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Indian Child Welfare Act’s special proof requirements don’t apply to parent who never had custody

Kewaunee County DHS v. R.I., 2018 WI App 7; case activity

Following the lead of the U.S. Supreme Court, the court of appeals holds that the additional fact finding mandated in TPR proceedings involving an Indian child don’t apply when the parent never had physical or legal custody of the child.

The federal Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. (ICWA), and Wisconsin’s statutory counterpart, § 48.028 (WICWA), requires some extra fact findings before a court can terminate the parental rights of a parent of an Indian child. Specifically, in addition to determining there are grounds for termination, the court must be satisfied, based on evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that “the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.” In addition, the party seeking termination must show “that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” 25 U.S.C. § 1912(d) and (f). The Supreme Court recently held these ICWA provisions don’t apply to a parent who never had physical or legal custody of the child before the TPR proceedings. The Court based its conclusion on the statutes’ references to “continued custody” and the “breakup” of a family.” Adoptive Couple v. Baby Girl, 570 U.S. ___, 133 S. Ct. 2552, 2560-63 (2013).

WICWA has virtually identical versions of the federal statutes interpreted in Adoptive Couple. See § 48.028(4)(e). But R.I. argues that Adoptive Couple doesn’t govern their application because of another provision of WICWA, § 48.028(3)(a), which says WICWA applies an Indian child custody proceeding “regardless of whether the Indian child 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.” (¶¶17-18). The court of appeals rejects R.I.’s reading of § 48.028(3)(a) based on a parallel provision in the Code of Federal Regulations:

¶20     It is clear that 25 C.F.R. § 23.103(c) is intended to ensure that ICWA applies to proceedings involving parents of an “Indian child,” regardless of a parent’s Native American affiliations or heritage…. Likewise, Wis Stat. § 48.028(3)(a) plainly indicates that WICWA applies as a procedural matter to all “Indian child custody proceeding[s],” which include TPR proceedings under § 48.028(2)(d), regardless of whether the child is “part of an existing Indian family.” Neither party disputes that R.I. is a “parent,” see 25 U.S.C. § 1903(9), Wis. Stat. § 48.02(13), or that M.J. is an “Indian child,” see § 1903(4)(b), § 48.02(8g). Thus, as a “parent,” R.I. would be entitled to protections under ICWA and WICWA on that basis.

¶21     The general applicability of ICWA and WICWA to R.I. as a “parent” of an Indian child, however, is a separate issue from whether Wis. Stat. § 48.028(4)(e) requires additional fact finding where the parent has never had custody of an Indian child…. Once again, R.I., as a parent, has never had any custody of M.J. that could have been “continued” or ended, nor could there have been a “breakup” of any existing family for the same reason. See Adoptive Couple, 133 S. Ct. at 2560, 2562. If we adopted R.I.’s interpretation of § 48.028(4)(e) and required fact finding to determine the existence of damage to M.J. from R.I.’s continued custody and if active efforts were made to prevent the breakup of an Indian family, we would read “continued” out of subdivision 1. and ignore the use of “breakup” in subdivision 2. as well. We cannot do so. See [State ex rel.] Kalal [v. Circuit Court for Dane Cty., 2004 WI 58,] 271 Wis. 2d 633, ¶46[, 681 N.W.2d 110] (statutes must be interpreted to give effect to every word where possible and to avoid absurd results). In all, R.I. provides us with no reason to disregard the Supreme Court’s construction of 25 U.S.C. § 1912(f) and (d) in interpreting the language of § 48.028(4)(e)1. and 2.

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