2009 Wisconsin Act 94

48.42 (2) (c) The guardian, guardian ad litem and, legal custodian, and Indian custodian of the child.

94,132 Section 132. 48.42 (2g) (ag) of the statutes is created to read:

48.42 (2g) (ag) In the case of an involuntary termination of parental rights to a child whom the petitioner knows or has reason to know is an Indian child, the petitioner shall cause the summons and petition to be served on the Indian child's parent and Indian custodian in the manner specified in s. 48.028 (4) (a). In like manner, the petitioner shall also notify the Indian child's tribe of all hearings on the petition. The first notice to an Indian child's tribe shall be written, shall have a copy of the petition attached to it, and shall state the nature, location, date, and time of the initial hearing. No hearing may be held on the petition until at least 10 days after receipt of notice of the hearing by the Indian child's parent, Indian custodian, and tribe or, if the identity or location of the Indian child's parent, Indian custodian, or tribe cannot be determined, until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the Indian child's parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for the hearing.

94,133 Section 133. 48.42 (4) (a) of the statutes is amended to read:

48.42 (4) (a) Personal service. Except as provided in this paragraph and, par. (b), and sub. (2g) (ag), a copy of the summons and petition shall be served personally upon the parties specified in sub. (2), if known, at least 7 days before the date of the hearing. Service of summons is not required if the party submits to the jurisdiction of the court. Service upon parties who are not natural persons and upon persons under a disability shall be as prescribed in s. 801.11.

94,134 Section 134. 48.422 (1) of the statutes is amended to read:

48.422 (1) The Except as provided in s. 48.42 (2g) (ag), the hearing on the petition to terminate parental rights shall be held within 30 days after the petition is filed. At the hearing on the petition to terminate parental rights the court shall determine whether any party wishes to contest the petition and inform the parties of their rights under sub. (4) and s. 48.423.

94,135 Section 135. 48.422 (2) of the statutes is amended to read:

48.422 (2) If Except as provided in s. 48.42 (2g) (ag), if the petition is contested the court shall set a date for a fact-finding hearing to be held within 45 days of after the hearing on the petition, unless all of the necessary parties agree to commence with the hearing on the merits immediately.

94,136 Section 136. 48.422 (6) (a) of the statutes is amended to read:

48.422 (6) (a) In the case of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803 and for whom paternity has not been established, or for whom a declaration of paternal interest has not been filed under s. 48.025 within 14 days after the date of birth of the child or, if s. 48.42 (1g) (b) applies, within 21 days after the date on which the notice under s. 48.42 (1g) (b) is mailed, the court shall hear testimony concerning the paternity of the child. Based on the testimony, the court shall determine whether all interested parties who are known have been notified under s. 48.42 (2) and (2g) (ag). If not, the court shall adjourn the hearing and order appropriate notice to be given.

94,137 Section 137. 48.422 (8) of the statutes is amended to read:

48.422 (8) If the petition for termination of parental rights is filed by an agency enumerated in s. 48.069 (1) or (2), the court shall order the agency to submit file a report to with the court as provided in s. 48.425 (1), except that, if the child is an Indian child, the court may order the agency or request the tribal child welfare department of the Indian child's tribe to file that report.

94,138 Section 138. 48.424 (1) of the statutes is renumbered 48.424 (1) (intro.) and amended to read:

48.424 (1) (intro.) The purpose of the fact-finding hearing is to determine whether grounds exist for the termination of parental rights in those cases where the termination in cases in which the petition was contested at the hearing on the petition under s. 48.422 all of the following:

(a) Whether grounds exist for the termination of parental rights.

94,139 Section 139. 48.424 (1) (b) of the statutes is created to read:

48.424 (1) (b) Whether the allegations specified in s. 48.42 (1) (e) have been proved in cases involving the involuntary termination of parental rights to an Indian child.

94,140 Section 140. 48.424 (2) (intro.) of the statutes is amended to read:

48.424 (2) (intro.) The fact-finding hearing shall be conducted according to the procedure specified in s. 48.31 except that as follows:

94,141 Section 141. 48.424 (2) (a) of the statutes is amended to read:

48.424 (2) (a) The court may exclude the child from the hearing; and.

94,142 Section 142. 48.424 (3) of the statutes is amended to read:

48.424 (3) If the facts are determined by a jury, the jury may only decide whether any grounds for the termination of parental rights have been proven proved and whether the allegations specified in s. 48.42 (1) (e) have been proved in cases involving the involuntary termination of parental rights to an Indian child. The court shall decide what disposition is in the best interest of the child.

94,143 Section 143. 48.424 (4) (intro.) of the statutes is amended to read:

48.424 (4) (intro.) If grounds for the termination of parental rights are found by the court or jury, the court shall find the parent unfit. A finding of unfitness shall not preclude a dismissal of a petition under s. 48.427 (2). The court shall then proceed immediately to hear evidence and motions related to the dispositions enumerated in s. 48.427. The Except as provided in s. 48.42 (2g) (ag), the court may delay making the disposition and set a date for a dispositional hearing no later than 45 days after the fact-finding hearing if any of the following apply:

94,144 Section 144. 48.424 (4) (a) of the statutes is amended to read:

48.424 (4) (a) All parties to the proceeding agree ; or.

94,145 Section 145. 48.424 (4) (b) of the statutes is amended to read:

48.424 (4) (b) The court has not yet received a report to the court on the history of the child as provided in s. 48.425 from an agency enumerated in s. 48.069 (1) or (2) and the court now directs the agency to prepare this report to be considered orders an agency enumerated in s. 48.069 (1) or (2) to file that report with the court, or, in the case of an Indian child, now orders that agency or requests the tribal child welfare department of the Indian child's tribe to file such a report, before the court makes the disposition on the petition.

94,146 Section 146. 48.424 (5) of the statutes is amended to read:

48.424 (5) If the court delays making a permanent disposition under sub. (4), it may transfer temporary custody of the child to an agency for placement of the child until the dispositional hearing. Placement of an Indian child under this subsection shall comply with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless the agency finds good cause, as described in s. 48.028 (7) (e), for departing from that order.

94,147 Section 147. 48.425 (1) (intro.) of the statutes is amended to read:

48.425 (1) (intro.) If the petition for the termination of parental rights is filed by an agency, or if the court orders an agency enumerated under s. 48.069 (1) or (2) to file a report under s. 48.422 (8) or 48.424 (4) (b) or requests the tribal child welfare department of an Indian child's tribe to file such a report, the agency or tribal child welfare department, if that department consents, shall file a report with the court which shall include:

94,148 Section 148. 48.425 (1) (cm) of the statutes is created to read:

48.425 (1) (cm) If the petition is seeking the involuntary termination of parental rights to an Indian child, specific information showing that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child under s. 48.028 (4) (e) 1. and, if the Indian child has previously been adjudged to be in need of protection or services, specific information showing that active efforts under s. 48.028 (4) (e) 2. have been made to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful.

94,149 Section 149. 48.427 (5) of the statutes is created to read:

48.427 (5) In placing an Indian child in a preadoptive placement following a transfer of guardianship and custody under sub. (3m) or (3p) or in placing an Indian child in sustaining care under sub. (4), the court or an agency specified in sub. (3m) (a) 1. to 4. or (am) shall comply with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless the court or agency finds good cause, as described in s. 48.028 (7) (e), for departing from that order.

94,150 Section 150. 48.427 (6) (b) 4. of the statutes is created to read:

48.427 (6) (b) 4. If the court knows or has reason to know that the child is an Indian child, information relating to the child's membership or eligibility for membership in an Indian tribe.

94,151 Section 151. 48.428 (2) (a) of the statutes is amended to read:

48.428 (2) (a) Except as provided in par. (b), when a court places a child in sustaining care after an order under s. 48.427 (4), the court shall transfer legal custody of the child to the county department, the department, in a county having a population of 500,000 or more, or a licensed child welfare agency, transfer guardianship of the child to an agency listed in s. 48.427 (3m) (a) 1. to 4. or (am), and place the child in the home of a licensed foster parent, licensed treatment foster parent, or kinship care relative with whom the child has resided for 6 months or longer. In placing an Indian child in sustaining care, the court shall comply with the order of placement preference under s. 48.028 (7) (b) 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. Pursuant to such a placement, this that licensed foster parent, licensed treatment foster parent, or kinship care relative shall be a sustaining parent with the powers and duties specified in sub. (3).

94,152 Section 152. 48.428 (2) (a) of the statutes, as affected by 2009 Wisconsin Acts 28 and .... (this act), is repealed and recreated to read:

48.428 (2) (a) Except as provided in par. (b), when a court places a child in sustaining care after an order under s. 48.427 (4), the court shall transfer legal custody of the child to the county department, the department in a county having a population of 500,000 or more, or a licensed child welfare agency, transfer guardianship of the child to an agency listed in s. 48.427 (3m) (a) 1. to 4. or (am), and place the child in the home of a licensed foster parent or kinship care relative with whom the child has resided for 6 months or longer. In placing an Indian child in sustaining care, the court shall comply with the order of placement preference under s. 48.028 (7) (b) 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. Pursuant to the placement, that licensed foster parent or kinship care relative shall be a sustaining parent with the powers and duties specified in sub. (3).

94,153 Section 153. 48.428 (2) (b) of the statutes is amended to read:

48.428 (2) (b) When a court places a child in sustaining care after an order under s. 48.427 (4) with a person who has been appointed as the guardian of the child under s. 48.977 (2), the court may transfer legal custody of the child to the county department, the department, in a county having a population of 500,000 or more, or a licensed child welfare agency, transfer guardianship of the child to an agency listed in s. 48.427 (3m) (a) 1. to 4. or (am), and place the child in the home of a licensed foster parent, licensed treatment foster parent, or kinship care relative with whom the child has resided for 6 months or longer. In placing an Indian child in sustaining care, the court shall comply with the order of placement preference under s. 48.028 (7) (b) 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. Pursuant to such a placement, that licensed foster parent, licensed treatment foster parent, or kinship care relative shall be a sustaining parent with the powers and duties specified in sub. (3). If the court transfers guardianship of the child to an agency listed in s. 48.427 (3m) (a) 1. to 4. or (am), the court shall terminate the guardianship under s. 48.977.

94,154 Section 154. 48.428 (2) (b) of the statutes, as affected by 2009 Wisconsin Acts 28 and .... (this act), is repealed and recreated to read:

48.428 (2) (b) When a court places a child in sustaining care after an order under s. 48.427 (4) with a person who has been appointed as the guardian of the child under s. 48.977 (2), the court may transfer legal custody of the child to the county department, the department in a county having a population of 500,000 or more, or a licensed child welfare agency, transfer guardianship of the child to an agency listed in s. 48.427 (3m) (a) 1. to 4. or (am), and place the child in the home of a licensed foster parent or kinship care relative with whom the child has resided for 6 months or longer. In placing an Indian child in sustaining care, the court shall comply with the order of placement preference under s. 48.028 (7) (b) 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. Pursuant to the placement, that licensed foster parent or kinship care relative shall be a sustaining parent with the powers and duties specified in sub. (3). If the court transfers guardianship of the child to an agency listed in s. 48.427 (3m) (a) 1. to 4. or (am), the court shall terminate the guardianship under s. 48.977.

94,155 Section 155. 48.43 (5) (bm) of the statutes is created to read:

48.43 (5) (bm) If the order under sub. (1) involuntarily terminated parental rights to an Indian child, the court shall also provide notice of the hearing under par. (b) to the Indian child's tribe in the manner specified in s. 48.028 (4) (a). No hearing may be held under par. (b) until at least 10 days after receipt of notice of the hearing by the Indian child's tribe or, if the identity or location of the Indian child's tribe cannot be determined, until at least 15 days after receipt of notice of the hearing by the U.S. secretary of the interior. On request of the Indian child's tribe, the court shall grant a continuance of up to 20 additional days to enable the tribe to prepare for the hearing.

94,156 Section 156. 48.43 (5) (c) of the statutes is amended to read:

48.43 (5) (c) Following the hearing, the court shall make all of the determinations specified under s. 48.38 (5) (c), except the determinations relating to the child's parents. The court may amend the order under sub. (1) to transfer the child's guardianship and custody to any agency specified under s. 48.427 (3m) (a) 1. to 4. or (am) that consents to the transfer, if the court determines that the transfer is in the child's best interest. If an Indian child's guardianship and custody are transferred under this paragraph, the agency consenting to the transfer shall comply with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c) in placing the child, unless the agency finds good cause, as described in s. 48.028 (7) (e), for departing from that order. If an order is amended, the agency that prepared the permanency plan shall revise the plan to conform to the order and shall file a copy of the revised plan with the court. Each plan filed under this paragraph shall be made a part of the court order.

94,157 Section 157. 48.43 (5m) of the statutes is amended to read:

48.43 (5m) Either the court or the agency that prepared the permanency plan shall furnish a copy of the original plan and each revised plan to the child, if he or she is 12 years of age or over, and to the child's foster parent, the child's treatment foster parent, or the operator of the facility in which the child is living, and, if the order under sub. (1) involuntarily terminated parental rights to an Indian child, to the Indian child's tribe.

94,158 Section 158. 48.43 (5m) of the statutes, as affected by 2009 Wisconsin Acts 28 and .... (this act), is repealed and recreated to read:

48.43 (5m) Either the court or the agency that prepared the permanency plan shall furnish a copy of the original plan and each revised plan to the child, if he or she is 12 years of age or over, to the child's foster parent or the operator of the facility in which the child is living, and, if the order under sub. (1) involuntarily terminated parental rights to an Indian child, to the Indian child's tribe.

94,159 Section 159. 48.43 (6) (a) of the statutes is amended to read:

48.43 (6) (a) Judgments under this subchapter terminating parental rights are final and are appealable under s. 808.03 (1) according to the procedure specified in s. 809.107 and are subject to a petition for rehearing or a motion for relief only as provided in s. 48.46 (1m) and (2) and, in the case of an Indian child, s. 48.028 (5) (c) and (6). The attorney representing a person during a proceeding under this subchapter shall continue representation of that person by filing a notice of intent to appeal under s. 809.107 (2), unless the attorney has been previously discharged during the proceeding by the person or by the trial court.

94,160 Section 160. 48.43 (6) (c) of the statutes is amended to read:

48.43 (6) (c) In Except as provided in s. 48.028 (5) (c) and (6), in no event may any person, for any reason, collaterally attack a judgment terminating parental rights more than one year after the date on which the time period for filing an appeal from the judgment has expired, or more than one year after the date on which all appeals from the judgment, if any were filed, have been decided, whichever is later.

94,161 Section 161. 48.46 (2) of the statutes is amended to read:

48.46 (2) A parent who has consented to the termination of his or her parental rights under s. 48.41 or who did not contest the petition initiating the proceeding in which his or her parental rights were terminated may move the court for relief from the judgment on any of the grounds specified in s. 806.07 (1) (a), (b), (c), (d) or (f). Any such motion shall be filed within 30 days after the entry of the judgment or order terminating parental rights, unless the parent files a timely notice of intent to pursue relief from the judgment under s. 808.04 (7m), in which case the motion shall be filed within the time permitted by s. 809.107 (5). A motion under this subsection does not affect the finality or suspend the operation of the judgment or order terminating parental rights. A parent who has consented to the termination of his or her parental rights to an Indian child under s. 48.41 (2) (e) may also move for relief from the judgment under s. 48.028 (5) (c) or (6). Motions under this subsection or s. 48.028 (5) (c) or (6) and appeals to the court of appeals shall be the exclusive remedies for such a parent to obtain a new hearing in a termination of parental rights proceeding.

94,162 Section 162. 48.48 (3m) (intro.) of the statutes is amended to read:

48.48 (3m) (intro.) To accept appointment by an American Indian a tribal court in this state as guardian of a child for the purpose of making an adoptive placement for the child if all of the following conditions exist:

94,163 Section 163. 48.48 (8m) of the statutes is amended to read:

48.48 (8m) To enter into agreements with American Indian tribes in this state to implement the Indian child welfare act federal Indian Child Welfare Act, 25 USC 1911 1901 to 1963.

94,164 Section 164. 48.485 of the statutes is amended to read:

48.485 Transfer of tribal Indian children to department for adoption. If the department accepts guardianship or legal custody or both from an American Indian a tribal court under s. 48.48 (3m), the department shall seek a permanent adoptive placement for the child. If a permanent adoptive placement is not in progress within 2 years after entry of the termination of parental rights order by the tribal court, the department may petition the tribal court to transfer legal custody or guardianship of the Indian child back to the Indian tribe, except that the department may not petition the tribal court to transfer back to a an Indian tribe legal custody or guardianship of a an Indian child who was initially taken into custody under s. 48.195 (1).

94,165 Section 165. 48.487 (2) of the statutes is amended to read:

48.487 (2) Adolescent self-sufficiency services. From the allocation under sub. (1m), the department may provide a grant annually in the amount of $85,000 to the elected governing body of a federally recognized American an Indian tribe or band to provide services for adolescent parents which shall emphasize high school graduation and vocational preparation, training, and experience and may be structured so as to strengthen the adolescent parent's capacity to fulfill parental responsibilities by developing social skills and increasing parenting skills. The Indian tribe or band seeking to receive a grant to provide these services shall develop a proposed service plan that is approved by the department.

94,166 Section 166. 48.487 (3) (b) of the statutes is amended to read:

48.487 (3) (b) From the allocation under sub. (1m), the department may provide a grant annually in the amount of $65,000 to the elected governing body of a federally recognized American an Indian tribe or band to provide to high-risk adolescents pregnancy and parenthood prevention services which shall be structured so as to increase development of decision-making and communications skills, promote graduation from high school, and expand career and other options and which may address needs of adolescents with respect to pregnancy prevention.

94,167 Section 167. 48.487 (4m) (b) (intro.) of the statutes is amended to read:

48.487 (4m) (b) (intro.) From the allocation under sub. (1m), the department may provide a grant annually in the amount of $60,000 to the elected governing body of a federally recognized American an Indian tribe or band for the provision of information to members of the Indian tribe or band in order to increase community knowledge about problems of adolescents and information to and activities for adolescents, particularly female adolescents, in order to enable the adolescents to develop skills with respect to all of the following:

94,168 Section 168. 48.487 (4m) (c) of the statutes is amended to read:

48.487 (4m) (c) Each funded tribal project under par. (b) shall provide services in areas of the state as approved by the Indian tribe or band and the department. The department shall determine the boundaries of the regional areas prior to soliciting project grant applications.

94,169 Section 169. 48.487 (4m) (d) of the statutes is amended to read:

48.487 (4m) (d) Prior to making grants to applying Indian tribes or bands under par. (b), the department shall consider whether and how the applying Indian tribe or band proposes to coordinate its services with other public or private resources, programs, or activities in the region and the state.

94,170 Section 170. 48.563 (3) of the statutes is amended to read:

48.563 (3) Tribal child care. For child care services under 42 USC 9858, the department shall distribute not more than $412,800 in each fiscal year from the appropriation account under s. 20.437 (1) (b) to federally recognized American Indian tribes or bands. A tribe or band. An Indian tribe that receives funding under this subsection shall use that funding to provide child care for an eligible child, as defined in 42 USC 9858n (4).

94,171 Section 171. 48.565 (intro.) of the statutes is amended to read:

48.565 Carry-over of children and family aids funds. (intro.) Funds allocated by the department under s. 48.569 (1) (d) but not spent or encumbered by counties, governing bodies of federally recognized American Indian tribes, or private nonprofit organizations by December 31 of each year and funds recovered under s. 48.569 (2) (b) and deposited into the appropriation account under s. 20.437 (1) (b) lapse to the general fund on the succeeding January 1 unless carried forward to the next calendar year under s. 20.437 (1) (b) or as follows:

94,172 Section 172. 48.57 (3p) (h) 2. of the statutes is amended to read:

48.57 (3p) (h) 2. The request for review shall be filed with the director of the county department or, in a county having a population of 500,000 or more, with the person designated by the secretary to receive requests for review filed under this subdivision. If the governing body of a federally recognized American an Indian tribe or band has entered into an agreement under sub. (3t) to administer the program under this subsection and sub. (3m), the request for review shall be filed with the person designated by that governing body to receive requests for review filed under this subdivision.

94,173 Section 173. 48.57 (3p) (h) 3. (intro.) of the statutes is amended to read:

48.57 (3p) (h) 3. (intro.) The director of the county department, the person designated by the governing body of a federally recognized American an Indian tribe or band or, in a county having a population of 500,000 or more, the person designated by the secretary shall review the denial of payments or the prohibition on employment or being an adult resident to determine if the conviction record on which the denial or prohibition is based includes any arrests, convictions, or penalties that are likely to adversely affect the child or the ability of the kinship care relative to care for the child. In reviewing the denial or prohibition, the director of the county department, the person designated by the governing body of the federally recognized American Indian tribe or band or the person designated by the secretary shall consider all of the following factors:

94,174 Section 174. 48.57 (3p) (h) 4. of the statutes is amended to read:

48.57 (3p) (h) 4. If the director of the county department, the person designated by the governing body of the federally recognized American Indian tribe or band or, in a county having a population of 500,000 or more, the person designated by the secretary determines that the conviction record on which the denial of payments or the prohibition on employment or being an adult resident is based does not include any arrests, convictions, or penalties that are likely to adversely affect the child or the ability of the kinship care relative to care for the child, the director of the county department, the person designated by the governing body of the federally recognized American Indian tribe or band, or the person designated by the secretary may approve the making of payments under sub. (3m) or may permit a person receiving payments under sub. (3m) to employ a person in a position in which that person would have regular contact with the child for whom payments are being made or permit a person to be an adult resident.

94,175 Section 175. 48.57 (3t) of the statutes is amended to read: