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 expert 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.
c. The unavailability of a suitable placement for the Indian juvenile after diligent efforts have been made to place the Indian juvenile in the order of preference under par. (a) or (b).
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.
(e) Report of placement. 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.
(7) 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.
(8) Higher state or federal standard applicable. The federal Indian Child Welfare Act,
25 USC 1901 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.
94,258
Section
258. 938.028 (2) (c) of the statutes, as affected by 2009 Wisconsin Act .... (this act), is amended to read:
938.028 (2) (c) "Out-of-home care placement" means the removal of an Indian juvenile from the home of his or her parent or Indian custodian for temporary placement in a foster home, treatment foster home, group home, residential care center for children and youth, or shelter care facility, in the home of a relative other than a parent, or in the home of a guardian, from which placement the parent or Indian custodian cannot have the juvenile returned upon demand. "Out-of-home care placement" does not include holding an Indian juvenile in custody under ss. 938.19 to 938.21.
94,259
Section
259. 938.028 (6) (a) 2. and 3. of the statutes, as affected by 2009 Wisconsin Act .... (this act), are amended to read:
938.028 (6) (a) 2. A foster home or treatment foster home licensed, approved, or specified by the Indian juvenile's tribe.
3. An Indian foster home or treatment foster home licensed or approved by the department, a county department, or a child welfare agency.
94,260
Section
260. 938.13 (intro.) of the statutes is amended to read:
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:
94,261
Section
261. 938.15 of the statutes is amended to read:
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 of a 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.
94,262
Section
262. 938.185 (4) (title) of the statutes is amended to read:
938.185 (4) (title) American Indian juveniles.
94,263
Section
263. 938.185 (4) (intro.) of the statutes is amended to read:
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:
94,264
Section
264. 938.185 (4) (a) of the statutes is amended to read:
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.
94,265
Section
265. 938.185 (4) (b) of the statutes is amended to read:
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.
94,266
Section
266. 938.19 (2) of the statutes is amended to read:
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.
94,267
Section
267. 938.20 (2) (ag) of the statutes is amended to read:
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.
94,268
Section
268. 938.20 (2) (b) of the statutes is amended to read:
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.
94,269
Section
269. 938.20 (3) of the statutes is amended to read:
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.
94,270
Section
270. 938.20 (7) (c) 1. of the statutes is amended to read:
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.
94,271
Section
271. 938.20 (7) (d) of the statutes is amended to read:
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.
94,272
Section
272. 938.20 (8) (a) of the statutes is amended to read:
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 who is the subject of an Indian juvenile custody proceeding, as defined in s. 938.028 (2) (b), 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.
94,273
Section
273. 938.207 (1g) of the statutes is created to read:
938.207 (1g) Indian juvenile; placement preferences. An Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is held in physical custody under s. 938.205 (1) shall be placed in compliance with s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b), unless the person responsible for determining the placement finds good cause, as described in s. 938.028 (6) (d), for departing from the order of placement preference under s. 938.028 (6) (a) or finds that emergency conditions necessitate departing from that order. When the reason for departing from that order is resolved, the Indian juvenile shall be placed in compliance with the order of placement preference under s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b).
94,274
Section
274. 938.21 (2) (title) of the statutes is amended to read:
938.21 (2) (title) Proceedings concerning
runaway or delinquent juveniles.
94,275
Section
275. 938.21 (2) (ag) of the statutes is amended to read:
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.
94,276
Section
276. 938.21 (3) (ag) of the statutes is amended to read:
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.
94,277
Section
277. 938.21 (3) (am) of the statutes is amended to read:
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.
94,278
Section
278. 938.21 (3) (b) of the statutes is amended to read:
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).
94,279
Section
279. 938.21 (3) (d) of the statutes is amended to read:
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 who is the subject of an Indian juvenile custody proceeding, as defined in s. 938.028 (2) (b), the right to counsel under s. 938.028 (4) (b).
94,280
Section
280. 938.21 (3) (e) of the statutes is amended to read:
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.
94,281
Section
281. 938.21 (5) (d) 1. of the statutes is renumbered 938.21 (5) (d) and amended to read:
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.
94,284
Section
284. 938.23 (2g) of the statutes is created to read:
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 the home of his or her parent or Indian custodian 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 counsel as provided in sub. (4).
94,285
Section
285. 938.23 (3) of the statutes is amended to read:
938.23 (3) Power of the court to appoint counsel. Except as provided in this subsection, at any time, upon request or on its own motion, the court may appoint counsel for the juvenile or any party, unless the juvenile or the party has or wishes to retain counsel of his or her own choosing. The Except as provided in sub. (2g), the court may not appoint counsel for any party other than the juvenile in a proceeding under s. 938.13.
94,286
Section
286. 938.23 (4) of the statutes is amended to read:
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.
94,287
Section
287. 938.235 (4) (a) 7. of the statutes is amended to read:
938.235 (4) (a) 7. Petition for relief from a judgment terminating parental rights under s. 48.028 or 48.46.
94,288
Section
288. 938.24 (2r) (title) of the statutes is amended to read:
938.24 (2r) (title) American Indian juvenile; notification of tribal court.
94,289
Section
289. 938.24 (2r) (a) (intro.) of the statutes is amended to read:
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:
94,290
Section
290. 938.24 (2r) (a) 1. of the statutes is amended to read:
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.
94,291
Section
291. 938.24 (2r) (a) 2. of the statutes is amended to read:
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.
94,292
Section
292. 938.24 (2r) (b) of the statutes is amended to read:
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).
94,293
Section
293. 938.243 (1) (e) of the statutes is amended to read:
938.243 (1) (e) The right of the juvenile to counsel under s. 938.23.
94,294
Section
294. 938.25 (2g) (title) of the statutes is amended to read:
938.25 (2g) (title) American Indian juvenile; consultation with tribal court.
94,295
Section
295. 938.255 (1) (cm) of the statutes is amended to read:
938.255
(1) (cm) If the petition is initiating proceedings
other than proceedings under s. 938.12, 938.125 or 938.13 (12) under s. 938.13 (4), (6), (6m), or (7), whether the juvenile may be subject to the federal Indian Child Welfare Act,
25 USC 1901 to
1963, and, if the juvenile may be subject to that act, the names and addresses of the juvenile's Indian custodian, if any, and Indian tribe, if known.
94,296
Section
296. 938.255 (1) (cr) 1. a. of the statutes is amended to read:
938.255 (1) (cr) 1. a. The juvenile is an American Indian juvenile.
94,297
Section
297. 938.255 (1) (cr) 1. b. of the statutes is amended to read:
938.255 (1) (cr) 1. b. 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.
94,298
Section
298. 938.255 (1) (cr) 1. c. of the statutes is amended to read:
938.255 (1) (cr) 1. c. 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. b., 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.
94,299
Section
299. 938.255 (1) (cr) 2. of the statutes is amended to read:
938.255 (1) (cr) 2. If the statement under subd. 1. is included in the petition and if the intake worker, district attorney, or corporation counsel has been 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 with respect to the alleged delinquent act, a statement to that effect.
