wisconsin indian child welfare act codification experience

Wisconsin Indian Child Welfare Act

Codification ExperienceMCWIC Tribal Child Welfare Gathering

Odawa Casino Resort, Petoskey, MIMay 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 & PurposeWhen 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 469Subject to ICWA 122 475 448 418ICWA Notice 82 88 59 32Placement 70 73 46 23

2005 2006 2007 2008

Codification InitiativeSeven 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 WitnessS. 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) 264-9836mark.mitchell@wi.gov

Loa Porter, Indian Child Welfare ConsultantDivision of Safety & PermanenceWI Department of Children & Families(608) 255-5330loa.porter@wi.gov