48.028 Indian child welfare.
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48.028 Indian child welfare.
(1)Declaration of policy. In Indian child custody proceedings, the best interests of the Indian child shall be determined in accordance with s. 48.01
(2).
(2)Definitions. In this section:
(a)“Adoptive placement” means the permanent placement of an Indian child for adoption.
(am)“Extended family member” means a person who is defined as a member of an Indian child’s extended family by the law or custom of the Indian child’s tribe or, in the absence of such a law or custom, a person who has attained the age of 18 years and who is the Indian child’s grandparent, aunt, uncle, brother, sister, brother-in-law, sister-in-law, niece, nephew, first cousin, 2nd cousin, or stepparent.
(b)“Former Indian custodian” means a person who was the Indian custodian of an Indian child before termination of parental rights to and adoption of the Indian child.
(c)“Former parent” means a person who was the parent of an Indian child before termination of parental rights to and adoption of the Indian child.
(d)“Indian child custody proceeding” means a proceeding governed by the federal Indian Child Welfare Act, 25 USC 1901 to 1963 , in which any of the following may occur:
1. An adoptive placement.
2. An out-of-home care placement.
3. A preadoptive placement.
4. A termination of parental rights, as defined in s. 48.40
(2)to an Indian child.
5. A delegation of powers by a parent regarding the care and custody of an Indian child for longer than one year under s. 48.979 .
(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, group home, residential care center for children and youth, or shelter care facility, in the home of a relative other than a parent, in the home of like-kin, 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, a delegation of powers, as described in par.
(d)5. , an emergency change in placement under s. 48.357
(b), or holding an Indian child in custody under ss. 48.19 to 48.21 .
(f)“Preadoptive placement” means the temporary placement of an Indian child in a foster home, group home, or residential care center for children and youth, in the home of a relative other than a parent, in the home of like-kin, or in the home of a guardian after a termination of parental rights but prior to or in lieu of an adoptive placement. “Preadoptive placement” does not include an emergency change in placement under s. 48.437
(2).
(g)“Qualified expert witness” means a person who is any of the following:
1. A member of the Indian child’s tribe recognized by the Indian child’s tribal community as knowledgeable regarding the tribe’s customs relating to family organization or child-rearing practices.
2. A member of another tribe who is knowledgeable regarding the customs of the Indian child’s tribe relating to family organization or child-rearing practices.
3. A professional person having substantial education and experience in the person’s professional specialty and having substantial knowledge of the customs, traditions, and values of the Indian child’s tribe relating to family organization and child-rearing practices.
4. A layperson having substantial experience in the delivery of child and family services to Indians and substantial knowledge of the prevailing social and cultural standards and child-rearing practices of the Indian child’s tribe.
(h)“Reservation” means Indian country, as defined in 18 USC 1151 , or any land not covered under that section to which title is either held by the United States in trust for the benefit of an Indian tribe or individual or held by an Indian tribe or individual, subject to a restriction by the United States against alienation.
(3)Jurisdiction over Indian child custody proceedings.
(a)Applicability. This section and the federal Indian Child Welfare Act, 25 USC 1901 to 1963 , apply to any Indian child custody proceeding regardless of whether the Indian child is in the legal custody or physical custody of an Indian parent, Indian custodian, extended family member, or other person at the commencement of the proceeding and whether the Indian child resides or is domiciled on or off of a reservation. A court assigned to exercise jurisdiction under this chapter may not determine whether this section and the federal Indian Child Welfare Act, 25 USC 1901 to 1963 , apply to an Indian child custody proceeding based on whether the Indian child is part of an existing Indian family.
(b)Exclusive tribal jurisdiction.
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.
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.
(c)Transfer of proceedings to tribe. In any Indian child custody proceeding under this chapter involving an out-of-home placement of, termination of parental rights to, or delegation of powers, as described in sub.
(d)5. , regarding, 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:
1. A parent of the Indian child objects to the transfer.
2. The Indian child’s tribe does not have a tribal court, or the tribal court of the Indian child’s tribe declines jurisdiction.
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:
a. The Indian child is 12 years of age or over and objects to the transfer.
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.
c. The Indian child’s tribe received notice of the proceeding under sub.
(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.
(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.
(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, termination of parental rights to, or delegation of powers, as described in sub.
(d)5. , regarding, the Indian child.
(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.
(4)Court proceedings.
(a)Notice. In any involuntary proceeding involving the out-of-home care placement of, termination of parental rights to, or delegation of powers, as described in sub.
(d)5. , regarding, a child whom the court knows or has reason to know is an Indian child, the party seeking the out-of-home care placement, termination of parental rights, or delegation of powers 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.
(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.
(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.
(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.
(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:
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.
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
(b)1. to 5. applies.
(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:
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.
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.
(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:
a. A member of the Indian child’s tribe described in sub.
(g)1.
b. A member of another tribe described in sub.
(g)2.
c. A professional person described in sub.
(g)3.
d. A layperson described in sub.
(g)4.
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 .
(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:
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.
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.
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.