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TPR – Indian Child Welfare Act, Applicability: Not Limited to Physical Custody

Monroe County DHS v. Luis R., 2009 WI App 109

Issue: Whether ICWA, 25 U.S.C. § 1912(f), which requires likely serious emotional or physical damage to the child from continued parental custody, applies to placement outside the parental home when the TPR proceeding is initiated.

¶18 The ICWA does not preempt the Wisconsin Children’s Code, and Wisconsin statutes can be harmonized with the federal law by applying any state law safeguards beyond those mandated by the ICWA. I.P. v. State (In re Interest of D.S.P.), 166 Wis. 2d 464, 472-73, 480 N.W.2d 234 (1992). Thus, in a TPR proceeding involving an Indian child, the County must meet the substantive and procedural requirements of the ICWA as well as proving grounds for termination of parental rights as required by state law. See id. at 473-74.

¶19 The parties’ dispute over the application of 25 U.S.C. § 1912(f) arises out of the meaning of the italicized words in the phrase “that the continued custody of the child by the parent … is likely to result in serious emotional or physical damage to the child.” The County, as we understand it, construes “custody” to mean “physical custody” and “continued custody” to mean that the parent must have physical custody when the TPR petition is filed. Luis asserts that the court in In re Interest of D.S.P. approved the application of subsec. (f) in a situation where the child had not been in the care of a parent for a significant amount of time and that the D.S.P. court’s reasoning supports the application of subsec. (f) here.

¶23 We agree with Luis that the supreme court in D.S.P. apparently construed “custody” to mean physical custody, while also implicitly construing “continued custody” not to require that the parent have physical custody at the time of the TPR proceeding. We also agree with Luis that we may not modify the supreme court’s analysis on this point by altering the meaning of “custody.” This argument must be addressed to the supreme court.

¶29 We conclude that 25 U.S.C. § 1912(f) applies in this case even though Vaughn was placed with a foster family at the time this action was filed and had been living there for at least three years.

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