48.028(3)(b)1.1. An Indian tribe shall have exclusive jurisdiction over any Indian child custody proceeding involving an Indian child who resides or is domiciled within the reservation of the tribe, except when that jurisdiction is otherwise vested in the state by federal law and except as provided in
subd. 2. If an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction regardless of the residence or domicile of the child.
48.028(3)(b)2.
2. Subdivision 1. does not prevent an Indian child who resides or is domiciled within a reservation, but who is temporarily located off the reservation, from being taken into and held in custody under
ss. 48.19 to
48.21 in order to prevent imminent physical harm or damage to the Indian child. The person taking the Indian child into custody or the intake worker shall immediately release the Indian child from custody upon determining that holding the Indian child in custody is no longer necessary to prevent imminent physical damage or harm to the Indian child and shall expeditiously restore the Indian child to his or her parent or Indian custodian, release the Indian child to an appropriate official of the Indian child's tribe, or initiate an Indian child custody proceeding, as may be appropriate.
48.028(3)(c)
(c)
Transfer of proceedings to tribe. In any Indian child custody proceeding under this chapter involving an out-of-home placement of, or termination of parental rights to, an Indian child who is not residing or domiciled within the reservation of the Indian child's tribe, the court assigned to exercise jurisdiction under this chapter shall, upon the petition of the Indian child's parent, Indian custodian, or tribe, transfer the proceeding to the jurisdiction of the tribe unless any of the following applies:
48.028(3)(c)1.
1. A parent of the Indian child objects to the transfer.
48.028(3)(c)2.
2. The Indian child's tribe does not have a tribal court, or the tribal court of the Indian child's tribe declines jurisdiction.
48.028(3)(c)3.
3. The court determines that good cause exists to deny the transfer. In determining whether good cause exists to deny the transfer, the court may not consider any perceived inadequacy of the tribal social services department or the tribal court of the Indian child's tribe. The court may determine that good cause exists to deny the transfer only if the person opposing the transfer shows by clear and convincing evidence that any of the following applies:
48.028(3)(c)3.a.
a. The Indian child is 12 years of age or over and objects to the transfer.
48.028(3)(c)3.b.
b. The evidence or testimony necessary to decide the case cannot be presented in tribal court without undue hardship to the parties or the witnesses and that the tribal court is unable to mitigate the hardship by making arrangements to receive the evidence or testimony by use of telephone or live audiovisual means, by hearing the evidence or testimony at a location that is convenient to the parties and witnesses, or by use of other means permissible under the tribal court's rules of evidence.
48.028(3)(c)3.c.
c. The Indian child's tribe received notice of the proceeding under
sub. (4) (a), the tribe has not indicated to the court in writing that the tribe is monitoring the proceeding and may request a transfer at a later date, the petition for transfer is filed by the tribe, and the petition for transfer is filed more than 6 months after the tribe received notice of the proceeding or, if the proceeding is a termination of parental rights proceeding, more than 3 months after the tribe received notice of the proceeding.
48.028(3)(d)
(d)
Declination of jurisdiction. If the court assigned to exercise jurisdiction under this chapter determines that the petitioner in an Indian child custody proceeding has improperly removed the Indian child from the custody of his or her parent or Indian custodian or has improperly retained custody of the Indian child after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over the petition and immediately return the Indian child to the custody of the parent or Indian custodian, unless the court determines that returning the Indian child to his or her parent or Indian custodian would subject the Indian child to substantial and immediate danger or the threat of that danger.
48.028(3)(e)
(e)
Intervention. An Indian child's Indian custodian or tribe may intervene at any point in an Indian child custody proceeding under this chapter involving an out-of-home care placement of, or termination of parental rights to, the Indian child.
48.028(3)(f)
(f)
Full faith and credit. The state shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe that are applicable to an Indian child custody proceeding to the same extent that the state gives full faith and credit to the public acts, records, and judicial proceedings of any other governmental entity.
48.028(4)(a)(a)
Notice. In any involuntary proceeding involving the out-of-home care placement of or termination of parental rights to a child whom the court knows or has reason to know is an Indian child, the party seeking the out-of-home care placement or termination of parental rights shall, for the first hearing of the proceeding, notify the Indian child's parent, Indian custodian, and tribe, by registered mail, return receipt requested, of the pending proceeding and of their right to intervene in the proceeding and shall file the return receipt with the court. Notice of subsequent hearings in a proceeding shall be in writing and may be given by mail, personal delivery, or facsimile transmission, but not by electronic mail. If the identity or location of the Indian child's parent, Indian custodian, or tribe cannot be determined, that notice shall be given to the U.S. secretary of the interior in like manner. The first hearing in the proceeding may not be held until at least 10 days after receipt of the notice by the parent, Indian custodian, and tribe or until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for that hearing.
48.028(4)(b)
(b)
Appointment of counsel. Whenever an Indian child is the subject of a proceeding involving the removal of the Indian child from the home of his or her parent or Indian custodian, placement of the Indian child in an out-of-home care placement, or termination of parental rights to the Indian child, the Indian child's parent or Indian custodian shall have the right to be represented by court-appointed counsel as provided in
s. 48.23 (2g). The court may also, in its discretion, appoint counsel for the Indian child under
s. 48.23 (1m) or
(3) if the court finds that the appointment is in the best interests of the Indian child.
48.028(4)(c)
(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.
48.028(4)(d)
(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:
48.028(4)(d)1.
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.
48.028(4)(d)2.
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.
48.028(4)(e)
(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:
48.028(4)(e)1.
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.
48.028(4)(e)2.
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.
48.028(4)(f)
(f)
Qualified expert witness; order of preference. 48.028(4)(f)1.1. 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:
48.028(4)(f)2.
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. In weighing the testimony of all witnesses, the court shall consider as paramount the best interests of the Indian child as provided in
s. 48.01 (2). The court shall determine the qualifications of a qualified expert witness as provided in
ch. 907.
48.028(4)(g)1.1. 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:
48.028(4)(g)1.a.
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.
48.028(4)(g)1.am.
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.
48.028(4)(g)1.b.
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.
48.028(4)(g)1.c.
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.
48.028(4)(g)1.d.
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.
48.028(4)(g)1.e.
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.
48.028(4)(g)1.f.
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.
48.028(4)(g)1.g.
g. Monitoring of client progress and client participation in services was provided.
48.028(4)(g)1.h.
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.
48.028(4)(g)2.
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.
48.028(5)
(5) Voluntary proceedings; consent; withdrawal. 48.028(5)(a)(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).
48.028(5)(b)
(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).
48.028(5)(c)
(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.
48.028(6)
(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.
48.028(7)(a)(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:
48.028(7)(b)
(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:
48.028(7)(b)1.
1. The home of an extended family member of the Indian child.
48.028(7)(b)2.
2. A foster home or treatment foster home licensed, approved, or specified by the Indian child's tribe.
48.028 Note
NOTE: Subd. 2. is amended by
2009 Wis. Act 94 effective the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9), as created by
2009 Wisconsin Act 28 to read:
Effective date text
2. A foster home licensed, approved, or specified by the Indian child's tribe.
48.028(7)(b)3.
3. An Indian foster home or treatment foster home licensed or approved by the department, a county department, or a child welfare agency.
48.028 Note
NOTE: Subd. 3. is amended by
2009 Wis. Act 94 effective the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9), as created by
2009 Wisconsin Act 28 to read:
Effective date text
3. An Indian foster home licensed or approved by the department, a county department, or a child welfare agency.
48.028(7)(b)4.
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.
48.028(7)(bm)
(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).
48.028(7)(c)
(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.
48.028(7)(d)
(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.
48.028(7)(e)1.1. 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:
48.028(7)(e)1.a.
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.
48.028(7)(e)1.b.
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.
48.028(7)(e)1.c.
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).
48.028(7)(e)2.
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.
48.028(7)(f)
(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.
48.028(8)(a)(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.
48.028(8)(b)
(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.
48.028(9)(a)(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:
48.028(9)(a)1.
1. The name and tribal affiliation of the Indian child.
48.028(9)(a)2.
2. The names and addresses of the Indian child's birth parents.
48.028(9)(a)3.
3. The names and addresses of the Indian child's adoptive parents.
48.028(9)(a)4.
4. The identity of any agency that has in its possession any files or information relating to the adoptive placement of the Indian child.
48.028(9)(b)
(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).
48.028(9)(c)
(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.
48.028(10)
(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.
48.028 History
History: 1981 c. 81;
2009 a. 94.
48.028 Annotation
When the children's code provides safeguards in addition to those in the Indian child welfare act, those safeguards should be followed. In Re Interest of D.S.P.
166 Wis. 2d 464,
480 N.W.2d 234 (1992).
48.029
48.029
Pregnancy testing prohibited. No law enforcement agency, district attorney, corporation counsel, county department, licensed child welfare agency or other person involved in the investigation or prosecution of an allegation that an unborn child has been the victim of or is at substantial risk of abuse may, without a court order, require a person to take a pregnancy test in connection with that investigation or prosecution.
48.029 History
History: 1997 a. 292.
ORGANIZATION OF COURT
48.03
48.03
Time and place of court; absence or disability of judge; court of record.
