Finally, with respect to involuntary out-of-home care placements and TPR
proceedings, ICWA permits the Indian child or the Indian child's parent, Indian
custodian, or tribe to petition any court of competent jurisdiction to invalidate an
out-of-home care placement or TPR upon a showing that the placement or TPR
violated any provision of ICWA relating to out-of-home care placements or TPR.
This bill permits any Indian child who is the subject of an out-of-home care
placement or of a TPR proceeding, any parent or Indian custodian of that Indian
child, or the Indian child's tribe to move the juvenile court to invalidate that
out-of-home care placement or TPR on the grounds that the out-of-home care
placement was made or the TPR was ordered in violation of any provision of the bill
or of ICWA relating to out-of-home care placements or TPR. If the juvenile court
finds that those grounds exist, the juvenile court must invalidate the out-of-home
care placement or TPR.
Voluntary out-of-home care placements or TPR; consent; withdrawal
Under ICWA, the consent of a parent to an out-of-home care placement of, or
a TPR to, an Indian child is not valid unless executed in writing, recorded before a
judge of a court of competent jurisdiction, and accompanied by the judge's
certification that the terms and consequences of the consent were fully explained in
detail and were fully understood by the parent. ICWA also requires the court to
certify that the parent fully understood the explanation in English or that the
explanation was interpreted into a language that the parent understood. Under
ICWA, any consent given prior to, or within ten days after, the birth of an Indian
child, is not valid. ICWA permits a parent to withdraw his or her consent to a TPR
for any reason prior to the entry of a final decree of TPR, or to withdraw his or her
consent to an out-of-home care placement at any time, and the Indian child must
be returned to the parent. After the entry of a final decree of adoption of an Indian
child, the Indian child's parent may withdraw consent to the adoption of the Indian
child on the grounds of fraud or duress and may petition the court to vacate the
decree. If the court finds that the consent was obtained through fraud or duress, the
court must vacate the decree and return the Indian child to his or her parent, except
that no adoption that has been effective for at least two years may be invalidated by
the withdrawal of consent on the grounds of fraud or duress.
This bill provides that a voluntary consent to an out-of-home care or placement
of, or TPR to, an Indian child is valid only if 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 bill also requires the judge to certify that the
parent fully understood the explanation in English or that the explanation was
interpreted into a language that the parent understood. Under the bill, any consent
to an out-of-home care placement or TPR given prior to or within ten days after the
birth of an Indian child is not valid.
The bill permits a parent who has consented to TPR to an Indian child to
withdraw the consent for any reason at any time prior to the entry of a final order
terminating parental rights, or a parent who has consented to an out-of-home care
placement of an Indian child to withdraw that consent at any time, and the Indian
child must be returned to his or her parent. After the entry of a final order granting
adoption, a parent who has consented to TPR to an Indian child may withdraw that
consent and move the juvenile court for relief from the order on the grounds that the
consent was obtained through fraud or duress, if the motion is filed within two years
after the entry of an order granting adoption of the Indian child. If the juvenile court
finds that the consent was obtained through fraud or duress, the juvenile court must
vacate the TPR order and, if applicable, the order granting adoption.
Adoption
ICWA requires, when an Indian child is placed for adoption, that a preference
be given, in the absence of good cause to the contrary, to a placement with a member
of the Indian child's extended family, other members of the Indian child's tribe, or
other Indian families, unless the Indian child's tribe has established a different order
of preference. ICWA also specifies that the standards to be applied in meeting the
placement preference requirements of ICWA are the prevailing social and cultural
standards of the Indian community in which the Indian child's parent or extended
family resides or with which the parent or extended family maintains social and
cultural ties.
This bill requires DHFS, a county department, or a child welfare agency, in
placing an Indian child for adoption or in investigating or making a recommendation
regarding the adoptive placement of an Indian child, and a juvenile court, in
determining whether an adoptive placement is in the best interests of an Indian
child, to give preference to a placement with one of the following, in the order of
preference listed, unless the Indian child's tribe has established a different order of
preference or good cause is shown for departing from that order of preference:
1. An extended family member of the Indian child.
2. Another member of the Indian child's tribe.
3. Another Indian family.
The bill also specifies that the standards to be applied in meeting the placement
preference requirements of the bill are the prevailing social and cultural standards
of the Indian community in which the Indian child's parent or extended family
members reside or with which the parent or extended family members maintain
social and cultural ties.
In addition, the bill requires a determination as to whether there is good cause
to depart from the order of placement preference requirements of the bill to be based
on: 1) the request of a 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 the bill and ICWA; 2)
any extraordinary physical, mental, or emotional health needs of the Indian child
requiring highly specialized treatment services as established by a qualified expert
witness; and 3) the unavailability of a suitable placement after active efforts have
been made to place the child in accordance with those order of placement preference
requirements.
ICWA permits a biological parent or former Indian custodian of an Indian child
who has been adopted to petition for return of custody of the Indian child when a final
decree of adoption of the Indian child has been vacated or set aside or when the
adoptive parents of the Indian child voluntarily consent to TPR to the Indian child.
Under ICWA, the state court must grant the petition unless there is a showing that
return of custody is not in the best interests of the Indian child.
This bill requires a juvenile court that vacates or sets aside a final order
granting adoption of an Indian child or that grants an order voluntarily terminating
parental rights to an Indian child of all adoptive parents of the Indian child to notify
the Indian child's former parent and former Indian custodian, and the former parent
or former Indian custodian may petition for the return of custody of the Indian child.
The juvenile court must grant the petition unless there is a showing of good cause
that return of custody is not in the best interest of the Indian child.
Finally, ICWA requires a state court that enters a final decree of adoption of an
Indian child to: 1) provide the U.S. secretary of the interior with a copy of the decree,
together with such other information as may be necessary to show the name and
tribal affiliation of the Indian child, the names and addresses of the Indian child's
biological parents, the names and addresses of the Indian child's adoptive parents,
and the identity of any agency having files or information relating to the adoptive
placement of the Indian child; and 2) inform an Indian individual who has reached
the age of 18 years and who was the subject of an adoptive placement, upon
application, of the tribal affiliation, if any, of the individual's biological parents and
with such other information as may be necessary to protect any rights flowing from
the individual's tribal relationship. ICWA also provides that, when a biological
parent has filed an affidavit requesting that his or her identity remain confidential,
the court must include that affidavit with the information provided to the U.S.
secretary of the interior.
This bill requires a juvenile court that enters an order granting adoption of an
Indian child to: 1) 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 the name and tribal affiliation
of the Indian child, the names and addresses of the Indian child's birth parents, the
names and addresses of the Indian child's adoptive parents, and the identity of any
agency that has in its possession any files or information relating to the adoptive
placement of the Indian child; 2) give the birth parent an 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 and include that affidavit
with the information provided to the U.S. secretary of the interior; and 3) provide or
arrange to provide an Indian adoptee who is 18 years of age or older, upon request,
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.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB572, s. 1
1Section
1. 48.01 (1) of the statutes is renumbered 48.01.
SB572, s. 3
4Section
3. 48.01 (2) of the statutes is repealed.
SB572, s. 4
5Section
4. 48.02 (2) of the statutes is amended to read:
SB572,12,106
48.02
(2) "Child"
, when used without further qualification, means a person who
7is less than 18 years of age, except that for purposes of investigating or prosecuting
8a person who is alleged to have violated a state or federal criminal law or any civil
9law or municipal ordinance, "child" does not include a person who has attained 17
10years of age.
SB572, s. 5
11Section
5. 48.02 (8d) of the statutes is created to read:
SB572,12,1412
48.02
(8d) "Indian" means any person who is a member of an Indian tribe or
13who is an Alaska native and a member of a regional corporation, as defined in
43 USC
141606.
SB572, s. 6
15Section
6. 48.02 (8m) of the statutes is created to read:
SB572,12,1616
48.02
(8m) "Indian child's tribe" means one of the following:
SB572,12,1817
(a) The Indian tribe in which an Indian child is a member or eligible for
18membership.
SB572,13,3
1(b) In the case of an Indian child who is a member of or eligible for membership
2in more than one tribe, the Indian tribe with which the Indian child has the more
3significant contacts.
SB572, s. 7
4Section
7. 48.02 (8p) of the statutes is created to read:
SB572,13,85
48.02
(8p) "Indian custodian" means an Indian person who has legal custody
6of an Indian child under tribal law or custom or under state law or to whom
7temporary physical care, custody, and control has been transferred by the parent of
8the child.
SB572, s. 8
9Section
8. 48.02 (8r) of the statutes is created to read:
SB572,13,1310
48.02
(8r) "Indian tribe" means any Indian tribe, band, nation, or other
11organized group or community of Indians that is recognized as eligible for the
12services provided to Indians by the U.S. secretary of the interior because of Indian
13status, including any Alaska native village, as defined in
43 USC 1602 (c).
SB572, s. 9
14Section
9. 48.02 (13) of the statutes is amended to read:
SB572,13,2515
48.02
(13) "Parent" means either a biological parent, a husband who has
16consented to the artificial insemination of his wife under s. 891.40, or a parent by
17adoption. If the child is a nonmarital child who is not adopted or whose parents do
18not subsequently intermarry under s. 767.803, "parent" includes a person
19acknowledged under s. 767.805 or a substantially similar law of another state or
20adjudicated to be the biological father. "Parent" does not include any person whose
21parental rights have been terminated.
For purposes of the application of s. 48.028
22and the federal Indian Child Welfare Act, 26 USC 1901 to 1963, "parent" includes an
23Indian person who has lawfully adopted an Indian child, including an adoption
24under tribal law or custom, but does not include a parent by adoption who is not an
25Indian person.
SB572, s. 10
1Section
10. 48.02 (15) of the statutes is amended to read:
SB572,14,102
48.02
(15) "Relative" means a parent, stepparent, brother, sister, stepbrother,
3stepsister, half brother, half sister, brother-in-law, sister-in-law, first cousin, 2nd
4cousin, nephew, niece, uncle, aunt, stepuncle, stepaunt, or any person of a preceding
5generation as denoted by the prefix of grand, great, or great-great, whether by blood,
6marriage, or legal adoption, or the spouse of any person named in this subsection,
7even if the marriage is terminated by death or divorce.
"Relative" also includes, in
8the case of an Indian child, an extended family member, as defined in s. 48.028 (2)
9(am), whether by blood, marriage, or adoption, including adoption under tribal law
10or custom.
SB572, s. 11
11Section
11. 48.02 (15c) of the statutes is created to read:
SB572,14,1612
48.02
(15c) "Reservation" means Indian country, as defined in
18 USC 1151,
13or any land not covered under that section to which the title is either held by the
14United States in trust for the benefit of an Indian tribe or individual or held by an
15Indian tribe or individual, subject to a restriction by the United States against
16alienation.
SB572, s. 12
17Section
12. 48.02 (18j) of the statutes is created to read:
SB572,14,2218
48.02
(18j) "Tribal court" means a court that has jurisdiction over Indian child
19custody proceedings, and that is either a court of Indian offenses or a court
20established and operated under the code or custom of an Indian tribe, or any other
21administrative body of an Indian tribe that is vested with authority over Indian child
22custody proceedings.
SB572, s. 13
23Section
13. 48.028 of the statutes is repealed and recreated to read:
SB572,15,2
2448.028 Indian child welfare. (1) Declaration of policy. In Indian child
25custody proceedings, the best interests of the Indian child shall be determined
1consistent with the federal Indian Child Welfare Act,
25 USC 1901 to
1963. It is the
2policy of this state to do all of the following:
SB572,15,43
(a) Cooperate fully with Indian tribes in order to ensure that the federal Indian
4Child Welfare Act is enforced in this state.
SB572,15,65
(b) Protect the best interests of Indian children and promote the stability and
6security of Indian tribes and families by doing all of the following:
SB572,15,107
1. Establishing minimum standards for the removal of Indian children from
8their families and placing those children in out-of-home care placements,
9preadoptive placements, or adoptive placements that will reflect the unique value of
10Indian culture.
SB572,15,18112. Using practices, in accordance with the federal Indian Child Welfare Act,
25
12USC 1901 to
1963, this section, and other applicable law, that are designed to prevent
13the voluntary or involuntary out-of-home care placement of Indian children and,
14when an out-of-home care placement, adoptive placement, or preadoptive
15placement is necessary, placing an Indian child in a placement that reflects the
16unique values of the Indian child's tribal culture and that is best able to assist the
17Indian child in establishing, developing, and maintaining a political, cultural, and
18social relationship with the Indian child's tribe and tribal community.
SB572,15,19
19(2) Definitions. In this section:
SB572,15,2120
(a) "Adoptive placement" means the permanent placement of an Indian child
21for adoption.
SB572,16,222
(am) "Extended family member" means a person who is defined as a member
23of an Indian child's extended family by the law or custom of the Indian child's tribe
24or, in the absence of such a law or custom, a person who has attained the age of 18
1years and who is the Indian child's grandparent, aunt, uncle, brother, sister,
2brother-in-law, sister-in-law, niece, nephew, first cousin, 2nd cousin, or stepparent.
SB572,16,53
(b) "Former Indian custodian" means a person who was the Indian custodian
4of an Indian child before termination of parental rights to and adoption of the Indian
5child.
SB572,16,76
(c) "Former parent" means a person who was the parent of an Indian child
7before termination of parental rights to and adoption of the Indian child.
SB572,16,108
(d) "Indian child custody proceeding" means a proceeding governed by the
9federal Indian Child Welfare Act,
25 USC 1901 to
1963, in which any of the following
10may occur:
SB572,16,1111
1. An adoptive placement.
SB572,16,1212
2. An out-of-home care placement.
SB572,16,1313
3. A preadoptive placement.
SB572,16,1414
4. A termination of parental rights, as defined in s. 48.40 (2) to an Indian child.
SB572,16,2015
(e) "Out-of-home care placement" means the removal of an Indian child from
16his or her parent or Indian custodian for temporary placement in a foster home,
17treatment foster home, group home, residential care center for children and youth,
18or shelter care facility, in the home of a relative other than a parent, or in the home
19of a guardian, from which placement the parent or Indian custodian cannot have the
20child returned upon demand.
SB572,16,2521
(f) "Preadoptive placement" means the temporary placement of an Indian child
22in a foster home, treatment foster home, group home, or residential care center for
23children and youth, in the home of a relative other than a parent, or in the home of
24a guardian after a termination of parental rights but prior to or in lieu of an adoptive
25placement.
SB572,17,1
1(g) "Qualified expert witness" means a person who is any of the following:
SB572,17,42
1. A member of the Indian child's tribe recognized by the Indian child's tribal
3community as knowledgeable regarding the tribe's customs relating to family
4organization or child-rearing practices.
SB572,17,65
2. A member of another tribe who is knowledgeable regarding the customs of
6the Indian child's tribe relating to family organization or child-rearing practices.
SB572,17,107
3. A professional person having substantial education and experience in the
8person's professional speciality and having extensive knowledge of the customs,
9traditions, and values of the Indian child's tribe relating to family organization and
10child-rearing practices.
SB572,17,1311
4. A layperson having substantial experience in the delivery of child and family
12services to Indians and substantial knowledge of the prevailing social and cultural
13standards and child-rearing practices of the Indian child's tribe.
SB572,17,23
14(3) Jurisdiction over Indian child custody proceedings. (a)
Applicability.
15This section and the federal Indian Child Welfare Act,
25 USC 1901 to
1963, apply
16to any Indian child custody proceeding regardless of whether the Indian child is in
17the legal custody or physical custody of an Indian parent, Indian custodian, extended
18family member, or other person at the commencement of the proceeding and whether
19the Indian child resides or is domiciled on or off of a reservation. A court assigned
20to exercise jurisdiction under this chapter may not determine whether this section
21and the federal Indian Child Welfare Act,
25 USC 1901 to
1963, apply to an Indian
22child custody proceeding based on whether the Indian child is part of an existing
23Indian family.
SB572,18,424
(b)
Exclusive tribal jurisdiction. 1. An Indian tribe shall have exclusive
25jurisdiction over any Indian child custody proceeding involving an Indian child who
1resides or is domiciled within the reservation of the tribe, except when that
2jurisdiction is otherwise vested in the state by federal law and except as provided in
3subd. 2. If an Indian child is a ward of a tribal court, the Indian tribe shall retain
4exclusive jurisdiction regardless of the residence or domicile of the child.
SB572,18,145
2. Subdivision 1. does not prevent an Indian child who resides or is domiciled
6within a reservation, but who is temporarily located off the reservation, from being
7taken into and held in custody under ss. 48.19 to 48.21 in order to prevent imminent
8physical harm or damage to the Indian child. The person taking the Indian child into
9custody or the intake worker shall immediately release the Indian child from custody
10upon determining that holding the Indian child in custody is no longer necessary to
11prevent imminent physical damage or harm to the Indian child and shall
12expeditiously restore the Indian child to his or her parent or Indian custodian,
13release the Indian child to an appropriate official of the Indian child's tribe, or
14initiate an Indian child custody proceeding, as may be appropriate.
SB572,18,2115
(c)
Transfer of proceedings to tribe. In any Indian child custody proceeding
16under this chapter involving an out-of-home placement of, or termination of
17parental rights to, an Indian child who is not residing or domiciled within the
18reservation of the Indian child's tribe, the court assigned to exercise jurisdiction
19under this chapter shall, upon the petition of the Indian child's parent, Indian
20custodian, or tribe, transfer the proceeding to the jurisdiction of the tribe unless any
21of the following applies:
SB572,18,2222
1. A parent of the Indian child objects to the transfer.
SB572,18,2423
2. The Indian child's tribe does not have a tribal court or tribal court of the
24Indian child's tribe declines jurisdiction.
SB572,19,3
13. The court determines that good cause exists to deny the transfer. The court
2may determine that good cause exists to deny the transfer only if the person opposing
3the transfer shows to the satisfaction of the court any of the following:
SB572,19,44
a. That the Indian child is 12 years of age or over and objects to the transfer.
SB572,19,115
b. That the evidence or testimony necessary to decide the case cannot be
6presented in tribal court without undue hardship to the parties or the witnesses and
7that the tribal court is unable to mitigate the hardship by making arrangements to
8receive the evidence or testimony by use of telephone or live audiovisual means, by
9hearing the evidence or testimony at a location that is convenient to the parties and
10witnesses, or by use of other means permissible under the tribal court's rules of
11evidence.
SB572,19,2012
(d)
Declination of jurisdiction. If the court assigned to exercise jurisdiction
13under this chapter determines that the petitioner in an Indian child custody
14proceeding has improperly removed the Indian child from the custody of his or her
15parent or Indian custodian or has improperly retained custody of the Indian child
16after a visit or other temporary relinquishment of custody, the court shall decline
17jurisdiction over the petition and immediately return the Indian child to the custody
18of the parent or Indian custodian, unless the court determines that returning the
19Indian child to his or her parent or Indian custodian would subject the Indian child
20to substantial and immediate danger or the threat of that danger.
SB572,19,2321
(e)
Intervention. An Indian child's Indian custodian or tribe may intervene at
22any point in an Indian child custody proceeding under this chapter involving an
23out-of-home care placement of, or termination of parental rights to, the Indian child.
SB572,20,324
(f)
Full faith and credit. The state shall give full faith and credit to the public
25acts, records, and judicial proceedings of any Indian tribe that are applicable to an
1Indian child custody proceeding to the same extent that the state gives full faith and
2credit to the public acts, records, and judicial proceedings of any other governmental
3entity.
SB572,20,22
4(4) Court proceedings. (a)
Notice. In any involuntary proceeding involving
5the out-of-home care placement of, termination of parental rights to, or return of
6custody under sub. (8) (a) of a child whom the court knows or has reason to know is
7an Indian child, the court or party seeking the out-of-home care placement,
8termination of parental rights, or return of custody shall, for the first hearing at the
9plea, fact-finding, and dispositional stages of the proceeding, notify the Indian
10child's parent, former parent, Indian custodian, former Indian custodian, and tribe,
11by certified mail of the pending proceeding and of their right to intervene in the
12proceeding. Notice of subsequent hearings in a stage of a proceeding shall be in
13writing and may be given by mail, personal delivery, or facsimile transmission, but
14not by electronic mail. If the identity or location of the Indian child's parent, former
15parent, Indian custodian, former Indian custodian, or tribe cannot be determined,
16that notice shall be given to the U.S. secretary of the interior in like manner. The next
17hearing in the proceeding may not be held until at least 10 days after receipt of the
18notice by the parent, former parent, Indian custodian, former Indian custodian, and
19tribe or until at least 25 days after receipt of the notice by the U.S. secretary of the
20interior. On request of the parent, former parent, Indian custodian, former Indian
21custodian, or tribe, the court shall grant a continuance of up to 20 additional days
22to enable the requester to prepare for that hearing.
SB572,21,523
(b)
Appointment of counsel. Whenever an Indian child is the subject of a
24proceeding involving the removal of the Indian child from his or her home, placement
25of the Indian child in an out-of-home care placement or termination of parental
1rights to the Indian child, the Indian child's parent or Indian custodian shall have
2the right to be represented by court-appointed counsel as provided in s. 48.23 (2g).
3The court may also, in its discretion, appoint counsel for the Indian child under s.
448.23 (1m) or (3) if the court finds that the appointment is in the best interests of the
5Indian child.
SB572,21,116
(c)
Examination of reports and other documents. Each party to a proceeding
7involving the out-of-home care placement of, termination of parental rights to, or
8return of custody under sub. (8) (a) of an Indian child shall have the right to examine
9all reports or other documents filed with the court upon which any decision with
10respect to the out-of-home care placement, termination of parental rights, or return
11of custody may be based.
SB572,21,1412
(d)
Out-of-home care placement; serious damage and active efforts. The court
13may not order an Indian child to be removed from the Indian child's home and placed
14in an out-of-home care placement unless all of the following occur:
SB572,21,1815
1. The court or jury finds by clear and convincing evidence, including the
16testimony of one or more qualified expert witnesses chosen in the order of preference
17listed in par. (f), that continued custody of the Indian child by the parent or Indian
18custodian is likely to result in serious emotional or physical damage to the child.
SB572,21,2319
2. The court or jury finds by clear and convincing evidence that active efforts,
20as described in par. (g), have been made to provide remedial services and
21rehabilitation programs designed to prevent the breakup of the Indian family and
22that those efforts have proved unsuccessful. The court shall make that finding
23notwithstanding that a circumstance specified in s. 48.355 (2d) (b) 1. to 5. applies.
SB572,22,3
1(e)
Involuntary termination of parental rights; serious damage and active
2efforts. The court may not order an involuntary termination of parental rights to an
3Indian child unless all of the following occur:
SB572,22,74
1. The court or jury finds beyond a reasonable doubt, including the testimony
5of one or more qualified expert witnesses chosen in the order of preference listed in
6par. (f), that the continued custody of the Indian child by the parent or Indian
7custodian is likely to result in serious emotional or physical damage to the child.
SB572,22,118
2. The court or jury finds beyond a reasonable doubt that active efforts, as
9described in par. (g), have been made to provide remedial services and rehabilitation
10programs designed to prevent the breakup of the Indian family and that those efforts
11have proved unsuccessful.
SB572,22,1312
(f)
Qualified expert witness; order of preference. A qualified expert witness shall
13be chosen in the following order of preference:
SB572,22,1414
1. A member of the Indian child's tribe described in sub. (2) (g) 1.
