Chapter 938

938.02(8r) (8r) “Indian tribe” means any Indian tribe, band, nation, or other organized group or community of Indians that is recognized as eligible for the services provided to Indians by the U.S. secretary of the interior because of Indian status, including any Alaska native village, as defined in 43 USC 1602 (c).

938.02(10) (10) “Judge,” if used without further qualification, means the judge of the court assigned to exercise jurisdiction under this chapter and ch. 48 or, if used with reference to a juvenile who is subject to s. 938.183, the judge of the court of criminal jurisdiction or, when used with reference to a juvenile who is subject to s. 938.17 (2), the judge of the municipal court.

938.02(10m) (10m) “Juvenile,” when used without further qualification, means a person who is less than 18 years of age, except that for purposes of investigating or prosecuting a person who is alleged to have violated a state or federal criminal law or any civil law or municipal ordinance, “juvenile” does not include a person who has attained 17 years of age.

938.02(10p) (10p) “Juvenile correctional facility” means a correctional institution operated or contracted for by the department of corrections or operated by the department of health services for holding in secure custody persons adjudged delinquent. “Juvenile correctional facility” includes the Mendota juvenile treatment center under s. 46.057 and a facility authorized under s. 938.533 (3) (b), 938.538 (4) (b), or 938.539 (5).

938.02(10r) (10r) “Juvenile detention facility” means a locked facility approved by the department of corrections under s. 301.36 for the secure, temporary holding in custody of juveniles.

938.02(11) (11) “Legal custodian” means a person, other than a parent or guardian, or an agency to whom legal custody of a juvenile has been transferred by a court, but does not include a person who has only physical custody of the juvenile.

938.02(12) (12) “Legal custody” means a legal status created by the order of a court, which confers the right and duty to protect, train and discipline a juvenile, and to provide food, shelter, legal services, education and ordinary medical and dental care, subject to the rights, duties and responsibilities of the guardian of the juvenile and subject to any residual parental rights and responsibilities and the provisions of any court order.

938.02(12c) (12c) “Like-kin” means an individual who has a significant emotional relationship with a child or the child’s family that is similar to a familial relationship and who is not and has not previously been the child’s licensed foster parent. For an Indian child, “like-kin” includes individuals identified by the child’s tribe according to tribal tradition, custom or resolution, code, or law.

938.02(12m) (12m) “Off-reservation trust land” means land in this state that is held in trust by the federal government for the benefit of an Indian tribe or individual and that is located outside the boundaries of an Indian tribe’s reservation.

938.02(12r) (12r) “Out-of-home care provider” means a foster parent, guardian, relative other than a parent, or nonrelative in whose home a juvenile is placed, or the operator of a group home, residential care center for children and youth, or shelter care facility in which a juvenile is placed, under the placement and care responsibility of the department of children and families, the department of corrections, or a county department. “Out-of-home care provider” also includes, in the case of a juvenile placed in a group home, residential care center for children and youth, or shelter care facility, a staff member employed on the site of that home, center, or facility who has been designated by the operator of that home, center, or facility as an out-of-home care provider for purposes of making decisions concerning the juvenile’s participation in age or developmentally appropriate activities.

938.02(13) (13) “Parent” means a biological parent, a husband who has consented to the artificial insemination of his wife under s. 891.40, or a parent by adoption. If the juvenile is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803, “parent” includes a person conclusively determined from genetic test results to be the father under s. 767.804 or a person acknowledged under s. 767.805 or a substantially similar law of another state or adjudicated to be the biological father. “Parent” does not include any person whose parental rights have been terminated. For purposes of the application of s. 938.028 and the federal Indian Child Welfare Act, 25 USC 1901 to 1963, “parent” means a biological parent, an Indian husband who has consented to the artificial insemination of his wife under s. 891.40, or an Indian person who has lawfully adopted an Indian juvenile, including an adoption under tribal law or custom, and includes, in the case of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803, a person conclusively determined from genetic test results to be the father under s. 767.804, a person acknowledged under s. 767.805, a substantially similar law of another state, or tribal law or custom to be the biological father, or a person adjudicated to be the biological father, but does not include any person whose parental rights have been terminated.

938.02(14) (14) “Physical custody” means actual custody of the person in the absence of a court order granting legal custody to the physical custodian.

938.02(14m) (14m) “Qualified individual” has the meaning given under 42 USC 675a (c) (1) (D).

938.02(14r) (14r) “Reasonable and prudent parent standard” means a standard for an out-of-home care provider to use in making decisions concerning a juvenile’s participation in age or developmentally appropriate extracurricular, enrichment, cultural, and social activities that is characterized by careful and sensible parental decisions that maintain the health, safety, best interests, and cultural, religious, and tribal values of the juvenile while at the same time encouraging the emotional and developmental growth of the juvenile.

938.02(15) (15) “Relative” means a parent, stepparent, brother, sister, stepbrother, stepsister, half brother, half sister, brother-in-law, sister-in-law, first cousin, 2nd cousin, first cousin once removed, nephew, niece, uncle, aunt, stepuncle, stepaunt, or any person of a preceding generation as denoted by the prefix of grand, great, or great-great, whether by blood, marriage, or legal adoption, or the spouse of any person named in this subsection, even if the marriage is terminated by death or divorce. For purposes of the application of s. 938.028 and the federal Indian Child Welfare Act, 25 USC 1901 to 1963, “relative” includes an extended family member, as defined in s. 938.028 (2) (a), whether by blood, marriage, or adoption, including adoption under tribal law or custom. For purposes of placement of a juvenile, “relative” also includes a parent of a sibling of the juvenile who has legal custody of that sibling.

938.02(15c) (15c) “Reservation,” except as otherwise provided in s. 938.028 (2) (e), means land in this state within the boundaries of the reservation of a tribe.

938.02(15d) (15d) “Residential care center for children and youth” means a facility operated by a child welfare agency licensed under s. 48.60 for the care, maintenance, and treatment of persons residing in that facility.

938.02(15g) (15g) “Secured residential care center for children and youth” means a facility that complies with the requirements of ss. 301.37 and 938.48 (16) (b) operated by an Indian tribe or a county under ss. 46.20, 59.53 (8m), and 938.22 (1) (a) or by a child welfare agency that is licensed under s. 48.66 (1) (b) to hold in secure custody persons adjudged delinquent.

938.02(17) (17) “Shelter care facility” means a nonsecure place of temporary care and physical custody for juveniles, including a holdover room, licensed by the department under s. 48.66 (1) (a).

938.02(17m) (17m) “Special treatment or care” means professional services which need to be provided to a juvenile or his or her family to protect the well-being of the juvenile, prevent placement of the juvenile outside the home or meet the special needs of the juvenile. This term includes medical, psychological or psychiatric treatment, alcohol or other drug abuse treatment or other services which the court finds to be necessary and appropriate.

938.02(17t) (17t) “Standardized assessment” means an assessment, using a tool determined by the department, of the strengths and needs of a juvenile to determine appropriateness of a placement in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675.

938.02(18) (18) “Trial” means a fact-finding hearing to determine jurisdiction.

938.02(18j) (18j) “Tribal court” means a court that has jurisdiction over juvenile custody proceedings, and that is either a court of Indian offenses or a court established and operated under the code or custom of an Indian tribe, or any other administrative body of an Indian tribe that is vested with authority over Indian juvenile custody proceedings.

938.02(18k) (18k) “Tribal school” has the meaning given in s. 115.001 (15m).

938.02(18m) (18m) “Truancy” has the meaning given in s. 118.16 (1) (c).

938.02(19) (19) “Type 1 juvenile correctional facility” means a juvenile correctional facility, but excludes any correctional institution that meets the criteria under sub. (10p) solely because of its status under s. 938.533 (3) (b), 938.538 (4) (b), or 938.539 (5).

938.02(19r) (19r) “Type 2 residential care center for children and youth” means a residential care center for children and youth that is designated by the department of corrections to provide care and maintenance for juveniles who have been placed in the residential care center for children and youth under the supervision of a county department under s. 938.34 (4d).

938.02(20) (20) “Type 2 juvenile correctional facility” means a juvenile correctional facility that meets the criteria under sub. (10p) solely because of its status under s. 938.533 (3) (b), 938.538 (4) (b), or 938.539 (5).

938.02(20m) (20m) 

938.02(20m)(a) (a) “Victim” means any of the following:

938.02(20m)(a)1. 1. A person against whom a delinquent act has been committed.

938.02(20m)(a)2. 2. If the person specified in subd. 1. is a child, a parent, guardian or legal custodian of the child.

938.02(20m)(a)3. 3. If a person specified in subd. 1. is physically or emotionally unable to exercise the rights granted under this chapter, s. 950.04 or article I, section 9m, of the Wisconsin constitution, a person designated by the person specified in subd. 1. or a family member, as defined in s. 950.02 (3), of the person specified in subd. 1.

938.02(20m)(a)4. 4. If a person specified in subd. 1. is deceased, any of the following:

938.02(20m)(a)4.a. a. A family member, as defined in s. 950.02 (3), of the person who is deceased.

938.02(20m)(a)4.b. b. A person who resided with the person who is deceased.

938.02(20m)(a)5. 5. If a person specified in subd. 1. has been adjudicated incompetent in this state, the guardian of the person appointed for him or her.

938.02(20m)(b) (b) “Victim” does not include a juvenile alleged to have committed the delinquent act.

938.02(21) (21) “Victim-witness coordinator” means a person employed or contracted by the county board of supervisors under s. 950.06 to provide services for the victims and witnesses of crimes or a person employed or contracted by the department of justice to provide the services specified in s. 950.08.

938.02 History History: 1995 a. 77, 216, 352, 448; 1997 a. 27, 35, 181, 191; 1999 a. 9, 162; 2001 a. 16, 59; 2003 a. 33, 284; 2005 a. 232, 344, 387; 2005 a. 443 s. 265; 2007 a. 20 ss. 3780 to 3782, 9121 (6) (a); 2009 a. 28, 94, 302, 334; 2011 a. 32, 258; 2011 a. 260 s. 80; 2013 a. 237; 2015 a. 55, 101, 128, 196; 2017 a. 34, 185; 2019 a. 8 ss. 25, 26, 71; 2019 a. 95; 2021 a. 42; 2023 a. 119.

938.02 Note NOTE: 2003 Wis. Act 284 contains explanatory notes.

938.022 938.022 Electronic filing. Section 801.18 shall govern the electronic filing of documents under this chapter. Electronic filing may be made through a custom data exchange between the court case management system and the automated information system used by district attorneys.

938.022 History History: Sup. Ct. Order No. 14-03, 2016 WI 29, 368 Wis. 2d xiii.

938.028 938.028 Indian juvenile welfare.

938.028(1) (1) Declaration of policy. In Indian juvenile custody proceedings, the best interests of the Indian juvenile shall be determined in accordance with the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and the policy specified in s. 938.01 (3).

938.028(2) (2) Definitions. In this section:

938.028(2)(a) (a) “Extended family member” means a person who is defined as a member of an Indian juvenile’s extended family by the law or custom of the Indian juvenile’s tribe or, in the absence of such a law or custom, a person who has attained the age of 18 years and who is the Indian juvenile’s grandparent, aunt, uncle, brother, sister, brother-in-law, sister-in-law, niece, nephew, first cousin, 2nd cousin, or stepparent.

938.028(2)(b) (b) “Indian juvenile custody proceeding” means a proceeding under s. 938.13 (4), (6), (6m), or (7) that is governed by the federal Indian Child Welfare Act, 25 USC 1901 to 1963, in which an out-of-home care placement may occur.

938.028(2)(c) (c) “Out-of-home care placement” means the removal of an Indian juvenile from the home of his or her parent or Indian custodian for temporary placement in a foster home, group home, residential care center for children and youth, or shelter care facility, in the home of a relative other than a parent, in the home of like-kin, or in the home of a guardian, from which placement the parent or Indian custodian cannot have the juvenile returned upon demand. “Out-of-home care placement” does not include an emergency change in placement under s. 938.357 (2) (b) or holding an Indian juvenile in custody under ss. 938.19 to 938.21.

938.028(2)(d) (d) “Qualified expert witness” means a person who is any of the following:

938.028(2)(d)1. 1. A member of the Indian juvenile’s tribe recognized by the Indian juvenile’s tribal community as knowledgeable regarding the tribe’s customs relating to family organization or child-rearing practices.

938.028(2)(d)2. 2. A member of another tribe who is knowledgeable regarding the customs of the Indian juvenile’s tribe relating to family organization or child-rearing practices.

938.028(2)(d)3. 3. A professional person having substantial education and experience in the person’s professional specialty and having substantial knowledge of the customs, traditions, and values of the Indian juvenile’s tribe relating to family organization and child-rearing practices.

938.028(2)(d)4. 4. A layperson having substantial experience in the delivery of juvenile and family services to Indians and substantial knowledge of the prevailing social and cultural standards and child-rearing practices of the Indian juvenile’s tribe.

938.028(2)(e) (e) “Reservation” means Indian country, as defined in 18 USC 1151, or any land not covered under that section to which title is either held by the United States in trust for the benefit of an Indian tribe or individual or held by an Indian tribe or individual, subject to a restriction by the United States against alienation.

938.028(3) (3) Jurisdiction over Indian juvenile custody proceedings.

938.028(3)(a) (a) Applicability. This section and the federal Indian Child Welfare Act, 25 USC 1901 to 1963, apply to any Indian juvenile custody proceeding regardless of whether the Indian juvenile is in the legal custody or physical custody of an Indian parent, Indian custodian, extended family member, or other person at the commencement of the proceeding and whether the Indian juvenile resides or is domiciled on or off of a reservation. A court assigned to exercise jurisdiction under this chapter may not determine whether this section and the federal Indian Child Welfare Act, 25 USC 1901 to 1963, apply to an Indian juvenile custody proceeding based on whether the Indian juvenile is part of an existing Indian family.

938.028(3)(b) (b) Exclusive tribal jurisdiction.

938.028(3)(b)1. 1. An Indian tribe shall have exclusive jurisdiction over any Indian juvenile custody proceeding involving an Indian juvenile who resides or is domiciled within the reservation of the tribe, except when that jurisdiction is otherwise vested in the state by federal law and except as provided in subd. 2. If an Indian juvenile is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction regardless of the residence or domicile of the juvenile.

938.028(3)(b)2. 2. Subdivision 1. does not prevent an Indian juvenile who resides or is domiciled within a reservation, but who is temporarily located off the reservation, from being taken into and held in custody under ss. 938.19 to 938.21 in order to prevent imminent physical harm or damage to the Indian juvenile. The person taking the Indian juvenile into custody or the intake worker shall immediately release the Indian juvenile from custody upon determining that holding the Indian juvenile in custody is no longer necessary to prevent imminent physical damage or harm to the Indian juvenile and shall expeditiously restore the Indian juvenile to his or her parent or Indian custodian, release the Indian juvenile to an appropriate official of the Indian juvenile’s tribe, or initiate an Indian juvenile custody proceeding, as may be appropriate.

938.028(3)(c) (c) Transfer of proceedings to tribe. In any Indian juvenile custody proceeding under this chapter involving an out-of-home placement of an Indian juvenile who is not residing or domiciled within the reservation of the Indian juvenile’s tribe, the court assigned to exercise jurisdiction under this chapter shall, upon the petition of the Indian juvenile’s parent, Indian custodian, or tribe, transfer the proceeding to the jurisdiction of the tribe unless any of the following applies:

938.028(3)(c)1. 1. A parent of the Indian juvenile objects to the transfer.

938.028(3)(c)2. 2. The Indian juvenile’s tribe does not have a tribal court, or the tribal court of the Indian juvenile’s tribe declines jurisdiction.

938.028(3)(c)3. 3. The court determines that good cause exists to deny the transfer. In determining whether good cause exists to deny the transfer, the court may not consider any perceived inadequacy of the tribal social services department or the tribal court of the Indian juvenile’s tribe. The court may determine that good cause exists to deny the transfer only if the person opposing the transfer shows by clear and convincing evidence that any of the following applies:

938.028(3)(c)3.a. a. The Indian juvenile is 12 years of age or over and objects to the transfer.

938.028(3)(c)3.b. b. The evidence or testimony necessary to decide the case cannot be presented in tribal court without undue hardship to the parties or the witnesses and that the tribal court is unable to mitigate the hardship by making arrangements to receive the evidence or testimony by use of telephone or live audiovisual means, by hearing the evidence or testimony at a location that is convenient to the parties and witnesses, or by use of other means permissible under the tribal court’s rules of evidence.

938.028(3)(c)3.c. c. The Indian juvenile’s tribe received notice of the proceeding under sub. (4) (a), the tribe has not indicated to the court in writing that the tribe is monitoring the proceeding and may request a transfer at a later date, the petition for transfer is filed by the tribe, and the petition for transfer is filed more than 6 months after the tribe received notice of the proceeding.

938.028(3)(d) (d) Declination of jurisdiction. If the court assigned to exercise jurisdiction under this chapter determines that the petitioner in an Indian juvenile custody proceeding has improperly removed the Indian juvenile from the custody of his or her parent or Indian custodian or has improperly retained custody of the Indian juvenile after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over the petition and immediately return the Indian juvenile to the custody of the parent or Indian custodian, unless the court determines that returning the Indian juvenile to his or her parent or Indian custodian would subject the Indian juvenile to substantial and immediate danger or the threat of that danger.

938.028(3)(e) (e) Intervention. An Indian juvenile’s Indian custodian or tribe may intervene at any point in an Indian juvenile custody proceeding under this chapter.

938.028(3)(f) (f) Full faith and credit. The state shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe that are applicable to an Indian juvenile custody proceeding to the same extent that the state gives full faith and credit to the public acts, records, and judicial proceedings of any other governmental entity.

938.028(4) (4) Court proceedings.

938.028(4)(a) (a) Notice. In any involuntary proceeding under s. 938.13 (4), (6), (6m), or (7) involving the out-of-home care placement of a juvenile whom the court knows or has reason to know is an Indian juvenile, the party seeking the out-of-home care placement shall, for the first hearing of the proceeding, notify the Indian juvenile’s parent, Indian custodian, and tribe, by registered mail, return receipt requested, of the pending proceeding and of their right to intervene in the proceeding and shall file the return receipt with the court. Notice of subsequent hearings in a proceeding shall be in writing and may be given by mail, personal delivery, or facsimile transmission, but not by electronic mail. If the identity or location of the Indian juvenile’s parent, Indian custodian, or tribe cannot be determined, that notice shall be given to the U.S. secretary of the interior in like manner. The first hearing in the proceeding may not be held until at least 10 days after receipt of the notice by the parent, Indian custodian, and tribe or until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for that hearing.

938.028(4)(b) (b) Appointment of counsel. Whenever an Indian juvenile is the subject of a proceeding under s. 938.13 (4), (6), (6m), or (7) involving the removal of the Indian juvenile from the home of his or her parent or Indian custodian or the placement of the Indian juvenile in an out-of-home care placement, the Indian juvenile’s parent or Indian custodian shall have the right to be represented by court-appointed counsel as provided in s. 938.23 (2g). The court may also, in its discretion, appoint counsel for the Indian juvenile under s. 938.23 (1m) or (3) if the court finds that the appointment is in the best interests of the Indian juvenile.

938.028(4)(c) (c) Examination of reports and other documents. Each party to a proceeding under s. 938.13 (4), (6), (6m), or (7) involving the out-of-home care placement of an Indian juvenile shall have the right to examine all reports or other documents filed with the court upon which any decision with respect to the out-of-home care placement may be based.

938.028(4)(d) (d) Out-of-home care placement; serious damage and active efforts. The court may not order an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7) to be removed from the home of the Indian juvenile’s parent or Indian custodian and placed in an out-of-home care placement unless all of the following occur:

938.028(4)(d)1. 1. The court finds by clear and convincing evidence, including the testimony of one or more qualified expert witnesses chosen in the order of preference listed in par. (e), that continued custody of the Indian juvenile by the parent or Indian custodian is likely to result in serious emotional or physical damage to the juvenile.

938.028(4)(d)2. 2. The court finds by clear and convincing evidence that active efforts, as described in par. (f) 1., have been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian juvenile’s family and that those efforts have proved unsuccessful. The court shall make that finding notwithstanding that a circumstance specified in s. 938.355 (2d) (b) 1. to 4. applies.

938.028(4)(e) (e) Qualified expert witness; order of preference.

938.028(4)(e)1. 1. Any party to a proceeding under s. 938.13 (4), (6), (6m), or (7) involving the out-of-home placement of an Indian juvenile may call a qualified expert witness. Subject to subd. 2., a qualified expert witness shall be chosen in the following order of preference:

938.028(4)(e)1.a. a. A member of the Indian juvenile’s tribe described in sub. (2) (d) 1.

938.028(4)(e)1.b. b. A member of another tribe described in sub. (2) (d) 2.

938.028(4)(e)1.c. c. A professional person described in sub. (2) (d) 3.

938.028(4)(e)1.d. d. A layperson described in sub. (2) (d) 4.

938.028(4)(e)2. 2. A qualified expert witness from a lower order of preference may be chosen only if the party calling the qualified expert witness shows that it has made a diligent effort to secure the attendance of a qualified expert witness from a higher order of preference. A qualified expert witness from a lower order of preference may not be chosen solely because a qualified expert witness from a higher order of preference is able to participate in the Indian juvenile custody proceeding only by telephone or live audiovisual means as prescribed in s. 807.13 (2). The fact that a qualified expert witness called by one party is from a lower order of preference under subd. 1. than a qualified expert witness called by another party may not be the sole consideration in weighing the testimony and opinions of the qualified expert witnesses. In weighing the testimony of all witnesses, the court shall consider as paramount the best interests of the Indian juvenile as provided in s. 938.01 (3). The court shall determine the qualifications of a qualified expert witness as provided in ch. 907.

938.028(4)(f) (f) Active efforts standard.

938.028(4)(f)1. 1. The court may not order an Indian juvenile to be removed from the home of the Indian juvenile’s parent or Indian custodian and placed in an out-of-home care placement unless the evidence of active efforts under par. (d) 2. shows that there has been an ongoing, vigorous, and concerted level of case work and that the active efforts were made in a manner that takes into account the prevailing social and cultural values, conditions, and way of life of the Indian juvenile’s tribe and that utilizes the available resources of the Indian juvenile’s tribe, tribal and other Indian child welfare agencies, extended family members of the Indian juvenile, other individual Indian caregivers, and other culturally appropriate service providers. The court’s consideration of whether active efforts were made under par. (d) 2. shall include whether all of the following activities were conducted:

938.028(4)(f)1.a. a. Representatives designated by the Indian juvenile’s tribe with substantial knowledge of the prevailing social and cultural standards and child-rearing practices within the tribal community were requested to evaluate the circumstances of the Indian juvenile’s family and to assist in developing a case plan that uses the resources of the tribe and of the Indian community, including traditional and customary support, actions, and services, to address those circumstances.

938.028(4)(f)1.am. am. A comprehensive assessment of the situation of the Indian juvenile’s family was completed, including a determination of the likelihood of protecting the Indian juvenile’s health, safety, and welfare effectively in the Indian juvenile’s home.

938.028(4)(f)1.b. b. Representatives of the Indian juvenile’s tribe were identified, notified, and invited to participate in all aspects of the Indian juvenile custody proceeding at the earliest possible point in the proceeding and their advice was actively solicited throughout the proceeding.