Wisconsin Indian Child Welfare Act: Codification Experience

1. Wisconsin Indian Child Welfare ActCodification Experience MCWIC Tribal Child Welfare Gathering Odawa Casino Resort, Petoskey, MI May 5, 2010 Mark S. Mitchell, Special Projects Manager Office of Legal Counsel WI Department of Children & Families

2. Wisconsin Indian Child Welfare Act Codified into Statutes by 2009 Wisconsin Act 94 Effective December 22, 2009

3. Historical Background

4. 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. Stenzel, 2007

5. Compliance IssuesChild and Family Services Review (CFSR) The federal CFSR in 2003 found that Wisconsin was deficient in the following areas: Identification of Indian children Notification to Tribes of cases in a timely manner

6. 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)

8. Codification Initiative Seven tribal priorities in 2003-04 developed by ICW 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

9. Public Hearings and Negotiations

10. 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

11. Format Two primary options: • Subchapter of each statutory chapter • Spread throughout the chapters as appropriate Result: A combination (s. 48.028 and inserted as appropriate throughout the case process)

12. November 13, 2008 September 16, 2009 Public Hearings Negotiation Meetings • March 23, 2009 • April 20, 2009 • May 4, 2009 • June 29, 2009 • January 7, 2009 • February 2, 2009 • March 4, 2009

13. 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.

14. Tribal and State Strategies • Trust Relationship • Consensus Building • Consistent Response • Lobbying Efforts • Research

15. 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

16. The Legislative/Negotiation Process and Final Content

17. Best Interests of an Indian Child/Juvenile: Challenges Stakeholders’ 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

18. Best Interests of an Indian Child/Juvenile: Challenges Result: • 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.

19. 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:

20. 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.

21. 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 placementis 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.

22. 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.

23. 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)

24. 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

25. Existing Indian Family Doctrine S. 48.028(3)(a) • A court assigned to exercise jurisdiction under this chapter may not determine whether this section and the federal ICWA apply to an Indian child custody proceeding based on whether the Indian child is part of an existing Indian family

26. 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

27. 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”

28. 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)

29. Jurisdiction: Good Cause Not to Transfer Compromise 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

30. 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

31. Qualified Expert Witness: Negotiations Compromise 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

32. 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.

33. 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

34. 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

35. 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 Fact-Finding vs. Disposition: Compromise

36. 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

37. Active Efforts: Statutory Language S. 48.028(4)(g) • Ongoing, vigorous, concerted level of casework

38. 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

39. Active Efforts: Statutory Language • If any of the activities were not conducted, petitioning agency shall submit documentation to the court explaining why

40. Voluntary Placements and TPRs S. 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

41. Voluntary Placements and TPRs S. 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)

42. 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

43. 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)

44. 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

45. 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

46. References Wisconsin 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 Relations http://dcf.wisconsin.gov/tribal_relations/default.htm Tribal Child Welfare Priorities http://dcf.wi.gov/children/icw/pdf/priorities.pdf Frequently Asked Questions http://dcf.wi.gov/children/icw/statsadmin/pdf/faq.pdf

47. Contacts Mark Mitchell, Special Projects Manager Office of Legal Counsel WI Department of Children & Families (608) 264-9836 mark.mitchell@wi.gov Loa Porter, Indian Child Welfare Consultant Division of Safety & Permanence WI Department of Children & Families (608) 255-5330 loa.porter@wi.gov