Haaland et al. v. Brackeen et al., USSC No. 21-376, 143 S.Ct. 1609 (June 15, 2023), affirming in part, reversing in part, and vacating and remanding 994 F.3d 249 (5th Cir. 2021); Scotusblog page (including links to briefs and commentary) This is a guest post by Attorney Matthew Giesfeldt of the Madison Appellate office, who… Read more
H. Indian Child Welfare Act
State v. S.S.M., 2022AP524 & 2022AP525, District 1, 8/2/22 (one-judge decision; ineligible for publication); case activity Under § 48.415(intro.), termination of parental rights to children subject to the Indian Child Welfare Act (ICWA) requires, in addition to proof of one or more grounds for termination under subs. (1) to (10), proof of “active efforts,” as… Read more
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… Read more
Adoptive Couple v. Baby Birl, USSC No. 12-399, reversing and remanding 298 S.C. 625, 731 S.E.2d 550 (2012). SCOTUSblog coverage here. TPR lawyers, this one is for you. The dissent says the casual reader of the majority opinion could be forgiven for thinking that Indian Child Welfare Act of 1978 points to only one sensible… Read more
Jackson Co. DHS v. Robert H., 2011AP2783, District 4, 7/17/12 court of appeals decision (1-judge, ineligible for publication); case activity Both federal and state Indian Child Welfare Acts require that termination of parental rights to an Indian child be supported by testimony of a qualified expert witness “that the continued custody of the child by the parent or Indian… Read more
“Qualified Expert Witnesses” Requirement Issue: Whether the social worker expertise “beyond the normal” is required to qualify as an expert within the meaning of the ICWA, 25 U.S.C. § 1912(f). Holding: ¶37 Because in D.S.P. the court affirmed an exercise of the circuit court’s discretion, we do not read D.S.P. to hold that 25 U.S.C… Read more
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. Holding: ¶18 The ICWA does not preempt the Wisconsin Children’s… Read more
