Wis. Stat. § 938.028 — WI Code / Chapter 938 / Section 938.028
Section 938.028
Status: in_force

c. Extended family members of the Indian juvenile, including extended family members who were identified by the Indian juvenile’s tribe or parents, were notified and consulted with to identify and provide family structure and support for the Indian juvenile, to assure cultural connections, and to serve as placement resources for the Indian juvenile.

d. Arrangements were made to provide natural and unsupervised family interaction in the most natural setting that can ensure the Indian juvenile’s safety, as appropriate to the goals of the Indian juvenile’s permanency plan, including arrangements for transportation and other assistance to enable family members to participate in that interaction.

e. All available family preservation strategies were offered or employed and the involvement of the Indian juvenile’s tribe was requested to identify those strategies and to ensure that those strategies are culturally appropriate to the Indian juvenile’s tribe.

f. Community resources offering housing, financial, and transportation assistance and in-home support services, in-home intensive treatment services, community support services, and specialized services for members of the Indian juvenile’s family with special needs were identified, information about those resources was provided to the Indian juvenile’s family, and the Indian juvenile’s family was actively assisted or offered active assistance in accessing those resources.

g. Monitoring of client progress and client participation in services was provided.

h. A consideration of alternative ways of addressing the needs of the Indian juvenile’s family was provided, if services did not exist or if existing services were not available to the family.

2. If any of the activities specified in subd. 1. a. to h. were not conducted, the person seeking the out-of-home care placement shall submit documentation to the court explaining why the activity was not conducted.

(5) Invalidation of action. Any Indian juvenile in need of protection or services under s. 938.13 (4) , (6) , (6m) , or (7) who is the subject of an out-of-home care placement, any parent or Indian custodian from whose custody that Indian juvenile was removed, or the Indian juvenile’s tribe may move the court to invalidate that out-of-home care placement on the grounds that the out-of-home care placement was made in violation of 25 USC 1911 or 1912 . If the court finds that those grounds exist, the court shall invalidate the out-of-home care placement.

(6) Placement of Indian juvenile.

(a) Out-of-home care placement; preferences. Any Indian juvenile in need of protection or services under s. 938.13 (4) , (6) , (6m) , or (7) who is placed in an out-of-home care placement shall be placed in the least restrictive setting that most approximates a family, that meets the Indian juvenile’s special needs, if any, and that is within reasonable proximity to the Indian juvenile’s home, taking into account those special needs. Subject to pars. (b) to (d) , in placing such an Indian juvenile in an out-of-home care placement, preference shall be given, in the absence of good cause, as described in par. (d) , to the contrary, to a placement in one of the following, in the order of preference listed:

1. The home of an extended family member of the Indian juvenile.

2. A foster home licensed, approved, or specified by the Indian juvenile’s tribe.

3. An Indian foster home licensed or approved by the department, a county department, or a child welfare agency.

4. A group home or residential care center for children and youth approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the needs of the Indian juvenile.

(am) Temporary physical custody; preferences. Any Indian juvenile in need of protection or services under s. 938.13 (4) , (6) , (6m) , or (7) who is being held in temporary physical custody under s. 938.205 (1) shall be placed in compliance with par. (a) or, if applicable, par. (b) , unless the person responsible for determining the placement finds good cause, as described in par. (d) , for departing from the order of placement preference under par. (a) or finds that emergency conditions necessitate departing from that order. When the reason for departing from that order is resolved, the Indian juvenile shall be placed in compliance with the order of placement preference under par. (a) or, if applicable, par. (b) .

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

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

(d) Good cause.

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

a. When appropriate, the request of the Indian juvenile’s parent or, if the Indian juvenile is of sufficient age and developmental level to make an informed decision, the Indian juvenile, 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 juvenile 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 juvenile has been in a placement does not, in itself, constitute an extraordinary emotional health need.

c. The unavailability of a suitable placement for the Indian juvenile after diligent efforts have been made to place the Indian juvenile in the order of preference under par. (a) or (b) .

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

(e) Report of placement. A county department or a child welfare agency shall maintain a record of each out-of-home care placement made of an Indian juvenile who is in need of protection or services under s. 938.13 (4) , (6) , (6m) , or (7) , 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 juvenile’s tribe.

(7) Removal from out-of-home care placement. If an Indian juvenile who is in need of protection or services under s. 938.13 (4) , (6) , (6m) , or (7) is removed from an out-of-home care placement for the purpose of placing the Indian juvenile in another out-of-home care placement, a preadoptive placement, as defined in s. 48.028 (2) (f) , or an adoptive placement, as defined in s. 48.028 (2) (a) , the placement shall be made in accordance with this section and s. 48.028 . Removal of such an Indian juvenile from an out-of-home care placement for the purpose of returning the Indian juvenile to the home of the parent or Indian custodian from whose custody the Indian juvenile was originally removed is not subject to this section.

(8) Higher state or federal standard applicable. The federal Indian Child Welfare Act, 25 USC 1901 to 1963 , supersedes this chapter in any Indian juvenile 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 juvenile’s parent or Indian custodian than the rights provided under that act, the court shall apply the standard under this chapter.

History: 1995 a. 352 ; 2005 a. 344 ; 2009 a. 94 ; 2015 a. 373 ; 2023 a. 119 .