SB288: Bill Text

SB288,22,10 (c) Examination of reports and other documents. Each party to a proceeding involving the out-of-home care placement of, termination of parental rights to, or return of custody under sub. (8) (a) of an Indian child shall have the right to examine all reports or other documents filed with the court upon which any decision with respect to the out-of-home care placement, termination of parental rights, or return of custody may be based.

SB288,22,14 (d) Out-of-home care placement; serious damage and active efforts. The court may not order an Indian child to be removed from the home of the Indian child's parent or Indian custodian and placed in an out-of-home care placement unless all of the following occur:

SB288,22,18 1. The court or jury finds by clear and convincing evidence, including the testimony of one or more qualified expert witnesses chosen in the order of preference listed in par. (f), that continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

SB288,22,24 2. The court or jury finds by clear and convincing evidence that active efforts, as described in par. (g) 1., have been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful. The court or jury shall make that finding notwithstanding that a circumstance specified in s. 48.355 (2d) (b) 1. to 5. applies.

SB288,23,3 (e) Involuntary termination of parental rights; serious damage and active efforts. The court may not order an involuntary termination of parental rights to an Indian child unless all of the following occur:

SB288,23,7 1. The court or jury finds beyond a reasonable doubt, including the testimony of one or more qualified expert witnesses chosen in the order of preference listed in par. (f), that the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

SB288,23,11 2. The court or jury finds by clear and convincing evidence that active efforts, as described in par. (g) 1., have been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful.

SB288,23,15 (f) Qualified expert witness; order of preference. 1. Any party to a proceeding involving the out-of-home placement of, or involuntary termination of parental rights to, an Indian child may call a qualified expert witness. Subject to subd. 2., a qualified expert witness shall be chosen in the following order of preference:

SB288,23,16 a. A member of the Indian child's tribe described in sub. (2) (g) 1.

SB288,23,17 b. A member of another tribe described in sub. (2) (g) 2.

SB288,23,18 c. A professional person described in sub. (2) (g) 3.

SB288,23,19 d. A layperson described in sub. (2) (g) 4.

SB288,24,5 2. A qualified expert witness from a lower order of preference may be chosen only if the party calling the qualified expert witness shows that it has made a diligent effort to secure the attendance of a qualified expert witness from a higher order of preference. A qualified expert witness from a lower order of preference may not be chosen solely because a qualified expert witness from a higher order of preference is able to participate in the Indian child custody proceeding only by telephone or live audiovisual means as prescribed in s. 807.13 (2). The fact that a qualified expert witness called by one party is from a lower order of preference under subd. 1. than a qualified expert witness called by another party may not be the sole consideration in weighing the testimony and opinions of the qualified expert witnesses. The court shall determine the qualifications of a qualified expert witness as provided in ch. 907.

SB288,24,17 (g) Active efforts standard. 1. The court may not order an Indian child to be removed from the home of the Indian child's parent or Indian custodian and placed in an out-of-home care placement unless the evidence of active efforts under par. (d) 2. or (e) 2. shows that there has been an ongoing, vigorous, and concerted level of case work and that the active efforts were made in a manner that takes into account the prevailing social and cultural values, conditions, and way of life of the Indian child's tribe and that utilizes the available resources of the Indian child's tribe, tribal and other Indian child welfare agencies, extended family members of the Indian child, other individual Indian caregivers, and other culturally appropriate service providers. The consideration by the court or jury of whether active efforts were made under par. (d) 2. or (e) 2. shall include whether all of the following activities were conducted:

SB288,24,23 a. Representatives designated by the Indian child's tribe with substantial knowledge of the prevailing social and cultural standards and child-rearing practice within the tribal community were requested to evaluate the circumstances of the Indian child's family and to assist in developing a case plan that uses the resources of the tribe and of the Indian community, including traditional and customary support, actions, and services, to address those circumstances.

SB288,25,3 am. A comprehensive assessment of the situation of the Indian child's family was completed, including a determination of the likelihood of protecting the Indian child's health, safety, and welfare effectively in the Indian child's home.

SB288,25,7 b. Representatives of the Indian child's tribe were identified, notified, and invited to participate in all aspects of the Indian child custody proceeding at the earliest possible point in the proceeding and their advice was actively solicited throughout the proceeding.

SB288,25,12 c. Extended family members of the Indian child, including extended family members who were identified by the Indian child's tribe or parents, were notified and consulted with to identify and provide family structure and support for the Indian child, to assure cultural connections, and to serve as placement resources for the Indian child.

SB288,25,17 d. Arrangements were made to provide natural and unsupervised family interaction in the most natural setting that can ensure the Indian child's safety, as appropriate to the goals of the Indian child's permanency plan, including arrangements for transportation and other assistance to enable family members to participate in that interaction.

SB288,25,20 e. All available family preservation strategies were offered or employed and the involvement of the Indian child's tribe was requested to identify those strategies and to ensure that those strategies are culturally appropriate to the Indian child's tribe.

SB288,26,2 f. Community resources offering housing, financial, and transportation assistance and in-home support services, in-home intensive treatment services, community support services, and specialized services for members of the Indian child's family with special needs were identified, information about those resources was provided to the Indian child's family, and the Indian child's family was actively assisted or offered active assistance in accessing those resources.

SB288,26,4 g. Monitoring of client progress and client participation in services was provided.

SB288,26,7 h. A consideration of alternative ways of addressing the needs of the Indian child's family was provided, if services did not exist or if existing services were not available to the family.

SB288,26,11 2. If any of the activities specified in subd. 1. a. to h. were not conducted, the person seeking the out-of-home care placement or involuntary termination of parental rights shall submit documentation to the court explaining why the activity was not conducted.

SB288,27,2 (5) Voluntary proceedings; consent; withdrawal. (a) Out-of-home care placement. A voluntary consent by a parent or Indian custodian to an out-of-home care placement of an Indian child under s. 48.63 (1) or (5) (b) is not valid unless the consent is executed in writing, recorded before a judge, and accompanied by a written certification by the judge that the terms and consequences of the consent were fully explained in detail to and were fully understood by the parent or Indian custodian. The judge shall also certify that the parent or Indian custodian fully understood the explanation in English or that the explanation was interpreted into a language that the parent or Indian custodian understood. Any consent given under this paragraph prior to or within 10 days after the birth of the Indian child is not valid. A parent or Indian custodian who has executed a consent under this paragraph may withdraw the consent for any reason at any time, and the Indian child shall be returned to the parent or Indian custodian. A parent or Indian custodian who has executed a consent under this paragraph may also move to invalidate the out-of-home care placement under sub. (6).

SB288,27,19 (b) Termination of parental rights. A voluntary consent by a parent to a termination of parental rights under s. 48.41 (2) (e) is not valid unless the consent is executed in writing, recorded before a judge, and accompanied by a written certification by the judge that the terms and consequences of the consent were fully explained in detail to and were fully understood by the parent. The judge shall also certify that the parent fully understood the explanation in English or that the explanation was interpreted into a language that the parent understood. Any consent given under this paragraph prior to or within 10 days after the birth of the Indian child is not valid. A parent who has executed a consent under this paragraph may withdraw the consent for any reason at any time prior to the entry of a final order terminating parental rights, and the Indian child shall be returned to his or her parent unless an order or agreement specified in s. 48.368 (1) or 938.368 (1) provides for a different placement. After the entry of a final order terminating parental rights, a parent who has executed a consent under this paragraph may withdraw that consent as provided in par. (c), move to invalidate the termination of parental rights under sub. (6), or move for relief from the judgment under s. 48.46 (2).

SB288,28,7 (c) Withdrawal of consent after order granting adoption. After the entry of a final order granting adoption of an Indian child, a parent who has consented to termination of parental rights under s. 48.41 (2) (e) may withdraw that consent and move the court for relief from the judgment on the grounds that the consent was obtained through fraud or duress. Any such motion shall be filed within 2 years after the entry of an order granting adoption of the Indian child. A motion under this subsection does not affect the finality or suspend the operation of the judgment or order terminating parental rights or granting adoption. If the court finds that the consent was obtained through fraud or duress, the court shall vacate the judgment or order terminating parental rights and, if applicable, the order granting adoption and return the Indian child to the custody of the parent, unless an order or agreement specified in s. 48.368 (1) or 938.368 (1) that was in effect prior to the termination of parental rights provides for a different placement.

SB288,28,16 (6) Invalidation of action. Any Indian child who is the subject of an out-of-home care placement or of a termination of parental rights proceeding, any parent or Indian custodian from whose custody that Indian child was removed, or the Indian child's tribe may move the court to invalidate that out-of-home care placement or termination of parental rights on the grounds that the out-of-home care placement was made or the termination of parental rights was ordered in violation of 25 USC 1911, 1912, or 1913. If the court finds that those grounds exist, the court shall invalidate the out-of-home care placement or termination of parental rights.

SB288,28,20 (7) Placement of Indian child. (a) Adoptive placement; preferences. Subject to pars. (c) and (d), in placing an Indian child for adoption, preference shall be given, in the absence of good cause, as described in par. (e), to the contrary, to a placement with one of the following, in the order of preference listed:

SB288,28,21 1. An extended family member of the Indian child.

SB288,28,22 2. Another member of the Indian child's tribe.

SB288,28,23 3. Another Indian family.

SB288,29,7 (b) Out-of-home care or preadoptive placement; preferences. Any Indian child who is accepted for an out-of-home care placement or a preadoptive placement shall be placed in the least restrictive setting that most approximates a family, that meets the Indian child's special needs, if any, and that is within reasonable proximity to the Indian child's home, taking into account those special needs. Subject to pars. (c) to (e), in placing an Indian child in an out-of-home care placement or a preadoptive placement, preference shall be given, in the absence of good cause, as described in par. (e), to the contrary, to a placement in one of the following, in the order of preference listed:

SB288,29,8 1. The home of an extended family member of the Indian child.

SB288,29,10 2. A foster home or treatment foster home licensed, approved, or specified by the Indian child's tribe.

SB288,29,12 3. An Indian foster home or treatment foster home licensed or approved by the department, a county department, or a child welfare agency.

SB288,29,15 4. A group home or residential care center for children and youth approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the needs of the Indian child.

SB288,29,23 (bm) Temporary physical custody; preferences. Any Indian child who is being held in temporary physical custody under s. 48.205 (1) shall be placed in compliance with par. (b) or, if applicable, par. (c), unless the person responsible for determining the placement finds good cause, as described in par. (e), for departing from the order of placement preference under par. (b) or finds that emergency conditions necessitate departing from that order. When the reason for departing from that order is resolved, the Indian child shall be placed in compliance with the order of placement preference under par. (b) or, if applicable, par. (c).

SB288,30,9 (c) Tribal or personal preferences. In placing an Indian child under par. (a), (b), or (bm), if the Indian child's tribe has established, by resolution, an order of preference that is different from the order specified in par. (a) or (b), the order of preference established by that tribe shall be followed, in the absence of good cause, as described in par. (e), to the contrary, so long as the placement under par. (a) is appropriate for the Indian child's special needs, if any, and the placement under par. (b) or (bm) is the least restrictive setting appropriate for the Indian child's needs as specified in par. (b). When appropriate, the preference of the Indian child or parent shall be considered, and, when a parent who has consented to the placement evidences a desire for anonymity, that desire shall be given weight, in determining the placement.

SB288,30,14 (d) Social and cultural standards. The standards to be applied in meeting the placement preference requirements of this subsection shall be the prevailing social and cultural standards of the Indian community in which the Indian child's parents or extended family members reside or with which the Indian child's parents or extended family members maintain social and cultural ties.

SB288,30,17 (e) Good cause. 1. Whether there is good cause to depart from the order of placement preference under par. (a), (b), or (c) shall be determined based on any one or more of the following considerations:

SB288,30,21 a. When appropriate, the request of the Indian child's parent or, if the Indian child is of sufficient age and developmental level to make an informed decision, the Indian child, unless the request is made for the purpose of avoiding the application of this section and the federal Indian Child Welfare Act, 25 USC 1901 to 1963.

SB288,31,2 b. Any extraordinary physical, mental, or emotional health needs of the Indian child requiring highly specialized treatment services as established by the testimony of an expert witness, including a qualified expert witness. The length of time that an Indian child has been in a placement does not, in itself, constitute an extraordinary emotional health need.

SB288,31,5 c. The unavailability of a suitable placement for the Indian child after diligent efforts have been made to place the Indian child in the order of preference under par. (a), (b), or (c).

SB288,31,7 2. The burden of establishing good cause to depart from the order of placement preference under par. (a), (b), or (c) shall be on the party requesting that departure.

SB288,31,13 (f) Report of placement. The department, a county department, or a child welfare agency shall maintain a record of each adoptive placement, out-of-home care placement, and preadoptive placement made of an Indian child, 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 child's tribe.

SB288,32,2 (8) Return of custody. (a) Adoption vacated, set aside, or terminated. If a final order granting adoption of an Indian child is vacated or set aside or if the parental rights to an Indian child of all adoptive parents of the Indian child are voluntarily terminated, the Indian child's former parent or former Indian custodian may petition for the return of custody of the Indian child. On receipt of a return of custody petition, the court shall set a date for a hearing on the petition that allows reasonable time for the parties to prepare. The court shall provide notice of the hearing to the guardian and legal custodian of the Indian child, to all other interested parties as provided in s. 48.27 (6), and to the Indian child's former parent and former Indian custodian. At the conclusion of the hearing, the court shall grant a petition for the return of custody of the Indian child to the Indian child's former parent or former Indian custodian unless there is a showing that return of custody is not in the best interests of the Indian child.

SB288,32,9 (b) Removal from out-of-home care placement. If an Indian child is removed from an out-of-home care placement for the purpose of placing the Indian child in another out-of-home care placement, a preadoptive placement, or an adoptive placement, the placement shall be made in accordance with this section. Removal of an Indian child from an out-of-home care placement for the purpose of returning the Indian child to the home of the parent or Indian custodian from whose custody the Indian child was originally removed is not subject to this section.

SB288,32,14 (9) Adoptee information. (a) Provision of information to U.S. secretary of the interior. 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 a copy of the order, together with such other records and papers pertaining to the adoption proceeding as may be necessary to provide that secretary with all of the following information:

SB288,32,15 1. The name and tribal affiliation of the Indian child.

SB288,32,16 2. The names and addresses of the Indian child's birth parents.

SB288,32,17 3. The names and addresses of the Indian child's adoptive parents.

SB288,32,19 4. The identity of any agency that has in its possession any files or information relating to the adoptive placement of the Indian child.

SB288,33,2 (b) Confidentiality of parent's identity. The court shall give the birth parent of an Indian child the opportunity to file an affidavit indicating that the birth parent wishes the U.S. secretary of the interior to maintain the confidentiality of the birth parent's identity. If the birth parent files that affidavit, the court shall include the affidavit with the information provided to the U.S. secretary of the interior under par. (a), and that secretary shall maintain the confidentiality of the birth parent's identity as required under 25 USC 1951 (a) and (b).

SB288,33,7 (c) Provision of tribal affiliation to adoptee. 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 tribal affiliation, if any, of the adoptee's birth parents and with such other information as may be necessary to protect any rights accruing to the adoptee as a result of that affiliation.

SB288,33,13 (10) Higher state or federal standard applicable. The federal Indian Child Welfare Act, 25 USC 1901 to 1963, supersedes this chapter in any Indian child 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 child's parent or Indian custodian than the rights provided under that act, the court shall apply the standard under this chapter.

SB288, s. 11 Section 11. 48.028 (2) (e) and (f) of the statutes, as affected by 2009 Wisconsin Act .... (this act), are amended to read:

SB288,33,23 48.028 (2) (e) "Out-of-home care placement" means the removal of an Indian child 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 child returned upon demand. "Out-of-home care placement" does not include an adoptive placement, a preadoptive placement, or holding an Indian child in custody under ss. 48.19 to 48.21.

SB288,34,3 (f) "Preadoptive placement" means the temporary placement of an Indian child in a foster home, treatment foster home, group home, or residential care center for children and youth, in the home of a relative other than a parent, or in the home of a guardian after a termination of parental rights but prior to or in lieu of an adoptive placement.

SB288, s. 12 Section 12. 48.028 (7) (b) 2. and 3. of the statutes, as affected by 2009 Wisconsin Act .... (this act), are amended to read:

SB288,34,7 48.028 (7) (b) 2. A foster home or treatment foster home licensed, approved, or specified by the Indian child's tribe.

SB288,34,9 3. An Indian foster home or treatment foster home licensed or approved by the department, a county department, or a child welfare agency.

SB288, s. 13 Section 13. 48.13 (intro.) of the statutes is amended to read:

SB288,34,14 48.13 Jurisdiction over children alleged to be in need of protection or services. (intro.) The Except as provided in s. 48.028 (3), the court has exclusive original jurisdiction over a child alleged to be in need of protection or services which can be ordered by the court, and:

SB288, s. 14 Section 14. 48.14 (intro.) of the statutes is amended to read:

SB288,34,17 48.14 Jurisdiction over other matters relating to children. (intro.) The Except as provided in s. 48.028 (3), the court has exclusive jurisdiction over:

SB288, s. 15 Section 15. 48.14 (12) of the statutes is created to read:

SB288,34,24 48.14 (12) Proceedings under s. 48.028 (8) for the return of custody of an Indian child to his or her former parent, as defined in s. 48.028 (2) (c), or former Indian custodian, as defined in s. 48.028 (2) (b), following a vacation or setting aside of an order granting adoption of the Indian child or following an order voluntarily terminating parental rights to an Indian child of all adoptive parents of the Indian child.

SB288, s. 16 Section 16. 48.15 of the statutes is amended to read:

SB288,35,11 48.15 Jurisdiction of other courts to determine legal custody. Nothing contained in ss. 48.13, 48.133 and 48.14 Except as provided in s. 48.028 (3), nothing in this chapter deprives other courts another court of the right to determine the legal custody of children a child by habeas corpus or to determine the legal custody or guardianship of children a child if the legal custody or guardianship is incidental to the determination of causes an action pending in the other courts. But that court. Except as provided in s. 48.028 (3), the jurisdiction of the court assigned to exercise jurisdiction under this chapter and ch. 938 is paramount in all cases involving children alleged to come within the provisions of ss. 48.13 and 48.14 and unborn children and their expectant mothers alleged to come within the provisions of ss. 48.133 and 48.14 (5).

SB288, s. 17 Section 17. 48.19 (2) of the statutes is amended to read:

SB288,35,23 48.19 (2) When a child is taken into physical custody as provided in under this section, the person taking the child into custody shall immediately attempt to notify the parent, guardian and, legal custodian , and Indian custodian of the child by the most practical means. The person taking the child into custody shall continue such attempt until the parent, guardian and, legal custodian, and Indian custodian of the child are notified, or the child is delivered to an intake worker under s. 48.20 (3), whichever occurs first. If the child 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 child are notified.

SB288, s. 18 Section 18. 48.195 (2) (d) 7. of the statutes is amended to read:

SB288,36,5 48.195 (2) (d) 7. A tribal court, or other adjudicative body authorized by an American Indian tribe or band to perform child welfare functions, that is exercising jurisdiction over proceedings relating to the child, an attorney representing the interests of the American Indian tribe or band in those proceedings, or an attorney representing the interests of the child in those proceedings.

SB288, s. 19 Section 19. 48.20 (2) (ag) of the statutes is amended to read:

SB288,36,9 48.20 (2) (ag) Except as provided in pars. (b) to (d), a person taking a child into custody shall make every effort to release the child immediately to the child's parent, guardian or, legal custodian, or Indian custodian.

SB288, s. 20 Section 20. 48.20 (2) (b) of the statutes is amended to read:

SB288,36,14 48.20 (2) (b) If the child's parent, guardian or, legal custodian, or Indian custodian is unavailable, unwilling, or unable to provide supervision for the child, the person who took the child into custody may release the child to a responsible adult after counseling or warning the child as may be appropriate.

SB288, s. 21 Section 21. 48.20 (3) of the statutes is amended to read:

SB288,37,2 48.20 (3) If the child is released under sub. (2) (b) to (d), the person who took the child into custody shall immediately notify the child'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 child was released. If the child is not released under sub. (2), the person who took the child into custody shall arrange in a manner determined by the court and law enforcement agencies for the child to be interviewed by the intake worker under s. 48.067 (2), and. The person who took the child into custody shall make a statement in writing with supporting facts of the reasons why the child was taken into physical custody and shall give any child 12 years of age or older a copy of the statement in addition to giving a copy to the intake worker. When and to any child 12 years of age or older. If the intake interview is not done in person, the report may be read to the intake worker.

SB288, s. 22 Section 22. 48.20 (7) (c) (intro.) of the statutes is amended to read:

SB288,37,4 48.20 (7) (c) (intro.) The intake worker may release the child as follows:

SB288, s. 23 Section 23. 48.20 (7) (c) 1. of the statutes is amended to read:

SB288,37,12 48.20 (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 child, release the child to a responsible adult, counseling or warning the child as may be appropriate,; or, if a the child is 15 years of age or older, release the child without immediate adult supervision, counseling or warning the child as may be appropriate; or.

SB288, s. 24 Section 24. 48.20 (7) (d) of the statutes is amended to read:

SB288,37,17 48.20 (7) (d) If the child is released from custody, the intake worker shall immediately notify the child'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 child was released.

SB288, s. 25 Section 25. 48.20 (8) of the statutes is renumbered 48.20 (8) (a) and amended to read:

SB288,38,10 48.20 (8) (a) If a child is held in custody, the intake worker shall notify the child's parent, guardian and, legal custodian, and Indian custodian of the reasons for holding the child in custody and of the child's whereabouts unless there is reason to believe that notice would present imminent danger to the child. 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. 48.21, the nature and possible consequences of that 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 child who is the subject of an Indian child custody proceeding, as defined in s. 48.028 (2) (d) 2., the right to counsel under s. 48.028 (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. When the child is 12 years of age or older, the child shall receive the same notice about the detention hearing as the parent, guardian or, legal custodian, or Indian custodian. The intake worker shall notify both the child and the child's parent, guardian or, legal custodian. When, or Indian custodian.

SB288,38,18 (b) If the child is an expectant mother who has been taken into custody under s. 48.19 (1) (cm) or (d) 8., the unborn child, through the unborn child's guardian ad litem, shall receive the same notice about the whereabouts of the child expectant mother, about the reasons for holding the child expectant mother in custody and about the detention hearing as the child expectant mother and her parent, guardian or, legal custodian, or Indian custodian. The intake worker shall notify the child expectant mother, her parent, guardian or, legal custodian, or Indian custodian and the unborn child, by the unborn child's guardian ad litem.