938.028(4)(e)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 juvenile 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 juvenile as provided in s. 938.01 (3). The court shall determine the qualifications of a qualified expert witness as provided in ch. 907.

938.028(4)(f)1.1. The court may not order an Indian juvenile to be removed from the home of the Indian juvenile’s parent or Indian custodian and placed in an out-of-home care placement unless the evidence of active efforts under par. (d) 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 juvenile’s tribe and that utilizes the available resources of the Indian juvenile’s tribe, tribal and other Indian child welfare agencies, extended family members of the Indian juvenile, other individual Indian caregivers, and other culturally appropriate service providers. The court’s consideration of whether active efforts were made under par. (d) 2. shall include whether all of the following activities were conducted:

938.028(4)(f)1.a.a. Representatives designated by the Indian juvenile’s tribe with substantial knowledge of the prevailing social and cultural standards and child-rearing practices within the tribal community were requested to evaluate the circumstances of the Indian juvenile’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.

938.028(4)(f)1.am.am. A comprehensive assessment of the situation of the Indian juvenile’s family was completed, including a determination of the likelihood of protecting the Indian juvenile’s health, safety, and welfare effectively in the Indian juvenile’s home.

938.028(4)(f)1.b.b. Representatives of the Indian juvenile’s tribe were identified, notified, and invited to participate in all aspects of the Indian juvenile custody proceeding at the earliest possible point in the proceeding and their advice was actively solicited throughout the proceeding.

938.028(4)(f)1.c.c. Extended family members of the Indian juvenile, including extended family members who were identified by the Indian juvenile’s tribe or parents, were notified and consulted with to identify and provide family structure and support for the Indian juvenile, to assure cultural connections, and to serve as placement resources for the Indian juvenile.

938.028(4)(f)1.d.d. Arrangements were made to provide natural and unsupervised family interaction in the most natural setting that can ensure the Indian juvenile’s safety, as appropriate to the goals of the Indian juvenile’s permanency plan, including arrangements for transportation and other assistance to enable family members to participate in that interaction.

938.028(4)(f)1.e.e. All available family preservation strategies were offered or employed and the involvement of the Indian juvenile’s tribe was requested to identify those strategies and to ensure that those strategies are culturally appropriate to the Indian juvenile’s tribe.

938.028(4)(f)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 juvenile’s family with special needs were identified, information about those resources was provided to the Indian juvenile’s family, and the Indian juvenile’s family was actively assisted or offered active assistance in accessing those resources.

938.028(4)(f)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 shall submit documentation to the court explaining why the activity was not conducted.

938.028(5)(5) Invalidation of action. Any Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is the subject of an out-of-home care placement, any parent or Indian custodian from whose custody that Indian juvenile was removed, or the Indian juvenile’s tribe may move the court to invalidate that out-of-home care placement on the grounds that the out-of-home care placement was made in violation of 25 USC 1911 or 1912. If the court finds that those grounds exist, the court shall invalidate the out-of-home care placement.

938.028(6)(a)(a) Out-of-home care placement; preferences. Any Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is placed in an out-of-home care placement shall be placed in the least restrictive setting that most approximates a family, that meets the Indian juvenile’s special needs, if any, and that is within reasonable proximity to the Indian juvenile’s home, taking into account those special needs. Subject to pars. (b) to (d), in placing such an Indian juvenile in an out-of-home care placement, preference shall be given, in the absence of good cause, as described in par. (d), to the contrary, to a placement in one of the following, in the order of preference listed:

938.028(6)(a)1.1. The home of an extended family member of the Indian juvenile.

938.028(6)(a)2.2. A foster home licensed, approved, or specified by the Indian juvenile’s tribe.

938.028(6)(a)3.3. An Indian foster home licensed or approved by the department, a county department, or a child welfare agency.

938.028(6)(a)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 juvenile.

938.028(6)(am)(am) Temporary physical custody; preferences. Any Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is being held in temporary physical custody under s. 938.205 (1) shall be placed in compliance with par. (a) or, if applicable, par. (b), unless the person responsible for determining the placement finds good cause, as described in par. (d), for departing from the order of placement preference under par. (a) or finds that emergency conditions necessitate departing from that order. When the reason for departing from that order is resolved, the Indian juvenile shall be placed in compliance with the order of placement preference under par. (a) or, if applicable, par. (b).

938.028(6)(b)(b) Tribal or personal preferences. In placing an Indian juvenile under par. (a) or (am), if the Indian juvenile’s tribe has established, by resolution, an order of preference that is different from the order specified in par. (a), the order of preference established by that tribe shall be followed, in the absence of good cause, as described in par. (d), to the contrary, so long as the placement is the least restrictive setting appropriate for the Indian juvenile’s needs as specified in par. (a). When appropriate, the preference of the Indian juvenile 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.

938.028(6)(c)(c) 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 juvenile’s parents or extended family members reside or with which the Indian juvenile’s parents or extended family members maintain social and cultural ties.