Amendment SSA1-AB130

AB130-SSA1,202,7 SUBCHAPTER IV HOLDING A juvenile IN CUSTODY

AB130-SSA1,202,9 938.19 Taking a juvenile into custody. (1) A juvenile may be taken into custody under any of the following:

AB130-SSA1,202,10 (a) A warrant.

AB130-SSA1,202,11 (b) A capias issued by a judge under s. 938.28.

AB130-SSA1,202,15 (c) An order of the judge if made upon a showing satisfactory to the judge that the welfare of the juvenile demands that the juvenile be immediately removed from his or her present custody. The order shall specify that the juvenile be held in custody under s. 938.207.

AB130-SSA1,202,17 (d) Circumstances in which a law enforcement officer believes on reasonable grounds that any of the following conditions exists:

AB130-SSA1,202,19 1. A capias or a warrant for the juvenile's apprehension has been issued in this state, or that the juvenile is a fugitive from justice.

AB130-SSA1,202,21 2. A capias or a warrant for the juvenile's apprehension has been issued in another state.

AB130-SSA1,202,23 3. The juvenile is committing or has committed an act which is a violation of a state or federal criminal law.

AB130-SSA1,202,25 4. The juvenile has run away from his or her parents, guardian or legal or physical custodian.

AB130-SSA1,203,2 5. The juvenile is suffering from illness or injury or is in immediate danger from his or her surroundings and removal from those surroundings is necessary.

AB130-SSA1,203,4 6. The juvenile has violated the terms of court-ordered supervision or aftercare supervision administered by the department or a county department.

AB130-SSA1,203,6 7. The juvenile has violated the conditions of an order under s. 938.21 (4) or the conditions of an order for temporary physical custody by an intake worker.

AB130-SSA1,203,9 8. The juvenile has violated a civil law or a local ordinance punishable by a forfeiture, except that in that case the juvenile shall be released immediately under s. 938.20 (2) (ag) or as soon as reasonably possible under s. 938.20 (2) (b) to (g).

AB130-SSA1,203,11 10. The juvenile is absent from school without an acceptable excuse under s. 118.15.

AB130-SSA1,203,16 (1m) A juvenile who is absent from school without an acceptable excuse under s. 118.15 may be taken into custody by an individual designated under s. 118.16 (2m) (a) if the school attendance officer of the school district in which the juvenile resides or the juvenile's parent, guardian or legal custodian requests that the juvenile be taken into custody. The request shall specifically identify the juvenile.

AB130-SSA1,204,2 (2) When a juvenile is taken into physical custody as provided in this section, the person taking the juvenile into custody shall immediately attempt to notify the parent, guardian and legal custodian of the juvenile by the most practical means. The person taking the juvenile into custody shall continue such attempt until the parent, guardian and legal custodian of the juvenile are notified, or the juvenile is delivered to an intake worker under s. 938.20 (3), whichever occurs first. If the juvenile is delivered to the intake worker before the parent, guardian and legal custodian are notified, the intake worker, or another person at his or her direction, shall continue the attempt to notify until the parent, guardian and legal custodian of the juvenile are notified.

AB130-SSA1,204,4 (3) Taking into custody is not an arrest except for the purpose of determining whether the taking into custody or the obtaining of any evidence is lawful.

AB130-SSA1,204,8 938.20 Release or delivery from custody. (2) (ag) Except as provided in pars. (b) to (g), a person taking a juvenile into custody shall make every effort to release the juvenile immediately to the juvenile's parent, guardian or legal custodian.

AB130-SSA1,204,12 (b) If the juvenile's parent, guardian or legal custodian is unavailable, unwilling or unable to provide supervision for the juvenile, the person who took the juvenile into custody may release the juvenile to a responsible adult after counseling or warning the juvenile as may be appropriate.

AB130-SSA1,204,15 (c) If the juvenile is 15 years of age or older, the person who took the juvenile into custody may release the juvenile without immediate adult supervision after counseling or warning the juvenile as may be appropriate.

AB130-SSA1,204,19 (cm) If the juvenile has violated the terms of aftercare supervision administered by the department or a county department, the person who took the juvenile into custody may release the juvenile to the department or county department, whichever has aftercare supervision over the juvenile.

AB130-SSA1,204,21 (d) If the child is a runaway, the person who took the child into custody may release the child to a home authorized under s. 48.227.

AB130-SSA1,205,7 (e) If a juvenile is taken into custody under s. 938.19 (1) (d) 10., the law enforcement officer who took the juvenile into custody may release the juvenile under par. (ag) or (b) or, if the school board of the school district in which the juvenile resides has established a youth service center under s. 118.16 (4) (e), may deliver that juvenile to that youth service center. If the juvenile is delivered to a youth service center, personnel of the youth service center may release the juvenile to the juvenile's parent, guardian or legal custodian, or release the juvenile to the juvenile's school, after counseling the juvenile as may be appropriate. If the juvenile is released to the juvenile's school, personnel of the youth service center shall immediately notify the juvenile's parent, guardian and legal custodian that the juvenile was taken into custody under s. 938.19 (1) (d) 10. and released to the juvenile's school.

AB130-SSA1,205,13 (f) If a juvenile is taken into custody under s. 938. 19 (1m), the person who took the juvenile into custody may release the juvenile under par. (ag), (b) or (e) or to the juvenile's school administrator, as defined in s. 125.09 (2) (a) 3., or a school employe designated by the school administrator. If a juvenile is released to a school administrator or the school administrator's designee under this paragraph, the school administrator or designee shall do all of the following:

AB130-SSA1,205,16 1. Immediately notify the juvenile's parent, guardian or legal custodian that the juvenile was taken into custody under s. 938.19 (1m) and released to the school administrator or his or her designee.

AB130-SSA1,205,21 2. Make a determination of whether the juvenile is a child at risk, as defined in s. 118.153 (1) (a), unless that determination has been made within the current school semester. If a juvenile is determined to be a child at risk under this subdivision, the school administrator shall provide a program for the juvenile according to the plan developed under s. 118.153 (2) (a).

AB130-SSA1,206,2 3. Provide the juvenile and his or her parent or guardian with an opportunity for educational counseling to determine whether a change in the juvenile's program or curriculum, including any of the modifications specified in s. 118.15 (1) (d), would resolve the juvenile's truancy problem, unless the juvenile and his or her parent or guardian have been provided with an opportunity for educational counseling within the current school semester.

AB130-SSA1,206,7 (g) If a juvenile is taken into custody under s. 938.19 (1) (d) 10. and is not released under par. (ag), (b) or (e) or if a juvenile is taken into custody under s. 938.19 (1m) and is not released under par. (ag), (b), (e) or (f), the person who took the juvenile into custody shall release the juvenile without immediate adult supervision after counseling or warning the juvenile as may be appropriate.

AB130-SSA1,206,18 (3) If the juvenile is released under sub. (2) (b) to (d) or (g), the person who took the juvenile into custody shall immediately notify the juvenile's parent, guardian and legal custodian of the time and circumstances of the release and the person, if any, to whom the juvenile was released. If the juvenile is not released under sub. (2), the person who took the juvenile into custody shall arrange in a manner determined by the court and law enforcement agencies for the juvenile to be interviewed by the intake worker under s. 938.067 (2), and shall make a statement in writing with supporting facts of the reasons why the juvenile was taken into physical custody and shall give any juvenile 10 years of age or older a copy of the statement in addition to giving a copy to the intake worker. When the intake interview is not done in person, the report may be read to the intake worker.

AB130-SSA1,206,23 (4) If the juvenile is believed to be suffering from a serious physical condition which requires either prompt diagnosis or prompt treatment, the person taking the juvenile into physical custody, the intake worker or other appropriate person shall deliver the juvenile to a hospital as defined in s. 50.33 (2) (a) and (c) or physician's office.

AB130-SSA1,207,5 (5) If the juvenile is believed to be mentally ill, drug dependent or developmentally disabled, and exhibits conduct which constitutes a substantial probability of physical harm to the juvenile or to others, or a very substantial probability of physical impairment or injury to the juvenile exists due to the impaired judgment of the juvenile, and the standards of s. 51.15 are met, the person taking the juvenile into physical custody, the intake worker or other appropriate person shall proceed under s. 51.15.

AB130-SSA1,207,10 (6) If the juvenile is believed to be an intoxicated person who has threatened, attempted or inflicted physical harm on himself or herself or on another and is likely to inflict such physical harm unless committed, or is incapacitated by alcohol, the person taking the juvenile into physical custody, the intake worker or other appropriate person shall proceed under s. 51.45 (11).

AB130-SSA1,207,13 (7) (a) When a juvenile is interviewed by an intake worker, the intake worker shall inform any juvenile possibly involved in a delinquent act of his or her right to counsel and the right against self-incrimination.

AB130-SSA1,207,18 (b) The intake worker shall review the need to hold the juvenile in custody and shall make every effort to release the juvenile from custody as provided in par. (c). The intake worker shall base his or her decision as to whether to release the juvenile or to continue to hold the juvenile in custody on the criteria specified in s. 938.205 and criteria established under s. 938.06 (1) or (2).

AB130-SSA1,207,19 (c) The intake worker may release the juvenile as follows:

AB130-SSA1,207,25 1. To a parent, guardian or legal custodian, or, if the parent, guardian or legal custodian is unavailable, unwilling or unable to provide supervision for the juvenile, release the juvenile to a responsible adult, counseling or warning the juvenile as may be appropriate, or, if the juvenile is 15 years of age or older, release the juvenile without immediate adult supervision, counseling or warning the juvenile as may be appropriate.

AB130-SSA1,208,3 1m. In the case of a juvenile who has violated the terms of aftercare supervision administered by the department or a county department, to the department or county department, whichever has aftercare supervision of the juvenile.

AB130-SSA1,208,4 2. In the case of a runaway juvenile, to a home authorized under s. 48.227.

AB130-SSA1,208,8 (d) If the juvenile is released from custody, the intake worker shall immediately notify the juvenile's parent, guardian and legal custodian of the time and circumstances of the release and the person, if any, to whom the juvenile was released.

AB130-SSA1,209,2 (8) If a juvenile is held in custody, the intake worker shall notify the juvenile's parent, guardian and legal custodian of the reasons for holding the juvenile in custody and of the juvenile's whereabouts unless there is reason to believe that notice would present imminent danger to the juvenile. If a juvenile who has violated the terms of aftercare supervision administered by the department or a county department is held in custody, the intake worker shall also notify the department or county department, whichever has supervision over the juvenile, of the reasons for holding the juvenile in custody, of the juvenile's whereabouts and of the time and place of the detention hearing required under s. 938.21. The parent, guardian and legal custodian shall also be notified of the time and place of the detention hearing required under s. 938.21, the nature and possible consequences of that hearing and the right to present and cross-examine witnesses at the hearing. If the parent, guardian or legal custodian is not immediately available, the intake worker or another person designated by the court shall provide notice as soon as possible. When the juvenile is alleged to have committed a delinquent act, the juvenile shall receive the same notice about the detention hearing as the parent, guardian or legal custodian. The intake worker shall notify both the juvenile and the juvenile's parent, guardian or legal custodian.

AB130-SSA1,209,6 938.205 Criteria for holding a juvenile in physical custody. (1) A juvenile may be held under s. 938.207, 938.208 or 938.209 if the intake worker determines that there is probable cause to believe the juvenile is within the jurisdiction of the court and if probable cause exists to believe one of the following:

AB130-SSA1,209,8 (a) That if the juvenile is not held he or she will commit injury to the person or property of others.

AB130-SSA1,209,12 (b) That the parent, guardian or legal custodian of the juvenile or other responsible adult is unavailable, unwilling or unable to provide adequate supervision and care and that services to ensure the juvenile's safety and well-being are not available or would be inadequate.

AB130-SSA1,209,15 (c) That the juvenile will run away or be taken away so as to be unavailable for proceedings of the court or its officers or proceedings of the division of hearings and appeals in the department of administration for revocation of aftercare supervision.

AB130-SSA1,209,18 (2) The criteria for holding a juvenile in custody specified in this section shall govern the decision of all persons responsible for determining whether the action is appropriate.

AB130-SSA1,209,21 938.207 Places where a juvenile may be held in nonsecure custody. (1) A juvenile held in physical custody under s. 938.205 may be held in any of the following places:

AB130-SSA1,209,22 (a) The home of a parent or guardian.

AB130-SSA1,209,23 (b) The home of a relative.

AB130-SSA1,209,25 (c) A licensed foster home or a licensed treatment foster home provided the placement does not violate the conditions of the license.

AB130-SSA1,210,2 (cm) A licensed group home provided that the placement does not violate the conditions of the license.

AB130-SSA1,210,3 (d) A nonsecure facility operated by a licensed child welfare agency.

AB130-SSA1,210,4 (e) A licensed private or public shelter care facility.

AB130-SSA1,210,8 (f) The home of a person not a relative, if the placement does not exceed 30 days, though the placement may be extended for an additional 30 days for cause by the court, and if the person has not had a foster home or treatment foster home license refused, revoked or suspended within the last 2 years.

AB130-SSA1,210,10 (g) A hospital as defined in s. 50.33 (2) (a) and (c) or physician's office if the juvenile is held under s. 938.20 (4).

AB130-SSA1,210,11 (h) A place listed in s. 51.15 (2) if the juvenile is held under s. 938.20 (5).

AB130-SSA1,210,13 (i) An approved public treatment facility for emergency treatment if the juvenile is held under s. 938.20 (6).

AB130-SSA1,210,14 (k) A facility under s. 48.58.

AB130-SSA1,210,19 (2) If a facility listed in sub. (1) (b) to (k) is used to hold juveniles in custody, or if supervisory services of a home detention program are provided to juveniles held under sub. (1) (a), its authorized rate shall be paid by the county for the care of the juvenile. If no authorized rate has been established, a reasonable sum to be fixed by the court shall be paid by the county for the supervision or care of the juvenile.

AB130-SSA1,210,22 938.208 Criteria for holding a juvenile in a secure detention facility. A juvenile may be held in a secure detention facility if the intake worker determines that one of the following conditions applies:

AB130-SSA1,211,5 (1) Probable cause exists to believe that the juvenile has committed a delinquent act and either presents a substantial risk of physical harm to another person or a substantial risk of running away so as to be unavailable for a court hearing or a revocation hearing for juveniles on aftercare supervision. For juveniles on aftercare supervision, the delinquent act referred to in this section may be the act for which the juvenile was adjudged delinquent. If the intake worker determines that any of the following conditions applies, the juvenile is considered to present a substantial risk of physical harm to another person:

AB130-SSA1,211,10 (a) Probable cause exists to believe that the juvenile has committed a delinquent act that would be a felony under s. 940.01, 940.02, 940.03, 940.05, 940.19 (2) to (6), 940.21, 940.225 (1), 940.31, 941.20 (3), 943.02 (1), 943.23 (1g), (1m) or (1r), 943.32 (2), 947.013 (1t), (1v) or (1x), 948.02 (1) or (2), 948.025 or 948.03 if committed by an adult.

AB130-SSA1,211,15 (b) Probable cause exists to believe that the juvenile possessed, used or threatened to use a handgun, as defined in s. 175.35 (1) (b), short-barreled rifle, as defined in s. 941.28 (1) (b), or short-barreled shotgun, as defined in s. 941.28 (1) (c), while committing a delinquent act that would be a felony under ch. 940 if committed by an adult.

AB130-SSA1,211,18 (c) Probable cause exists to believe that the juvenile has possessed or gone armed with a short-barreled rifle or a short-barreled shotgun in violation of s. 941.28, or has possessed or gone armed with a handgun in violation of s. 948.60.

AB130-SSA1,211,21 (2) Probable cause exists to believe that the juvenile is a fugitive from another state or has run away from a secured correctional facility and there has been no reasonable opportunity to return the juvenile.

AB130-SSA1,211,24 (3) The juvenile consents in writing to being held in order to protect him or her from an imminent physical threat from another and such secure custody is ordered by the judge in a protective order.

AB130-SSA1,212,4 (4) Probable cause exists to believe that the juvenile, having been placed in nonsecure custody by an intake worker under s. 938.207 or by the judge or juvenile court commissioner under s. 938.21 (4), has run away or committed a delinquent act and no other suitable alternative exists.

AB130-SSA1,212,11 (5) Probable cause exists to believe that the juvenile has been adjudged or alleged to be delinquent and has run away from another county and would run away from nonsecure custody pending his or her return. A juvenile may be held in secure custody under this subsection for no more than 24 hours after the end of the day that the decision to hold the juvenile was made unless an extension of those 24 hours is ordered by the judge for good cause shown. Only one extension may be ordered by the judge.

AB130-SSA1,212,14 938.209 Criteria for holding a juvenile in a county jail. Subject to the provisions of s. 938.208, a county jail may be used as a secure detention facility if the criteria under either sub. (1) or (2) are met:

AB130-SSA1,212,16 (1) There is no other secure detention facility approved by the department or a county which is available and all of the following conditions are met:

AB130-SSA1,212,18 (a) The jail meets the standards for secure detention facilities established by the department.

AB130-SSA1,212,20 (b) The juvenile is held in a room separated and removed from incarcerated adults.

AB130-SSA1,212,22 (c) The juvenile is not held in a cell designed for the administrative or disciplinary segregation of adults.

AB130-SSA1,212,23 (d) Adequate supervision is provided.

AB130-SSA1,212,24 (e) The judge reviews the status of the juvenile every 3 days.

AB130-SSA1,213,4 (2) The juvenile presents a substantial risk of physical harm to other persons in the secure detention facility, as evidenced by previous acts or attempts, which can only be avoided by transfer to the jail. The provisions of sub. (1) (a) to (e) shall be met. The juvenile shall be given a hearing and transferred only upon order of the judge.

AB130-SSA1,213,7 (3) The restrictions of this section do not apply to the use of jail for a juvenile who has been waived to adult court under s. 938.18 or who is under the jurisdiction of an adult court under s. 938.183.

AB130-SSA1,213,21 938.21 Hearing for juvenile in custody. (1) Hearing; when held. (a) If a juvenile who has been taken into custody is not released under s. 938.20, a hearing to determine whether the juvenile shall continue to be held in custody under the criteria of ss. 938.205 to 938.209 shall be conducted by the judge or juvenile court commissioner within 24 hours after the end of the day that the decision to hold the juvenile was made, excluding Saturdays, Sundays and legal holidays. By the time of the hearing a petition under s. 938.25 shall be filed, except that no petition need be filed where a juvenile is taken into custody under s. 938.19 (1) (b) or (d) 2., 6. or 7. or where the juvenile is a runaway from another state, in which case a written statement of the reasons for holding a juvenile in custody shall be substituted if the petition is not filed. If no hearing has been held within 24 hours or if no petition or statement has been filed at the time of the hearing, the juvenile shall be released except as provided in par. (b). A parent not present at the hearing shall be granted a rehearing upon request.

AB130-SSA1,214,7 (b) If no petition has been filed by the time of the hearing, a juvenile may be held in custody with the approval of the judge or juvenile court commissioner for an additional 48 hours from the time of the hearing only if, as a result of the facts brought forth at the hearing, the judge or juvenile court commissioner determines that probable cause exists to believe that the juvenile is an imminent danger to himself or herself or to others, or that probable cause exists to believe that the parent, guardian or legal custodian of the juvenile or other responsible adult is unwilling or unavailable to provide adequate supervision and care. The extension may be granted only once for any petition. In the event of failure to file a petition within the 48-hour extension period provided for in this paragraph, the judge or juvenile court commissioner shall order the juvenile's immediate release from custody.

AB130-SSA1,214,10 (2) Proceedings concerning runaway or delinquent juveniles. Proceedings concerning a juvenile who comes within the jurisdiction of the court under s. 938.12 or 938.13 (7) or (12) shall be conducted according to this subsection.

AB130-SSA1,214,14 (a) A juvenile held in a nonsecure place of custody may waive in writing the hearing under this section. After any waiver, a hearing shall be granted upon the request of the juvenile or any other interested party. Any juvenile transferred to a secure detention facility shall thereafter have a hearing under this section.

AB130-SSA1,214,17 (b) A copy of the petition shall be given to the juvenile at or prior to the time of the hearing. Prior notice of the hearing shall be given to the juvenile's parent, guardian and legal custodian and to the juvenile in accordance with s. 938.20 (8).

AB130-SSA1,214,25 (c) Prior to the commencement of the hearing, the juvenile shall be informed by the judge or juvenile court commissioner of the allegations that have been or may be made, the nature and possible consequences of this hearing as compared to possible future hearings, the provisions of s. 938.18 if applicable, the right to counsel under s. 938.23 regardless of ability to pay if the juvenile is not yet represented by counsel, the right to remain silent, the fact that the silence may not be adversely considered by the judge or juvenile court commissioner, the right to confront and cross-examine witnesses and the right to present witnesses.

AB130-SSA1,215,6 (d) If the juvenile is not represented by counsel at the hearing and the juvenile is continued in custody as a result of the hearing, the juvenile may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold in custody be reheard. If the request is made, a rehearing shall take place as soon as may be possible. Whether or not counsel was present, any order to hold the juvenile in custody shall be subject to rehearing for good cause.

AB130-SSA1,215,9 (3) Proceedings concerning juveniles in need of protection or services. Proceedings concerning a juvenile who comes within the jurisdiction of the court under s. 938.13 (4), (6), (6m) or (14) shall be conducted according to this subsection.

AB130-SSA1,215,12 (a) The parent, guardian or legal custodian may waive the hearing under this section. Agreement in writing of the juvenile is required if he or she is over 12. After any waiver, a hearing shall be granted at the request of any interested party.

AB130-SSA1,215,17 (b) If present at the hearing, a copy of the petition shall be given to the parent, guardian or legal custodian, and to the juvenile if he or she is 12 years of age or older, before the hearing begins. Prior notice of the hearing shall be given to the juvenile's parent, guardian and legal custodian and to the juvenile if he or she is 12 years of age or older in accordance with s. 938.20 (8).

AB130-SSA1,215,22 (d) Prior to the commencement of the hearing, the parent, guardian or legal custodian shall be informed by the court of the allegations that have been made or may be made, the nature and possible consequences of this hearing as compared to possible future hearings, the right to confront and cross-examine witnesses and the right to present witnesses.

AB130-SSA1,216,4 (e) If the parent, guardian or legal custodian or the juvenile is not represented by counsel at the hearing and the juvenile is continued in custody as a result of the hearing, the parent, guardian, legal custodian or juvenile may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold the juvenile in custody be reheard. If the request is made, a rehearing shall take place as soon as may be possible. Any order to hold the juvenile in custody shall be subject to rehearing for good cause, whether or not counsel was present.