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Wisconsin Indian Child Welfare Act
Codification Experience
MCWIC Tribal Child Welfare GatheringOdawa Casino Resort, Petoskey, MI
May 5, 2010
Mark S. Mitchell, Special Projects ManagerOffice of Legal Counsel
WI Department of Children & Families
Wisconsin Indian Child Welfare Act
Codified into Statutes by 2009 Wisconsin Act 94
Effective December 22, 2009
Historical Background
Stenzel, 2007
History & Purpose
When ICWA passed, the risk of parents in Wisconsin being separated from their children was 1,600 times greater for Indians than for non-Indians.
Compliance IssuesChild and Family Services Review (CFSR)
The federal CFSR in 2003 found that Wisconsin was deficient in the following areas:
Identification of Indian childrenNotification to Tribes of cases in a
timely manner
Child and Family Services Review (CFSR)Additional deficiencies: Involving Tribes in child welfare planning Ongoing consultation with Tribal
representatives Soliciting input from the Tribes on the
goals and objectives of the State Child and Family Services Plan (aka the IV-B Plan)
0
200
400
600
eWiSACWIS Data - ICWA Compliance
OHC 470 538 502 469
Subject to ICWA 122 475 448 418
ICWA Notice 82 88 59 32
Placement 70 73 46 23
2005 2006 2007 2008
Codification Initiative
Seven tribal priorities in 2003-04 developed byICW Directors and Social Services Directors of
Wisconsin’s 11 federally-recognized Tribes, in conjunction with the WI Department of Children & Families:
Included codification of the federal Indian Child Welfare Act
Document was included as addendum to Wisconsin’s 2005 CFSR Program Improvement Plan
Public Hearings and Negotiations
Bill Drafting and Initial Outreach DCF and 11 tribes (ICWA Codification
Workgroup) drafted the bill over a four-year period (2005-2009)
In-depth research, case law analysis In 2007, 4th draft of the bill sent to
representatives of stakeholders for initial review (County social services, District Attorneys, Judges)
Consensus: need for codification
FormatTwo primary options:1. Subchapter of each statutory chapter2. Spread throughout the chapters as
appropriate
Result:A combination (s. 48.028 and inserted as
appropriate throughout the case process)
Public Hearings
November 13, 2008 September 16, 2009
January 7, 2009 February 2, 2009 March 4, 2009
March 23, 2009 April 20, 2009 May 4, 2009 June 29, 2009
Negotiation Meetings
Stakeholders
Children & the Law Section, WI State Bar WI District Attorneys’ Association WI Association of Corporation Counsel WI Counties Association WI County Human Services Association Office of the State Public Defender Court-Appointed Special Advocates Assn.
Tribal and State Strategies
Trust Relationship
Consensus Building
Consistent Response
Lobbying Efforts Research
Steps through the Legislature
Bill first introduced end of session March 2008
Joint Senate and Assembly Committee Hearing (9/16/09)
Unanimous vote in Assembly (9/30/09) and Senate (10/7/09) Committees
Unanimous floor vote in Senate and Assembly (10/20/09)
Governor Doyle Signs Bill December 7, 2009
The Legislative/Negotiation Process and Final
Content
Best Interests of an Indian Child/Juvenile: ChallengesStakeholders’ Position: No need for a distinction to be made between
best interest of an Indian child and a non-Indian child
Having such a distinction would be treating Indian children differently than non-Indian children
Would result in violating other laws (e.g., the 15/22 timelines in the Adoption and Safe Families Act)
Ultimately, wanted any language reflecting this moved so that it would be clearer and not conflict with other provisions of state law
Best Interests of an Indian Child/Juvenile: ChallengesResult: Negotiation process revealed the full importance
of including definition in statute (was a recurring question from stakeholders)
Language in the bill largely remained the same but was relocated to a different section of the bill
Stakeholders never really seemed to embrace or understand the need for the recognition of the best interest of the Indian child. If this issue was understood by the stakeholders, it would have made the negotiation of other issues easier.
Best Interests of an Indian Child/Juvenile
S. 48.01(2) Best interest determined in accordance with ICWA and the policy in this section:
Courts and agencies will: (a) Cooperate fully with Indian tribes in order to
ensure that the federal Indian Child Welfare Act is enforced in this state.
(b) Protect the best interests of Indian children and promote the stability and security of Indian tribes and families by doing all of the following:
Best Interests of an Indian Child/Juvenile
1. Establishing minimum standards for the removal of Indian children from their families and placing those children in out-of-home care placements, preadoptive placements, or adoptive placements that will reflect the unique value of Indian culture.
S. 48.01(2) continued
2 . Using practices . . . that are designed to prevent the voluntary or involuntary out-of-home care placement of Indian children and, when an out-of-home care placement, adoptive placement, or preadoptive placement is necessary, placing an Indian child in a placement that reflects the unique values of the Indian child’s tribal culture and that is best able to assist the Indian child in establishing, developing, and maintaining a political, cultural, and social relationship with the Indian child’s tribe and tribal community.
Definition of Parent
Stakeholders: Include any person (including a non-Indian) who adopts an Indian child (statutory construction issue)
Stakeholders: Workgroup’s interpretation violated the equal protection clause and cited a case in Iowa dealing with the definition of Indian child (Woodbury Cty. Assoc. and A.W. and S.W. v. Iowa Atty. Gen and Winnebago Tribe of NE, 2007 Iowa Sup. LEXIS 137)
Workgroup: This is specifically not included in ICWA; agreed to recommend use of the language in ICWA and would see how the drafters worded it given the Wisconsin rules of statutory construction
Result: WICWA uses the language that was proposed in the bill.
Existing Indian Family Doctrine In 1982 the KS Supreme Court upheld the
EIFD [In re Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168(Kan. 1982)]
Stated that a court can determine that an Indian child is not an Indian child under ICWA because the child is not from an EIF (i.e., whether there is an active connection with the Tribe)
Existing Indian Family Doctrine Point of contention with many stakeholders,
who argued that a ban would too greatly undermine judicial discretion
KS Supreme Court overturned its own decision in 2009 early in our negotiations [In re AJS, 288 Kan. 429, 204 P.3d 543 (2009)]
6 States have legislatively banned the doctrine
21 States have judicially banned the doctrine
Existing Indian Family Doctrine
S. 48.028(3)(a) A court assigned to exercise jurisdictionunder this chapter may not determinewhether this section and the federal ICWAapply to an Indian child custodyproceeding based on whether the Indianchild is part of an existing Indian family
Notification
Generally same language as federal ICWA Registered mail, return receipt requested (Fed. Regs.: Certified mail, return receipt) File the return receipt with the court
Point of contention: Stakeholder request for mandatory time frame for response from Tribe
Jurisdiction: Good Cause Not to TransferStatutory Language
S. 48.028(3)(c)3. 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 parties or witnesses Tribal court unable to mitigate hardship by use of:
Telephone or live audiovisual means Location that is convenient to the parties Other means permissible under tribal court’s rules of
evidence c. “Advanced stage”
Jurisdiction: Good Cause Not to Transfer Contention: Should “advanced stage”
argument (BIA guidelines) be allowed?
Historical problems regarding notice
Mistrust and misunderstanding of tribal courts contributed to the issue (e.g., everything starts over)
Jurisdiction: Good Cause Not to TransferCompromise reached: IF Tribe received notice, and Tribe has not indicated to the Court in
writing that it is monitoring the proceeding and may request a transfer at a later date, and
Motion to transfer is filed by the tribe, but Petition is filed more than 6 months after
the notice of a CHIPS/JIPS proceeding, or more than 3 months after the notice of a TPR proceeding,
Then good cause argument may be made
Qualified Expert Witness: Negotiations
Stakeholders: Felt strongly there should be no hierarchy because finding a QEW is so difficult
Workgroup: Stressed the importance of the cultural aspect of the testimony, and argued that a hierarchy is necessary to ensure that proper efforts are made to produce the best testimony available
Qualified Expert Witness: NegotiationsCompromise language: Petitioner may choose a QEW from a lower
order of preference if he/she shows that diligent efforts have been made to secure a QEW from a higher order of preference
Order of preference of qualified expert witnesses may not be sole consideration in weighing their testimony
Not added (but a given): Prosecutor is not required to bring forth hostile witness
Qualified Expert Witness
S. 48.028(4)(f) a. A member of the Indian child’s tribe b. A member of another tribe c. A professional person d. A lay person 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)
All QEWs must have knowledge of the Indian child’s tribe’s family organization and child-rearing practices.
Qualified Expert Witness:Other Clarifying Language in WICWA
The party seeking to place the Indian child in out-of-home care or to terminate parental rights to the Indian child must utilize a qualified expert witness
Any other party may utilize a qualified expert witness
Fact-Finding vs. Disposition:Contention WI law allows jury trial in CHIPS (child
protection) and TPR cases
Stakeholders: Wanted QEW and active efforts testimony before judge at dispositional hearing
Workgroup: argued this evidence should be presented to judge or jury at fact-finding hearing
Fact-Finding vs. Disposition: Compromise
If District Attorney gets partial summary judgment at fact-finding, then QEW and Active Efforts are provided at disposition
Otherwise this evidence is presented at fact-finding, because it goes to issue of whether grounds are met
Active Efforts AACWA 1980 ICWA does not define Reasonable efforts vs.
active efforts in Wisconsin
Inclusion of cultural component
Discussions with county agencies regarding workload implications
Active Efforts: Statutory Language
S. 48.028(4)(g)
Ongoing, vigorous, concerted level of casework
Active Efforts: Statutory Language Active efforts takes into account
Prevailing social and cultural values, conditions, and way of life of the Indian child’s tribe
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 Other culturally appropriate service providers
Active Efforts: Statutory Language If any of the activities were not conducted,
petitioning agency shall submit documentation to the court explaining why
Voluntary Placements and TPRsS. 48.028(5)(a): Out-of-home placement Any consent given under this paragraph
prior to or within 10 days after the birth of the Indian child is not valid. Parent may: Withdraw the consent for any reason at any
time The Indian child shall be returned to the parent
or Indian custodian
Voluntary Placements and TPRsS. 48.028(5)(b): Termination of Parental
Rights Any consent given under this paragraph
prior to or within 10 days after the birth of the Indian child is not valid. Parent may: Withdraw the consent for any reason at any
time prior to the entry of a final TPR order Indian child shall be returned unless an
order or agreement specified in ss. 48.368(1) or 938.368(1)
Voluntary TPRs: Unusual Question District Attorneys’ Association sought to prohibit
Indian parent from withdrawing consent to voluntary TPR if consent was given subsequent to filing of a petition to involuntarily TPR (to prevent delays in court proceedings)
No consensus reached, little case law found making a distinction of “truly voluntary” TPRs
Withdrawal of ConsentAfter Order Granting Adoption
Indian child shall be returned to the parent unless an order or agreement specified in ss. 48.368(1) or 938.368(1) that was in effect prior to placement provides for a different placement
Concerns for safety (workgroup and stakeholders agreed)
Further Legislation Needed:Voluntary Placements and Safe Haven
Any such consent given prior to or within 10 days after the birth of the Indian child is not valid
WI infant relinquishment law requires relinquishment while child is less than 72 hours old
WICWA: Implications for Tribes
Increased caseloads Increased Tribal court
transfers Increased need for
Indian foster homes Increased
communication with state/county agencies
Increased involvement of tribes in services to children
ReferencesWisconsin Indian Child Welfare Act (Act 94)
http://www.legis.state.wi.us/2009/data/acts/09Act94.pdf
Ch. 48, Wis. Stats., (Children’s Code)http://www.legis.state.wi.us/statutes/Stat0048.pdf
Ch. 938, Wis. Stats., (Juvenile Justice Code)http://www.legis.state.wi.us/statutes/Stat0938.pdf
WI Dept. of Children & Families Tribal Relationshttp://dcf.wisconsin.gov/tribal_relations/default.htm
Tribal Child Welfare Prioritieshttp://dcf.wi.gov/children/icw/pdf/priorities.pdf
Frequently Asked Questionshttp://dcf.wi.gov/children/icw/statsadmin/pdf/faq.pdf
ContactsMark Mitchell, Special Projects ManagerOffice of Legal CounselWI Department of Children & Families(608) [email protected]
Loa Porter, Indian Child Welfare ConsultantDivision of Safety & PermanenceWI Department of Children & Families(608) [email protected]