The Wisconsin Assembly Committee on Family Law held hearings on several bills that change the landscape of adoptions and termination of parental rights. The Ho-Chunk Nation provided on some of the more concerning bills, such as the expansion of Safe Haven and a provision that terminates parental rights if that parent is incarcerated (jailed).  

When a child is removed from the parents, they’re often also removed from tribal culture and traditions.  The future of the Nation relies upon us keeping our future safe, especially when circumstances exist which require us to pursue a path that is least traumatizing.  

“Termination of parental rights implicates not only a parent’s fundamental liberty interest to direct the care and custody of their child under the Fourteenth Amendment but also a child’s constitutional right to familial association.” -Wisconsin Department of Children and Families

Many of these bills were drafted by Rep. Dittrich to achieve a different outcome in certain cases or events, often relative to a very rare event in any Wisconsin community.  The text and legislative history of the bills can be found online at https://docs.legis.wisconsin.gov/2021.  

An in-depth look at the bills of concern: 

AB 626: Relating to: grounds for finding a child in need of protection or services or for terminating parental rights. 

Under the bill, the juvenile court may enter a CHIPS order for a child if it finds 

one of the following:

1) The child suffered prenatal exposure to alcohol or a controlled substance and 

the CHIPS petition was filed within 18 months of the child’s birth.

2) The child’s basic needs and safety have been adversely affected by a parent’s 

or guardian’s chronic and severe use of alcohol or a controlled substance.

Under the bill, the juvenile court may order TPR for a child who is placed outside the home pursuant to a CHIPS order finding that the child’s basic needs and safety have been adversely affected by a parent’s chronic and severe use of alcohol or a controlled substance if the court also finds that there is a substantial likelihood that the parent will not meet the conditions for the safe return of the child to the home as specified in the child’s permanency plan and that the parent is not seeking treatment or complying with a treatment program. Also, the juvenile court may not order TPR if the parent is participating in a drug court program.

The Nation’s concern: 

The use of courts to terminate parental rights based upon these broad and arbitrary factors will disproportionately affect Ho-Chunk parents.  

AB 627: Relating to: terminating parental rights based on the parent’s incarceration. 

This bill creates a new ground for TPR based on parental incarceration, which must be 

established by proving all of the following:

1. That the child has been adjudged to be in need of protection or services and 

placed outside the child’s home pursuant to one or more court orders containing 

notice of the grounds for TPR.

2. That the parent is incarcerated at the time of the fact-finding hearing for 

TPR.

3. That the parent is likely to be incarcerated for a substantial period of the 

child’s minority.

Under the bill, in determining whether the parent is likely to be incarcerated for a substantial period of the child’s minority, the court may consider a parent’s history of repeated incarceration.

The Nation’s concern: 

This will result in a disproportionate impact on Indian families. American Indians represent a disproportionate rate of those incarcerated in Wisconsin.  In 2013, Wisconsin had the highest rate of American Indians incarcerated in the country.  And those rates do not seem to be going down.^[1] 

Again, remember that historical trauma inflicted on Indigenous peoples results in self-medication and mental health concerns that could lead to behaviors that more often than not result in incarceration.  There are additionally implicit biases in policing and prosecutorial discretion that lead to disproportionate impacts on Indigenous communities when it comes to criminal matters.

The Indian Child Welfare Act (ICWA) requires that active efforts be provided to prevent the breakup of an Indian family.  These are above and beyond reasonable efforts. Yet, over and over conditions recommended from county social workers for incarcerated parents are essentially nothing. The overarching theme is “once you get out, then we will work with you”.  Instead of making it easier to terminate parental rights, the system should be enhanced on the prevention side.  When a parent is incarcerated, they are the easiest to locate and work with.  This is an optimal time to work with them on parental safety.  

COVID shines a light on the impossibility of moving towards termination of parental rights when reasonable or active efforts cannot be provided.  Many jurisdictions were putting termination of parental rights cases on hold and are tolling time because of the lack of services provided during the pandemic.  Yet counties have not provided reasonable, and certainly not active, efforts to incarcerated parents (remember “once you get out, then we will work with you”), yet moved swiftly to permanency for years.  Which leads to a very important revelation- this is ultimately an unnecessary ground.  TPR could still be accomplished through a continuing need for protection and services, and has for many years.  

Important to remember in all of this, is not all parents who are incarcerated lack a parental relationship with their child.  If that were the case, every single child would be in the “system”, when in fact familial supports and delegations of authority have long been safe and acceptable forms of addressing incarceration.  Yet, the State is now going to single out incarceration as a ground for termination of parental rights?  When incarceration disproportionately impacts those with behavioral health issues (drugs, alcohol, mental health, disabilities) and/or are minorities?

AB 628: Relating to: elimination of a jury trial in a proceeding under the Children’s Code. 

Under current law, in a termination of parental rights proceeding, a child or the child’s parent, guardian, or legal custodian; an unborn child’s guardian ad litem; or an expectant mother of an unborn child has a statutory right to a jury trial in the fact-finding portion of the proceeding. This bill eliminates that statutory right.

The Nation’s concern: A TPR is akin to a criminal case because it likewise involves a constitutionally protected fundamental right and liberty interest.  In the child welfare world, it is often stated that TPR is the death sentence of civil actions.  A constitutionally protected fundamental right should require the availability of a jury trial. The State Public Defender Office testified during the adoption taskforce and after, and presented data, that jury trials did not lengthen the process. In fact, they moved things along in a swifter manner.   

AB 629: Relating to: post adoption agreements.

This bill allows a proposed adoptive parent and a birth parent or other relative with whom a child has a substantial relationship to enter into an agreement for postadoption contact and allows a court to approve such an agreement.

Under the bill, a proposed adoptive parent and a birth parent or other relative with whom the child has a substantial relationship may enter into an agreement for postadoption contact privileges. Under the bill, a court is required to consider the terms of any such agreement when considering the impact on the child of severing the child’s relationship with the parent or other relative. Under the bill, a postadoption contact agreement may control the types and frequency of contact that the parties agree to. A court in an action to terminate parental rights may approve a postadoption contact agreement if the agreement meets certain requirements, as specified under the bill. The bill also specifies how an agreement may be modified, terminated, or enforced.

The Nation’s concern:

The practice of open adoption can at times be a tool to limit the amount of trauma a child faces because it allows a child to maintain ties to their birth family.  Research shows that even non-Indian adoptee children tend to have higher instances of mental health and substance use disorders. “Adoptees had higher odds for lifetime SUDs than nonadoptees in this study using NESARC data. Despite the advantages of adoptees’ higher educational levels probably due to being raised by higher educated, higher income adopting parents, adoptees are still at higher risk to lifetime SUD.”^[2]  As such, we support the practice of open adoption- of bio & adoptive parents having long-lasting relationships for the children’s benefit, but we still have the following two concerns:

• Duress/coercion being used to make parents sign away rights (“If you sign away your rights, we will enter into a post-adoption parental contact agreement”).  This section would be created under Subchapter XIX for adoption of minors.  So, this would occur after the parent’s rights are already terminated.  The Judge appears to thus be making clear and convincing evidence findings without the bio-parents being there- and solely off the written document. This is of concern when trying to rule out coercion. There should be a separate hearing on the post-adoption agreement, wherein a full colloquy can be performed with the bio-parent.  Thus, it makes sense that this would occur earlier in the process- during the TPR stage. This of course is assuming an adoptive home has already been identified and those potential adoptive parents are involved at the TPR stage of proceedings. There have been successful applications of post-adoption visitation agreements in the state of Wisconsin even without this Bill language though. This is through the use of a two-step process.  Step-one being contractual, which could limit some of the coercion concerns.  The parties enter into a written contract to agree to the jurisdiction of the family court for the purpose of ordering a Wis. Stat. § 767.43 visitation agreement under a “person who has maintained a relationship similar to a parent-child relationship with the child.” The juvenile court judge agrees to address the family court visitation order.  After the TPR, then the Court addresses the Wis. Stat. § 767.43 visitation order.
• Bio-parents and Bio-family are placed at a disadvantage by oftentimes not having funds to fight for enforcement, as mediation and court battles require funds.

Some of the Indian specific language needs to be tightened up.  Under Section 1, we do not believe the Court can mandate the Tribal child welfare department do this under sovereignty principles. The burden on ICWA cases to do active efforts is on the county agency. They would be the ones mandated to present this type of information to the court. Under their Section 4 (48.905(2)(a)), it would be helpful if they added at the end of that sentence “, as there are separate revocation rules applicable under those statutes.”  It will help clarify for a reader why this is the case- particularly a pro se litigant.

AB 631: Relating to: various changes to safe haven law.

This bill makes various changes to the safe haven law. The bill applies the safe 

haven law to a newborn child who is 30 days old or less, and allows a parent of an 

Indian child to relinquish the child to a tribal official.

The bill requires a person who takes custody of a relinquished child to make a 

reasonable effort to provide the relinquishing parent with a brochure that includes 

a statement of the parent’s right to remain anonymous, the steps to take if the parent 

changes his or her mind about relinquishment, an explanation of the importance of 

knowing the child’s social and health history, an explanation of the importance to an 

Indian child of maintaining a social and cultural connection to his or her tribe, and 

a form on which to provide identifying information for each parent and information 

about the child’s social and health history and tribal affiliation, if any.

Under the bill, a person who takes custody of a relinquished child must make 

a reasonable effort to solicit certain information about the social and health history 

of the child and any tribal affiliation of the child and, if the parent declines to provide 

the information solicited, must encourage the parent to submit the information to the 

county or, in Milwaukee County, to DCF at a later date. Under the bill, a person who 

obtains information relating to the tribal affiliation of a relinquished child must 

promptly transmit the information to the appropriate child welfare department, and 

the bill requires the child welfare department that obtains information relating to 

the tribal affiliation of a relinquished child to promptly transmit the information to 

the tribal agent of the child’s tribe.

Under the bill, after the juvenile court finds that a relinquished newborn child 

should continue to be held in custody, the court must transfer guardianship and legal 

custody of the child to the appropriate public adoption agency for placement in a 

licensed foster home, and the court must include in the continuation of custody order 

a finding that there is probable cause to believe that the newborn has been 

relinquished. The proposed adoptive parent must sign a statement acknowledging 

that the proposed adoptive parent understands that there is no guarantee that the 

adoption will be finalized. The bill specifies that any child welfare proceeding 

regarding an Indian child who has been relinquished under the safe haven law must 

comply with the state and federal Indian Child Welfare Acts.

Under the bill, the district attorney, corporation counsel, or other official 

designated by a county must file a petition to terminate the parental rights of a 

parent of a relinquished newborn child or, if a petition has already been filed, to join 

in the petition. Under the bill, the petition must be filed in the county in which the 

relinquishment occurred no sooner than 30 days after the date on which the child was 

relinquished and no later than 60 days after the date on which the juvenile court 

found probable cause to believe that the child was relinquished.

The bill clarifies that a person must file a foundling birth record for an infant 

who is relinquished under the safe haven law in addition to filing a foundling birth 

record for a live born infant of unknown parentage. The bill requires any person who 

is required to file a foundling birth record and either files or knows of the filing of a 

birth record at the time of birth to notify the state registrar that the birth record filed 

at the time of birth and the foundling birth record are for the same infant so that the 

state registrar may impound a birth record. Under the bill, when a birth record filed 

at the time of birth is located for a foundling or if a person notifies the state registrar 

of the birth record filed at the time of birth for a foundling, the state registrar must 

impound the birth record filed at the time of birth instead of the foundling birth 

record. The bill maintains the current requirement for the state registrar to impound 

the foundling birth record for foundlings who are adopted and for whom the adoptive 

parents sign a birth record giving their names as the adoptive parents.

The Nation’s concerns: 

• Safe Haven is in direct conflict with the federal Indian Child Welfare Act.  As such, federal law should preempt state safe haven laws. The tribal additions, except those proposed that infringe on tribal sovereignty, are needed to reach a compromise. However, anything less, and the Nation will not provide support.     

• Two obvious areas that Safe Haven conflicts with WICWA/ICWA. 
  • Under WICWA/ICWA no Indian child may be relinquished within ten (10) days after birth and any such relinquishment of an Indian child after ten (10) days must be completed and certified before a judge.
    • For voluntary foster care placements, the parents need to put their voluntary consent in writing, which in turn needs to be recorded by a judge and accompanied by the judge’s written certification that the terms and consequences were explained and understood. 25 U.S.C. § 1913(a); Wis. Stat. § 48.028(5)(a).
  • One of the main requirements of WICWA/ICWA is that placement preferences be followed when placing an Indian child out of the home or having an Indian child adopted.

• Ho-Chunk Nation Comments from 2015:
  • “Safe Haven is a back door approach to ICWA and WICWA avoidance.  Without obtaining the necessary information to confirm a child’s status as an Indian child results in the tribes not receiving notice.  Notice is one of the core elements of the ICWA and WICWA.  It is the trigger that must be pulled in order to promote the stability and security of Indian tribes and families.  It is what gets the tribes in the door to take that child into custody and place with tribal families or for the tribes to at least intervene in the county court proceedings to advocate for their preferred tribal placement.  

Is the bill draft perfect to remedy the ICWA and WICWA noncompliance?  No.  Is it a compromise?  Yes.  It is not unreasonable for the questions to be asked that must be answered to determine Indian eligibility.  If anonymity is the primary goal of Safe Haven, then obviously you cannot force someone to answer.  However, it was my belief that the primary goal of Safe Haven was to have safe children.  And a safe Indian child is a child placed within his/her community. 

There is certainly an argument that anonymity is what is needed to prevent infanticide.  However, this is weak at best.  And considerably weaker with the lack of any hard data to suggest that anonymity is indeed what is required to prevent infanticide.  There is quite a bit of legal literature that instead speaks of how anonymity does not prevent infanticide- as people are still abandoning children- despite states having “Safe Haven Laws.”  Instead, the literature illustrates the role anonymity has in being more of a detriment to the adoptees than assistive.  And in fact, there is no place that this becomes a larger detriment than in the hospital setting.

These anonymity provisions are particularly vexing because a vast majority of abandoned newborns are abandoned at the hospital after birth even without any safe haven laws (citation omitted).  These infants do not seem to have been at risk of harm or death since they were left at sheltered places with attendants and medical care, and there is no indication that need for anonymity or fear of criminal prosecution prevents mothers who give birth in the hospital from leaving their newborns there.  Yet the statutes, nearly all of which designate hospitals as safe havens [citation omitted], may now permit these hospital abandonments to be classified as safe haven relinquishments with the attendant anonymity and barriers to obtaining family and medical information that may be useful to the child and adoptive parents and, in the case of Native American children, the tribe.  Thus, the statutes potentially have injected anonymity onto tens of thousands of babies born, and abandoned, at hospitals each year.  

Annette R. Appell, Safe Haven to Abandon Babies, Part III: The Effects, Adoption Quarterly Vol. 6(2) 2002. 

It is fully understood the difference between anonymity and confidentiality.  When the tribes proffer that they have stringent confidentiality, it is not a misconceived understanding of anonymity.  Instead, it is to show that the intent of the Safe Haven Laws can still be achieved.  We can handle these actions in a manner that the parent(s) remain anonymous.  We need the basic information to verify eligibility of membership.  Yet, we can protect them through this process to ensure the child is safe and healthy, while recognizing the desire of the parent(s) to be unknown among our tight knit tribal communities.  

Whether these actions are considered involuntary or voluntary makes no difference with regards to ICWA and WICWA noncompliance.  If these are to be considered voluntary, those arrangements to sever one’s parental ties to their Indian child must be recorded before a judge who can explain in detail the terms and consequences of the proposed action. 25 U.S.C. § 1913; Wis. Stat. § 48.028(5)(b).  Furthermore, any consent given under a voluntary proceeding is not valid if given prior to or within 10 days after the birth of an Indian child. Id.  Additionally, placement preferences of the tribes are to be followed with regards to placing the infant. Wis. Stat. § 48.028(7)(c)(finding that placement preferences of the tribes should be followed, absent good cause, for preadoptive placements).   If they are to be instead treated as involuntary, as is suggested by the Wisconsin Children’s Court Improvement Project, then the tribe shall receive notice and be permitted to intervene, among other federally and state provided rights. 25 U.S.C. §§ 1911-12; Wis. Stat. § 48.028(3)(e); (4)(a).  So, no matter how one cuts it, the Safe Haven Law of Wisconsin is in direct conflict with federal law.”

• If the State wishes to address unsafe relinquishment practices and/or infanticide, it must implement measures that prevent the issues leading to relinquishments as opposed to simply trying to respond after the fact and continuing to allow conditions that lead to relinquishments.
  • Rebecca F. Wilson, PhD; Joanne Klevens, MD, PhD; Dionne Williams, MPS; Likang Xu, MD, “Infant Homicides Within the Context of Safe Haven Laws – United States, 2008-2017,” Vol. 69 Centers for Disease Control and Prevention Morbidty and Mortality Weekly Report No. 39, p. 1385-1390 (Oct. 2, 2020).
    • p. 1389-90
      • Although infants make up a small percentage of homicide victims, these deaths are preventable. Programs and policies that strengthen economic supports for families, provide quality and affordable childcare, develop parenting skills (e.g., through home visiting programs), assure safe, stable, nurturing relationships and environments for all infants (10), and increase the public’s awareness of Safe Haven Laws might contribute to preventing infant homicides.

• Section 4, and all subsequent section increasing the time for relinquishment from 72 hours to 30 days, is not supported by data. 
  • Although there is a specific method of inputting safe haven cases into the eWiSACWIS system per Administrative Rules, it is not followed consistently across the State from county to county.  As such, there is insufficient data to support a change from 72 hours to 30 days.
  • Rebecca F. Wilson, PhD; Joanne Klevens, MD, PhD; Dionne Williams, MPS; Likang Xu, MD, “Infant Homicides Within the Context of Safe Haven Laws – United States, 2008-2017,” Vol. 69 Centers for Disease Control and Prevention Morbidty and Mortality Weekly Report No. 39, p. 1385-1390 (Oct. 2, 2020).
    • p. 1385-86
      • No obvious association was found between infant homicide rates and Safe Haven age limits. States are encouraged to evaluate the effectiveness of their Safe Haven Laws and other prevention strategies to ensure they are achieving the intended benefits of preventing infant homicides. Programs and policies that strengthen economic supports, provide affordable childcare, and enhance and improve skills for young parents might contribute to the prevention of infant homicides.
    • p.1389
      • In addition, the association between infant homicide and Safe Haven age limits did not follow a linear pattern of risk, suggesting that rates cannot be explained by Safe Haven age limits, but might be related to other factors (e.g., maternal age or unintended pregnancy) (2).

• Section 5 violates tribal sovereignty.  
  • Tribes shall maintain their sovereign right to exert jurisdiction over their tribal members and tribal domestic relations.  There should be no requirement that a tribal agent must deliver the child to the county, if they wish to exert jurisdiction themselves. 

• Section 9 is needed. 

• Section 10 is required to bring Safe Haven into compliance with federal law- the Indian Child Welfare Act.

• Section 13- Description of why tribal membership is important is needed. 

• We previously thought something like this included would be beneficial.

Tribal Membership =

Rights & Privileges for this Child if Indian

Statement Required by Wis. Stat. § 48.195(3)(a)5

Indian children retain certain rights and privileges due to this political designation. First and foremost, they have the right to be socially and culturally connected to their Tribe and Clan. From this stems a variety of potential benefits that come from tribal membership, however, identifying information is needed for children to become members of their tribes. The potential benefits include, but are not limited to:

1. Belonging/Cultural Connection: The best interests of an Indian child in Wisconsin is realized when an “Indian child” can establish, develop, and maintain political, cultural, and social relationships with their Indian family, community, and tribal nation. Wis. Stat. § 48.01(2)(b)2.

2. Right to Participate in Tribal Governance: To hold office or vote, one generally has to be a member of their tribal nation.

3. Federal Rights & Privileges: There are numerous federal laws and programs that pertain specifically to tribal people. For example, treaty rights such as hunting and fishing would fall under here, but so too would the protections granted to Indian families under the Indian Child Welfare Act (ICWA).

4. Access to Health Care Benefits: The federal government owes a trust responsibility to tribal people- one responsibility is the provision of health care. Indian Health Services (IHS), provides funding and operational assistance to numerous Indian health clinics, hospitals, and tribal governments across the United States.

5. Access to Educational Benefits: The federal government offers numerous educational benefits from the head start days all through college. Many tribes offer additional college assistance to their members. Additionally, proof of membership is oftentimes needed for independent Native American scholarships.

6. Right to Own/Inherit/Lease Indian Property: Members of tribal nations have the ability to lease trust/reservation lands, which are tax exempt. They also have the right to inherit and own Indian property.

7. Direct Tribal Assistance: Many tribal nations offer periodic payments to their members (often called per-capita). They may also have other forms of tribal programming, for example emergency assistance monies, housing/rental assistance, job skills assistance, employment, and more.

• Section 14 violates tribal sovereignty.  
  • Placing requirements on the tribal agent is outside the scope of State legislative authority as it relates to tribal jurisdiction over tribal domestic relations. 

• Section 19 is needed.
  • The Tribes should be consulted on the materials.

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^[1] https://www.greenbaypressgazette.com/story/news/native-american-issues/2021/03/17/native-americans-incarcerated-among-highest-rates-wisconsin/6841084002/.  

^[2] Gihyun Yoon, et al., Substance Use Disorders and Adoption: Findings from a National Sample, PLoS ONE 7(11): e49655, available athttps://doi.org/10.1371/journal.pone.0049655 (Nov. 15, 2012).