SB288: Bill Text

SB288,119,13 48.89 (1) The recommendation of the department is required for the adoption of a child if the child is not under the guardianship of a county department under s. 48.57 (1) (e) or (hm) or a child welfare agency under s. 48.61 (5). In making a recommendation under this subsection with respect to an Indian child, the department shall comply with the order of placement preference under s. 48.028 (7) (a) or, if applicable, s. 48.028 (7) (c), unless the department finds good cause, as described in s. 48.028 (7) (e), for departing from that order.

SB288, s. 221 Section 221. 48.91 (3) of the statutes is amended to read:

SB288,119,23 48.91 (3) If after the hearing and a study of the report required by s. 48.88 and the recommendation required by s. 48.841 or 48.89, the court is satisfied that the necessary consents or recommendations have been filed and that the adoption is in the best interests of the child, the court shall make an order granting the adoption. In determining whether the adoption is in the best interests of an Indian child, the court shall comply with the order of placement preference under s. 48.028 (7) (a) or, if applicable, s. 48.028 (7) (c), unless the court finds good cause, as described in s. 48.028 (7) (e), for departing from that order. The order may change the name of the minor to that requested by petitioners.

SB288, s. 222 Section 222. 48.93 (1d) of the statutes is amended to read:

SB288,120,4 48.93 (1d) All records and papers pertaining to an adoption proceeding shall be kept in a separate locked file and may not be disclosed except under sub. (1g) or, (1r), or (1v), s. 48.432, 48.433, 48.434, 48.48 (17) (a) 9. or 48.57 (1) (j), or by order of the court for good cause shown.

SB288, s. 223 Section 223. 48.93 (1v) of the statutes is created to read:

SB288,120,8 48.93 (1v) (a) At the time a court enters an order granting adoption of an Indian child, the court shall provide the U.S. secretary of the interior with the information specified in s. 48.028 (9) (a) and (b).

SB288,120,11 (b) At the request of an Indian adoptee who is 18 years of age or older, the court that entered the order granting adoption of the adoptee shall provide or arrange to provide the adoptee with the information specified in s. 48.028 (9) (c).

SB288, s. 224 Section 224. 48.977 (4) (a) 1. of the statutes is amended to read:

SB288,120,14 48.977 (4) (a) 1. The child or the child's guardian or, legal custodian, or Indian custodian.

SB288, s. 225 Section 225. 48.977 (4) (b) 6. of the statutes is amended to read:

SB288,120,19 48.977 (4) (b) 6. A statement of whether the child may be subject to the federal Indian child welfare act Child Welfare Act, 25 USC 1911 1901 to 1963 , and, if the child may be subject to that act, the names and addresses of the child's Indian custodian, if any, and Indian tribe, if known.

SB288, s. 226 Section 226. 48.977 (4) (c) 1. j. of the statutes is created to read:

SB288,120,22 48.977 (4) (c) 1. j. If the child is an Indian child, the Indian child's Indian custodian, if any, and tribe, if known.

SB288, s. 227 Section 227. 48.977 (4) (c) 2. of the statutes is amended to read:

SB288,121,6 48.977 (4) (c) 2. Service Except as provided in subd. 2m., service shall be made by 1st class mail at least 7 days before the hearing or by personal service at least 7 days before the hearing or, if with reasonable diligence a party specified in subd. 1. cannot be served by mail or personal service, service shall be made by publication of a notice published as a class 1 notice under ch. 985. In determining which newspaper is likely to give notice as required under s. 985.02 (1), the petitioner shall consider the residence of the party, if known, or the residence of the relatives of the party, if known, or the last-known location of the party.

SB288, s. 228 Section 228. 48.977 (4) (c) 2m. of the statutes is created to read:

SB288,121,17 48.977 (4) (c) 2m. If the petitioner knows or has reason to know that the child is an Indian child, service under subd. 2. to the Indian child's parent, Indian custodian, and tribe shall be provided in the manner specified in s. 48.028 (4) (a). No hearing may be held under par. (cm) until at least 10 days after receipt of service by the Indian child's parent, Indian custodian, and tribe or, if the identity or location of the Indian child's parent, Indian custodian, or tribe cannot be determined, until at least 10 days after receipt of service by the U.S. secretary of the interior. On request of the Indian child's parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for the hearing.

SB288, s. 229 Section 229. 48.977 (4) (g) 4. of the statutes is created to read:

SB288,121,21 48.977 (4) (g) 4. If the child is an Indian child, the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless the court finds good cause, as described in s. 48.028 (7) (e), for departing from that order.

SB288, s. 230 Section 230. 48.978 (2) (b) 11. of the statutes is amended to read:

SB288,122,2 48.978 (2) (b) 11. A statement of whether the child may be subject to the federal Indian Child Welfare Act, 25 USC 1911 1901 to 1963, and, if the child may be subject to that act, the names and addresses of the child's Indian custodian, if any, and Indian tribe, if known.

SB288, s. 231 Section 231. 48.981 (1) (cs) of the statutes is renumbered 48.02 (8g) and amended to read:

SB288,122,6 48.02 (8g) "Indian child" means any unmarried person who is under the age of 18 years and is affiliated with an Indian tribe or band in any of the following ways:

SB288,122,7 1. As a member of the Indian tribe or band.

SB288,122,9 2. As a person who is both eligible for membership in the Indian tribe or band and is the biological child of a member of the Indian tribe or band.

SB288, s. 232 Section 232. 48.981 (1) (ct) of the statutes is amended to read:

SB288,122,13 48.981 (1) (ct) "Indian unborn child" means an unborn child who, when born, may be eligible for affiliation with an Indian tribe or band in any of the following ways:

SB288,122,14 1. As a member of the Indian tribe or band.

SB288,122,16 2. As a person who is both eligible for membership in the Indian tribe or band and the biological child of a member of the Indian tribe or band.

SB288, s. 233 Section 233. 48.981 (1) (i) of the statutes is amended to read:

SB288,122,21 48.981 (1) (i) "Tribal agent" means the person designated under 25 CFR 23.12 by an Indian tribe or band to receive notice of involuntary child custody proceedings under the Indian child welfare act federal Indian Child Welfare Act, 25 USC 1901 to 1963.

SB288, s. 234 Section 234. 48.981 (3) (bm) (intro.) of the statutes is amended to read:

SB288,123,7 48.981 (3) (bm) Notice of report to Indian tribal agent. (intro.) In a county which that has wholly or partially within its boundaries a federally recognized Indian reservation or a bureau of Indian affairs service area for the Ho-Chunk tribe, if a county department which that receives a report under par. (a) pertaining to a child or unborn child knows or has reason to know that the child is an Indian child who resides in the county or that the unborn child is an Indian unborn child whose expectant mother resides in the county, the county department shall provide notice, which shall consist only of the name and address of the Indian child or expectant mother and the fact that a report has been received about that Indian child or Indian unborn child, within 24 hours to one of the following:

SB288, s. 235 Section 235. 48.981 (3) (bm) 1. of the statutes is amended to read:

SB288,123,13 48.981 (3) (bm) 1. If the county department knows with which Indian tribe or band the child is affiliated, or with which Indian tribe or band the Indian unborn child, when born, may be eligible for affiliation, and it the Indian tribe is a Wisconsin tribe or band, the tribal agent of that tribe or band Indian tribe, the tribal agent of that tribe.

SB288, s. 236 Section 236. 48.981 (3) (bm) 2. of the statutes is amended to read:

SB288,123,20 48.981 (3) (bm) 2. If the county department does not know with which Indian tribe or band the child is affiliated, or with which Indian tribe or band the Indian unborn child, when born, may be eligible for affiliation, or the child or expectant mother is not affiliated with a Wisconsin Indian tribe or band, the tribal agent serving the reservation or Ho-Chunk service area where the child or expectant mother resides.

SB288, s. 237 Section 237. 48.981 (7) (a) 10m. of the statutes is amended to read:

SB288,124,2 48.981 (7) (a) 10m. A tribal court, or other adjudicative body authorized by a tribe or band an Indian tribe to perform child welfare functions, that exercises jurisdiction over children and unborn children alleged to be in need of protection or services for use in proceedings in which abuse or neglect of the child who is the subject of the report or record or abuse of the unborn child who is the subject of the report or record is an issue.

SB288, s. 238 Section 238. 48.981 (7) (a) 10r. of the statutes is amended to read:

SB288,124,9 48.981 (7) (a) 10r. A tribal court, or other adjudicative body authorized by a tribe or band an Indian tribe to perform child welfare functions, that exercises jurisdiction over children alleged to be in need of protection or services for use in proceedings in which an issue is the substantial risk of abuse or neglect of a child who, during the time period covered by the report or record, was in the home of the child who is the subject of the report or record.

SB288, s. 239 Section 239. 48.981 (7) (a) 11m. of the statutes is amended to read:

SB288,124,14 48.981 (7) (a) 11m. An attorney representing the interests of an Indian tribe or band in proceedings under subd. 10m. or 10r., of an Indian child in proceedings under subd. 10m. or 10r. or of an Indian unborn child in proceedings under subd. 10m.

SB288, s. 240 Section 240. 48.983 (1) (d) of the statutes is repealed.

SB288, s. 241 Section 241. 48.983 (1) (e) of the statutes is repealed.

SB288, s. 242 Section 242. 806.245 (1m) of the statutes is created to read:

SB288,124,22 806.245 (1m) The public acts, records, and judicial proceedings of any Indian tribe that are applicable to an Indian child custody proceeding, as defined in s. 48.028 (2) (d), or an Indian juvenile child custody proceeding, as defined in s. 938.028 (2) (b), shall be given full faith and credit by the state as provided in s. 48.028 (3) (f) or 938.028 (3) (f).

SB288, s. 243 Section 243. 938.01 (3) of the statutes is created to read:

SB288,125,3 938.01 (3) Indian juvenile welfare; declaration of policy. In Indian juvenile custody proceedings, the best interests of the Indian juvenile shall be determined in accordance with the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and the policy specified in this subsection. It is the policy of this state for courts and agencies responsible for juvenile welfare to do all of the following:

SB288,125,5 (a) Cooperate fully with Indian tribes in order to ensure that the federal Indian Child Welfare Act is enforced in this state.

SB288,125,7 (b) Protect the best interests of Indian juveniles and promote the stability and security of Indian tribes and families by doing all of the following:

SB288,125,10 1. Establishing minimum standards for the removal of Indian juveniles from their families and the placement of those juveniles in out-of-home care placements that will reflect the unique value of Indian culture.

SB288,125,18 2. Using practices, in accordance with the federal Indian Child Welfare Act, 25 USC 1901 to 1963, this section, and other applicable law, that are designed to prevent the voluntary or involuntary out-of-home care placement of Indian juveniles and, when an out-of-home care placement is necessary, placing an Indian juvenile in a placement that reflects the unique values of the Indian juvenile's tribal culture and that is best able to assist the Indian juvenile in establishing, developing, and maintaining a political, cultural, and social relationship with the Indian juvenile's tribe and tribal community.

SB288, s. 244 Section 244. 938.02 (8d) of the statutes is created to read:

SB288,125,22 938.02 (8d) "Indian" means any person who is a member of an Indian tribe or who is an Alaska native and a member of a regional corporation, as defined in 43 USC 1606.

SB288, s. 245 Section 245. 938.02 (8g) of the statutes is created to read:

SB288,125,25 938.02 (8g) "Indian juvenile" means an unmarried person who is under 18 years of age and who is affiliated with an Indian tribe in any of the following ways:

SB288,126,1 (a) As a member of the Indian tribe.

SB288,126,3 (b) As a person who is eligible for membership in the Indian tribe and is the biological child of a member of the Indian tribe.

SB288, s. 246 Section 246. 938.02 (8m) of the statutes is created to read:

SB288,126,5 938.02 (8m) "Indian juvenile's tribe" means one of the following:

SB288,126,7 (a) The Indian tribe in which an Indian juvenile is a member or eligible for membership.

SB288,126,10 (b) In the case of an Indian juvenile who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian juvenile has the more significant contacts.

SB288, s. 247 Section 247. 938.02 (8p) of the statutes is created to read:

SB288,126,18 938.02 (8p) "Indian custodian" means an Indian person who has legal custody under tribal law or custom or under state law of an Indian juvenile who is the subject of an Indian juvenile custody proceeding, as defined in s. 938.028 (2) (b), or of an Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is the subject of a temporary physical custody proceeding under ss. 939.19 to 938.21 or to whom temporary physical care, custody, and control has been transferred by the parent of that juvenile.

SB288, s. 248 Section 248. 938.02 (8r) of the statutes is created to read:

SB288,126,23 938.02 (8r) "Indian tribe" means any Indian tribe, band, nation, or other organized group or community of Indians that is recognized as eligible for the services provided to Indians by the U.S. secretary of the interior because of Indian status, including any Alaska native village, as defined in 43 USC 1602 (c).

SB288, s. 249 Section 249. 938.02 (9m) of the statutes is renumbered 938.02 (8b).

SB288, s. 250 Section 250. 938.02 (10m) of the statutes is amended to read:

SB288,127,5 938.02 (10m) "Juvenile", when used without further qualification, means a person who is less than 18 years of age, except that for purposes of investigating or prosecuting a person who is alleged to have violated a state or federal criminal law or any civil law or municipal ordinance, "juvenile" does not include a person who has attained 17 years of age.

SB288, s. 251 Section 251. 938.02 (12m) of the statutes is amended to read:

SB288,127,10 938.02 (12m) "Off-reservation trust land" means land in this state that is held in trust by the federal government for the benefit of a an Indian tribe or an American Indian individual and that is located outside the boundaries of a an Indian tribe's reservation.

SB288, s. 252 Section 252. 938.02 (13) of the statutes is amended to read:

SB288,128,2 938.02 (13) "Parent" means either a biological parent, a husband who has consented to the artificial insemination of his wife under s. 891.40, or a parent by adoption. If the juvenile is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803, "parent" includes a person acknowledged under s. 767.805 or a substantially similar law of another state or adjudicated to be the biological father. "Parent" does not include any person whose parental rights have been terminated. For purposes of the application of s. 938.028 and the federal Indian Child Welfare Act, 25 USC 1901 to 1963, "parent" means a biological parent, an Indian husband who has consented to the artificial insemination of his wife under s. 891.40, or a person who has lawfully adopted an Indian juvenile, including an adoption under tribal law or custom, and includes, in the case of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803, a person acknowledged under s. 767.805 or a substantially similar law of another state or adjudicated to be the biological father, but does not include any person whose parental rights have been terminated.

SB288, s. 253 Section 253. 938.02 (15) of the statutes is amended to read:

SB288,128,13 938.02 (15) "Relative" means a parent, stepparent, brother, sister, stepbrother, stepsister, half brother, half sister, brother-in-law, sister-in-law, first cousin, 2nd cousin, nephew, niece, uncle, aunt, stepuncle, stepaunt, or any person of a preceding generation as denoted by the prefix of grand, great, or great-great, whether by blood, marriage, or legal adoption, or the spouse of any person named in this subsection, even if the marriage is terminated by death or divorce. For purposes of the application of s. 938.028 and the federal Indian Child Welfare Act, 25 USC 1901 to 1963, "relative" includes an extended family member, as defined in s. 938.028 (2) (a), whether by blood, marriage, or adoption, including adoption under tribal law or custom.

SB288, s. 254 Section 254. 938.02 (15c) of the statutes is amended to read:

SB288,128,16 938.02 (15c) "Reservation"," except as otherwise provided in s. 938.028 (2) (e), means land in this state within the boundaries of the reservation of a tribe.

SB288, s. 255 Section 255. 938.02 (18g) of the statutes is repealed.

SB288, s. 256 Section 256. 938.02 (18j) of the statutes is created to read:

SB288,128,23 938.02 (18j) "Tribal court" means a court that has jurisdiction over juvenile custody proceedings, and that is either a court of Indian offenses or a court established and operated under the code or custom of an Indian tribe, or any other administrative body of an Indian tribe that is vested with authority over Indian juvenile custody proceedings.

SB288, s. 257 Section 257. 938.028 of the statutes is repealed and recreated to read:

SB288,129,4 938.028 Indian juvenile welfare. (1) Declaration of policy. In Indian juvenile custody proceedings, the best interests of the Indian juvenile shall be determined in accordance with the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and the policy specified in s. 938.01 (3).

SB288,129,5 (2) Definitions. In this section:

SB288,129,10 (a) "Extended family member" means a person who is defined as a member of an Indian juvenile's extended family by the law or custom of the Indian juvenile's tribe or, in the absence of such a law or custom, a person who has attained the age of 18 years and who is the Indian juvenile's grandparent, aunt, uncle, brother, sister, brother-in-law, sister-in-law, niece, nephew, first cousin, 2nd cousin, or stepparent.

SB288,129,13 (b) "Indian juvenile custody proceeding" means a proceeding under s. 938.13 (4), (6), (6m), or (7) that is governed by the federal Indian Child Welfare Act, 25 USC 1901 to 1963, in which an out-of-home care placement may occur.

SB288,129,21 (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.

SB288,129,22 (d) "Qualified expert witness" means a person who is any of the following: