SB288, s. 240
48.983 (1) (d) of the statutes is repealed.
SB288, s. 241
48.983 (1) (e) of the statutes is repealed.
SB288, s. 242
806.245 (1m) of the statutes is created to read:
The public acts, records, and judicial proceedings of any Indian 19
tribe that are applicable to an Indian child custody proceeding, as defined in s. 48.028 20
(2) (d), or an Indian juvenile child custody proceeding, as defined in s. 938.028 (2) (b), 21
shall be given full faith and credit by the state as provided in s. 48.028 (3) (f) or 22
938.028 (3) (f).
SB288, s. 243
938.01 (3) of the statutes is created to read:
938.01 (3) Indian juvenile welfare
declaration of policy.
In Indian juvenile 25
custody proceedings, the best interests of the Indian juvenile shall be determined in
accordance with the federal Indian Child Welfare Act, 25 USC 1901
, and the 2
policy specified in this subsection. It is the policy of this state for courts and agencies 3
responsible for juvenile welfare to do all of the following:
(a) Cooperate fully with Indian tribes in order to ensure that the federal Indian 5
Child Welfare Act is enforced in this state.
(b) Protect the best interests of Indian juveniles and promote the stability and 7
security of Indian tribes and families by doing all of the following:
1. Establishing minimum standards for the removal of Indian juveniles from 9
their families and the placement of those juveniles in out-of-home care placements 10
that will reflect the unique value of Indian culture.
2. Using practices, in accordance with the federal Indian Child Welfare Act, 25
, this section, and other applicable law, that are designed to prevent 13
the voluntary or involuntary out-of-home care placement of Indian juveniles and, 14
when an out-of-home care placement is necessary, placing an Indian juvenile in a 15
placement that reflects the unique values of the Indian juvenile's tribal culture and 16
that is best able to assist the Indian juvenile in establishing, developing, and 17
maintaining a political, cultural, and social relationship with the Indian juvenile's 18
tribe and tribal community.
SB288, s. 244
938.02 (8d) of the statutes is created to read:
"Indian" means any person who is a member of an Indian tribe or 21
who is an Alaska native and a member of a regional corporation, as defined in 43 USC
SB288, s. 245
938.02 (8g) of the statutes is created to read:
"Indian juvenile" means an unmarried person who is under 18 25
years of age and who is affiliated with an Indian tribe in any of the following ways:
(a) As a member of the Indian tribe.
(b) As a person who is eligible for membership in the Indian tribe and is the 3
biological child of a member of the Indian tribe.
SB288, s. 246
938.02 (8m) of the statutes is created to read:
"Indian juvenile's tribe" means one of the following:
(a) The Indian tribe in which an Indian juvenile is a member or eligible for 7
(b) In the case of an Indian juvenile who is a member of or eligible for 9
membership in more than one tribe, the Indian tribe with which the Indian juvenile 10
has the more significant contacts.
SB288, s. 247
938.02 (8p) of the statutes is created to read:
"Indian custodian" means an Indian person who has legal custody 13
under tribal law or custom or under state law of an Indian juvenile who is the subject 14
of an Indian juvenile custody proceeding, as defined in s. 938.028 (2) (b), or of an 15
Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) 16
who is the subject of a temporary physical custody proceeding under ss. 939.19 to 17
938.21 or to whom temporary physical care, custody, and control has been 18
transferred by the parent of that juvenile.
SB288, s. 248
938.02 (8r) of the statutes is created to read:
"Indian tribe" means any Indian tribe, band, nation, or other 21
organized group or community of Indians that is recognized as eligible for the 22
services provided to Indians by the U.S. secretary of the interior because of Indian 23
status, including any Alaska native village, as defined in 43 USC 1602
SB288, s. 249
938.02 (9m) of the statutes is renumbered 938.02 (8b).
SB288, s. 250
938.02 (10m) of the statutes is amended to read:
"Juvenile", when used without further qualification,
means a 2
person who is less than 18 years of age, except that for purposes of investigating or 3
prosecuting a person who is alleged to have violated a state or federal criminal law 4
or any civil law or municipal ordinance, "juvenile" does not include a person who has 5
attained 17 years of age.
SB288, s. 251
938.02 (12m) of the statutes is amended to read:
"Off-reservation trust land" means land in this state that is held 8
in trust by the federal government for the benefit of a an Indian
tribe or an American 9Indian individual
and that is located outside the boundaries of a an Indian
SB288, s. 252
938.02 (13) of the statutes is amended to read:
"Parent" means either
a biological parent, a husband who has 13
consented to the artificial insemination of his wife under s. 891.40, or a parent by 14
adoption. If the juvenile is a nonmarital child who is not adopted or whose parents 15
do not subsequently intermarry under s. 767.803, "parent" includes a person 16
acknowledged under s. 767.805 or a substantially similar law of another state or 17
adjudicated to be the biological father. "Parent" does not include any person whose 18
parental rights have been terminated. For purposes of the application of s. 938.028
19and the federal Indian Child Welfare Act, 25 USC 1901 to 1963, "parent" means a
20biological parent, an Indian husband who has consented to the artificial
21insemination of his wife under s. 891.40, or a person who has lawfully adopted an
22Indian juvenile, including an adoption under tribal law or custom, and includes, in
23the case of a nonmarital child who is not adopted or whose parents do not
24subsequently intermarry under s. 767.803, a person acknowledged under s. 767.805
1or a substantially similar law of another state or adjudicated to be the biological
2father, but does not include any person whose parental rights have been terminated.
SB288, s. 253
938.02 (15) of the statutes is amended to read:
"Relative" means a parent, stepparent, brother, sister, stepbrother, 5
stepsister, half brother, half sister, brother-in-law, sister-in-law, first cousin, 2nd 6
cousin, nephew, niece, uncle, aunt, stepuncle, stepaunt, or any person of a preceding 7
generation as denoted by the prefix of grand, great, or great-great, whether by blood, 8
marriage, or legal adoption, or the spouse of any person named in this subsection, 9
even if the marriage is terminated by death or divorce. For purposes of the
10application of s. 938.028 and the federal Indian Child Welfare Act, 25 USC 1901 to
111963, "relative" includes an extended family member, as defined in s. 938.028 (2) (a),
12whether by blood, marriage, or adoption, including adoption under tribal law or
SB288, s. 254
938.02 (15c) of the statutes is amended to read:
," except as otherwise provided in s. 938.028 (2) (e), 16
means land in this state within the boundaries of the reservation of a tribe.
SB288, s. 255
938.02 (18g) of the statutes is repealed.
SB288, s. 256
938.02 (18j) of the statutes is created to read:
"Tribal court" means a court that has jurisdiction over juvenile 20
custody proceedings, and that is either a court of Indian offenses or a court 21
established and operated under the code or custom of an Indian tribe, or any other 22
administrative body of an Indian tribe that is vested with authority over Indian 23
juvenile custody proceedings.
SB288, s. 257
938.028 of the statutes is repealed and recreated to read:
1938.028 Indian juvenile welfare. (1) Declaration of policy.
In Indian 2
juvenile custody proceedings, the best interests of the Indian juvenile shall be 3
determined in accordance with the federal Indian Child Welfare Act, 25 USC 1901 4
, and the policy specified in s. 938.01 (3).
In this section:
(a) "Extended family member" means a person who is defined as a member of 7
an Indian juvenile's extended family by the law or custom of the Indian juvenile's 8
tribe or, in the absence of such a law or custom, a person who has attained the age 9
of 18 years and who is the Indian juvenile's grandparent, aunt, uncle, brother, sister, 10
brother-in-law, sister-in-law, niece, nephew, first cousin, 2nd cousin, or stepparent.
(b) "Indian juvenile custody proceeding" means a proceeding under s. 938.13 12
(4), (6), (6m), or (7) that is governed by the federal Indian Child Welfare Act, 25 USC
, in which an out-of-home care placement may occur.
(c) "Out-of-home care placement" means the removal of an Indian juvenile 15
from the home of his or her parent or Indian custodian for temporary placement in 16
a foster home, treatment foster home, group home, residential care center for 17
children and youth, or shelter care facility, in the home of a relative other than a 18
parent, or in the home of a guardian, from which placement the parent or Indian 19
custodian cannot have the juvenile returned upon demand. "Out-of-home care 20
placement" does not include holding an Indian juvenile in custody under ss. 938.19 21
(d) "Qualified expert witness" means a person who is any of the following:
1. A member of the Indian juvenile's tribe recognized by the Indian juvenile's 24
tribal community as knowledgeable regarding the tribe's customs relating to family 25
organization or child-rearing practices.
2. A member of another tribe who is knowledgeable regarding the customs of 2
the Indian juvenile's tribe relating to family organization or child-rearing practices.
3. A professional person having substantial education and experience in the 4
person's professional specialty and having substantial knowledge of the customs, 5
traditions, and values of the Indian juvenile's tribe relating to family organization 6
and child-rearing practices.
4. A layperson having substantial experience in the delivery of juvenile and 8
family services to Indians and substantial knowledge of the prevailing social and 9
cultural standards and child-rearing practices of the Indian juvenile's tribe.
(e) "Reservation" means Indian country, as defined in 18 USC 1151
, or any land 11
not covered under that section to which title is either held by the United States in 12
trust for the benefit of an Indian tribe or individual or held by an Indian tribe or 13
individual, subject to a restriction by the United States against alienation.
14(3) Jurisdiction over Indian juvenile custody proceedings.
This section and the federal Indian Child Welfare Act, 25 USC 1901
, apply 16
to any Indian juvenile custody proceeding regardless of whether the Indian juvenile 17
is in the legal custody or physical custody of an Indian parent, Indian custodian, 18
extended family member, or other person at the commencement of the proceeding 19
and whether the Indian juvenile resides or is domiciled on or off of a reservation. A 20
court assigned to exercise jurisdiction under this chapter may not determine 21
whether this section and the federal Indian Child Welfare Act, 25 USC 1901
apply to an Indian juvenile custody proceeding based on whether the Indian juvenile 23
is part of an existing Indian family.
(b) Exclusive tribal jurisdiction.
1. An Indian tribe shall have exclusive 25
jurisdiction over any Indian juvenile custody proceeding involving an Indian
juvenile who resides or is domiciled within the reservation of the tribe, except when 2
that jurisdiction is otherwise vested in the state by federal law and except as 3
provided in subd. 2. If an Indian juvenile is a ward of a tribal court, the Indian tribe 4
shall retain exclusive jurisdiction regardless of the residence or domicile of the 5
2. Subdivision 1. does not prevent an Indian juvenile who resides or is domiciled 7
within a reservation, but who is temporarily located off the reservation, from being 8
taken into and held in custody under ss. 938.19 to 938.21 in order to prevent 9
imminent physical harm or damage to the Indian juvenile. The person taking the 10
Indian juvenile into custody or the intake worker shall immediately release the 11
Indian juvenile from custody upon determining that holding the Indian juvenile in 12
custody is no longer necessary to prevent imminent physical damage or harm to the 13
Indian juvenile and shall expeditiously restore the Indian juvenile to his or her 14
parent or Indian custodian, release the Indian juvenile to an appropriate official of 15
the Indian juvenile's tribe, or initiate an Indian juvenile custody proceeding, as may 16
(c) Transfer of proceedings to tribe.
In any Indian juvenile custody proceeding 18
under this chapter involving an out-of-home placement of an Indian juvenile who 19
is not residing or domiciled within the reservation of the Indian juvenile's tribe, the 20
court assigned to exercise jurisdiction under this chapter shall, upon the petition of 21
the Indian juvenile's parent, Indian custodian, or tribe, transfer the proceeding to the 22
jurisdiction of the tribe unless any of the following applies:
1. A parent of the Indian juvenile objects to the transfer.
2. The Indian juvenile's tribe does not have a tribal court, or the tribal court of 25
the Indian juvenile's tribe declines jurisdiction.
3. The court determines that good cause exists to deny the transfer. In 2
determining whether good cause exists to deny the transfer, the court may not 3
consider any perceived inadequacy of the tribal social services department or the 4
tribal court of the Indian juvenile's tribe. The court may determine that good cause 5
exists to deny the transfer only if the person opposing the transfer shows by clear and 6
convincing evidence that any of the following applies:
a. The Indian juvenile is 12 years of age or over and objects to the transfer.
b. The evidence or testimony necessary to decide the case cannot be presented 9
in tribal court without undue hardship to the parties or the witnesses and that the 10
tribal court is unable to mitigate the hardship by making arrangements to receive 11
the evidence or testimony by use of telephone or live audiovisual means, by hearing 12
the evidence or testimony at a location that is convenient to the parties and 13
witnesses, or by use of other means permissible under the tribal court's rules of 14
c. The Indian juvenile's tribe received notice of the proceeding under sub. (4) 16
(a), the tribe has not indicated to the court in writing that the tribe is monitoring the 17
proceeding and may request a transfer at a later date, and because of gross 18
negligence the tribe has not petitioned for a transfer within 3 months after receiving 19
notice of the proceeding.
(d) Declination of jurisdiction.
If the court assigned to exercise jurisdiction 21
under this chapter determines that the petitioner in an Indian juvenile custody 22
proceeding has improperly removed the Indian juvenile from the custody of his or her 23
parent or Indian custodian or has improperly retained custody of the Indian juvenile 24
after a visit or other temporary relinquishment of custody, the court shall decline 25
jurisdiction over the petition and immediately return the Indian juvenile to the
custody of the parent or Indian custodian, unless the court determines that returning 2
the Indian juvenile to his or her parent or Indian custodian would subject the Indian 3
juvenile to substantial and immediate danger or the threat of that danger.
An Indian juvenile's Indian custodian or tribe may intervene 5
at any point in an Indian juvenile custody proceeding under this chapter.
(f) Full faith and credit.
The state shall give full faith and credit to the public 7
acts, records, and judicial proceedings of any Indian tribe that are applicable to an 8
Indian juvenile custody proceeding to the same extent that the state gives full faith 9
and credit to the public acts, records, and judicial proceedings of any other 10
11(4) Court proceedings.
In any involuntary proceeding under s. 12
938.13 (4), (6), (6m), or (7) involving the out-of-home care placement of a juvenile 13
whom the court knows or has reason to know is an Indian juvenile, the party seeking 14
the out-of-home care placement shall, for the first hearing of the proceeding, notify 15
the Indian juvenile's parent, Indian custodian, and tribe, by registered mail, return 16
receipt requested, of the pending proceeding and of their right to intervene in the 17
proceeding and shall file the return receipt with the court. Notice of subsequent 18
hearings in a proceeding shall be in writing and may be given by mail, personal 19
delivery, or facsimile transmission, but not by electronic mail. If the identity or 20
location of the Indian juvenile's parent, Indian custodian, or tribe cannot be 21
determined, that notice shall be given to the U.S. secretary of the interior in like 22
manner. The first hearing in the proceeding may not be held until at least 10 days 23
after receipt of the notice by the parent, Indian custodian, and tribe or until at least 24
10 days after receipt of the notice by the U.S. secretary of the interior. On request
of the parent, Indian custodian, or tribe, the court shall grant a continuance of up to 2
20 additional days to enable the requester to prepare for that hearing.
(b) Appointment of counsel.
Whenever an Indian juvenile is the subject of a 4
proceeding under s. 938.13 (4), (6), (6m), or (7) involving the removal of the Indian 5
juvenile from the home of his or her parent or Indian custodian or the placement of 6
the Indian juvenile in an out-of-home care placement, the Indian juvenile's parent 7
or Indian custodian shall have the right to be represented by court-appointed 8
counsel as provided in s. 938.23 (2g). The court may also, in its discretion, appoint 9
counsel for the Indian juvenile under s. 938.23 (1m) or (3) if the court finds that the 10
appointment is in the best interests of the Indian juvenile.
(c) Examination of reports and other documents.
Each party to a proceeding 12
under s. 938.13 (4), (6), (6m), or (7) involving the out-of-home care placement of an 13
Indian juvenile shall have the right to examine all reports or other documents filed 14
with the court upon which any decision with respect to the out-of-home care 15
placement may be based.
(d) Out-of-home care placement; serious damage and active efforts.
The court 17
may not order an Indian juvenile who is in need of protection or services under s. 18
938.13 (4), (6), (6m), or (7) to be removed from the home of the Indian juvenile's parent 19
or Indian custodian and placed in an out-of-home care placement unless all of the 20
1. The court finds by clear and convincing evidence, including the testimony 22
of one or more qualified expert witnesses chosen in the order of preference listed in 23
par. (e), that continued custody of the Indian juvenile by the parent or Indian 24
custodian is likely to result in serious emotional or physical damage to the juvenile.
2. The court finds by clear and convincing evidence that active efforts, as 2
described in par. (f) 1., have been made to provide remedial services and 3
rehabilitation programs designed to prevent the breakup of the Indian juvenile's 4
family and that those efforts have proved unsuccessful. The court shall make that 5
finding notwithstanding that a circumstance specified in s. 938.355 (2d) (b) 1. to 4. 6
(e) Qualified expert witness; order of preference.
1. Any party to a proceeding 8
under s. 938.13 (4), (6), (6m), or (7) involving the out-of-home placement of an Indian 9
juvenile may call a qualified expert witness. Subject to subd. 2., a qualified expert 10
witness shall be chosen in the following order of preference:
a. A member of the Indian juvenile's tribe described in sub. (2) (d) 1.
b. A member of another tribe described in sub. (2) (d) 2.
c. A professional person described in sub. (2) (d) 3.
d. A layperson described in sub. (2) (d) 4.
2. A qualified expert witness from a lower order of preference may be chosen 16
only if the party calling the qualified expert witness shows that it has made a diligent 17
effort to secure the attendance of a qualified expert witness from a higher order of 18
preference. A qualified expert witness from a lower order of preference may not be 19
chosen solely because a qualified expert witness from a higher order of preference is 20
able to participate in the Indian juvenile custody proceeding only by telephone or live 21
audiovisual means as prescribed in s. 807.13 (2). The fact that a qualified expert 22
witness called by one party is from a lower order of preference under subd. 1. than 23
a qualified expert witness called by another party may not be the sole consideration 24
in weighing the testimony and opinions of the qualified expert witnesses. The court 25
shall determine the qualifications of a qualified expert witness as provided in ch. 907.
(f) Active efforts standard.
1. The court may not order an Indian juvenile to 2
be removed from the home of the Indian juvenile's parent or Indian custodian and 3
placed in an out-of-home care placement unless the evidence of active efforts under 4
par. (d) 2. shows that there has been an ongoing, vigorous, and concerted level of case 5
work and that the active efforts were made in a manner that takes into account the 6
prevailing social and cultural values, conditions, and way of life of the Indian 7
juvenile's tribe and that utilizes the available resources of the Indian juvenile's tribe, 8
tribal and other Indian child welfare agencies, extended family members of the 9
Indian juvenile, other individual Indian caregivers, and other culturally appropriate 10
service providers. The court's consideration of whether active efforts were made 11
under par. (d) 2. shall include whether all of the following activities were conducted:
a. Representatives designated by the Indian juvenile's tribe with substantial 13
knowledge of the prevailing social and cultural standards and child-rearing 14
practices within the tribal community were requested to evaluate the circumstances 15
of the Indian juvenile's family and to assist in developing a case plan that uses the 16
resources of the tribe and of the Indian community, including traditional and 17
customary support, actions, and services, to address those circumstances.
am. A comprehensive assessment of the situation of the Indian juvenile's 19
family was completed, including a determination of the likelihood of protecting the 20
Indian juvenile's health, safety, and welfare effectively in the Indian juvenile's home.
b. Representatives of the Indian juvenile's tribe were identified, notified, and 22
invited to participate in all aspects of the Indian juvenile custody proceeding at the 23
earliest possible point in the proceeding and their advice was actively solicited 24
throughout the proceeding.
c. Extended family members of the Indian juvenile, including extended family 2
members who were identified by the Indian juvenile's tribe or parents, were notified 3
and consulted with to identify and provide family structure and support for the 4
Indian juvenile, to assure cultural connections, and to serve as placement resources 5
for the Indian juvenile.
d. Arrangements were made to provide natural and unsupervised family 7
interaction in the most natural setting that can ensure the Indian juvenile's safety, 8
as appropriate to the goals of the Indian juvenile's permanency plan, including 9
arrangements for transportation and other assistance to enable family members to 10
participate in that interaction.
e. All available family preservation strategies were offered or employed and the 12
involvement of the Indian juvenile's tribe was requested to identify those strategies 13
and to ensure that those strategies are culturally appropriate to the Indian juvenile's 14
f. Community resources offering housing, financial, and transportation 16
assistance and in-home support services, in-home intensive treatment services, 17
community support services, and specialized services for members of the Indian 18
juvenile's family with special needs were identified, information about those 19
resources was provided to the Indian juvenile's family, and the Indian juvenile's 20
family was actively assisted or offered active assistance in accessing those resources.
g. Monitoring of client progress and client participation in services was 22
h. A consideration of alternative ways of addressing the needs of the Indian 24
juvenile's family was provided, if services did not exist or if existing services were not 25
available to the family.
2. If any of the activities specified in subd. 1. a. to h. were not conducted, the 2
person seeking the out-of-home care placement shall submit documentation to the 3
court explaining why the activity was not conducted.
4(5) Invalidation of action.
Any Indian juvenile in need of protection or services 5
under s. 938.13 (4), (6), (6m), or (7) who is the subject of an out-of-home care 6
placement, any parent or Indian custodian from whose custody that Indian juvenile 7
was removed, or the Indian juvenile's tribe may move the court to invalidate that 8
out-of-home care placement on the grounds that the out-of-home care placement 9
was made in violation of 25 USC 1911
. If the court finds that those grounds 10
exist, the court shall invalidate the out-of-home care placement.
11(6) Placement of Indian juvenile.
(a) Out-of-home care placement;
Any Indian juvenile in need of protection or services under s. 938.13 (4), 13
(6), (6m), or (7) who is placed in an out-of-home care placement shall be placed in 14
the least restrictive setting that most approximates a family, that meets the Indian 15
juvenile's special needs, if any, and that is within reasonable proximity to the Indian 16
juvenile's home, taking into account those special needs. Subject to pars. (b) to (d), 17
in placing such an Indian juvenile in an out-of-home care placement, preference 18
shall be given, in the absence of good cause, as described in par. (d), to the contrary, 19
to a placement in one of the following, in the order of preference listed:
1. The home of an extended family member of the Indian juvenile.