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23LSO-0494
ORIGINAL Senate
ENGROSSED
File No
.
SF0094
ENROLLED ACT NO. 89,
SENATE
SIXTY-SEVENTH LEGISLATURE OF THE STATE OF WYOMING
2023 General Session
AN ACT relating to domestic relations; codifying the federal Indian Child Welfare Act as state law; specifying requirements and procedures for the placement of Indian children in shelter care or for adoption; providing a sunset date; making conforming amendments; specifying applicability; requiring rulemaking; and providing for an effective date.
Be It Enacted by the Legislature of the State of Wyoming:
Section 1
.
W.S. 14
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6
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701 through 14
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6
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715 are created to read:
14
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6
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701.
Short title; purpose.
(a)
This act shall be known and may be cited as the "Wyoming Indian Child Welfare Act."
(b)
The purpose of this act is to codify the federal Indian Child Welfare Act of 1978 into state law.
14
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6
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702.
Definitions.
(a)
As used in this act:
(i)
"Child custody proceeding" means any action concerning the custody or care of an Indian child, including a shelter care placement, the termination of parental rights, preadoptive placement or adoptive placement. "Child custody proceeding" shall not include a placement based upon an act that, if committed by an adult, would be deemed a crime and shall not include an award of custody to a parent in a divorce proceeding;
(ii)
"Extended family member" means as defined by the law or custom of the Indian child's tribe. In the absence of tribal law or custom, "extended family member" means a person who has reached age eighteen (18) and who is the Indian child's grandparent, aunt, uncle, brother, sister, brother
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in
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law, sister
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in
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law, niece, nephew, first cousin, second cousin or stepparent;
(iii)
"Indian" means a person who is a member of an Indian tribe, or who is an Alaska native and a member of a regional corporation as defined in section 7 of the federal Alaska Native Claims Settlement Act;
(iv)
"Indian child" means any unmarried person under age eighteen (18) and is either:
(A)
A member of an Indian tribe; or
(B)
Is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.
(v)
"Indian child's tribe" means the Indian tribe in which an Indian child is a member or eligible for membership or, in the case of an Indian child who is a member of or eligible for membership in more than one (1) tribe, the Indian tribe with which the Indian child has the more significant contacts;
(vi)
"Indian custodian" means any Indian person who has legal custody of an Indian child under tribal law or custom or under state law or to whom temporary physical care, custody and control has been transferred by the parent of an Indian child;
(vii)
"Indian organization" means any group, association, partnership, corporation or other legal entity owned or controlled by Indians or a majority of whose members are Indians;
(viii)
"Indian tribe" means any Indian tribe, band, nation or other organized group or community of Indians recognized as eligible for the services provided to Indians by the United States secretary of the interior because of their status as Indians, including any Alaska native village as defined in section 3(c) of the federal Alaska Native Claims Settlement Act;
(ix)
"Parent" means a biological parent or the parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. "Parent" shall not include a father whose paternity has not been acknowledged or established under law;
(x)
"Reservation" means Indian country as defined by 18 U.S.C. 1151 and any lands where title is held by the United States in trust for the benefit of any Indian tribe or person or held by any Indian tribe or person subject to a restriction by the United States against alienation;
(xi)
"Shelter care" means as defined by W.S. 14
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3
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402(a)(xvii) and shall include foster care;
(xii)
"Tribal court" means a court with jurisdiction over child custody proceedings and that is either a court of Indian offenses, a court established and operated under the code or custom of an Indian tribe or any other administrative body of a tribe that is vested with authority over child custody proceedings;
(xiii)
"This act" means W.S. 14
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6
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701 through 14
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6
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715.
14
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6
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703.
Indian tribe jurisdiction over Indian child custody proceedings.
(a)
An Indian tribe shall have exclusive jurisdiction over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of the tribe, except where jurisdiction is vested in the state under federal law. The Indian tribe shall retain exclusive jurisdiction if the Indian child is a ward of a tribal court, notwithstanding the residence or domicile of the child.
(b)
In any state court proceeding for the shelter care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the state court, upon the petition of either parent, the Indian custodian or the Indian child's tribe and absent good cause to the contrary or an objection by either parent, shall transfer the proceeding to the jurisdiction of the appropriate tribe. Nothing in this subsection shall limit the tribal court's authority to decline a transfer to the tribal court under this subsection.
(c)
The Indian custodian of an Indian child and the Indian child's tribe shall have the right to intervene in any state court proceeding for the shelter care placement of, or termination of parental rights to, an Indian child.
(d)
The state of Wyoming shall give full faith and credit to the public acts, records and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that the tribe gives full faith and credit to the public acts, records and judicial proceedings of the state of Wyoming.
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6
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704.
Pending court proceedings.
(a)
In any involuntary proceeding in a state court where the court knows or has reason to know that an Indian child is involved, the party seeking the shelter care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right to intervention under this act. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, notice shall be given to the United States secretary of the interior. No shelter care placement or termination of parental rights proceeding shall be held until at least ten (10) days after receipt of the notice by the parent or Indian custodian and the tribe or the secretary of the interior. A parent, Indian custodian or the tribe shall, upon request to the state court, be granted not more than twenty (20) additional days to prepare for a shelter care placement or parental rights termination proceeding.
(b)
In any case in which a state court determines indigency, the parent or Indian custodian shall have the right to court
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appointed counsel in any shelter care placement or termination proceeding. The court may, in its discretion, appoint counsel for the child upon a finding that the appointment is in the child's best interests.
(c)
Each party to a shelter care placement or termination of parental rights proceeding under state law involving an Indian child shall have the right to examine all reports or other documents filed with the court upon which any decision with respect to the action may be based.
(d)
Any party seeking to establish a shelter care placement of, or termination of parental rights to, an Indian child under state law shall establish to the court's satisfaction 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.
(e)
No shelter care placement of an Indian child shall be ordered in a proceeding unless the court determines by clear and convincing evidence that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
(f)
No termination of parental rights over an Indian child shall be ordered unless the court determines beyond a reasonable doubt that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
(g)
For purposes of subsections (e) and (f) of this section, the testimony of qualified expert witnesses may be used to meet the evidentiary burden specified in those subsections.
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6
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705.
Parental rights; voluntary termination.
(a)
Where any parent or Indian custodian voluntarily consents to a shelter care placement or the termination of parental rights involving an Indian child, the consent shall not be valid unless executed in writing and recorded before a court of competent jurisdiction and accompanied by the court's certification that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian. The court shall also certify that either the parent or Indian custodian fully understood the explanation in English or that it was interpreted into a language that the parent or Indian custodian understood. Any consent under this subsection given prior to or within ten (10) days after the birth of the Indian child shall not be valid.
(b)
Any parent or Indian custodian may withdraw consent to a shelter care placement at any time. Upon withdrawal of consent under this subsection, the Indian child shall be returned to the parent or Indian custodian.
(c)
In any voluntary proceeding for the relinquishment and consent to adoption of an Indian child, the consent of the parent may be withdrawn for any reason at any time before the entry of a final decree of termination or adoption and, upon the withdrawal of consent, the child shall be returned to the parent.
(d)
After the entry of a final decree of adoption of an Indian child in any state court, the parent shall only withdraw consent upon the grounds that the consent was obtained through fraud or duress and may petition the court to vacate the adoption decree on those grounds. Upon finding that the consent was obtained through fraud or duress, the court shall vacate the adoption decree and return the child to the parent. No adoption that has been effective for at least two (2) years shall be invalidated under this subsection unless otherwise permitted by state law.
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6
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706.
Petition to court of competent jurisdiction to invalidate actions upon certain violations.
Any Indian child who is the subject of any action for shelter care placement or termination of parental rights under state law, any parent or Indian custodian from whose custody the child was removed and the Indian child's tribe may petition a court of competent jurisdiction to invalidate the action upon a showing that the action violated any provision of W.S. 14
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6
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703 through 14
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6
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705.
14
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6
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707.
Placement of Indian children.
(a)
In any adoptive placement of an Indian child under state law, and absent good cause to the contrary, preference shall be given to a placement with, in the following order:
(i)
A member of the Indian child's extended family;
(ii)
Other members of the Indian child's tribe;
(iii)
Other Indian families;
(iv)
Any other placement.
(b)
Any Indian child accepted for shelter care or preadoptive placement shall be placed in the least restrictive setting that most approximates a family and in which the child's special needs, if any, may be met. The child shall also be placed within reasonable proximity to the child's home, taking into account any special needs of the child. In any shelter care or preadoptive placement and in the absence of good cause to the contrary, preference shall be given to a placement with, in the following order:
(i)
A member of the Indian child's extended family;
(ii)
Other members of the Indian child's tribe;
(iii)
Other Indian families;
(iv)
An institution for children approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the Indian child's needs;
(v)
Any other placement.
(c)
In the case of a placement under subsections (a) or (b) of this section, if the Indian child's tribe establishes a different order of preference by tribal resolution, the agency or court making the placement shall follow the tribal resolution as long as the placement is the least restrictive setting appropriate to the particular needs of the child. For purposes of this section, the preference of the Indian child and parent shall be considered, provided that if a parent consenting to a placement under W.S. 14
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6
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705 requests anonymity, the court or agency shall consider the parent's request in applying the preferences.
(d)
The standards to be applied in meeting the preference requirements of this section shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.
(e)
A record of each placement of an Indian child shall be maintained by the court or agency making the placement. The record shall show the efforts made to comply with the order of preference specified in this section. Records maintained under this subsection shall be made available at any time upon the request of the Indian child's tribe or the United States secretary of the interior.
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6
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708.
Return of custody.
(a)
Notwithstanding any other provision of law, when a final decree of adoption of an Indian child has been vacated or set aside, or the adoptive parents voluntarily consent to the termination of their parental rights to the child, a biological parent or prior Indian custodian may petition for the return of the Indian child to the parent's or Indian custodian's custody. The court shall grant the petition unless there is a showing, subject to W.S. 14
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6
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704, that return of custody is not in the child's best interests.
(b)
When an Indian child is removed from a shelter care placement or institution for the purpose of further shelter care, preadoptive placement or adoptive placement, the placement shall be in accordance with this act unless an Indian child is being returned to the parent or Indian custodian from whose custody the child was originally removed.
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6
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709.
Tribal affiliation information; other information of protection of rights from tribal relationships; application of subject of adoptive placement; disclosure by court.
Upon application by an Indian person who has reached age eighteen (18) and who was the subject of an adoption, the court that entered the final decree shall inform the person of the tribal affiliation, if any, of the person's biological parents and provide any other information as may be necessary to protect any rights resulting from the person's tribal relationship.
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6
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710.
Agreements between the state and Indian tribes.
(a)
The state, through the governor and in consultation with the department of family services, is authorized to enter into agreements with Indian tribes concerning the care and custody of Indian children and jurisdiction over child custody proceedings, including agreements that may provide for the orderly transfer of jurisdiction on a case
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by
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case basis and agreements that provide for concurrent jurisdiction between the state and Indian tribes.
(b)
Any agreement made under this section may be revoked by either party upon notice of not less than one hundred eighty (180) days to the other party. Any revocation of an agreement under this section shall not affect any action or proceeding over which a court has already assumed jurisdiction unless the agreement provides otherwise.
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6
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711.
Improper removal of Indian child from custody; declination of jurisdiction; return of child; exception.
If any petitioner in an Indian child custody proceeding before a state court has improperly removed the child from custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over the petitioner's petition and shall forthwith return the child to his parent or Indian custodian unless the return would subject the child to a substantial and immediate danger or threat thereof.
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6
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712.
Application of higher federal standard.
In any case where federal law applicable to an Indian child custody proceeding provides a higher standard of protection to the rights of the parent or Indian custodian than state law provides, the court shall apply the higher standard of protection as provided by federal law.
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6
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713.
Emergency removal or placement of child; termination; appropriate action.
Nothing in this act shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation, from his parent or Indian custodian or the emergency placement of the child in temporary protective custody or shelter care under state law in order to prevent imminent physical damage or harm to the child. The applicable state agency involved shall ensure that the emergency removal or placement terminates immediately when the removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to this act, transfer the child to the jurisdiction of the appropriate Indian tribe or restore the child to the parent or Indian custodian, as may be appropriate.
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6
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714.
Reporting requirements; information availability; disclosure.
(a)
Any state court entering a final decree or order in any adoption proceeding concerning an Indian child shall provide the department of family services and the United States secretary of the interior a copy of the decree or order and all other information necessary to show:
(i)
The name and tribal affiliation of the child;
(ii)
The names and addresses of the child's biological parents;
(iii)
The names and addresses of the adoptive parents;
(iv)
The identity of any agency having files or information relating to the adoptive placement.
(b)
If the court's records contain an affidavit of the biological parent stating or requesting that the parent's identity remain confidential, the court shall include the affidavit with the information required under subsection (a) of this section. The court and the department of family services shall ensure that the confidentiality of information is maintained. Records submitted under this section shall remain confidential and shall not be subject to disclosure or inspection under the Public Records Act, except as provided under subsection (c) of this section.
(c)
Upon the request of the adopted Indian child who is age eighteen (18) or older, the adoptive or foster parents of an Indian child or an Indian tribe, the department of family services shall disclose any information that may be necessary for the enrollment of an Indian child in the tribe in which the child may be eligible for enrollment or for determining any rights or benefits associated with that membership. If the documents requested include an affidavit from a parent requesting anonymity, the department shall certify to the Indian child's tribe, if the information warrants, that the child's parentage and other circumstances of birth entitle the child to enrollment under criteria established by the tribe.
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6
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715.
Rulemaking; sunset.
(a)
The department of family services shall promulgate all rules necessary to implement this act.
(b)
This act is repealed July 1, 2027.
Section 2.
W.S. 1
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22
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102 by creating a new subsection (c), 1
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22
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104(c) by creating a new paragraph (vii) and by creating a new subsection (g), 14
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3
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201, 14
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3
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203(c)(v), 14
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3
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401, 14
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3
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403(a)(intro), 14
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3
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412(b)(v), 14
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6
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201 by creating a new subsection (d), 14
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6
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401, 14
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6
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403(a)(intro), 14
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6
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412(b)(v), 20
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5
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204 by creating a new subsection (d) and 21
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4
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107 are amended to read:
1
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22
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102.
Persons subject to adoption; applicability of Wyoming Indian Child Welfare Act.
(c)
If the child to be adopted under this act is an Indian child as defined by W.S. 14
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6
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702(a)(iv), the court, agency and any party to the adoption proceeding under this act shall comply with the Wyoming Indian Child Welfare Act. If any provision of this act conflicts with the Wyoming Indian Child Welfare Act for the adoption of an Indian child, the Wyoming Indian Child Welfare Act shall control.
1
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22
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104.
Petition for adoption of minor; by whom filed; requisites, confidential nature; inspection; separate journal to be kept.
(c)
The following documents shall be filed with every petition to adopt a child:
(vii)
If the child to be adopted is an Indian child as defined by W.S. 14
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6
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702(a)(iv), any documents required to be filed under the Wyoming Indian Child Welfare Act.
(g)
Notwithstanding subsections (d) and (e) of this section, if the adoption concerns an Indian child as defined by W.S. 14
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6
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702(a)(iv), inspection or disclosure of the confidential adoption file shall only be in accordance with the Wyoming Indian Child Welfare Act and subsections (d) and (e) of this section.
14
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3
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201.
Purpose.
(a)
The purpose of W.S. 14
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3
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201 through 14
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3
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216 is to delineate the responsibilities of the state agency, other governmental agencies or officials, professionals and citizens to intervene on behalf of a child suspected of being abused or neglected, to protect the best interest of the child, to further offer protective services when necessary in order to prevent any harm to the child or any other children living in the home, to protect children from abuse or neglect which jeopardize their health or welfare, to stabilize the home environment, to preserve family life whenever possible and to provide permanency for the child in appropriate circumstances. The child's health, safety and welfare shall be of paramount concern in implementing and enforcing this article.
(b)
If a child suspected of being abused or neglected is an Indian child as defined by W.S. 14
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6
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702(a)(iv), the state agency and other governmental agencies or officials charged with implementing and enforcing this article shall comply with the Wyoming Indian Child Welfare Act. If any provision of this article conflicts with the Wyoming Indian Child Welfare Act for addressing an allegation of abuse or neglect of an Indian child, the Wyoming Indian Child Welfare Act shall control.
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3
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203.
Duties of state agency; on
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call services.
(c)
The state agency shall ensure that all child protective service workers are trained:
(v)
To know the provisions of federal and state laws governing child welfare practice, including but not limited to the Adoption and Safe Families Act, Indian Child Welfare Act,
the Wyoming Indian Child Welfare Act,
Multi
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Ethnic Placement Act, the Child Abuse Prevention Treatment Act and the Family First Prevention Services Act, as amended;
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3
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401.
Short title; applicability.
(a)
This act shall be known and may be cited as the "Child Protection Act."
(b)
If the child suspected to be abused or neglected is an Indian child as defined by W.S. 14
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6
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702(a)(iv), the court and all parties shall comply with the Wyoming Indian Child Welfare Act. If any provision of this act conflicts with the Wyoming Indian Child Welfare Act for addressing an allegation of abuse or neglect of an Indian child, the Wyoming Indian Child Welfare Act shall control.
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3
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403.
Juvenile court authority over certain issues.
(a)
Coincident with proceedings concerning a minor alleged to be neglected
and subject to the Wyoming Indian Child Welfare Act
, the court has jurisdiction to:
14
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3
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412.
Commencement of proceedings; contents of petition.
(b)
The petition shall set forth all jurisdictional facts, including but not limited to:
(v)
Whether the child is an Indian child as defined in the federal Indian Child Welfare Act
or as defined by W.S. 14
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6
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702(a)(iv)
and, if so, a statement setting forth with particularity the notice provided to the appropriate
tribal court
tribe and to any other person or entity entitled to notice under the Wyoming Indian Child Welfare Act
.
14
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6
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201.
Definitions; short title; statement of purpose and interpretation.
(d)
If a child or minor alleged to have committed a delinquent act is an Indian child as defined by W.S. 14
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6
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702(a)(iv), the court and all parties shall comply with the Wyoming Indian Child Welfare Act to the extent that the Wyoming Indian Child Welfare Act applies to the Indian child alleged to have committed a delinquent act. If any provision of this act conflicts with the Wyoming Indian Child Welfare Act for addressing an allegation of a delinquent act committed by an Indian child, the Wyoming Indian Child Welfare Act shall control.
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6
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401.
Short title.
(a)
This act shall be known and may be cited as the "Children In Need of Supervision Act."
(b)
If a child alleged of being in need of supervision under this act is an Indian child as defined by W.S. 14
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6
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702(a)(iv), the court and all parties shall comply with the Wyoming Indian Child Welfare Act. If any provision of this act conflicts with the Wyoming Indian Child Welfare Act for addressing an allegation of a child being in need of supervision, the Wyoming Indian Child Welfare Act shall control.
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6
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403.
Juvenile court authority over certain issues.
(a)
Coincident with proceedings concerning a minor alleged to be in need of supervision
and subject to the Wyoming Indian Child Welfare Act
, the court has jurisdiction to:
14
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6
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412.
Commencement of proceedings; contents of petition.
(b)
The petition shall set forth all jurisdictional facts, including but not limited to all of the following:
(v)
Whether the child is an Indian child as defined in the federal Indian Child Welfare Act
or as defined by W.S. 14
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6
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702(a)(iv)
and, if so, a statement setting forth with particularity the notice provided to the appropriate
tribal court
tribe and to any other person or entity entitled to notice under the Wyoming Indian Child Welfare Act
.
20
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5
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204.
Application to tribes.
(d)
A child custody proceeding that pertains to an Indian child as defined by W.S. 14
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6
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702(a)(iv) shall not be subject to this act to the extent that the proceeding is governed by the Wyoming Indian Child Welfare Act.
21
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4
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107.
Notice to district attorney and tribe of habitual truancy or willful absenteeism; duty of district attorney.
When the attendance officer of any school district determines that a child is an habitual truant or has been absent due to willful absenteeism as defined by this article the attendance officer shall notify the board of trustees and the district attorney who may initiate proceedings in the interest of the child under the Child Protection Act, W.S. 14
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3
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401 et seq., or the Children In Need of Supervision Act, W.S. 14
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6
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401 et seq., as appropriate. If the child is an Indian child as defined in the federal Indian Child Welfare Act, 25 U.S.C. 1901 et seq.
or as defined by W.S. 14
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6
‑
702(a)(iv)
, the district attorney shall notify the child's tribe
and any other person or entity entitled to notice under the Wyoming Indian Child Welfare Act
and may initiate proceedings in the interest of the child if authorized to do so under state and federal law. If the Indian child resides on the Wind River Indian Reservation, the attendance officer shall notify the Wind River Tribal Court prosecutor and the tribal prosecutor may initiate proceedings pursuant to applicable tribal law and order codes.
Section 3.
This act shall apply to any case or proceeding involving the adoption, abuse or neglect, allegation of a need for supervision, delinquency petition or child custody proceeding concerning an Indian child initiated on and after July 1, 2023. For a case or proceeding initiated before July 1, 2023, the law as of June 30, 2023 shall apply to the case or proceeding.
Section 4.
The department of family services shall promulgate all rules necessary to implement this act.
Section 5
.
This act is effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution.
(END)
Speaker of the House
President of the Senate
Governor
TIME APPROVED: _________
DATE APPROVED: _________
I hereby certify that this act originated in the Senate.
Chief Clerk
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