LRB-3345/1
GMM:wlj:jf
2009 - 2010 LEGISLATURE
September 15, 2009 - Introduced by Representatives Hraychuck, Sherman,
Grigsby, Roys, Pasch, Young, Berceau, Sinicki, Pope-Roberts, Seidel,
Turner, Benedict, Hilgenberg, Shilling, Hubler, Clark, Mason, Nelson,
Radcliffe, Soletski, Vruwink, Sheridan, Smith, Mursau, Roth, Kleefisch,
Friske, Tauchen, Huebsch, Vos, Brooks and Ripp, cosponsored by Senators
Jauch, Holperin, Vinehout, Coggs, Taylor, Lassa, Kreitlow, Lehman,
Hansen, Robson, Risser, Plale, Erpenbach, S. Fitzgerald, Grothman, Olsen
and Hopper. Referred to Committee on Children and Families.
AB421,4,15
1An Act to repeal 48.21 (5) (d) 2., 48.21 (5) (d) 3., 48.32 (1) (c) 2., 48.32 (1) (c) 3.,
248.355 (2d) (c) 2., 48.355 (2d) (c) 3., 48.357 (2v) (c) 2., 48.357 (2v) (c) 3., 48.365
3(2m) (ad) 2., 48.685 (1) (e), 48.983 (1) (d), 48.983 (1) (e), 938.02 (18g), 938.21 (5)
4(d) 2., 938.21 (5) (d) 3., 938.32 (1) (d) 2., 938.32 (1) (d) 3., 938.355 (2d) (c) 2.,
5938.355 (2d) (c) 3., 938.357 (2v) (c) 2., 938.357 (2v) (c) 3., 938.365 (2m) (ad) 2.
6and 938.538 (6m) (a) 1.;
to renumber 938.02 (9m);
to renumber and amend
748.20 (8), 48.21 (5) (d) 1., 48.273 (1), 48.32 (1) (c) 1., 48.355 (2d) (c) 1., 48.357 (1)
8(am) 2., 48.357 (2m) (c), 48.357 (2v) (c) 1., 48.365 (2m) (ad) 1., 48.424 (1), 48.981
9(1) (cs), 938.21 (5) (d) 1., 938.273 (1) (c), 938.32 (1) (d) 1., 938.355 (2d) (c) 1.,
10938.357 (2m) (c), 938.357 (2v) (c) 1. and 938.365 (2m) (ad) 1.;
to amend 48.02
11(2), 48.02 (13), 48.02 (15), 48.028 (2) (e) and (f), 48.028 (7) (b) 2. and 3., 48.13
12(intro.), 48.14 (intro.), 48.15, 48.19 (2), 48.195 (2) (d) 7., 48.20 (2) (ag), 48.20 (2)
13(b), 48.20 (3), 48.20 (7) (c) (intro.), 48.20 (7) (c) 1., 48.20 (7) (d), 48.21 (3) (am),
1448.21 (3) (b), 48.21 (3) (d), 48.21 (3) (e), 48.23 (2), 48.23 (3), 48.23 (4), 48.235 (4)
1(a) 7., 48.235 (4m) (a) 7., 48.255 (1) (cm), 48.255 (1m) (d), 48.255 (2), 48.255 (4),
248.27 (3) (a) 1., 48.27 (3) (d), 48.27 (4) (a) 2., 48.299 (6) (d), 48.30 (1), 48.30 (2),
348.30 (6) (a), 48.30 (7), 48.305, 48.31 (1), 48.31 (7) (a), 48.315 (1m), 48.335 (3j)
4(intro.), 48.345 (3) (intro.), 48.355 (2) (d), 48.357 (1) (am) 1., 48.357 (1) (am) 3.,
548.357 (1) (c) 2., 48.357 (1) (c) 3., 48.357 (2m) (a), 48.357 (2m) (b), 48.363 (1) (a),
648.363 (1) (b), 48.365 (1m), 48.365 (2), 48.365 (2m) (a) 1., 48.365 (2m) (a) 3.,
748.365 (2m) (ag), 48.38 (4m) (b) and (c), 48.38 (5) (b), 48.38 (5) (d), 48.38 (5) (e),
848.38 (5m) (b), 48.38 (5m) (d), 48.38 (5m) (e), 48.415 (intro.), 48.42 (1) (d), 48.42
9(2) (c), 48.42 (4) (a), 48.422 (1), 48.422 (2), 48.422 (6) (a), 48.422 (8), 48.424 (2)
10(intro.), 48.424 (2) (a), 48.424 (3), 48.424 (4) (intro.), 48.424 (4) (a), 48.424 (4) (b),
1148.424 (5), 48.425 (1) (intro.), 48.428 (2) (a), 48.428 (2) (b), 48.43 (5) (c), 48.43
12(5m), 48.43 (6) (a), 48.43 (6) (c), 48.46 (2), 48.48 (3m) (intro.), 48.48 (8m), 48.485,
1348.487 (2), 48.487 (3) (b), 48.487 (4m) (b) (intro.), 48.487 (4m) (c), 48.487 (4m)
14(d), 48.563 (3), 48.565 (intro.), 48.57 (3p) (h) 2., 48.57 (3p) (h) 3. (intro.), 48.57
15(3p) (h) 4., 48.57 (3t), 48.63 (1), 48.63 (3) (b) 1., 48.63 (4), 48.63 (5) (b), 48.63 (5)
16(c), 48.63 (5) (d) 3., 48.63 (5) (d) 4., 48.63 (5) (d) 5., 48.63 (5) (d) 6., 48.645 (1) (a),
1748.645 (2) (a) 1., 48.645 (2) (a) 3., 48.645 (2) (a) 4., 48.645 (2) (b), 48.685 (5) (a),
1848.685 (5d) (a) (intro.), 48.685 (5d) (a) 2., 48.685 (5d) (a) 3., 48.685 (5d) (a) 3m.,
1948.685 (5d) (a) 4., 48.685 (5d) (b), 48.825 (1) (b), 48.83 (1), 48.831 (2), 48.837 (1r)
20(a), 48.837 (4) (c), 48.837 (4) (d), 48.837 (6) (c), 48.85 (1), 48.88 (2) (a) (intro.),
2148.88 (2) (b), 48.89 (1), 48.91 (3), 48.93 (1d), 48.977 (4) (a) 1., 48.977 (4) (b) 6.,
2248.977 (4) (c) 2., 48.978 (2) (b) 11., 48.981 (1) (ct), 48.981 (1) (i), 48.981 (3) (bm)
23(intro.), 48.981 (3) (bm) 1., 48.981 (3) (bm) 2., 48.981 (7) (a) 10m., 48.981 (7) (a)
2410r., 48.981 (7) (a) 11m., 938.02 (10m), 938.02 (12m), 938.02 (13), 938.02 (15),
25938.02 (15c), 938.028 (2) (c), 938.028 (6) (a) 2. and 3., 938.13 (intro.), 938.15,
1938.185 (4) (title), 938.185 (4) (intro.), 938.185 (4) (a), 938.185 (4) (b), 938.19 (2),
2938.20 (2) (ag), 938.20 (2) (b), 938.20 (3), 938.20 (7) (c) 1., 938.20 (7) (d), 938.20
3(8) (a), 938.21 (2) (title), 938.21 (2) (ag), 938.21 (3) (ag), 938.21 (3) (am), 938.21
4(3) (b), 938.21 (3) (d), 938.21 (3) (e), 938.23 (3), 938.23 (4), 938.235 (4) (a) 7.,
5938.24 (2r) (title), 938.24 (2r) (a) (intro.), 938.24 (2r) (a) 1., 938.24 (2r) (a) 2.,
6938.24 (2r) (b), 938.243 (1) (e), 938.25 (2g) (title), 938.255 (1) (cm), 938.255 (1)
7(cr) 1. a., 938.255 (1) (cr) 1. b., 938.255 (1) (cr) 1. c., 938.255 (1) (cr) 2., 938.255
8(2), 938.255 (4), 938.27 (3) (a) 1., 938.27 (4) (b), 938.273 (1) (a), 938.273 (1) (b),
9938.299 (6) (d), 938.299 (9) (title), 938.299 (9) (a), 938.30 (1), 938.30 (2), 938.30
10(6) (a), 938.30 (7), 938.305, 938.31 (7) (a), 938.335 (3j) (intro.), 938.355 (2) (d),
11938.355 (6) (an) 1., 938.355 (6) (b), 938.355 (6m) (am) 1., 938.355 (6m) (c),
12938.357 (1) (am) 1., 938.357 (1) (am) 2., 938.357 (1) (am) 3., 938.357 (1) (c) 2.,
13938.357 (1) (c) 3., 938.357 (2m) (a), 938.357 (2m) (b), 938.363 (1) (a), 938.363 (1)
14(b), 938.365 (1m), 938.365 (2), 938.365 (2m) (a) 1., 938.365 (2m) (a) 3., 938.365
15(2m) (ag), 938.38 (3) (intro.), 938.38 (4m) (b) and (c), 938.38 (5) (b), 938.38 (5)
16(d), 938.38 (5) (e), 938.38 (5m) (b), 938.38 (5m) (d), 938.38 (5m) (e) and 938.538
17(6m) (a) 4.;
to repeal and recreate 48.01 (2), 48.028, 48.27 (3) (a) 1., 48.357 (1)
18(am) 1., 48.357 (2m) (b), 48.363 (1) (b), 48.365 (2), 48.365 (2m) (ag), 48.38 (5) (b),
1948.38 (5) (e), 48.38 (5m) (b), 48.38 (5m) (e), 48.428 (2) (a), 48.428 (2) (b), 48.43
20(5m), 48.63 (1), 48.63 (4), 48.645 (1) (a), 48.645 (2) (a) 1., 48.645 (2) (a) 3., 48.645
21(2) (a) 4., 48.645 (2) (b), 938.028, 938.27 (3) (a) 1., 938.357 (1) (am) 1., 938.357
22(1) (am) 2., 938.357 (2m) (b), 938.363 (1) (b), 938.365 (2), 938.365 (2m) (ag),
23938.38 (5) (b), 938.38 (5) (e), 938.38 (5m) (b) and 938.38 (5m) (e); and
to create
2448.02 (8d), 48.02 (8m), 48.02 (8p), 48.02 (8r), 48.02 (18j), 48.14 (12), 48.207 (1g),
2548.23 (2g), 48.255 (1) (g), 48.255 (1m) (g), 48.273 (1) (ag), 48.273 (1) (c) 2., 48.299
1(9), 48.31 (5), 48.315 (1) (j), 48.32 (1) (d), 48.33 (4) (d), 48.335 (3j), 48.345 (3m),
248.355 (2) (b) 6v., 48.355 (2d) (d), 48.357 (1) (am) 1g., 48.357 (1) (c) 1m., 48.357
3(1) (c) 2m., 48.357 (2m) (am), 48.357 (2m) (bm), 48.357 (2v) (a) 4., 48.365 (2g) (b)
44., 48.38 (4) (i), 48.38 (4m), 48.38 (5) (c) 8., 48.41 (2) (e), 48.417 (2) (cm), 48.42
5(1) (e), 48.42 (2g) (ag), 48.424 (1) (b), 48.425 (1) (cm), 48.427 (5), 48.427 (6) (b)
64., 48.43 (5) (bm), 48.831 (1r), 48.831 (4) (cm), 48.833 (3), 48.837 (2) (e), 48.88
7(2) (ag), 48.93 (1v), 48.977 (4) (c) 1. j., 48.977 (4) (c) 2m., 48.977 (4) (g) 4., 806.245
8(1m), 938.01 (3), 938.02 (8d), 938.02 (8g), 938.02 (8m), 938.02 (8p), 938.02 (8r),
9938.02 (18j), 938.207 (1g), 938.23 (2g), 938.255 (1) (g), 938.27 (3) (d), 938.273 (1)
10(ag), 938.273 (1) (c) 2., 938.299 (10), 938.31 (5), 938.315 (1) (a) 11., 938.32 (1) (e),
11938.33 (4) (d), 938.335 (3j), 938.345 (1m), 938.355 (2) (b) 6v., 938.355 (2d) (d),
12938.355 (6) (bm), 938.355 (6) (cr), 938.355 (6m) (bm), 938.355 (6m) (cr), 938.357
13(1) (am) 1g., 938.357 (1) (c) 1m., 938.357 (1) (c) 2m., 938.357 (2m) (am), 938.357
14(2m) (bm), 938.357 (2v) (a) 4., 938.365 (2g) (b) 4., 938.38 (4) (i), 938.38 (4m) and
15938.38 (5) (c) 8. of the statutes;
relating to: Indian child welfare.
Analysis by the Legislative Reference Bureau
Introduction
Current law. Under current law, the federal Indian Child Welfare Act (ICWA),
which governs jurisdiction over child custody proceedings involving an Indian child
and provides certain minimum standards for those proceedings, supercedes the
provisions of the Children's Code and the Juvenile Justice Code in any child custody
proceeding governed by ICWA. For purposes of ICWA, "child custody proceeding"
means any of the following:
1. Any out-of-home care placement, which is any action removing an Indian
child from his or her parent or Indian custodian, that is, an Indian person who has
legal custody of an Indian child under tribal law or custom or state law or to whom
temporary physical custody of an Indian child has been transferred by the Indian
child's parent, for temporary placement in a foster home or institution, from which
the parent or Indian custodian cannot have the Indian child removed on demand, but
not including a placement that is based on an act that would be a crime if committed
by an adult and not including an emergency removal of an Indian child from his or
her parent or Indian custodian to prevent imminent physical harm to the child.
2. A termination of parental rights (TPR) proceeding.
3. A temporary placement of an Indian child in a foster home or institution after
a TPR, but prior to or in lieu of an adoptive placement (preadoptive placement).
4. An adoptive placement.
The bill. This bill incorporates the jurisdictional provisions of ICWA and the
minimum standards for Indian child custody proceedings established by ICWA into
the provisions of the Children's Code relating to child in need of protection or services
(CHIPS), TPR, and adoption proceedings and the provisions of the Juvenile Justice
Code relating to juvenile in need of protection or services (JIPS) proceedings, other
than proceedings that are based on the commission of an act that would be a crime
if committed by an adult and other than an emergency removal of an Indian child
from the home of his or her parent or Indian custodian to prevent imminent physical
harm to the child.
Jurisdiction
Exclusive tribal jurisdiction. Under ICWA, an Indian tribe has exclusive
jurisdiction over an Indian child custody proceeding involving an Indian child who
resides or is domiciled within the reservation of the tribe and over an Indian child
who is a ward of a tribal court, regardless of the residence or domicile of the Indian
child, except when jurisdiction is otherwise vested in the state by federal law. This
grant of jurisdiction, however, does not prevent the emergency removal of an Indian
child who resides or is domiciled on a reservation, but who is temporarily located off
the reservation, from his or her parent or Indian custodian in order to prevent
imminent physical damage or harm to the Indian child.
Transfer of proceedings to tribes. Also, under ICWA, a state court is
required to transfer a proceeding involving an out-of-home care placement of, or
TPR to, an Indian child who is not residing or domiciled within the reservation of the
Indian child's tribe to the jurisdiction of the Indian child's tribe upon the petition of
the Indian child's parent, Indian custodian, or tribe, unless a parent of the Indian
child objects, the tribal court declines jurisdiction, or the state court finds good cause
not to transfer the proceeding. In addition, ICWA permits an Indian child's parent,
Indian custodian, or tribe to intervene at any point in an Indian child custody
proceeding in state court involving the out-of-home care placement of, or TPR to, the
Indian child.
Declination of jurisdiction. Finally, with respect to jurisdiction over an
Indian child custody proceeding, ICWA requires a state court to decline jurisdiction
and to forthwith return an Indian child to his or her parent or Indian custodian,
unless returning the Indian child would subject the Indian child to a substantial and
immediate danger or threat of danger, when a petitioner in an Indian child custody
proceeding has improperly removed the Indian child from the custody of his or her
parent or Indian custodian or has improperly retained custody after a visit or other
temporary relinquishment of custody.
The bill. This bill incorporates those jurisdictional provisions of ICWA into the
Children's Code and the Juvenile Justice Code. The bill also does all of the following:
1. Specifies that the provisions of ICWA and of the Children's Code and
Juvenile Justice Code relating to Indian child custody proceedings apply to any
Indian child custody proceeding regardless of whether the Indian child is in the
custody of an Indian parent, Indian custodian, extended family member, or other
person at the commencement of the proceeding and whether the Indian child resides
or is domiciled on or off a reservation.
2. Prohibits a court assigned to exercise jurisdiction under the Children's Code
and the Juvenile Justice Code (juvenile court) from determining whether those
provisions apply to an Indian child custody proceeding based on whether the Indian
child is part of an existing Indian family.
3. Permits a juvenile court to find good cause to deny transfer of a proceeding
to an Indian child's tribe only if it is shown that: 1) the Indian child is 12 years of
age or over and objects to the transfer; 2) the evidence or testimony necessary to
decide the case cannot be presented in tribal court without undue hardship to the
parties or the witnesses, and the tribal court is unable to mitigate the hardship by
making arrangements to receive the evidence or testimony by use of telephone or live
audiovisual means, by hearing the evidence or testimony at a location that is
convenient to the parties and witnesses, or by use of other means permissible under
the tribal court's rules of evidence; or 3) the Indian child's tribe has received notice
of the proceeding, the tribe has not indicated that the tribe is monitoring the
proceeding and may request a transfer at a later date, and because of gross
negligence the tribe has not petitioned for a transfer within three months after
receiving notice of the proceeding. The juvenile court may not consider any perceived
inadequacy of the tribal social services department or the tribal court of the Indian
child's tribe in determining whether good cause exists to deny the transfer.
Out-of-home care placements and TPR proceedings
Notice. ICWA requires a party seeking an out-of-home care placement of, or
TPR to, an Indian child in an involuntary proceeding in state court to notify the
Indian child's parent, Indian custodian, and tribe, by registered mail with return
receipt requested, of the proceeding and of their right to intervene in the proceeding.
Under ICWA, if the identity or location of the parent, Indian custodian, or tribe
cannot be determined, notice of the proceeding must be provided to the U.S. secretary
of the interior, who then has 15 days after receipt of the notice to provide the notice
to the parent, Indian custodian, and tribe. ICWA prohibits an out-of-home care
placement or TPR proceeding from being heard until at least ten days after receipt
of notice by the parent, Indian custodian, or tribe or by the U.S. secretary of the
interior and permits a parent, Indian custodian, or tribe to request up to 20
additional days to prepare for the proceeding.
This bill requires the party seeking an out-of-home care placement of an
Indian child in a CHIPS or JIPS proceeding or seeking an involuntary TPR to an
Indian child to notify by registered mail, return receipt requested, the Indian child's
parent, Indian custodian, and tribe of the first hearing of the proceeding and file the
return receipt with the court. The bill requires similar notice to those persons of a
change-in-placement proceeding that would remove the Indian child from the home
of his or her parent or Indian custodian. For subsequent hearings in a proceeding,
notice may be provided by mail, personal delivery, or facsimile transmission, but not
by electronic mail. The bill prohibits an initial CHIPS, JIPS, or TPR hearing or a
change in placement hearing removing an Indian child from the home of his or her
parent or Indian custodian from being held until at least ten days after receipt of
notice of the hearing by the parent, Indian custodian, or tribe or until at least ten
days after receipt of notice of the hearing by the U.S. secretary of the interior and
permits a parent, Indian custodian, or tribe to request up to 20 additional days to
prepare for the hearing.
Right to counsel. Under ICWA, a parent or Indian custodian who is indigent
has the right to court-appointed counsel in any proceeding involving the removal of
an Indian child from his or her home, placement of an Indian child in an out-of-home
care placement, or TPR to an Indian child. This bill incorporates that right into the
Children's Code and the Juvenile Justice Code with respect to a parent 18 years of
age or over or an Indian custodian. With respect to a parent under 18 years of age,
the bill retains current law, which provides for the appointment of counsel without
a determination of indigency.
Active efforts and serious damage findings. ICWA requires a party seeking
to effect an out-of-home care placement of, or an involuntary TPR to, an Indian child
to satisfy the state court that active efforts have been made to provide remedial
services and rehabilitation programs to prevent the breakup of the Indian child's
family and that those efforts have proved unsuccessful. ICWA also prohibits a state
court from ordering an out-of-home care placement of, or involuntary TPR to, an
Indian child in the absence of a determination, supported by clear and convincing
evidence in the case of out-of-home care placement and by evidence beyond a
reasonable doubt in the case of TPR, including the testimony of qualified expert
witnesses, that continued custody of the Indian child by his or her parent or Indian
custodian is likely to result in serious emotional or physical damage to the Indian
child.
This bill requires a CHIPS or JIPS order or a change-in-placement order
removing an Indian child from the home of his or her parent or Indian custodian and
placing the Indian child outside the home or a consent decree maintaining an Indian
child in a voluntary out-of-home placement to include a finding by the juvenile court
or jury, supported by clear and convincing evidence, including the testimony of one
or more qualified expert witnesses, that continued custody of the Indian child by his
or her parent or Indian custodian is likely to result in serious emotional or physical
damage to the Indian child and a finding, supported by clear and convincing
evidence, that active efforts have been made to prevent the breakup of the Indian
child's family and that those efforts have proved unsuccessful. The bill also requires
the juvenile court or jury in an involuntary TPR proceeding to determine if it is
proved beyond a reasonable doubt, including the testimony of one or more qualified
expert witnesses, that continued custody of the Indian child by the parent or Indian
custodian is likely to result in serious emotional or physical damage to the child and
if it is proved by clear and convincing evidence that active efforts have been made to
prevent the breakup of the Indian child's family and that those efforts have proved
unsuccessful. In addition, the bill requires an order extending a CHIPS or JIPS
dispositional order for an Indian child who is placed outside the home of his or her
parent or Indian custodian and a summary of a permanency plan review for such a
child to include a determination as to whether active efforts were made to prevent
the breakup of the Indian child's family and as to whether those efforts have proved
unsuccessful.
Qualified expert witness. The bill defines a "qualified expert witness" as a
person who is a member of the Indian child's tribe knowledgeable in the tribe's
customs relating to family organization or child-rearing practices, a member of
another tribe who is knowledgeable in those customs, a professional person having
substantial knowledge of those customs, or a layperson having substantial
knowledge of those customs; the bill requires a qualified expert witness to be chosen
in that order of preference, unless the party calling the qualified expert witness
shows that it has made a diligent effort to secure a qualified expert witness from a
higher order of preference. The bill also specifies that the evidence of active efforts
to prevent the breakup of the Indian child's family must show that there has been
an ongoing, vigorous, and concerted level of case work and that the active efforts were
made in a manner that takes into account the prevailing social and cultural values,
conditions, and way of life of the Indian child's tribe and to utilize the available
resources of the Indian child's tribe, tribal and other Indian child welfare agencies,
extended family members, other individual Indian caregivers, and other culturally
appropriate service providers.
Order of placement preference. ICWA further requires an Indian child who
is accepted for an out-of-home care placement or a preadoptive placement to be
placed in the least restrictive setting which most approximates a family and in which
the Indian child's special needs, if any, may be met and requires an Indian child to
be placed within reasonable proximity to his or her home, taking into account any
special needs of the Indian child. ICWA also requires that a preference be given, in
the absence of good cause to the contrary, to a placement with a member of the Indian
child's extended family, a foster home licensed, approved, or specified by the Indian
child's tribe, an Indian foster home licensed or approved by an authorized
non-Indian licensing authority, or an institution for children approved by an Indian
tribe or operated by an Indian organization that has a program suitable to meet the
Indian child's needs, unless the Indian child's tribe has established a different order
of preference. ICWA also specifies that the standards to be applied in meeting the
placement preference requirements of ICWA are the prevailing social and cultural
standards of the Indian community in which the Indian child's parent or extended
family resides or with which the parent or extended family maintains social and
cultural ties.
This bill requires the juvenile court, in placing or changing the placement of an
Indian child who is in need of protection or services, in placing an Indian child in a
preadoptive placement following a TPR, or in placing an Indian child in temporary
physical custody, to designate one of the following as the placement for the Indian
child, in the order of preference listed, unless the Indian child's tribe has established
a different order of preference, good cause is shown for departing from that order of
preference or, in the case of placing an Indian child in temporary physical custody,
emergency conditions necessitate departing from that order of preference:
1. The home of an extended family member of the Indian child.
2. A foster home or treatment foster home licensed, approved, or specified by
the Indian child's tribe.
3. An Indian foster home or treatment foster home licensed or approved by the
Department of Children and Families (DCF), a county department of human services
or social services (county department), or a child welfare agency.
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 child.
The bill requires the juvenile court to designate a placement that is the least
restrictive setting that most approximates a family, that meets the Indian child's
special needs, if any, and that is within reasonable proximity to the Indian child's
home, taking into account the Indian child's special needs. The bill also specifies that
the standards to be applied in meeting the placement preference requirements of the
bill are the prevailing social and cultural standards of the Indian community in
which the Indian child's parent or extended family members reside or with which the
parent or extended family members maintain social and cultural ties.
In addition, the bill requires a determination as to whether there is good cause
to depart from the order of placement preference requirements of the bill to be based
on: 1) the request of a parent or, if the Indian child is of sufficient age and
developmental level to make an informed decision, the Indian child, unless the
request is made for the purpose of avoiding the application of the bill and ICWA; 2)
any extraordinary physical, mental, or emotional health needs of the Indian child
requiring highly specialized treatment services as established by the testimony of an
expert witness, including a qualified expert witness; and 3) the unavailability of a
suitable placement after diligent efforts have been made to place the child in
accordance with those order of placement preference requirements.
Invalid placements. Finally, with respect to involuntary out-of-home care
placements and TPR proceedings, ICWA permits the Indian child or the Indian
child's parent, Indian custodian, or tribe to petition any court of competent
jurisdiction to invalidate an out-of-home care placement or TPR upon a showing
that the placement or TPR violated any provision of ICWA relating to out-of-home
care placements or TPR.
This bill permits any Indian child who is the subject of an out-of-home care
placement or of a TPR proceeding, any parent or Indian custodian of that Indian
child, or the Indian child's tribe to move the juvenile court to invalidate that
out-of-home care placement or TPR on the grounds that the out-of-home care
placement was made or the TPR was ordered in violation of ICWA relating to
out-of-home care placements or TPR. If the juvenile court finds that those grounds
exist, the juvenile court must invalidate the out-of-home care placement or TPR.
Voluntary out-of-home care placements or TPR; consent; withdrawal
ICWA. Under ICWA, the consent of a parent to an out-of-home care placement
of, or a TPR to, an Indian child is not valid unless executed in writing, recorded before
a judge of a court of competent jurisdiction, and accompanied by the judge's
certification that the terms and consequences of the consent were fully explained in
detail and were fully understood by the parent. ICWA also requires the court to
certify that the parent fully understood the explanation in English or that the
explanation was interpreted into a language that the parent understood. Under
ICWA, any consent given prior to, or within ten days after, the birth of an Indian
child, is not valid. ICWA permits a parent to withdraw his or her consent to a TPR
for any reason prior to the entry of a final decree of TPR, or to withdraw his or her
consent to an out-of-home care placement at any time, and the Indian child must
be returned to the parent. After the entry of a final decree of adoption of an Indian
child, the Indian child's parent may withdraw consent to the adoption of the Indian
child on the grounds of fraud or duress and may petition the court to vacate the
decree. If the court finds that the consent was obtained through fraud or duress, the
court must vacate the decree and return the Indian child to his or her parent, except
that no adoption that has been effective for at least two years may be invalidated by
the withdrawal of consent on the grounds of fraud or duress.
Consent. This bill provides that a voluntary consent to an out-of-home care
or placement of, or TPR to, an Indian child is valid only if the consent is executed in
writing, recorded before a judge, and accompanied by a written certification by the
judge that the terms and consequences of the consent were fully explained in detail
to and were fully understood by the parent. The bill also requires the judge to certify
that the parent fully understood the explanation in English or that the explanation
was interpreted into a language that the parent understood. Under the bill, any
consent to an out-of-home care placement or TPR given prior to or within ten days
after the birth of an Indian child is not valid.
Withdrawal of consent. The bill permits a parent who has consented to TPR
to an Indian child to withdraw the consent for any reason at any time prior to the
entry of a final order terminating parental rights, or a parent who has consented to
an out-of-home care placement of an Indian child to withdraw that consent at any
time, and the Indian child must be returned to his or her parent unless a CHIPS or
guardianship order or a voluntary placement agreement provides otherwise. After
the entry of a final order granting adoption, a parent who has consented to TPR to
an Indian child may withdraw that consent and move the juvenile court for relief
from the order on the grounds that the consent was obtained through fraud or duress,
if the motion is filed within two years after the entry of an order granting adoption
of the Indian child. If the juvenile court finds that the consent was obtained through
fraud or duress, the juvenile court must vacate the TPR order and, if applicable, the
order granting adoption.
Adoption
Order of placement preference. ICWA requires, when an Indian child is
placed for adoption, that a preference be given, in the absence of good cause to the
contrary, to a placement with a member of the Indian child's extended family, other
members of the Indian child's tribe, or other Indian families, unless the Indian child's
tribe has established a different order of preference. ICWA also specifies that the
standards to be applied in meeting the placement preference requirements of ICWA
are the prevailing social and cultural standards of the Indian community in which
the Indian child's parent or extended family resides or with which the parent or
extended family maintains social and cultural ties.
This bill requires DCF, a county department, or a child welfare agency, in
placing an Indian child for adoption or in investigating or making a recommendation
regarding the adoptive placement of an Indian child, and a juvenile court, in
determining whether an adoptive placement is in the best interests of an Indian
child, to give preference to a placement with one of the following, in the order of
preference listed, unless the Indian child's tribe has established a different order of
preference or good cause is shown for departing from that order of preference:
1. An extended family member of the Indian child.
2. Another member of the Indian child's tribe.
3. Another Indian family.
The bill also specifies that the standards to be applied in meeting the placement
preference requirements of the bill are the prevailing social and cultural standards
of the Indian community in which the Indian child's parent or extended family
members reside or with which the parent or extended family members maintain
social and cultural ties.
In addition, the bill requires a determination as to whether there is good cause
to depart from the order of placement preference requirements of the bill to be based
on: 1) the request of a parent or, if the Indian child is of sufficient age and
developmental level to make an informed decision, the Indian child, unless the
request is made for the purpose of avoiding the application of the bill and ICWA; 2)
any extraordinary physical, mental, or emotional health needs of the Indian child
requiring highly specialized treatment services as established by a qualified expert
witness; and 3) the unavailability of a suitable placement after active efforts have
been made to place the child in accordance with those order of placement preference
requirements.
Return of custody. ICWA permits a biological parent or former Indian
custodian of an Indian child who has been adopted to petition for return of custody
of the Indian child when a final decree of adoption of the Indian child has been
vacated or set aside or when the adoptive parents of the Indian child voluntarily
consent to TPR to the Indian child. Under ICWA, the state court must grant the
petition unless there is a showing that return of custody is not in the best interests
of the Indian child. This bill permits the former parent or former Indian custodian
of an Indian child who has been adopted to petition for the return of custody of the
Indian child when a final order granting adoption of the Indian child is vacated or
set aside or the parental rights of all adoptive parents of the Indian child are
voluntarily terminated. The juvenile court must grant the petition unless there is
a showing of good cause that return of custody is not in the best interest of the Indian
child.
Adoptee information. Finally, ICWA requires a state court that enters a final
decree of adoption of an Indian child to: 1) provide the U.S. secretary of the interior
with a copy of the decree, together with such other information as may be necessary
to show the name and tribal affiliation of the Indian child, the names and addresses
of the Indian child's biological parents, the names and addresses of the Indian child's
adoptive parents, and the identity of any agency having files or information relating
to the adoptive placement of the Indian child; and 2) inform an Indian individual who
has reached the age of 18 years and who was the subject of an adoptive placement,
upon application, of the tribal affiliation, if any, of the individual's biological parents
and with such other information as may be necessary to protect any rights flowing
from the individual's tribal relationship. ICWA also provides that, when a biological
parent has filed an affidavit requesting that his or her identity remain confidential,
the court must include that affidavit with the information provided to the U.S.
secretary of the interior.
This bill requires a juvenile court that enters an order granting adoption of an
Indian child to: 1) provide the U.S. secretary of the interior with a copy of the order,
together with such other records and papers pertaining to the adoption proceeding
as may be necessary to provide that secretary with the name and tribal affiliation
of the Indian child, the names and addresses of the Indian child's birth parents, the
names and addresses of the Indian child's adoptive parents, and the identity of any
agency that has in its possession any files or information relating to the adoptive
placement of the Indian child; 2) give the birth parent an opportunity to file an
affidavit indicating that the birth parent wishes the U.S. secretary of the interior to
maintain the confidentiality of the birth parent's identity and include that affidavit
with the information provided to the U.S. secretary of the interior; and 3) provide or
arrange to provide an Indian adoptee who is 18 years of age or older, upon request,
with the tribal affiliation, if any, of the adoptee's birth parents and with such other
information as may be necessary to protect any rights accruing to the adoptee as a
result of that affiliation.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB421, s. 1
1Section
1. 48.01 (2) of the statutes is repealed and recreated to read:
AB421,12,62
48.01
(2) In Indian child custody proceedings, the best interests of the Indian
3child shall be determined in accordance with the federal Indian Child Welfare Act,
425 USC 1901 to
1963, and the policy specified in this subsection. It is the policy of
5this state for courts and agencies responsible for child welfare to do all of the
6following:
AB421,13,2
1(a) Cooperate fully with Indian tribes in order to ensure that the federal Indian
2Child Welfare Act is enforced in this state.
AB421,13,43
(b) Protect the best interests of Indian children and promote the stability and
4security of Indian tribes and families by doing all of the following:
AB421,13,85
1. Establishing minimum standards for the removal of Indian children from
6their families and placing those children in out-of-home care placements,
7preadoptive placements, or adoptive placements that will reflect the unique value of
8Indian culture.
AB421,13,1692. Using practices, in accordance with the federal Indian Child Welfare Act,
25
10USC 1901 to
1963, this section, and other applicable law, that are designed to prevent
11the voluntary or involuntary out-of-home care placement of Indian children and,
12when an out-of-home care placement, adoptive placement, or preadoptive
13placement is necessary, placing an Indian child in a placement that reflects the
14unique values of the Indian child's tribal culture and that is best able to assist the
15Indian child in establishing, developing, and maintaining a political, cultural, and
16social relationship with the Indian child's tribe and tribal community.
AB421, s. 2
17Section
2. 48.02 (2) of the statutes is amended to read:
AB421,13,2218
48.02
(2) "Child"
, when used without further qualification, means a person who
19is less than 18 years of age, except that for purposes of investigating or prosecuting
20a person who is alleged to have violated a state or federal criminal law or any civil
21law or municipal ordinance, "child" does not include a person who has attained 17
22years of age.
AB421, s. 3
23Section
3. 48.02 (8d) of the statutes is created to read:
AB421,14,3
148.02
(8d) "Indian" means any person who is a member of an Indian tribe or
2who is an Alaska native and a member of a regional corporation, as defined in
43 USC
31606.
AB421, s. 4
4Section
4. 48.02 (8m) of the statutes is created to read: