SECTION 3. DCF 55.02 (1) is renumbered DCF 55.02 (1r) and amended to read:
DCF 55.02 (1r) “Agency” means a county department of social services under s. 46.22, Stats.; a county department of human services under s. 46.23, Stats.; a tribal child welfare agency located in Wisconsin; or, in a county having a population of 750,000 or more or in the circumstances specified in s. 48.43 (7) (a) or 48.485 (1), Stats., the department. SECTION 4. DCF 55.02 (1g), (3m), and (5s) are created to read:
DCF 55.02 (1g) “Adoption” includes customary adoption, where applicable, according to tribal law or custom.
(3m) “County department” means a county department of social services under s. 46.22, Stats., or a county department of human services under s. 46.23, Stats. (5s) “Indian tribe” has the meaning given in s. 48.02 (8r), Stats. SECTION 5. DCF 55.02 (7) is renumbered DCF 55.02 (5g) and DCF 55.02 (5g) (intro.), as renumbered, is amended to read:
DCF 55.02 (5g) (intro.) “Like-kin Fictive kin” means a person who has a significant emotional relationship with the child or the child’s family and to whom any of the following applies:
SECTION 6. DCF 55.02 (9) (a) to (c) is amended to read:
DCF 55.02 (9) (a) Sections 48.205 (1), 48.207, 48.208, 48.209, 48.21, 48.32, 48.345, 48.357, 48.363, or 48.365, Stats., or a substantially similar Wisconsin tribal law of a tribe located in Wisconsin. (b) Sections 938.205 (1), 938.207, 938.208, 938.209, 938.21, 938.32, 938.345, 938.357, 938.363, or 938.365, Stats., or a substantially similar Wisconsin tribal law of a tribe located in Wisconsin. (c) A voluntary placement agreement under s. 48.63 (1), Stats., or a substantially similar Wisconsin tribal law of a tribe located in Wisconsin. SECTION 7. DCF 55.02 (14) and (15) are created to read:
DCF 55.02 (14) “Tribal court order” means an order of a tribal court located in Wisconsin.
(15) “Tribal private guardianship order” means a guardianship order of a tribal court that is granted under a tribal law that is substantially similar to s. 48.9795, Stats. SECTION 8. DCF 55.03 (1) (intro.), (a) 1. a. and b., (b) 1. and 3., (c), and (d) are amended to read:
DCF 55.03 (1) Child and guardian. (intro.) An agency shall provide monthly subsidized guardianship payments to a guardian of a child under s. 48.977 (2), Stats., or under a substantially similar Wisconsin tribal law court order that is substantially similar to an order under s. 48.977, Stats., and an agreement specified in s. DCF 55.01 (2) or (3), if the agency determines that all of the following apply: (a) 1. a. A voluntary agreement under s. 48.63, Stats., or a substantially similar Wisconsin tribal law of a tribe located in Wisconsin. b. A Wisconsin court order or a substantially similar Wisconsin tribal court order containing a finding that continued placement of the child in the child’s home would be contrary to the welfare of the child.
(b) 1. The guardian is a relative of the child or like-kin fictive kin to the child.
3. For not less than 6 consecutive months immediately before being named as the guardian of the child, the prospective guardian has been licensed as a foster parent and the prospective guardian and all nonclient residents in the guardian’s home have met the background check requirements specified in s. 48.685, Stats., and ss. DCF 56.05 (1) (f) and 56.055, or, for a background investigation conducted by a tribal child welfare agency, all adults residing in the guardian’s home have met either the requirements specified in s. 48.685, Stats., or the background check requirements for foster parent licensing under 42 USC 671 (a) (20). (c) An order under s. 48.345, 48.357, 48.363, 48.365, 938.345, 938.357, 938.363, or 938.365, Stats., or a substantially similar Wisconsin tribal court order placing the child, or continuing the placement of the child, outside of the child’s home has been terminated, or any proceeding in which the child has been adjudged to be in need of protection or services specified in s. 48.977 (2) (a), Stats., has been dismissed as provided in s. 48.977 (3r) (a), Stats., or a substantially similar proceeding under Wisconsin tribal law of a tribe located in Wisconsin has been dismissed. (d) If the agency a county department or the department knows or has reason to know that the child is an Indian child, the Indian child’s parent, Indian custodian, and tribe have been provided with notice of the child’s placement in the home of the guardian under s. 48.977 (4) (c) 2m., Stats., and the court has found under s. 48.977 (4) (g) 4., Stats., that the home of the guardian is in compliance with the order of placement preference under s. 48.028 (7) (b), Stats., or, if applicable, s. 48.028 (7) (c), Stats., unless the court found good cause, as described in s. 48.028 (7) (e), Stats., for departing from that order. SECTION 9. DCF 55.04 (1) (intro.), (b), (c), (d), and (2) are amended to read:
DCF 55.04 (1) (intro.) An agency shall explain to each foster parent who is a relative of or like-kin fictive kin to a foster child for whom the foster parent is providing care and maintenance the foster parent’s eligibility for services and the expectations involved with the following permanency options for the child:
(b) Guardianship under s. 48.977, Stats., or under a tribal court order that is substantially similar to an order under s. 48.977, Stats., with subsidized guardianship payments under s. 48.623, Stats., and this chapter. (c) Guardianship under s. 48.977, Stats., or under a tribal court order that is substantially similar to an order under s. 48.977, Stats., with long-term kinship care payments under s. 48.57 (3n), Stats., and ch. DCF 58. (d) Guardianship under s. 48.9795, Stats., or under a tribal private guardianship order. (2) An agency A county department or the department shall use a form prescribed by the department to explain the permanency options under sub. (1), and the relative or like-kin fictive kin foster parent shall sign the form acknowledging that the options have been explained to the foster parent following the explanation. The agency county department or department shall retain a signed copy of the form and attach the signed form to the subsidized guardianship agreement under s. DCF 55.06 if the relative or like-kin fictive kin foster parent decides to pursue subsidized guardianship for the child. SECTION 10. DCF 55.05 (title), (1) (intro.) and (d), and (2) are amended to read:
DCF 55.05 (title) Eligibility determination and documentation in child’s permanency plan.
(1) (intro.) For a child whose permanency plan goal will include placement with a guardian and the receipt of subsidized guardianship payments, an agency shall provide a description of all of the following on a form prescribed by the department:
(d) If the child is an Indian child, a county department or the department includes a description of how the guardianship meets the requirements for placement preferences under s. 48.028 (7) (b), Stats., or if applicable, s. 48.028 (7) (c), Stats., unless good cause is determined under s. 48.028 (7) (e), Stats. (2) The agency A county department or the department shall enter the completed form under sub. (1) in the child’s permanency plan and submit the form to the court with the court report under s. 48.977 (4) (e), Stats. A tribal child welfare agency shall submit the completed form under sub. (1) and the court report to the court that will be issuing the guardianship order. SECTION 11. DCF 55.06 (1) and (2) (f) 2. are amended to read:
DCF 55.06 (1) An agency shall enter into a written, signed subsidized guardianship agreement with a prospective guardian before guardianship is established under s. 48.977, Stats., or under a substantially similar Wisconsin tribal law court order that is substantially similar to an order under s. 48.977, Stats., and an agreement specified in s. DCF 55.01 (2) or (3), and before providing subsidized guardianship payments to the guardian. The agency shall provide the prospective guardian with a copy of the signed agreement. (2) (f) 2. Medical assistance may not be used as primary insurance coverage for care of a child that is covered by a guardian’s private health insurance. A prospective guardian shall complete a form prescribed by the department of health services to provide information on any private health insurance coverage before guardianship is established under s. 48.977, Stats., or a substantially similar Wisconsin tribal law.
