Fact-finding hearing. 48.31(1)
In this section, "fact-finding hearing" means a hearing to determine if the allegations in a petition under s. 48.13
or a petition to terminate parental rights are proved by clear and convincing evidence.
The hearing shall be to the court unless the child, parent, guardian or legal custodian exercises the right to a jury trial by demanding a jury trial at any time before or during the plea hearing. If a jury trial is demanded in a proceeding under s. 48.13
, the jury shall consist of 6 persons. If a jury trial is demanded in a proceeding under s. 48.42
, the jury shall consist of 12 persons unless the parties agree to a lesser number. Chapters 756
shall govern the selection of jurors. If the hearing involves a child victim or witness, as defined in s. 950.02
, the court may order the taking and allow the use of a videotaped deposition under s. 967.04 (7)
and, with the district attorney, shall comply with s. 971.105
. At the conclusion of the hearing, the court or jury shall make a determination of the facts, except that in a case alleging a child to be in need of protection or services under s. 48.13
, the court shall make the determination under s. 48.13 (intro.)
relating to whether the child is in need of protection or services which can be ordered by the court. If the court finds that the child is not within the jurisdiction of the court or, in a case alleging a child to be in need of protection or services under s. 48.13
, that the child is not in need of protection or services which can be ordered by the court or if the court or jury finds that the facts alleged in the petition have not been proved, the court shall dismiss the petition with prejudice.
The court or jury shall make findings of fact and the court shall make conclusions of law relating to the allegations of a petition filed under s. 48.13
, except that the court shall make findings of fact relating to whether the child is in need of protection or services which can be ordered by the court. In cases alleging a child to be in need of protection or services under s. 48.13 (11)
, the court shall not find that the child is suffering emotional damage unless a licensed physician specializing in psychiatry or a licensed psychologist appointed by the court to examine the child has testified at the hearing that in his or her opinion the condition exists, and adequate opportunity for the cross-examination of the physician or psychologist has been afforded. The judge may use the written reports if the right to have testimony presented is voluntarily, knowingly and intelligently waived by the guardian ad litem or legal counsel for the child and the parent or guardian. In cases alleging a child to be in need of protection or services under s. 48.13 (11m)
, the court shall not find that the child is in need of treatment and education for needs and problems related to the use or abuse of alcohol beverages, controlled substances or controlled substance analogs and its medical, personal, family or social effects unless an assessment for alcohol and other drug abuse that conforms to the criteria specified under s. 48.547 (4)
has been conducted by an approved treatment facility.
At the close of the fact-finding hearing, the court shall set a date for the dispositional hearing which allows a reasonable time for the parties to prepare but is no more than 10 days from the fact-finding hearing for a child in secure custody and no more than 30 days from the fact-finding hearing for a child not held in secure custody. If it appears to the court that disposition of the case may include placement of the child outside the child's home, the court shall order the child's parent to provide a statement of income, assets, debts and living expenses to the court or the designated agency under s. 48.33 (1)
at least 5 days before the scheduled date of the dispositional hearing or as otherwise ordered by the court. The clerk of court shall provide, without charge, to any parent ordered to provide a statement of income, assets, debts and living expenses a document setting forth the percentage standard established by the department of industry, labor and job development under s. 49.22 (9)
and the manner of its application established by the department of health and family services under s. 46.247
and listing the factors that a court may consider under s. 46.10 (14) (c)
. If all parties consent, the court may immediately proceed with a dispositional hearing.
As matter of judicial administration, supreme court mandates procedures for withdrawal of juvenile's jury demand. In Interest of N.E. 122 W (2d) 198, 361 NW (2d) 693 (1985).
Fact-finding hearing under (1) was not closed until court ruled on motion to set aside verdict. In Interest of C.M.L. 157 W (2d) 152, 458 NW (2d) 573 (Ct. App. 1990).
See note to Art. I, sec. 5, citing McKeiver v. Pennsylvania, 402 US 528.
Delays, continuances and extensions. 48.315(1)
The following time periods shall be excluded in computing time requirements within this chapter:
Any period of delay resulting from other legal actions concerning the child, including an examination under s. 48.295
or a hearing related to the child's mental condition, prehearing motions, waiver motions and hearings on other matters.
Any period of delay resulting from a continuance granted at the request of or with the consent of the child and counsel.
Any period of delay caused by the disqualification of a judge.
Any period of delay resulting from a continuance granted at the request of the representative of the public under s. 48.09
if the continuance is granted because of the unavailability of evidence material to the case when he or she has exercised due diligence to obtain the evidence and there are reasonable grounds to believe that the evidence will be available at the later date, or to allow him or her additional time to prepare the case and additional time is justified because of the exceptional circumstances of the case.
Any period of delay resulting from the imposition of a consent decree.
Any period of delay resulting from the absence or unavailability of the child.
Any period of delay resulting from the inability of the court to provide the child with notice of an extension hearing under s. 48.365
due to the child having run away or otherwise having made himself or herself unavailable to receive that notice.
A reasonable period of delay when the child is joined in a hearing with another child as to whom the time for a hearing has not expired under this section if there is good cause for not hearing the cases separately.
A continuance shall be granted by the court only upon a showing of good cause in open court or during a telephone conference under s. 807.13
on the record and only for so long as is necessary, taking into account the request or consent of the district attorney or the parties and the interest of the public in the prompt disposition of cases.
History: 1977 c. 354
; Sup. Ct. Order, 141 W (2d) xiii (1987); 1987 a. 403
; 1991 a. 263
; 1993 a. 98
Trial court's sua sponte adjournment of fact-finding hearing beyond 30-day limit due to congested calendar constitutes good cause under (2) when adjournment order is entered within 30-day period. In Matter of J.R. 152 W (2d) 598, 449 NW (2d) 52 (Ct. App. 1989).
See note to 48.365 citing In Interest of B.J.N. 162 W (2d) 635, 469 NW (2d) 845 (1991).
The period under sub. (1) (c) includes the time required to assign the new judge, send any required notices, notify the parties and arrange for time on the court's calendar; applicable time limits for plea hearings apply after the assignment of the new judge. In Interest of Joshua M.W. 179 W (2d) 335, 507 NW (2d) 141 (Ct. App. 1993).
Under sub. (2), "on the record" does not require reporting by a court reporter. A clerk's minutes satisfy the requirement. Waukesha County v. Darlene R. 201 W (2d) 633, 549 NW (2d) 489 (Ct. App. 1996).
The benefits of a pretrial are universally recognized by bench and bar such that a court need not specify the factors supporting "good cause" for a continuance of the time limits under sub. (2). Waukesha County v. Darlene R. 201 W (2d) 633, 549 NW (2d) 489 (Ct. App. 1996).
Under sub. (1) (a) the time limits are tolled for an examination of a parent under s. 48.295. Waukesha County v. Darlene R. 201 W (2d) 633, 549 NW (2d) 489 (Ct. App. 1996).
In a trial to the court, when a witness is sworn.
In a jury trial, when the jury selection is completed and the jury sworn.
History: 1977 c. 354
Consent decree. 48.32(1)(1)
At any time after the filing of a petition for a proceeding relating to s. 48.13
and before the entry of judgment, the judge or juvenile court commissioner may suspend the proceedings and place the child under supervision in the child's own home or present placement. The court may establish terms and conditions applicable to the parent, guardian or legal custodian, and to the child. The order under this section shall be known as a consent decree and must be agreed to by the child if 12 years of age or older; the parent, guardian or legal custodian; and the person filing the petition under s. 48.25
. The consent decree shall be reduced to writing and given to the parties.
A consent decree shall remain in effect up to 6 months unless the child, parent, guardian or legal custodian is discharged sooner by the judge or juvenile court commissioner.
Upon the motion of the court or the application of the child, parent, guardian, legal custodian, intake worker or any agency supervising the child under the consent decree, the court may, after giving notice to the parties to the consent decree and their counsel, if any, extend the decree for up to an additional 6 months in the absence of objection to extension by the parties to the initial consent decree. If the parent, guardian or legal custodian objects to the extension, the judge shall schedule a hearing and make a determination on the issue of extension.
If, prior to discharge by the court, or the expiration of the consent decree, the court finds that the child or parent, legal guardian or legal custodian has failed to fulfill the express terms and conditions of the consent decree or that the child objects to the continuation of the consent decree, the hearing under which the child was placed on supervision may be continued to conclusion as if the consent decree had never been entered.
A court which, under this section, elicits or examines information or material about a child which would be inadmissible in a hearing on the allegations of the petition shall not, over objections of one of the parties, participate in any subsequent proceedings if:
The court refuses to enter into a consent decree and the allegations in the petition remain to be decided in a hearing where one of the parties denies the allegations forming the basis for a child in need of protection or services petition; or
A consent decree is granted but the petition under s. 48.13
is subsequently reinstated.
The judge or juvenile court commissioner shall inform the child and the child's parent, guardian or legal custodian, in writing, of the child's right to object to the continuation of the consent decree under sub. (3)
and the fact that the hearing under which the child was placed on supervision may be continued to conclusion as if the consent decree had never been entered.
A finding that a consent decree has been violated must be made before the consent decree expires. Filing a motion to vacate the consent decree prior to its expiration does not extend the term of the decree and does not prevent the automatic dismissal of the original petition upon the expiration of the decree. Interest of Leif E.N. & Nora M.S. 189 W (2d) 480, 526 NW (2d) 275 (Ct. App. 1994).
Court reports. 48.33(1)(1)
Before the disposition of a child adjudged to be in need of protection or services the court shall designate an agency, as defined in s. 48.38 (1) (a)
, to submit a report which shall contain all of the following:
A recommended plan of rehabilitation or treatment and care for the child which is based on the investigation conducted by the agency and any report resulting from an examination or assessment under s. 48.295
, which employs the least restrictive means available to accomplish the objectives of the plan, and, in cases of child abuse or neglect, which also includes an assessment of risks to the child's physical safety and physical health and a description of a plan for controlling the risks.
A description of the specific services or continuum of services which the agency is recommending that the court order for the child or family, the persons or agencies that would be primarily responsible for providing those services, and the identity of the person or agency that would provide case management or coordination of services if any or whether or not the child should receive an integrated service plan.
A statement of the objectives of the plan, including any desired behavior changes and the academic, social and vocational skills needed by the child.
A plan for the provision of educational services to the child, prepared after consultation with the staff of the school in which the child is enrolled or the last school in which the child was enrolled.
If the agency is recommending that the court order the child's parent, guardian or legal custodian to participate in mental health treatment, anger management, individual or family counseling or parent training and education, a statement as to the availability of those services and as to the availability of funding for those services.
(2) Home placement reports.
A report recommending that the child remain in his or her home may be presented orally at the dispositional hearing if all parties consent. A report that is presented orally shall be transcribed and made a part of the court record.
(4) Other out-of-home placements.
A report recommending placement in a foster home, treatment foster home, group home or child caring institution shall be in writing and shall include all of the following:
A recommendation for an amount of child support to be paid by either or both of the child's parents or for referral to the county designee under s. 59.53 (5)
for the establishment of child support.
(4m) Support recommendations; information to parents.
In making a recommendation for an amount of child support under sub. (4)
, the agency shall consider the factors that the court considers under s. 46.10 (14) (c)
for deviation from the percentage standard. Prior to the dispositional hearing under s. 48.335
, the agency shall provide the child's parent with all of the following:
A copy of its recommendation for child support.
A written explanation of how the parent may request that the court modify the amount of child support under s. 46.10 (14) (c)
(5) Identity of foster parent or treatment foster parent; confidentiality.
If the report recommends placement in a foster home or a treatment foster home, and the name of the foster parent or treatment foster parent is not available at the time the report is filed, the agency shall provide the court and the child's parent or guardian with the name and address of the foster parent or treatment foster parent within 21 days after the dispositional order is entered, except that the court may order the information withheld from the child's parent or guardian if the court finds that disclosure would result in imminent danger to the child or to the foster parent or treatment foster parent. After notifying the child's parent or guardian, the court shall hold a hearing prior to ordering the information withheld.
Dispositional hearings. 48.335(1)
The court shall conduct a hearing to determine the disposition of a case in which a child is adjudged to be in need of protection or services under s. 48.13
At hearings under this section, any party may present evidence relevant to the issue of disposition, including expert testimony, and may make alternative dispositional recommendations.
At hearings under this section, a parent of the child may present evidence relevant to the amount of child support to be paid by either or both parents.
At hearing under this section, s. 48.357
, on the request of any party, unless good cause to the contrary is shown, the court may admit testimony on the record by telephone or live audio-visual means, if available, under s. 807.13 (2)
. The request and the showing of good cause may be made by telephone.
At the conclusion of the hearing, the court shall make a dispositional order in accordance with s. 48.355
History: 1977 c. 354
; 1979 c. 300
; Sup. Ct. Order, 141 W (2d) xiii (1987); 1993 a. 98
; 1995 a. 77
Judicial Council Note, 1988: Sub. (4) allows the court to admit testimony on the record by telephone or live television at hearings on disposition, revision and extension of orders, or change of placement, on request of any party, unless good cause is shown. [Re Order effective Jan. 1, 1988]
Petitioner bears ordinary burden of proof, the greater weight of the credible evidence, for purposes of dispositional and extension hearings. In Interest of T.M.S. 152 W (2d) 345, 448 NW (2d) 282 (Ct. App. 1989).
Disposition of child adjudged in need of protection or services.
If the judge finds that the child is in need of protection or services, the judge shall enter an order deciding one or more of the dispositions of the case as provided in this section under a care and treatment plan, except that the order may not place any child not specifically found under chs. 46
to be developmentally disabled, mentally ill or to have exceptional educational needs in facilities which exclusively treat those categories of children. The dispositions under this section are as follows:
Counsel the child or the parent, guardian or legal custodian.
Place the child under supervision of an agency, the department, if the department approves, or a suitable adult, including a friend of the child, under conditions prescribed by the judge including reasonable rules for the child's conduct, designed for the physical, mental and moral well-being and behavior of the child.
Place the child in the child's home under the supervision of an agency or the department, if the department approves, and order the agency or department to provide specified services to the child and the child's family, which may include but are not limited to individual, family or group counseling, homemaker or parent aide services, respite care, housing assistance, day care or parent skills training.
Designate one of the following as the placement for the child:
A home which need not be licensed if placement is for less than 30 days.
A foster home or treatment foster home licensed under s. 48.62
or a group home licensed under s. 48.625
If it is shown that the rehabilitation or the treatment and care of the child cannot be accomplished by means of voluntary consent of the parent or guardian, transfer legal custody to any of the following:
If the child is in need of special treatment or care, as identified in an evaluation under s. 48.295
and the report under s. 48.33
, the judge may order the child's parent to provide the special treatment or care. If the parent fails or is financially unable to provide the special treatment or care, the judge may order an appropriate agency to provide the special treatment or care whether or not legal custody has been taken from the parents. If a judge orders a county department under s. 51.42
to provide special treatment or care under this paragraph, the provision of that special treatment or care shall be subject to conditions specified in ch. 51
. An order of special treatment or care under this paragraph may not include an order for the administration of psychotropic drugs.