Wis. Stat. § 48.028 — WI Code / Chapter 48 / Section 48.028
Section 48.028
Status: in_force

(bm) Temporary physical custody; preferences. Any Indian child who is being held in temporary physical custody under s. 48.205 (1) shall be placed in compliance with par. (b) or, if applicable, par. (c) , unless the person responsible for determining the placement finds good cause, as described in par. (e) , for departing from the order of placement preference under par. (b) or finds that emergency conditions necessitate departing from that order. When the reason for departing from that order is resolved, the Indian child shall be placed in compliance with the order of placement preference under par. (b) or, if applicable, par. (c) .

(c) Tribal or personal preferences. In placing an Indian child under par. (a) , (b) , or (bm) or in delegating powers regarding an Indian child under par. (a) , if the Indian child’s tribe has established, by resolution, an order of preference that is different from the order specified in par. (a) or (b) , the order of preference established by that tribe shall be followed, in the absence of good cause, as described in par. (e) , to the contrary, so long as the placement or delegation under par. (a) is appropriate for the Indian child’s special needs, if any, and the placement under par. (b) or (bm) is the least restrictive setting appropriate for the Indian child’s needs as specified in par. (b) . When appropriate, the preference of the Indian child or parent shall be considered, and, when a parent who has consented to the placement or delegation evidences a desire for anonymity, that desire shall be given weight, in determining the placement or delegation.

(d) 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 child’s parents or extended family members reside or with which the Indian child’s parents or extended family members maintain social and cultural ties.

(e) Good cause.

1. Whether there is good cause to depart from the order of placement preference under par. (a) , (b) , or (c) shall be determined based on any one or more of the following considerations:

a. When appropriate, the request of the Indian child’s 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 this section and the federal Indian Child Welfare Act, 25 USC 1901 to 1963 .

b. Any extraordinary physical, mental, or emotional health needs of the Indian child requiring highly specialized treatment services as established by the testimony of an expert witness, including a qualified expert witness. The length of time that an Indian child has been in a placement or subject to a delegation of powers, as described in sub. (2) (d) 5. , does not, in itself, constitute an extraordinary emotional health need.

c. The unavailability of a suitable placement for the Indian child after diligent efforts have been made to place the Indian child in the order of preference under par. (a) , (b) , or (c) or the unavailability of a suitable agent to whom to delegate powers, as described in sub. (2) (d) 5. , regarding the Indian child after diligent efforts have been made to delegate those powers in the order of preference under par. (a) .

2. The burden of establishing good cause to depart from the order of placement preference under par. (a) , (b) , or (c) shall be on the party requesting that departure.

(f) Report of placements and delegations of powers. The department, a county department, or a child welfare agency shall maintain a record of each adoptive placement, out-of-home care placement, preadoptive placement, and delegation of powers, as described in sub. (2) (d) 5. , made of an Indian child, evidencing the efforts made to comply with the placement preference requirements specified in this subsection, and shall make that record available at any time on the request of the U.S. secretary of the interior or the Indian child’s tribe.

(8) Return of custody.

(a) Adoption vacated, set aside, or terminated. If a final order granting adoption of an Indian child is vacated or set aside or if the parental rights to an Indian child of all adoptive parents of the Indian child are voluntarily terminated, the Indian child’s former parent or former Indian custodian may petition for the return of custody of the Indian child. On receipt of a return of custody petition, the court shall set a date for a hearing on the petition that allows reasonable time for the parties to prepare. The court shall provide notice of the hearing to the guardian and legal custodian of the Indian child, to all other interested parties as provided in s. 48.27 (6) , and to the Indian child’s former parent and former Indian custodian. At the conclusion of the hearing, the court shall grant a petition for the return of custody of the Indian child to the Indian child’s former parent or former Indian custodian unless there is a showing that return of custody is not in the best interests of the Indian child.

(b) Removal from out-of-home care placement. If an Indian child is removed from an out-of-home care placement for the purpose of placing the Indian child in another out-of-home care placement, a preadoptive placement, or an adoptive placement, the placement shall be made in accordance with this section. Removal of an Indian child from an out-of-home care placement for the purpose of returning the Indian child to the home of the parent or Indian custodian from whose custody the Indian child was originally removed is not subject to this section.

(9) Adoptee information.

(a) Provision of information to U.S. secretary of the interior. At the time a court enters an order granting adoption of an Indian child, the court shall 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 all of the following information:

1. The name and tribal affiliation of the Indian child.

2. The names and addresses of the Indian child’s birth parents.

3. The names and addresses of the Indian child’s adoptive parents.

4. The identity of any agency that has in its possession any files or information relating to the adoptive placement of the Indian child.

(b) Confidentiality of parent’s identity. The court shall give the birth parent of an Indian child the 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. If the birth parent files that affidavit, the court shall include the affidavit with the information provided to the U.S. secretary of the interior under par. (a) , and that secretary shall maintain the confidentiality of the birth parent’s identity as required under 25 USC 1951 (a) and (b).

(c) Provision of tribal affiliation to adoptee. At the request of an Indian adoptee who is 18 years of age or older, the court that entered the order granting adoption of the adoptee shall provide or arrange to provide the adoptee 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.

(10) Higher state or federal standard applicable. The federal Indian Child Welfare Act, 25 USC 1901 to 1963 , supersedes this chapter in any Indian child custody proceeding governed by that act, except that in any case in which this chapter provides a higher standard of protection for the rights of an Indian child’s parent or Indian custodian than the rights provided under that act, the court shall apply the standard under this chapter.

History: 1981 c. 81 ; 2009 a. 94 ; 2011 a. 87 ; 2013 a. 314 , 335 ; 2015 a. 373 ; 2023 a. 119 .