State of Wisconsin
Department of Children and Families
Tribal Subsidized Guardianship
DCF 55
The statement of scope for this rule, SS 110-23, was approved by the governor on November 29, 2023, published in Register 816A1 on December 4, 2023, and approved by Secretary Emilie Amundson on December 18, 2023. The Wisconsin Department of Children and Families proposes an order to repeal s. DCF 55.06(2)(f)2.(Note); to renumber s. DCF 55.13(1); renumber and amend ss. DCF 55.02(1) and (7); to amend ss. DCF 55.01(2) and (9)(a) to (c), 55.03(1)(intro.), (a)1.a. and b., (b)1. and 3., (c) and (d), 55.04(1)(intro.), (b), (c), (d), and (2), 55.05(title), (1)(intro.), (d), and (2), 55.06(1) and (2)(f)2. and (m), 55.08(2)(a)1., 55.10(3)(b) and (4)(a)3.c., 55.12(1)(intro.), (a), (b), and (d), 55.125(1)(c), (d), (3), (4)(a), (b), and (5), and 55.13(2)(intro.), (b), (d), (e)1., (3)(a) to (c) and (Note); and to create ss. DCF 55.01(3), 55.02(1g), (3m), (5s), (14), and (15), 55.125(1)(e), and 55.13(1g), relating to tribal subsidized guardianship. Analysis Prepared by the Department of Children and Families
Related statutes and rules: Sections 48.62 and 48.685, Stats., and ss. DCF 12 and 56 Explanation of Agency Authority
Section 227.11 (2) (a), Stats., expressly confers rule-making authority on each agency to promulgate rules interpreting the provisions of any statute enforced or administered by the agency. Summary of the Rule
The proposed rules bring the subsidized guardianship rule into conformance with s. 48.623, Stats., as affected by 2023 Wisconsin Act 19, which allows federally-recognized tribes located in Wisconsin to determine eligibility for and make payments under the subsidized guardianship program. Each tribe will have the option to enter into an agreement with the department to make payments for subsidized guardianships ordered by the tribal court located in Wisconsin or to enter into, or continue to enter into, an agreement with a county to make the payments. Counties and tribes receive state reimbursement for subsidized guardianship payments. Tribal Administration
Changes to bring the rule into conformance with tribal administration of the subsidized guardianship program include the following:
Adding a description of tribal administration of the subsidized guardianship program in s. DCF 55.01 that is cross-referenced throughout the rule to clarify applicability.
Adding “a tribal child welfare agency located in Wisconsin” to the definition of “agency.”
Adding a definition of “adoption” that includes customary adoption, where applicable, according to tribal law or custom.
Replacing the term “agency” with “a county department or the department” in provisions required by the Wisconsin Indian Child Welfare Act under s. 48.028, Stats., which does not apply to tribes.
Exempting tribal child welfare agencies from the requirement that agencies use the department’s form when explaining a child’s permanency options.
Separating requirements applicable to county departments and the department from those applicable to tribal child welfare agencies when referring to a permanency plan since not all tribes use permanency plans.
Removing the term “electronic” when referring to a child’s case record since tribes do not use the department’s automated child welfare system.
Allowing a background investigation of an interim caretaker and prospective successor guardian that is conducted by a tribal child welfare agency to be conducted under s. 48.685, Stats., and s. DCF 55.13 or by meeting the background check requirements for foster parent licensing under 42 USC 671 (a) (20). References to Tribal Law, Tribal Court Orders, and Related Issues
The rules also make clarifications and corrections to references to equivalent tribal law, tribal court orders, and related issues including the following:
Changing “substantially similar Wisconsin tribal law” to “substantially similar law of a tribe located in Wisconsin.”
Changing “a substantially similar Wisconsin tribal court order” to “a substantially similar tribal court order” and defining “tribal court order” as an order of a tribal court located in Wisconsin.
Changing “under s. 48.977 (2), Stats., or under a substantially similar Wisconsin tribal law” to “under s. 48.977 (2), Stats., or under a tribal court order that is substantially similar to an order under s. 48.977, Stats.”
Adding “or a substantially similar tribal law or policy of a tribe, a bureau of Indian education-operated school, or a tribally controlled school located in Wisconsin” to a reference to an individualized education program under s. 115.787, Stats.
Adding “jurisdiction” and “United States jurisdiction” to background check provisions that refer to counties and states and adding contact information for the Wisconsin Tribal Court Judges Association to a note on contacting county clerks of court. Other
The rules also rename the defined term “like-kin” as “fictive kin” to avoid confusion with the term “like-kin” used in other child welfare contexts with a different meaning.
In addition, the rules repeal a requirement that a prospective guardian complete a form on any private health insurance coverage before guardianship is established because the information in the form has not been used.
Summary of Related Federal Law
There is no federal law on tribal administration of the subsidized guardianship program. General provisions on the subsidized guardianship program are in 42 USC 671 (a) (28) and 42 USC 673 (d). Summary of Data and Analytical Methodologies
Not applicable
Comparison to Adjacent States
Not applicable
Effect on Small Businesses
The proposed rule does not affect small businesses as defined in s. 227.114 (1), Stats. Analysis Used to Determine Effect on Small Businesses
The rule affects tribal child welfare agencies located in Wisconsin, children under the jurisdiction of a tribal court located in Wisconsin, subsidized guardians and proposed subsidized guardians of children under the jurisdiction of a tribal court located in Wisconsin, and county human and social service departments.
Agency Contact
Emily Erickson, Director
Bureau of Permanence and Out-of-Home Care
(608) 422-6961
