SB572, s. 242
8Section
242. 938.02 (15c) of the statutes is repealed and recreated to read:
SB572,113,139
938.02
(15c) "Reservation" means Indian country, as defined in
18 USC 1151,
10or any land not covered under that section to which the title is either held by the
11United States in trust for the benefit of an Indian tribe or individual or held by an
12Indian tribe or individual, subject to a restriction by the United States against
13alienation.
SB572, s. 243
14Section
243. 938.02 (18g) of the statutes is repealed.
SB572, s. 244
15Section
244. 938.02 (18j) of the statutes is created to read:
SB572,113,2016
938.02
(18j) "Tribal court" means a court that has jurisdiction over juvenile
17custody proceedings, and that is either a court of Indian offenses or a court
18established and operated under the code or custom of an Indian tribe, or any other
19administrative body of an Indian tribe that is vested with authority over Indian
20juvenile custody proceedings.
SB572, s. 245
21Section
245. 938.028 of the statutes is repealed and recreated to read:
SB572,113,25
22938.028 Indian juvenile welfare. (1) Declaration of policy. In Indian
23juvenile custody proceedings, the best interests of the Indian juvenile shall be
24determined consistent with the federal Indian Child Welfare Act,
25 USC 1901 to
251963. It is the policy of this state to do all of the following:
SB572,114,2
1(a) Cooperate fully with Indian tribes in order to ensure that the federal Indian
2Child Welfare Act is enforced in this state.
SB572,114,43
(b) Protect the best interests of Indian juveniles and promote the stability and
4security of Indian tribes and families by doing all of the following:
SB572,114,75
1. Establishing minimum standards for the removal of Indian juveniles from
6their families and the placement of those juveniles in out-of-home care placements
7that will reflect the unique value of Indian culture.
SB572,114,1582. Using practices, in accordance with the federal Indian Child Welfare Act,
25
9USC 1901 to
1963, this section, and other applicable law, that are designed to prevent
10the voluntary or involuntary out-of-home care placement of Indian juveniles and,
11when an out-of-home care placement is necessary, placing an Indian juvenile in a
12placement that reflects the unique values of the Indian juvenile's tribal culture and
13that is best able to assist the Indian juvenile in establishing, developing, and
14maintaining a political, cultural, and social relationship with the Indian juvenile's
15tribe and tribal community.
SB572,114,16
16(2) Definitions. In this section:
SB572,114,2117
(a) "Extended family member" means a person who is defined as a member of
18an Indian juvenile's extended family by the law or custom of the Indian juvenile's
19tribe or, in the absence of such a law or custom, a person who has attained the age
20of 18 years and who is the Indian juvenile's grandparent, aunt, uncle, brother, sister,
21brother-in-law, sister-in-law, niece, nephew, first cousin, 2nd cousin, or stepparent.
SB572,114,2422
(b) "Indian juvenile custody proceeding" means a proceeding under s. 938.13
23(4), (6), (6m), or (7) that is governed by the federal Indian Child Welfare Act,
25 USC
241901 to
1963, in which an out-of-home care placement may occur.
SB572,115,6
1(c) "Out-of-home care placement" means the removal of an Indian juvenile
2from his or her parent or Indian custodian for temporary placement in a foster home,
3treatment foster home, group home, residential care center for children and youth,
4or shelter care facility, in the home of a relative other than a parent, or in the home
5of a guardian, from which placement the parent or Indian custodian cannot have the
6juvenile returned upon demand.
SB572,115,77
(d) "Qualified expert witness" means a person who is any of the following:
SB572,115,108
1. A member of the Indian juvenile's tribe recognized by the Indian juvenile's
9tribal community as knowledgeable regarding the tribe's customs relating to family
10organization or child-rearing practices.
SB572,115,1211
2. A member of another tribe who is knowledgeable regarding the customs of
12the Indian juvenile's tribe relating to family organization or child-rearing practices.
SB572,115,1613
3. A professional person having substantial education and experience in the
14person's professional speciality and having extensive knowledge of the customs,
15traditions, and values of the Indian juvenile's tribe relating to family organization
16and child-rearing practices.
SB572,115,1917
4. A layperson having substantial experience in the delivery of juvenile and
18family services to Indians and substantial knowledge of the prevailing social and
19cultural standards and child-rearing practices of the Indian juvenile's tribe.
SB572,116,4
20(3) Jurisdiction over Indian juvenile custody proceedings. (a)
Applicability.
21This section and the federal Indian Child Welfare Act,
25 USC 1901 to
1963, apply
22to any Indian juvenile custody proceeding regardless of whether the Indian juvenile
23is in the legal custody or physical custody of an Indian parent, Indian custodian,
24extended family member, or other person at the commencement of the proceeding
25and whether the Indian juvenile resides or is domiciled on or off of a reservation. A
1court assigned to exercise jurisdiction under this chapter may not determine
2whether this section and the federal Indian Child Welfare Act,
25 USC 1901 to
1963,
3apply to an Indian juvenile custody proceeding based on whether the Indian juvenile
4is part of an existing Indian family.
SB572,116,115
(b)
Exclusive tribal jurisdiction. 1. An Indian tribe shall have exclusive
6jurisdiction over any Indian juvenile custody proceeding involving an Indian
7juvenile who resides or is domiciled within the reservation of the tribe, except when
8that jurisdiction is otherwise vested in the state by federal law and except as
9provided in subd. 2. If an Indian juvenile is a ward of a tribal court, the Indian tribe
10shall retain exclusive jurisdiction regardless of the residence or domicile of the
11juvenile.
SB572,116,2212
2. Subdivision 1. does not prevent an Indian juvenile who resides or is domiciled
13within a reservation, but who is temporarily located off the reservation, from being
14taken into and held in custody under ss. 938.19 to 938.21 in order to prevent
15imminent physical harm or damage to the Indian juvenile. The person taking the
16Indian juvenile into custody or the intake worker shall immediately release the
17Indian juvenile from custody upon determining that holding the Indian juvenile in
18custody is no longer necessary to prevent imminent physical damage or harm to the
19Indian juvenile and shall expeditiously restore the Indian juvenile to his or her
20parent or Indian custodian, release the Indian juvenile to an appropriate official of
21the Indian juvenile's tribe, or initiate an Indian juvenile custody proceeding, as may
22be appropriate.
SB572,117,323
(c)
Transfer of proceedings to tribe. In any Indian juvenile custody proceeding
24under this chapter involving an out-of-home placement of an Indian juvenile who
25is not residing or domiciled within the reservation of the Indian juvenile's tribe, the
1court assigned to exercise jurisdiction under this chapter shall, upon the petition of
2the Indian juvenile's parent, Indian custodian, or tribe, transfer the proceeding to the
3jurisdiction of the tribe unless any of the following applies:
SB572,117,44
1. A parent of the Indian juvenile objects to the transfer.
SB572,117,65
2. The Indian juvenile's tribe does not have a tribal court or tribal court of the
6Indian juvenile's tribe declines jurisdiction.
SB572,117,97
3. The court determines that good cause exists to deny the transfer. The court
8may determine that good cause exists to deny the transfer only if the person opposing
9the transfer shows to the satisfaction of the court any of the following:
SB572,117,1010
a. That the Indian juvenile is 12 years of age or over and objects to the transfer.
SB572,117,1711
b. That the evidence or testimony necessary to decide the case cannot be
12presented in tribal court without undue hardship to the parties or the witnesses and
13that the tribal court is unable to mitigate the hardship by making arrangements to
14receive the evidence or testimony by use of telephone or live audiovisual means, by
15hearing the evidence or testimony at a location that is convenient to the parties and
16witnesses, or by use of other means permissible under the tribal court's rules of
17evidence.
SB572,118,218
(d)
Declination of jurisdiction. If the court assigned to exercise jurisdiction
19under this chapter determines that the petitioner in an Indian juvenile custody
20proceeding has improperly removed the Indian juvenile from the custody of his or her
21parent or Indian custodian or has improperly retained custody of the Indian juvenile
22after a visit or other temporary relinquishment of custody, the court shall decline
23jurisdiction over the petition and immediately return the Indian juvenile to the
24custody of the parent or Indian custodian, unless the court determines that returning
1the Indian juvenile to his or her parent or Indian custodian would subject the Indian
2juvenile to substantial and immediate danger or the threat of that danger.
SB572,118,43
(e)
Intervention. An Indian juvenile's Indian custodian or tribe may intervene
4at any point in an Indian juvenile custody proceeding under this chapter.
SB572,118,95
(f)
Full faith and credit. The state shall give full faith and credit to the public
6acts, records, and judicial proceedings of any Indian tribe that are applicable to an
7Indian juvenile custody proceeding to the same extent that the state gives full faith
8and credit to the public acts, records, and judicial proceedings of any other
9governmental entity.
SB572,118,25
10(4) Court proceedings. (a)
Notice. In any involuntary proceeding under s.
11938.13 (4), (6), (6m), or (7) involving the out-of-home care placement of a juvenile
12whom the court knows or has reason to know is an Indian juvenile, the court or party
13seeking the out-of-home care placement shall, for the first hearing at the plea,
14fact-finding, and dispositional stages of the proceeding, notify the Indian juvenile's
15parent, Indian custodian, and tribe, by certified mail of the pending proceeding and
16of their right to intervene in the proceeding. Notice of subsequent hearings in a stage
17of a proceeding shall be in writing and may be given by mail, personal delivery, or
18facsimile transmission, but not by electronic mail. If the identity or location of the
19Indian juvenile's parent, Indian custodian, or tribe cannot be determined, that notice
20shall be given to the U.S. secretary of the interior in like manner. The next hearing
21in the proceeding may not be held until at least 10 days after receipt of the notice by
22the parent, Indian custodian, and tribe or until at least 25 days after receipt of the
23notice by the U.S. secretary of the interior. On request of the parent, Indian
24custodian, or tribe, the court shall grant a continuance of up to 20 additional days
25to enable the requester to prepare for that hearing.
SB572,119,8
1(b)
Appointment of counsel. Whenever an Indian juvenile is the subject of a
2proceeding under s. 938.13 (4), (6), (6m), or (7) involving the removal of the Indian
3juvenile from his or her home or the placement of the Indian juvenile in an
4out-of-home care placement, the Indian juvenile's parent or Indian custodian shall
5have the right to be represented by court-appointed counsel as provided in s. 938.23
6(2g). The court may also, in its discretion, appoint counsel for the Indian juvenile
7under s. 938.23 (1m) or (3) if the court finds that the appointment is in the best
8interests of the Indian juvenile.
SB572,119,139
(c)
Examination of reports and other documents. Each party to a proceeding
10under s. 938.13 (4), (6), (6m), or (7) involving the out-of-home care placement of an
11Indian juvenile shall have the right to examine all reports or other documents filed
12with the court upon which any decision with respect to the out-of-home care
13placement may be based.
SB572,119,1714
(d)
Out-of-home care placement; serious damage and active efforts. The court
15may not order an Indian juvenile who is in need of protection or services under s.
16938.13 (4), (6), (6m), or (7) to be removed from the Indian juvenile's home and placed
17in an out-of-home care placement unless all of the following occur:
SB572,119,2118
1. The court finds by clear and convincing evidence, including the testimony
19of one or more qualified expert witnesses chosen in the order of preference listed in
20par. (e), that continued custody of the Indian juvenile by the parent or Indian
21custodian is likely to result in serious emotional or physical damage to the juvenile.
SB572,120,222
2. The court finds by clear and convincing evidence that active efforts, as
23described in par. (f), have been made to provide remedial services and rehabilitation
24programs designed to prevent the breakup of the Indian family and that those efforts
1have proved unsuccessful. The court shall make that finding notwithstanding that
2a circumstance specified in s. 938.355 (2d) (b) 1. to 4. applies.
SB572,120,43
(e)
Qualified expert witness; order of preference. A qualified expert witness
4shall be chosen in the following order of preference:
SB572,120,55
1. A member of the Indian juvenile's tribe described in sub. (2) (d) 1.
SB572,120,66
2. A member of another tribe described in sub. (2) (d) 2.
SB572,120,77
3. A professional person described in sub. (2) (d) 3.
SB572,120,88
4. A layperson described described in sub. (2) (d) 4.
SB572,120,199
(f)
Active efforts standard. The court may not order an Indian juvenile to be
10placed in an out-of-home care placement unless the evidence of active efforts under
11par. (d) 2. shows that there has been a vigorous and concerted level of case work
12beyond the level that typically constitutes reasonable efforts, as described in s.
13938.355 (2c). The active efforts shall be made in a manner that takes into account
14the prevailing social and cultural values, conditions, and way of life of the Indian
15juvenile's tribe and that utilizes the available resources of the Indian juvenile's tribe,
16tribal and other Indian child welfare agencies, extended family members of the
17Indian juvenile, and other individual Indian caregivers. The court's consideration
18of whether active efforts were made under par. (d) 2. shall include whether all of the
19following activities were conducted:
SB572,120,2120
1. The Indian juvenile's tribe was requested to convene traditional and
21customary support, actions, and services to resolve the Indian family's issues.
SB572,120,2422
2. Representatives of the Indian juvenile's tribe were identified, notified, and
23invited to participate in all aspects of the Indian juvenile custody proceeding at the
24earliest possible point in the proceeding.
SB572,121,2
13. Extended family members of the Indian juvenile were consulted to identify
2and provide family structure and support for the Indian juvenile.
SB572,121,33
4. Frequent visitation was made to the Indian juvenile's home.
SB572,121,54
5. Contact was made with extended family members of the Indian juvenile to
5assure appropriate cultural connections.
SB572,121,76
6. All family preservation alternatives appropriate to the Indian juvenile's
7tribe were exhausted.
SB572,121,118
7. Community resources offering housing, financial, and transportation
9assistance were identified, information about those resources was provided to the
10Indian family, and the Indian family was actively assisted in accessing those
11resources.
SB572,121,18
12(5) Invalidation of action. Any Indian juvenile in need of protection or services
13under s. 938.13 (4), (6), (6m), or (7) who is the subject of an out-of-home care
14placement, any parent or Indian custodian from whose custody that Indian juvenile
15was removed, or the Indian juvenile's tribe may move the court to invalidate that
16out-of-home care placement on the grounds that the out-of-home care placement
17was made in violation of sub. (3) or (4) or
25 USC 1911 or
1912. If the court finds that
18those grounds exist, the court shall invalidate the out-of-home care placement.
SB572,122,2
19(6) Placement of Indian juvenile. (a)
Out-of-home care placement;
20preferences. Any Indian juvenile in need of protection or services under s. 938.13 (4),
21(6), (6m), or (7) who is placed in an out-of-home care placement shall be placed in
22the least restrictive setting that most approximates a family, that meets the Indian
23juvenile's special needs, if any, and that is within reasonable proximity to the Indian
24juvenile's home, taking into account those special needs. Subject to pars. (b) to (d),
25in placing such an Indian juvenile in an out-of-home care placement, preference
1shall be given, in the absence of good cause, as described in par. (d), to the contrary,
2to a placement in one of the following, in the order of preference listed:
SB572,122,33
1. The home of an extended family member of the Indian juvenile.
SB572,122,54
2. A foster home or treatment foster home licensed, approved, or specified by
5the Indian juvenile's tribe.
SB572,122,76
3. An Indian foster home or treatment foster home licensed or approved by the
7department, a county department, or a child welfare agency.
SB572,122,108
4. A group home or residential care center for children and youth approved by
9an Indian tribe or operated by an Indian organization that has a program suitable
10to meet the needs of the Indian juvenile.
SB572,122,1911
(b)
Tribal or personal preferences. If the Indian juvenile's tribe has established,
12by resolution, an order of preference that is different from the order specified in par.
13(a), the order of preference established by that tribe shall be followed, in the absence
14of good cause, as described in par. (d), to the contrary, so long as the placement is the
15least restrictive setting appropriate for the Indian juvenile's needs as specified in
16par. (a). When appropriate, the preference of the Indian juvenile or parent shall be
17considered, and, when a parent who has consented to the placement evidences a
18desire for anonymity, that desire shall be given weight, in determining the
19placement.
SB572,122,2420
(c)
Social and cultural standards. The standards to be applied in meeting the
21placement preference requirements of this subsection shall be the prevailing social
22and cultural standards of the Indian community in which the Indian juvenile's
23parents or extended family members reside or with which the Indian juvenile's
24parents or extended family members maintain social and cultural ties.
SB572,123,3
1(d)
Good cause. 1. Whether there is good cause to depart from the order of
2placement preference under par. (a) or (b) shall be determined based on any one or
3more of the following considerations:
SB572,123,84
a. When appropriate, the request of the Indian juvenile's parent or, if the Indian
5juvenile is of sufficient age and developmental level to make an informed decision,
6the Indian juvenile, unless the request is made for the purpose of avoiding the
7application of this section and the federal Indian Child Welfare Act,
26 USC 1901 to
81963.
SB572,123,139
b. Any extraordinary physical, mental, or emotional health needs of the Indian
10juvenile requiring highly specialized treatment services as established by the
11testimony of an export witness, including a qualified expert witness. The length of
12time that an Indian juvenile has been in a placement does not, in itself, constitute
13an extraordinary emotional health need.
SB572,123,1614
c. The unavailability of a suitable placement for the Indian juvenile after active
15efforts, as described in sub. (4) (f), have been made to place the Indian juvenile in the
16order of preference under par. (a) or (b).
SB572,123,1817
2. The burden of establishing good cause to depart from the order of placement
18preference under par. (a) or (b) shall be on the party requesting that departure.
SB572,123,2519
(e)
Report of placement. The department of health and family services, a county
20department, or a child welfare agency shall maintain a record of each out-of-home
21care placement made of an Indian juvenile who is in need of protection or services
22under s. 938.13 (4), (6), (6m), or (7), evidencing the efforts made to comply with the
23placement preference requirements specified in this subsection, and shall make that
24record available at any time on the request of the U.S. secretary of the interior or the
25Indian juvenile's tribe.
SB572,124,10
1(7) Return of custody; removal from out-of-home care placement. If an
2Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m),
3or (7) is removed from an out-of-home care placement for the purpose of placing the
4Indian juvenile in another out-of-home care placement, a preadoptive placement,
5as defined in s. 48.028 (2) (f), or an adoptive placement, as defined in s. 48.028 (2) (a),
6the placement shall be made in accordance with this section and s. 48.028. Removal
7of such an Indian juvenile from an out-of-home care placement for the purpose of
8returning the Indian juvenile to the home of the parent or Indian custodian from
9whose custody the Indian juvenile was originally removed is not subject to this
10section.
SB572,124,16
11(8) Higher state or federal standard applicable. The federal Indian Child
12Welfare Act,
25 USC 1911 to
1963, supersedes this chapter in any Indian juvenile
13custody proceeding governed by that act, except that in any case in which this
14chapter provides a higher standard of protection for the rights of an Indian juvenile's
15parent or Indian custodian than the rights provided under that act, the court shall
16apply the standard under this chapter.
SB572,124,19
17(9) Rules. The department shall promulgate rules to implement and
18administer this section and the federal Indian Child Welfare Act,
25 USC 1901 to
191963.
SB572, s. 246
20Section
246. 938.13 (intro.) of the statutes is amended to read:
SB572,124,24
21938.13 Jurisdiction over juveniles alleged to be in need of protection
22or services. (intro.)
The Except as provided in s. 938.028 (3), the court has exclusive
23original jurisdiction over a juvenile alleged to be in need of protection or services
24which can be ordered by the court if any of the following conditions applies:
SB572, s. 247
25Section
247. 938.15 of the statutes is amended to read:
SB572,125,8
1938.15 Jurisdiction of other courts to determine legal custody. Nothing 2Except as provided in s. 938.028 (3), nothing in this chapter deprives another court
3of the right to determine the legal custody juvenile by habeas corpus or to determine
4the legal custody or guardianship of a juvenile if the legal custody or guardianship
5is incidental to the determination of an action pending in that court.
But Except as
6provided in s. 938.028 (3), the jurisdiction of the court assigned to exercise
7jurisdiction under this chapter and ch. 48 is paramount in all cases involving
8juveniles alleged to come within the provisions of ss. 938.12 to 938.14.
SB572, s. 248
9Section
248. 938.185 (4) (title) of the statutes is amended to read:
SB572,125,1010
938.185
(4) (title)
American Indian juveniles.
SB572, s. 249
11Section
249. 938.185 (4) (intro.) of the statutes is amended to read:
SB572,125,1512
938.185
(4) (intro.) Venue for a proceeding under s. 938.12 or 938.13 (12) based
13on an allegation that an
American Indian juvenile has committed a delinquent act
14may not be in the county specified in sub. (1) (a), unless that county is specified in
15sub. (1) (b) or (c), if all of the following circumstances apply:
SB572, s. 250
16Section
250. 938.185 (4) (a) of the statutes is amended to read:
SB572,125,2017
938.185
(4) (a) At the time of the alleged delinquent act the juvenile was under
18an order of a
tribe's tribal court, other than a tribal court order relating to adoption,
19physical placement or visitation with the juvenile's parent, or permanent
20guardianship.
SB572, s. 251
21Section
251. 938.185 (4) (b) of the statutes is amended to read:
SB572,126,322
938.185
(4) (b) At the time of the alleged delinquent act the juvenile was
23physically outside the boundaries of
that tribe's
the reservation
of the Indian tribe
24of the tribal court and any off-reservation trust land of either that
Indian tribe or a
25member of that
Indian tribe as a direct consequence of a tribal court order under par.
1(a), including a tribal court order placing the juvenile in the home of a relative of the
2juvenile who on or after the date of the tribal court order resides physically outside
3the boundaries of a reservation and off-reservation trust land.
SB572, s. 252
4Section
252. 938.19 (2) of the statutes is amended to read:
SB572,126,165
938.19
(2) Notification of parent, guardian, legal custodian, Indian
6custodian. When a juvenile is taken into physical custody under this section, the
7person taking the juvenile into custody shall immediately attempt to notify the
8parent, guardian,
and legal custodian
, and Indian custodian of the juvenile by the
9most practical means. The person taking the juvenile into custody shall continue
10such attempt until the parent, guardian,
and legal custodian
, and Indian custodian 11of the juvenile are notified, or the juvenile is delivered to an intake worker under s.
12938.20 (3), whichever occurs first. If the juvenile is delivered to the intake worker
13before the parent, guardian,
and legal custodian
, and Indian custodian are notified,
14the intake worker, or another person at his or her direction, shall continue the
15attempt to notify until the parent, guardian,
and legal custodian
, and Indian
16custodian of the juvenile are notified.
SB572, s. 253
17Section
253. 938.20 (2) (ag) of the statutes is amended to read:
SB572,126,2018
938.20
(2) (ag) Except as provided in pars. (b) to (g), a person taking a juvenile
19into custody shall make every effort to release the juvenile immediately to the
20juvenile's parent, guardian
or, legal custodian
, or Indian custodian.
SB572, s. 254
21Section
254. 938.20 (2) (b) of the statutes is amended to read:
SB572,126,2522
938.20
(2) (b) If the juvenile's parent, guardian
or, legal custodian
, or Indian
23custodian is unavailable, unwilling
, or unable to provide supervision for the juvenile,
24the person who took the juvenile into custody may release the juvenile to a
25responsible adult after counseling or warning the juvenile as may be appropriate.
SB572, s. 255
1Section
255. 938.20 (3) of the statutes is amended to read:
SB572,127,142
938.20
(3) Notification to parent, guardian, legal custodian, Indian
3custodian of release. If the juvenile is released under sub. (2) (b) to (d) or (g), the
4person who took the juvenile into custody shall immediately notify the juvenile's
5parent, guardian,
and legal custodian
, and Indian custodian of the time and
6circumstances of the release and the person, if any, to whom the juvenile was
7released. If the juvenile is not released under sub. (2), the person who took the
8juvenile into custody shall arrange in a manner determined by the court and law
9enforcement agencies for the juvenile to be interviewed by the intake worker under
10s. 938.067 (2). The person who took the juvenile into custody shall make a statement
11in writing with supporting facts of the reasons why the juvenile was taken into
12physical custody and shall give a copy of the statement to the intake worker and to
13any juvenile 10 years of age or older. If the intake interview is not done in person,
14the report may be read to the intake worker.
SB572, s. 256
15Section
256. 938.20 (7) (c) 1. of the statutes is amended to read: