SB572: Bill Text

SB572,120,6 2. A member of another tribe described in sub. (2) (d) 2.

SB572,120,7 3. A professional person described in sub. (2) (d) 3.

SB572,120,8 4. A layperson described described in sub. (2) (d) 4.

SB572,120,19 (f) Active efforts standard. The court may not order an Indian juvenile to be placed in an out-of-home care placement unless the evidence of active efforts under par. (d) 2. shows that there has been a vigorous and concerted level of case work beyond the level that typically constitutes reasonable efforts, as described in s. 938.355 (2c). The active efforts shall be made in a manner that takes into account the prevailing social and cultural values, conditions, and way of life of the Indian juvenile's tribe and that utilizes the available resources of the Indian juvenile's tribe, tribal and other Indian child welfare agencies, extended family members of the Indian juvenile, and other individual Indian caregivers. The court's consideration of whether active efforts were made under par. (d) 2. shall include whether all of the following activities were conducted:

SB572,120,21 1. The Indian juvenile's tribe was requested to convene traditional and customary support, actions, and services to resolve the Indian family's issues.

SB572,120,24 2. Representatives of the Indian juvenile's tribe were identified, notified, and invited to participate in all aspects of the Indian juvenile custody proceeding at the earliest possible point in the proceeding.

SB572,121,2 3. Extended family members of the Indian juvenile were consulted to identify and provide family structure and support for the Indian juvenile.

SB572,121,3 4. Frequent visitation was made to the Indian juvenile's home.

SB572,121,5 5. Contact was made with extended family members of the Indian juvenile to assure appropriate cultural connections.

SB572,121,7 6. All family preservation alternatives appropriate to the Indian juvenile's tribe were exhausted.

SB572,121,11 7. Community resources offering housing, financial, and transportation assistance were identified, information about those resources was provided to the Indian family, and the Indian family was actively assisted in accessing those resources.

SB572,121,18 (5) Invalidation of action. Any Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is the subject of an out-of-home care placement, any parent or Indian custodian from whose custody that Indian juvenile was removed, or the Indian juvenile's tribe may move the court to invalidate that out-of-home care placement on the grounds that the out-of-home care placement was made in violation of sub. (3) or (4) or 25 USC 1911 or 1912. If the court finds that those grounds exist, the court shall invalidate the out-of-home care placement.

SB572,122,2 (6) Placement of Indian juvenile. (a) Out-of-home care placement; preferences. Any Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is placed in an out-of-home care placement shall be placed in the least restrictive setting that most approximates a family, that meets the Indian juvenile's special needs, if any, and that is within reasonable proximity to the Indian juvenile's home, taking into account those special needs. Subject to pars. (b) to (d), in placing such an Indian juvenile in an out-of-home care placement, preference shall be given, in the absence of good cause, as described in par. (d), to the contrary, to a placement in one of the following, in the order of preference listed:

SB572,122,3 1. The home of an extended family member of the Indian juvenile.

SB572,122,5 2. A foster home or treatment foster home licensed, approved, or specified by the Indian juvenile's tribe.

SB572,122,7 3. An Indian foster home or treatment foster home licensed or approved by the department, a county department, or a child welfare agency.

SB572,122,10 4. A group home or residential care center for children and youth approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the needs of the Indian juvenile.

SB572,122,19 (b) Tribal or personal preferences. If the Indian juvenile's tribe has established, by resolution, an order of preference that is different from the order specified in par. (a), the order of preference established by that tribe shall be followed, in the absence of good cause, as described in par. (d), to the contrary, so long as the placement is the least restrictive setting appropriate for the Indian juvenile's needs as specified in par. (a). When appropriate, the preference of the Indian juvenile or parent shall be considered, and, when a parent who has consented to the placement evidences a desire for anonymity, that desire shall be given weight, in determining the placement.

SB572,122,24 (c) Social and cultural standards. The standards to be applied in meeting the placement preference requirements of this subsection shall be the prevailing social and cultural standards of the Indian community in which the Indian juvenile's parents or extended family members reside or with which the Indian juvenile's parents or extended family members maintain social and cultural ties.

SB572,123,3 (d) Good cause. 1. Whether there is good cause to depart from the order of placement preference under par. (a) or (b) shall be determined based on any one or more of the following considerations:

SB572,123,8 a. When appropriate, the request of the Indian juvenile's parent or, if the Indian juvenile is of sufficient age and developmental level to make an informed decision, the Indian juvenile, unless the request is made for the purpose of avoiding the application of this section and the federal Indian Child Welfare Act, 26 USC 1901 to 1963.

SB572,123,13 b. Any extraordinary physical, mental, or emotional health needs of the Indian juvenile requiring highly specialized treatment services as established by the testimony of an export witness, including a qualified expert witness. The length of time that an Indian juvenile has been in a placement does not, in itself, constitute an extraordinary emotional health need.

SB572,123,16 c. The unavailability of a suitable placement for the Indian juvenile after active efforts, as described in sub. (4) (f), have been made to place the Indian juvenile in the order of preference under par. (a) or (b).

SB572,123,18 2. The burden of establishing good cause to depart from the order of placement preference under par. (a) or (b) shall be on the party requesting that departure.

SB572,123,25 (e) Report of placement. The department of health and family services, a county department, or a child welfare agency shall maintain a record of each out-of-home care placement made of an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7), evidencing the efforts made to comply with the placement preference requirements specified in this subsection, and shall make that record available at any time on the request of the U.S. secretary of the interior or the Indian juvenile's tribe.

SB572,124,10 (7) Return of custody; removal from out-of-home care placement. If an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7) is removed from an out-of-home care placement for the purpose of placing the Indian juvenile in another out-of-home care placement, a preadoptive placement, as defined in s. 48.028 (2) (f), or an adoptive placement, as defined in s. 48.028 (2) (a), the placement shall be made in accordance with this section and s. 48.028. Removal of such an Indian juvenile from an out-of-home care placement for the purpose of returning the Indian juvenile to the home of the parent or Indian custodian from whose custody the Indian juvenile was originally removed is not subject to this section.

SB572,124,16 (8) Higher state or federal standard applicable. The federal Indian Child Welfare Act, 25 USC 1911 to 1963, supersedes this chapter in any Indian juvenile custody proceeding governed by that act, except that in any case in which this chapter provides a higher standard of protection for the rights of an Indian juvenile's parent or Indian custodian than the rights provided under that act, the court shall apply the standard under this chapter.

SB572,124,19 (9) Rules. The department shall promulgate rules to implement and administer this section and the federal Indian Child Welfare Act, 25 USC 1901 to 1963.

SB572, s. 246 Section 246. 938.13 (intro.) of the statutes is amended to read:

SB572,124,24 938.13 Jurisdiction over juveniles alleged to be in need of protection or services. (intro.) The Except as provided in s. 938.028 (3), the court has exclusive original jurisdiction over a juvenile alleged to be in need of protection or services which can be ordered by the court if any of the following conditions applies:

SB572, s. 247 Section 247. 938.15 of the statutes is amended to read:

SB572,125,8 938.15 Jurisdiction of other courts to determine legal custody. Nothing Except as provided in s. 938.028 (3), nothing in this chapter deprives another court of the right to determine the legal custody juvenile by habeas corpus or to determine the legal custody or guardianship of a juvenile if the legal custody or guardianship is incidental to the determination of an action pending in that court. But Except as provided in s. 938.028 (3), the jurisdiction of the court assigned to exercise jurisdiction under this chapter and ch. 48 is paramount in all cases involving juveniles alleged to come within the provisions of ss. 938.12 to 938.14.

SB572, s. 248 Section 248. 938.185 (4) (title) of the statutes is amended to read:

SB572,125,10 938.185 (4) (title) American Indian juveniles.

SB572, s. 249 Section 249. 938.185 (4) (intro.) of the statutes is amended to read:

SB572,125,15 938.185 (4) (intro.) Venue for a proceeding under s. 938.12 or 938.13 (12) based on an allegation that an American Indian juvenile has committed a delinquent act may not be in the county specified in sub. (1) (a), unless that county is specified in sub. (1) (b) or (c), if all of the following circumstances apply:

SB572, s. 250 Section 250. 938.185 (4) (a) of the statutes is amended to read:

SB572,125,20 938.185 (4) (a) At the time of the alleged delinquent act the juvenile was under an order of a tribe's tribal court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile's parent, or permanent guardianship.

SB572, s. 251 Section 251. 938.185 (4) (b) of the statutes is amended to read:

SB572,126,3 938.185 (4) (b) At the time of the alleged delinquent act the juvenile was physically outside the boundaries of that tribe's the reservation of the Indian tribe of the tribal court and any off-reservation trust land of either that Indian tribe or a member of that Indian tribe as a direct consequence of a tribal court order under par. (a), including a tribal court order placing the juvenile in the home of a relative of the juvenile who on or after the date of the tribal court order resides physically outside the boundaries of a reservation and off-reservation trust land.

SB572, s. 252 Section 252. 938.19 (2) of the statutes is amended to read:

SB572,126,16 938.19 (2) Notification of parent, guardian, legal custodian, Indian custodian. When a juvenile is taken into physical custody under this section, the person taking the juvenile into custody shall immediately attempt to notify the parent, guardian, and legal custodian, and Indian custodian of the juvenile by the most practical means. The person taking the juvenile into custody shall continue such attempt until the parent, guardian, and legal custodian, and Indian custodian of the juvenile are notified, or the juvenile is delivered to an intake worker under s. 938.20 (3), whichever occurs first. If the juvenile is delivered to the intake worker before the parent, guardian, and legal custodian, and Indian custodian are notified, the intake worker, or another person at his or her direction, shall continue the attempt to notify until the parent, guardian, and legal custodian, and Indian custodian of the juvenile are notified.

SB572, s. 253 Section 253. 938.20 (2) (ag) of the statutes is amended to read:

SB572,126,20 938.20 (2) (ag) Except as provided in pars. (b) to (g), a person taking a juvenile into custody shall make every effort to release the juvenile immediately to the juvenile's parent, guardian or, legal custodian, or Indian custodian.

SB572, s. 254 Section 254. 938.20 (2) (b) of the statutes is amended to read:

SB572,126,25 938.20 (2) (b) If the juvenile's parent, guardian or, legal custodian, or Indian custodian is unavailable, unwilling, or unable to provide supervision for the juvenile, the person who took the juvenile into custody may release the juvenile to a responsible adult after counseling or warning the juvenile as may be appropriate.

SB572, s. 255 Section 255. 938.20 (3) of the statutes is amended to read:

SB572,127,14 938.20 (3) Notification to parent, guardian, legal custodian, Indian custodian of release. If the juvenile is released under sub. (2) (b) to (d) or (g), the person who took the juvenile into custody shall immediately notify the juvenile's parent, guardian, and legal custodian, and Indian custodian of the time and circumstances of the release and the person, if any, to whom the juvenile was released. If the juvenile is not released under sub. (2), the person who took the juvenile into custody shall arrange in a manner determined by the court and law enforcement agencies for the juvenile to be interviewed by the intake worker under s. 938.067 (2). The person who took the juvenile into custody shall make a statement in writing with supporting facts of the reasons why the juvenile was taken into physical custody and shall give a copy of the statement to the intake worker and to any juvenile 10 years of age or older. If the intake interview is not done in person, the report may be read to the intake worker.

SB572, s. 256 Section 256. 938.20 (7) (c) 1. of the statutes is amended to read:

SB572,127,21 938.20 (7) (c) 1. To a parent, guardian, or legal custodian, or Indian custodian, or to a responsible adult if the parent, guardian, or legal custodian, or Indian custodian is unavailable, unwilling, or unable to provide supervision for the juvenile, counseling or warning the juvenile as may be appropriate; or, if the juvenile is 15 years of age or older, without immediate adult supervision, counseling or warning the juvenile as may be appropriate.

SB572, s. 257 Section 257. 938.20 (7) (d) of the statutes is amended to read:

SB572,128,2 938.20 (7) (d) If the juvenile is released from custody, the intake worker shall immediately notify the juvenile's parent, guardian and , legal custodian, and Indian custodian of the time and circumstances of the release and the person, if any, to whom the juvenile was released.

SB572, s. 258 Section 258. 938.20 (8) (a) of the statutes is amended to read:

SB572,128,14 938.20 (8) (a) If a juvenile is held in custody, the intake worker shall notify the juvenile's parent, guardian, and legal custodian, and Indian custodian of the reasons for holding the juvenile in custody and of the juvenile's whereabouts unless there is reason to believe that notice would present imminent danger to the juvenile. The parent, guardian, and legal custodian, and Indian custodian shall also be notified of the time and place of the detention hearing required under s. 938.21, the nature and possible consequences of the hearing, and the right to present and cross-examine witnesses at the hearing, and, in the case of a parent or Indian custodian of an Indian juvenile, the right to counsel under s. 938.028 (4) (b). If the parent, guardian, or legal custodian, or Indian custodian is not immediately available, the intake worker or another person designated by the court shall provide notice as soon as possible.

SB572, s. 259 Section 259. 938.21 (2) (title) of the statutes is amended to read:

SB572,128,16 938.21 (2) (title) Proceedings concerning runaway or delinquent juveniles.

SB572, s. 260 Section 260. 938.21 (2) (ag) of the statutes is amended to read:

SB572,128,20 938.21 (2) (ag) Proceedings concerning a juvenile who comes within the jurisdiction of the court under s. 938.12 or 938.13 (7) or (12) or (14) shall be conducted according to this subsection.

SB572, s. 261 Section 261. 938.21 (3) (ag) of the statutes is amended to read:

SB572,128,24 938.21 (3) (ag) Proceedings concerning a juvenile who comes within the jurisdiction of the court under s. 938.13 (4), (6), (6m), or (14) (7) shall be conducted according to this subsection.

SB572, s. 262 Section 262. 938.21 (3) (am) of the statutes is amended to read:

SB572,129,4 938.21 (3) (am) The parent, guardian, or legal custodian, or Indian custodian may waive his or her right to participate in the hearing under this section. After any waiver, a rehearing shall be granted at the request of the parent, guardian, legal custodian, Indian custodian, or any other interested party for good cause shown.

SB572, s. 263 Section 263. 938.21 (3) (b) of the statutes is amended to read:

SB572,129,11 938.21 (3) (b) If present at the hearing, a copy of the petition or request shall be given to the parent, guardian, or legal custodian , or Indian custodian, and to the juvenile if he or she is 12 years of age or older, before the hearing begins. Prior notice of the hearing shall be given to the juvenile's parent, guardian, and legal custodian, and Indian custodian and to the juvenile if he or she is 12 years of age or older under s. 938.20 (8).

SB572, s. 264 Section 264. 938.21 (3) (d) of the statutes is amended to read:

SB572,129,19 938.21 (3) (d) Prior to the commencement of the hearing, the court shall inform the parent, guardian, or legal custodian, or Indian custodian of the allegations that have been made or may be made, the nature and possible consequences of this hearing as compared to possible future hearings, the right to present, confront, and cross-examine witnesses, and the right to present witnesses and, in the case of a parent or Indian custodian of an Indian juvenile, the right to counsel under s. 938.028 (4) (b).

SB572, s. 265 Section 265. 938.21 (3) (e) of the statutes is amended to read:

SB572,130,3 938.21 (3) (e) If the parent, guardian, or legal custodian, Indian custodian, or the juvenile is not represented by counsel at the hearing and if the juvenile is continued in custody as a result of the hearing, the parent, guardian, legal custodian, Indian custodian, or juvenile may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold the juvenile in custody be reheard. If the request is made, a rehearing shall take place as soon as possible. An order to hold the juvenile in custody shall be reheard for good cause, whether or not counsel was present.

SB572, s. 266 Section 266. 938.21 (5) (d) 1. of the statutes is renumbered 938.21 (5) (d) and amended to read:

SB572,130,11 938.21 (5) (d) If the court finds that any of the circumstances specified in s. 938.355 (2d) (b) 1. to 4. applies with respect to a parent, the court shall hold a hearing under s. 938.38 (4m) within 30 days after the date of that finding to determine the permanency plan for the juvenile. If a hearing is held under this subdivision, the agency responsible for preparing the permanency plan shall file the permanency plan with the court not less than 5 days before the date of the hearing.

SB572, s. 267 Section 267. 938.21 (5) (d) 2. of the statutes is repealed.

SB572, s. 268 Section 268. 938.21 (5) (d) 3. of the statutes is repealed.

SB572, s. 269 Section 269. 938.23 (2g) of the statutes is created to read:

SB572,130,20 938.23 (2g) Right of Indian juvenile's parent or Indian custodian to counsel. Whenever an Indian juvenile is the subject of a proceeding under s. 938.13 (4), (6), (6m), or (7) involving the removal of the Indian juvenile from his or her home or the placement of the Indian juvenile in an out-of-home care placement, the Indian juvenile's parent or Indian custodian shall have the right to be represented by court-appointed counsel as provided in sub. (4).

SB572, s. 270 Section 270. 938.23 (4) of the statutes is amended to read:

SB572,131,11 938.23 (4) Providing counsel. If a juvenile has a right to be represented by counsel or is provided counsel at the discretion of the court under this section and counsel is not knowingly and voluntarily waived, the court shall refer the juvenile to the state public defender and counsel shall be appointed by the state public defender under s. 977.08 without a determination of indigency. In any situation under sub. (2g) in which a parent 18 years of age or over is entitled to representation by counsel; counsel is not knowingly and voluntarily waived; and it appears that the parent is unable to afford counsel in full, or the parent so indicates; the court shall refer the parent to the authority for indigency determinations specified under s. 977.07 (1). In any other situation under this section in which a person has a right to be represented by counsel or is provided counsel at the discretion of the court, competent and independent counsel shall be provided and reimbursed in any manner suitable to the court regardless of the person's ability to pay, except that the court may not order a person who files a petition under s. 813.122 or 813.125 to reimburse counsel for the juvenile who is named as the respondent in that petition.

SB572, s. 271 Section 271. 938.235 (4) (a) 7. of the statutes is amended to read:

SB572,131,14 938.235 (4) (a) 7. Petition for relief from a judgment terminating parental rights under s. 48.028 or 48.46.

SB572, s. 272 Section 272. 938.24 (2r) (title) of the statutes is amended to read:

SB572,131,16 938.24 (2r) (title) American Indian juvenile; notification of tribal court.

SB572, s. 273 Section 273. 938.24 (2r) (a) (intro.) of the statutes is amended to read:

SB572,131,24 938.24 (2r) (a) (intro.) If the intake worker determines as a result of the intake inquiry that the juvenile is an American Indian juvenile who has allegedly committed a delinquent act and that all of the following circumstances apply, the intake worker shall promptly notify the clerk of the tribal court under subd. 1., a person who serves as the tribal juvenile intake worker, or a tribal prosecuting attorney that the juvenile has allegedly committed a delinquent act under those circumstances:

SB572, s. 274 Section 274. 938.24 (2r) (a) 1. of the statutes is amended to read:

SB572,132,4 938.24 (2r) (a) 1. At the time of the delinquent act the juvenile was under an order of a tribe's tribal court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile's parent, or permanent guardianship.

SB572, s. 275 Section 275. 938.24 (2r) (a) 2. of the statutes is amended to read:

SB572,132,12 938.24 (2r) (a) 2. At the time of the delinquent act the juvenile was physically outside the boundaries of that tribe's the reservation of the Indian tribe of the tribal court and any off-reservation trust land of either that Indian tribe or a member of that Indian tribe as a direct consequence of a tribal court order under subd. 1., including a tribal court order placing the juvenile in the home of a relative of the juvenile who on or after the date of the tribal court order resides physically outside the boundaries of a reservation and off-reservation trust land.

SB572, s. 276 Section 276. 938.24 (2r) (b) of the statutes is amended to read:

SB572,132,24 938.24 (2r) (b) If the intake worker is notified by an official of the Indian tribe that a petition relating to the delinquent act has been or may be filed in tribal court, the intake worker shall consult with tribal officials, unless the intake worker determines under sub. (4) that the case should be closed. After the consultation, the intake worker shall determine whether the best interests of the juvenile and of the public would be served by having the matter proceed solely in tribal court. If the intake worker determines that the best interests of the juvenile and of the public would be served by having the matter proceed solely in tribal court, the intake worker shall close the case. If the intake worker determines that the best interests of the juvenile and of the public would not be served by having the matter proceed solely in tribal court, the intake worker shall proceed under sub. (3) or (4).

SB572, s. 277 Section 277. 938.243 (1) (e) of the statutes is amended to read: