Wisconsin Legislature: 344,450

344,443 Section 443. 938.355 (6) (c) (title) of the statutes is created to read:

938.355 (6) (c) (title) Sanction hearing.

344,444 Section 444. 938.355 (6) (cm) of the statutes is amended to read:

938.355 (6) (cm) Reasonable efforts finding. The court may not order the sanction of placement in a place of nonsecure custody specified in par. (d) 1. unless the court finds that the agency primarily responsible for providing services for the juvenile has made reasonable efforts to prevent the removal of the juvenile from his or her home and that continued placement of the juvenile in his or her home is contrary to the welfare of the juvenile. These findings are not required if they were made in the dispositional order under which the juvenile is being sanctioned. The court shall make the findings specified in under this paragraph on a case-by-case basis based on circumstances specific to the juvenile and shall document or reference the specific information on which that finding is based in the sanction order. A sanction order that merely references this paragraph without documenting or referencing that specific information in the sanction order or an amended sanction order that retroactively corrects an earlier sanction order that does not comply with this paragraph is not sufficient to comply with this paragraph.

Note: Clarifies, in s. 938.355 (6) (cm), stats., that reasonable efforts findings are not required to be made if they have already been made in the dispositional order. According to DOC and the Department of Health and Family Services (DHFS), a subsequent finding is not required.

344,445 Section 445. 938.355 (6) (d) (title) and (e) (title) of the statutes are created to read:

938.355 (6) (d) (title) Sanctions permitted.

(e) (title) Contempt of court.

344,446 Section 446. 938.355 (6d) (a) 1. and 2. and (b) 1. and 2. of the statutes are amended to read:

938.355 (6d) (a) 1. Notwithstanding ss. 938.19 to 938.21, but subject to any general written policies adopted by the court under s. 938.06 (1) or (2) and to any policies adopted by the county board relating to the taking into custody and placement of a juvenile under this subdivision, if a juvenile who has been adjudged delinquent violates a condition specified in sub. (2) (b) 7., the juvenile's caseworker or any other person authorized to provide or providing intake or dispositional services for the court under s. 938.067 or 938.069 may, without a hearing, take the juvenile into custody and place the juvenile in a secure detention facility or juvenile portion of a county jail that meets the standards promulgated by the department by rule or in a place of nonsecure custody designated by that person for not more than 72 hours while the alleged violation and the appropriateness of a sanction under sub. (6) are being investigated,. Short-term detention may be imposed under this subdivision only if at the dispositional hearing the court explained those conditions to the juvenile and informed the juvenile of the possibility of that possible placement or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible placement and that he or she understands those conditions and that possible placement.

2. Notwithstanding ss. 938.19 to 938.21, but subject to any general written policies adopted by the court under s. 938.06 (1) or (2) and to any policies adopted by the county board relating to the taking into custody and placement of a juvenile under this subdivision, if a juvenile who has been adjudged delinquent violates a condition specified in sub. (2) (b) 7., the juvenile's caseworker or any other person authorized to provide or providing intake or dispositional services for the court under s. 938.067 or 938.069 may, without a hearing, take the juvenile into custody and place the juvenile in a secure detention facility or juvenile portion of a county jail that meets the standards promulgated by the department by rule or in a place of nonsecure custody designated by that person for not more than 72 hours as a consequence of that violation,. Short-term detention may be imposed under this subdivision only if at the dispositional hearing the court explained those conditions to the juvenile and informed the juvenile of the possibility of that possible placement or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible placement and that he or she understands those conditions and that possible placement. A person who takes a juvenile into custody under this subdivision shall permit the juvenile to make a written or oral statement concerning the possible placement of the juvenile and the course of conduct for which the juvenile was taken into custody. A person designated by the court or county department who is employed in a supervisory position by a person authorized to provide or providing intake or dispositional services under s. 938.067 or 938.069 shall review that statement and shall either approve the placement, modify the terms of the placement, or order the juvenile to be released from custody.

(b) 1. Notwithstanding ss. 938.19 to 938.21, but subject to any general written policies adopted by the court under s. 938.06 (1) or (2), to any policies adopted by the county department relating to aftercare supervision administered by the county department, and to any policies adopted by the county board relating to the taking into custody and placement of a juvenile under this subdivision, if a juvenile who is on aftercare supervision administered by the county department violates a condition of that supervision, the juvenile's caseworker or any other person authorized to provide or providing intake or dispositional services for the court under s. 938.067 or 938.069 may, without a hearing, take the juvenile into custody and place the juvenile in a secure detention facility or juvenile portion of a county jail that meets the standards promulgated by the department by rule or in a place of nonsecure custody designated by that person for not more than 72 hours while the alleged violation and the appropriateness of revoking the juvenile's aftercare status are being investigated,. Short-term detention may be imposed under this subdivision only if at the dispositional hearing the court explained those conditions to the juvenile and informed the juvenile of that possible placement or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible placement and that he or she understands those conditions and that possible placement.

2. Notwithstanding ss. 938.19 to 938.21, but subject to any general written policies adopted by the court under s. 938.06 (1) or (2), to any policies adopted by the county department relating to aftercare supervision administered by the county department, and to any policies adopted by the county board relating to the taking into custody and placement of a juvenile under this subdivision, if a juvenile who is on aftercare supervision administered by the county department violates a condition of that supervision, the juvenile's caseworker or any other person authorized to provide or providing intake or dispositional services for the court under s. 938.067 or 938.069 may, without a hearing, take the juvenile into custody and place the juvenile in a secure detention facility or juvenile portion of a county jail that meets the standards promulgated by the department by rule or in a place of nonsecure custody designated by that person for not more than 72 hours as a consequence of that violation, . Short-term detention under this subdivision may be imposed only if at the dispositional hearing the court explained those conditions to the juvenile and informed the juvenile of the possibility of that possible placement or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible placement and that he or she understands those conditions and that possible placement. A person who takes a juvenile into custody under this subdivision shall permit the juvenile to make a written or oral statement concerning the possible placement of the juvenile and the course of conduct for which the juvenile was taken into custody. A person designated by the court or the county department who is employed in a supervisory position by a person authorized to provide or providing intake or dispositional services under s. 938.067 or 938.069 shall review that statement and shall either approve the placement of the juvenile, modify the terms of the placement, or order the juvenile to be released from custody.

Note: Permits, in s. 938.355 (6d) (a) 2. and (b) 2., stats., the supervisor of a caseworker who has placed a juvenile in custody for not more than 72 hours as a consequence for a violation of a dispositional order to modify the terms of the placement. Under current law, the supervisor must either approve the placement or release the juvenile from custody.

Provides, in s. 938.355 (6d) (b) 1., that juvenile may be informed of the possibility of a sanction under this subdivision orally at the dispositional hearing.

344,447 Section 447. 938.355 (6d) (c) 1. and 2. and (d) of the statutes are amended to read:

938.355 (6d) (c) 1. Notwithstanding ss. 938.19 to 938.21, but subject to any general written policies adopted by the court under s. 938.06 (1) or (2) and to any policies adopted by the county board relating to the taking into custody and placement of a juvenile under this subdivision, if a juvenile who has been found to be in need of protection or services under s. 938.13 violates a condition specified in sub. (2) (b) 7., the juvenile's caseworker or any other person authorized to provide or providing intake or dispositional services for the court under s. 938.067 or 938.069 may, without a hearing, take the juvenile into custody and place the juvenile in a place of nonsecure custody designated by that person for not more than 72 hours while the alleged violation and the appropriateness of a sanction under sub. (6) or (6m) are being investigated,. Short-term detention may be imposed under this subdivision only if at the dispositional hearing the court explained those conditions to the juvenile and informed the juvenile of the possibility of that possible placement or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible placement and that he or she understands those conditions and that possible placement.

2. Notwithstanding ss. 938.19 to 938.21, but subject to any general written policies adopted by the court under s. 938.06 (1) or (2) and to any policies adopted by the county board relating to the taking into custody and placement of a juvenile under this subdivision, if a juvenile who has been found to be in need of protection or services under s. 938.13 violates a condition specified in sub. (2) (b) 7., the juvenile's caseworker or any other person authorized to provide or providing intake or dispositional services for the court under s. 938.067 or 938.069 may, without a hearing, take the juvenile into custody and place the juvenile in a place of nonsecure custody designated by that person for not more than 72 hours as a consequence of that violation,. Short-term detention may be imposed under this subdivision only if at the dispositional hearing the court explained those conditions to the juvenile and informed the juvenile of the possibility of that possible placement or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible placement and that he or she understands those conditions and that possible placement. A person who takes a juvenile into custody under this subdivision shall permit the juvenile to make a written or oral statement concerning the possible placement of the juvenile and the course of conduct for which the juvenile was taken into custody. A person designated by the court or the county department who is employed in a supervisory position by a person authorized to provide or providing intake or dispositional services under s. 938.067 or 938.069 shall review that statement and shall either approve the placement, modify the terms of the placement, or order the juvenile to be released from custody.

(d) Hearing; when required. If a juvenile is held under par. (a), (b), or (c) in a secure detention facility, juvenile portion of a county jail, or place of nonsecure custody for longer than 72 hours, the juvenile is entitled to a hearing under sub. (6) (c) or s. 938.21. The hearing shall be conducted in the manner provided in sub. (6) or s. 938.21, except that for a hearing under, notwithstanding s. 938.21 (1) (a), the hearing shall be conducted within 72 hours, rather than 24 hours, after the time that the decision to hold the juvenile was made and a written statement of the reasons for continuing to hold the juvenile in custody may be filed rather than instead of a petition under s. 938.25.

Note: For an explanation of the change to s. 938.355 (6d) (c) 2., stats., see Note to s. 938.355 (6d) (a) 2., stats., as affected by this bill.

344,448 Section 448. 938.355 (6g) (a) and (b) (intro.) of the statutes are amended to read:

938.355 (6g) (a) If a juvenile upon whom the court has imposed a sanction under sub. (6) (a) or (6m) commits a 2nd or subsequent violation of a condition specified in sub. (2) (b) 7., the district attorney may file a petition under s. 938.12 charging the juvenile with contempt of court, as defined in s. 785.01 (1), and reciting the recommended disposition under s. 938.34 sought to be imposed. The district attorney may bring the motion file the petition on his or her own initiative or on the request of the court that imposed the condition specified in sub. (2) (b) 7. or that imposed the sanction under sub. (6) (a) or (6m). If the district attorney brings the motion files the petition on the request of the court that imposed the condition specified in sub. (2) (b) 7. or that imposed the sanction under sub. (6) (a) or (6m), that court is disqualified from holding any a hearing on the contempt petition.

(b) (intro.) The court may find a juvenile in contempt of court, as defined in s. 785.01 (1), and order a disposition under s. 938.34 only if the court makes all of the following findings:

Note: In s. 938.355 (6g) (a), stats., makes consistent the references to petitions and motions by referring only to petitions.

344,449 Section 449. 938.355 (6m) (a) (intro.), (ag) and (am) of the statutes are amended to read:

938.355 (6m) (a) Violation of habitual truancy order. (intro.) If the court finds by a preponderance of the evidence that a juvenile who has been found to have violated a municipal ordinance enacted under s. 118.163 (2) or who has been found to be in need of protection or services under s. 938.13 (6) has violated a condition specified under sub. (2) (b) 7., the court may order as a sanction any combination of the sanctions specified in under subds.1g. to 4. and the dispositions specified in under s. 938.342 (1g) (d) to (j) and (1m), regardless of whether the disposition was imposed in the order violated by the juvenile, . A sanction may be imposed under this paragraph only if at the dispositional hearing under s. 938.335 the court explained those conditions to the juvenile and informed the juvenile of the possible sanctions under this paragraph for a violation or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and possible sanctions and that he or she understands those conditions and possible sanctions. The court may order as a sanction under this paragraph any of the following:

(ag) Violation of truancy order. If the court finds by a preponderance of the evidence that a juvenile who has been found to have violated a municipal ordinance enacted under s. 118.163 (1m) has violated a condition specified under sub. (2) (b) 7., the court may order as a sanction any combination of the operating privilege suspension specified in par. (a) and the dispositions specified in s. 938.342 (1g) (b) to (k) and (1m), regardless of whether the disposition was imposed in the order violated by the juvenile,. A sanction may be imposed under this paragraph only if at the dispositional hearing under s. 938.335 the court explained those conditions to the juvenile and informed the juvenile of the possible sanctions under this paragraph for a violation or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and possible sanctions and that he or she understands those conditions and possible sanctions.

(am) Violation of municipal court order. 1. If a juvenile who has violated a municipal ordinance enacted under s. 118.163 (2) violates a condition of a dispositional order imposed by the municipal court, the municipal court may petition the court assigned to exercise jurisdiction under this chapter and ch. 48 to impose on the juvenile the sanction specified in par. (a) 1g. A sanction may be imposed under this subdivision only if, at the time of the judgment the municipal court explained the conditions to the juvenile and informed the juvenile of that possible sanction for a violation or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible sanction and that he or she understands those conditions and that possible sanction. The petition shall contain a statement of whether the juvenile may be subject to the federal Indian child welfare act Child Welfare Act, 25 USC 1911 to 1963.

2. If the court assigned to exercise jurisdiction under this chapter and ch. 48 imposes the sanction specified in under par. (a) 1g. on a petition described in under subd. 1., that the court shall order the municipality of the municipal court that filed the petition to pay to the county the cost of providing the sanction imposed under par. (a) 1g.

344,450 Section 450. 938.355 (6m) (b) (title) of the statutes is created to read:

938.355 (6m) (b) (title) Motion for sanction.

344,451 Section 451. 938.355 (6m) (c) (title) of the statutes is created to read:

938.355 (6m) (c) (title) Sanction hearing.

344,452 Section 452. 938.355 (6m) (cm) of the statutes is amended to read:

938.355 (6m) (cm) Reasonable efforts finding. The court may not order the sanction of placement in a place of nonsecure custody specified in under par. (a) 1g. unless the court finds that the agency primarily responsible for providing services for the juvenile has made reasonable efforts to prevent the removal of the juvenile from his or her home and that continued placement of the juvenile in his or her home is contrary to the welfare of the juvenile. The court shall make the findings specified in under this paragraph on a case-by-case basis based on circumstances specific to the juvenile and shall document or reference the specific information on which that finding is based in the sanction order. A sanction order that merely references this paragraph without documenting or referencing that specific information in the sanction order or an amended sanction order that retroactively corrects an earlier sanction order that does not comply with this paragraph is not sufficient to comply with this paragraph.

344,453 Section 453. 938.355 (7) of the statutes is amended to read:

938.355 (7) Orders applicable to parents, guardians, legal custodians, and other adults. In addition to any dispositional order entered under s. 938.34 or 938.345, the court may enter an order applicable to a juvenile's parent, guardian, or legal custodian or to another adult, as provided under s. 938.45.

344,454 Section 454. 938.356 (1) (title) and (2) (title) of the statutes are created to read:

938.356 (1) (title) Oral warning.

(2) (title) Written warning.

344,455 Section 455. 938.357 (1) (title) and (a) (title) of the statutes are created to read:

938.357 (1) (title) Request by person or agency responsible for dispositional order or district attorney. (a) (title) Applicable procedures.

344,456 Section 456. 938.357 (1) (am) (title) of the statutes is created to read:

938.357 (1) (am) (title) From out-of-home placement.

344,457 Section 457. 938.357 (1) (am) 1. and 3. of the statutes are amended to read:

938.357 (1) (am) 1. If the proposed change in placement involves any change in placement other than a change in placement specified in under par. (c), the person or agency primarily responsible for implementing the dispositional order or the district attorney shall cause written notice of the proposed change in placement to be sent to the juvenile, the parent, guardian, and legal custodian of the juvenile, and any foster parent, treatment foster parent, or other physical custodian described in s. 48.62 (2) of the juvenile. The notice shall contain the name and address of the new placement, the reasons for the change in placement, a statement describing why the new placement is preferable to the present placement, and a statement of how the new placement satisfies objectives of the treatment plan ordered by the court.

3. If the court changes the juvenile's placement from a placement outside the home to another placement outside the home, the change in placement order shall contain one of the statements specified in under sub. (2v) (a) 2.

344,458 Section 458. 938.357 (1) (c) and (2) of the statutes are amended to read:

938.357 (1) (c) From placement in the home. 1. If the proposed change in placement would change the placement of a juvenile placed in the home to a placement outside the home, the person or agency primarily responsible for implementing the dispositional order or the district attorney shall submit a request for the change in placement to the court. The request shall contain the name and address of the new placement, the reasons for the change in placement, a statement describing why the new placement is preferable to the present placement, and a statement of how the new placement satisfies objectives of the treatment plan ordered by the court. The request shall also contain specific information showing that continued placement of the juvenile in his or her home would be contrary to the welfare of the juvenile and, unless any of the circumstances specified in under s. 938.355 (2d) (b) 1. to 4. applies, specific information showing that the agency primarily responsible for implementing the dispositional order has made reasonable efforts to prevent the removal of the juvenile from the home, while assuring that the juvenile's health and safety are the paramount concerns.

2. The court shall hold a hearing prior to ordering any a change in placement requested under subd. 1. Not less than At least 3 days prior to the hearing, the court shall provide notice of the hearing, together with a copy of the request for the change in placement, to the juvenile, the parent, guardian, and legal custodian of the juvenile, and all parties that are bound by the dispositional order. If all parties consent, the court may proceed immediately with the hearing.

3. If the court changes the juvenile's placement from a placement in the juvenile's home to a placement outside the juvenile's home, the change in placement order shall contain the findings specified in under sub. (2v) (a) 1., one of the statements specified in under sub. (2v) (a) 2., and, if in addition the court finds that any of the circumstances specified in under s. 938.355 (2d) (b) 1. to 4. applies with respect to a parent, the determination specified in under sub. (2v) (a) 3.

(2) Emergency change in placement. If emergency conditions necessitate an immediate change in the placement of a juvenile placed outside the home, the person or agency primarily responsible for implementing the dispositional order may remove the juvenile to a new placement, whether or not authorized by the existing dispositional order, without the prior notice provided in under sub. (1) (am) 1. The notice shall, however, be sent within 48 hours after the emergency change in placement. Any party receiving notice may demand a hearing under sub. (1) (am) 2. In emergency situations, a juvenile may be placed in a licensed public or private shelter care facility as a transitional placement for not more than 20 days, as well as or in any placement authorized under s. 938.34 (3).

344,459 Section 459. 938.357 (2m) and (2r) of the statutes are amended to read:

938.357 (2m) Requests by others. (a) Request; information required. The juvenile, the parent, guardian, or legal custodian of the juvenile, or any person or agency primarily bound by the dispositional order, other than the person or agency responsible for implementing the order, may request a change in placement under this paragraph. The request shall contain the name and address of the new placement requested and shall state what new information is available that affects the advisability of the current placement. If the proposed change in placement would change the placement of a juvenile placed in the home to a placement outside the home, the request shall also contain specific information showing that continued placement of the juvenile in the home would be contrary to the welfare of the juvenile and, unless any of the circumstances specified in under s. 938.355 (2d) (b) 1. to 4. applies, specific information showing that the agency primarily responsible for implementing the dispositional order has made reasonable efforts to prevent the removal of the juvenile from the home, while assuring that the juvenile's health and safety are the paramount concerns. The request shall be submitted to the court. In addition, the The court may also propose a change in placement on its own motion.

(b) Hearing; when required. The court shall hold a hearing on the matter prior to ordering any change in placement requested or proposed under par. (a) if the request states that new information is available that affects the advisability of the current placement, unless . A hearing is not required if the requested or proposed change in placement involves any change in placement other than does not involve a change in placement of a juvenile placed in the home to a placement outside the home and, written waivers of objection to the proposed change in placement are signed by all parties entitled to receive notice under sub. (1) (am) 1., and the court approves. If a hearing is scheduled, the court shall notify the juvenile, the parent, guardian, and legal custodian of the juvenile, any foster parent, treatment foster parent, or other physical custodian described in s. 48.62 (2) of the juvenile, and all parties who are bound by the dispositional order at least 3 days prior to the hearing. A copy of the request or proposal for the change in placement shall be attached to the notice. If all of the parties consent, the court may proceed immediately with the hearing.

(c) In-home to out-of-home placement; findings required. If the court changes the juvenile's placement from a placement in the juvenile's home to a placement outside the juvenile's home, the change in placement order shall contain the findings specified in under sub. (2v) (a) 1., one of the statements specified in under sub. (2v) (a) 2., and, if in addition the court finds that any of the circumstances specified in under s. 938.355 (2d) (b) 1. to 4. applies with respect to a parent, the determination specified in under sub. (2v) (a) 3.

(2r) Removal from foster home or physical custodian. If a hearing is held under sub. (1) (am) 2. or (2m) (b) and the change in placement would remove a juvenile from a foster home, treatment foster home, or other placement with a physical custodian described in s. 48.62 (2), the court shall give the foster parent, treatment foster parent, or other physical custodian described in s. 48.62 (2) an opportunity to be heard at the hearing by permitting the foster parent, treatment foster parent, or other physical custodian to make a written or oral statement during the hearing or to submit a written statement prior to the hearing relating to the juvenile and the requested change in placement. A foster parent, treatment foster parent, or other physical custodian described in s. 48.62 (2) who receives notice of a hearing under sub. (1) (am) 1. or (2m) (b) and an opportunity to be heard under this subsection does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and opportunity to be heard.

344,460 Section 460. 938.357 (2v) (title) and (a) (title) of the statutes are created to read:

938.357 (2v) (title) Change-in-placement order. (a) (title) Contents of order.

344,461 Section 461. 938.357 (2v) (a) 1., 2. and 3. and (b) of the statutes are amended to read:

938.357 (2v) (a) 1. If the court changes the juvenile's placement from a placement in the juvenile's home to a placement outside the juvenile's home, a finding that continued placement of the juvenile in his or her home would be contrary to the welfare of the juvenile and, unless a circumstance specified in under s. 938.355 (2d) (b) 1. to 4. applies, a finding that the agency primarily responsible for implementing the dispositional order has made reasonable efforts to prevent the removal of the juvenile from the home, while assuring that the juvenile's health and safety are the paramount concerns.

2. If the change in placement order would change the placement of the juvenile to a placement outside the home recommended by the person or agency primarily responsible for implementing the dispositional order, whether from a placement in the home or from another placement outside the home, a statement that the court approves the placement recommended by the person or agency or, if. If the change in placement order would change the placement of the juvenile to a placement outside the home that is not a placement recommended by that person or agency, whether from a placement in the home or from another placement outside the home, a statement that the court has given bona fide consideration to the recommendations made by that person or agency and all parties relating to the juvenile's placement.

3. If the court finds that any of the circumstances specified in under s. 938.355 (2d) (b) 1. to 4. applies with respect to a parent, a determination that the agency primarily responsible for providing services under the change in placement order is not required to make reasonable efforts with respect to the parent to make it possible for the juvenile to return safely to his or her home.

(b) Documentation of basis of findings. The court shall make the findings specified in under par. (a) 1. and 3. on a case-by-case basis based on circumstances specific to the juvenile and shall document or reference the specific information on which those findings are based in the change in placement order. A change in placement order that merely references par. (a) 1. or 3. without documenting or referencing that specific information in the change in placement order or an amended change in placement order that retroactively corrects an earlier change in placement order that does not comply with this paragraph is not sufficient to comply with this paragraph.

344,462 Section 462. 938.357 (2v) (c) (title) of the statutes is created to read:

938.357 (2v) (c) (title) Permanency plan hearing.

344,463 Section 463. 938.357 (2v) (c) 1. of the statutes is amended to read:

938.357 (2v) (c) 1. If the court finds under par. (a) 3. that any of the circumstances specified in under s. 938.355 (2d) (b) 1. to 4. applies with respect to a parent, the court shall hold a hearing within 30 days after the date of that finding to determine the permanency plan for the juvenile. If a hearing is held under this paragraph, the agency responsible for preparing the permanency plan shall file the permanency plan with the court not less than at least 5 days before the date of the hearing.

344,464 Section 464. 938.357 (3) of the statutes is amended to read:

938.357 (3) Placement in juvenile correctional facility. Subject to subs. (4) (b) and (c) and (5) (e), if the proposed change in placement would involve placing a juvenile in a secured juvenile correctional facility, a secured child caring institution, or a secured group home residential care center for children and youth, notice shall be given as provided in sub. (1) (am) 1. A hearing shall be held, unless waived by the juvenile, parent, guardian, and legal custodian, before the judge court makes a decision on the request. The juvenile shall be is entitled to counsel at the hearing, and any party opposing or favoring the proposed new placement may present relevant evidence and cross-examine witnesses. The proposed new placement may be approved only if the judge court finds, on the record, that the conditions set forth in s. 938.34 (4m) have been met.

344,465 Section 465. 938.357 (4) (title) of the statutes is created to read:

938.357 (4) (title) Placement with department.

344,466 Section 466. 938.357 (4) (a) and (b) 1., 2. and 3. of the statutes are amended to read:

938.357 (4) (a) When the juvenile is placed with the department, the department may, after an examination under s. 938.50, place the juvenile in a secured juvenile correctional facility or a secured child caring institution residential care center for children and youth or on aftercare supervision, either immediately or after a period of placement in a secured juvenile correctional facility or a secured child caring institution residential care center for children and youth. The department shall send written notice of the change in placement to the parent, guardian, legal custodian, county department designated under s. 938.34 (4n), if any, and committing court. If the department places a juvenile in a Type 2 secured juvenile correctional facility operated by a child welfare agency, the department shall reimburse the child welfare agency at the rate established under s. 46.037 that is applicable to the type of placement that the child welfare agency is providing for the juvenile. A juvenile who is placed in a Type 2 secured juvenile correctional facility or a secured child caring institution residential care center for children and youth remains under the supervision of the department, remains subject to the rules and discipline of that department, and is considered to be in custody, as defined in s. 946.42 (1) (a).

(b) 1. If a juvenile whom the department has placed in a Type 2 secured juvenile correctional facility operated by a child welfare agency violates a condition of his or her placement in the Type 2 secured juvenile correctional facility, the child welfare agency operating the Type 2 secured juvenile correctional facility shall notify the department and the department, after consulting with the child welfare agency, may place the juvenile in a Type 1 secured juvenile correctional facility under the supervision of the department, without a hearing under sub. (1) (am) 2.

2. If a juvenile whom the court has placed in a Type 2 child caring institution residential care center for children and youth under s. 938.34 (4d) violates a condition of his or her placement in the Type 2 child caring institution residential care center for children and youth, the child welfare agency operating the Type 2 child caring institution residential care center for children and youth shall notify the county department that has supervision over the juvenile and, if the county department agrees to a change in placement under this subdivision, the child welfare agency shall notify the department, and the department, after consulting with the child welfare agency, may place the juvenile in a Type 1 secured juvenile correctional facility under the supervision of the department, without a hearing under sub. (1) (am) 2., for not more than 10 days. If a juvenile is placed in a Type 1 secured juvenile correctional facility under this subdivision, the county department that has supervision over the juvenile shall reimburse the child welfare agency operating the Type 2 child caring institution residential care center for children and youth in which the juvenile was placed at the rate established under s. 46.037, and that child welfare agency shall reimburse the department at the rate specified in s. 301.26 (4) (d) 2. or 3., whichever is applicable, for the cost of the juvenile's care while placed in a Type 1 secured juvenile correctional facility.

3. The child welfare agency operating the Type 2 secured juvenile correctional facility or Type 2 child caring institution residential care center for children and youth shall send written notice of a change in placement under subd. 1. or 2. to the parent, guardian, legal custodian, county department, and committing court.

344,467 Section 467. 938.357 (4) (c) 1., 2. and 3. of the statutes are amended to read:

938.357 (4) (c) 1. If a juvenile is placed in a Type 2 secured juvenile correctional facility operated by a child welfare agency under par. (a) and it appears that a less restrictive placement would be appropriate for the juvenile, the department, after consulting with the child welfare agency that is operating the Type 2 secured juvenile correctional facility in which the juvenile is placed, may place the juvenile in a less restrictive placement, and may return the juvenile to the Type 2 secured juvenile correctional facility without a hearing under sub. (1) (am) 2. The child welfare agency shall establish a rate for each type of placement in the manner provided in s. 46.037.

2. If a juvenile is placed in a Type 2 child caring institution residential care center for children and youth under s. 938.34 (4d) and it appears that a less restrictive placement would be appropriate for the juvenile, the child welfare agency operating the Type 2 child caring institution residential care center for children and youth shall notify the county department that has supervision over the juvenile and, if the county department agrees to a change in placement under this subdivision, the child welfare agency may place the juvenile in a less restrictive placement. A child welfare agency may also, with the agreement of the county department that has supervision over a juvenile who is placed in a less restrictive placement under this subdivision, return the juvenile to the Type 2 child caring institution residential care center for children and youth without a hearing under sub. (1) (am) 2. The child welfare agency shall establish a rate for each type of placement in the manner provided in s. 46.037.

344,468 Section 468. 938.357 (4) (d) of the statutes is repealed.

Note: Repeals s. 938.357 (4) (d), stats., which permits a juvenile who was adjudicated delinquent to be transferred to an adult correctional facility.

In State of Wisconsin v. Hezzie R., 219 Wis. 2d 849 (1998), the Wisconsin Supreme Court held that subjecting a juvenile who has no right to a trial by jury under the Juvenile Justice Code to placement in an adult prison violates the juvenile's constitutional right to a trial by jury because placement in an adult prison constitutes criminal punishment rather than juvenile rehabilitation. Accordingly, this bill eliminates the authority of the DOC to transfer a juvenile who has been adjudicated delinquent to an adult prison, including the Intensive Sanctions Program, which is defined in the statutes as a state prison. This change is reflected: (1) in various provisions in the Juvenile Justice Code [ss. 938.183 (3), 938.538 (3) (a) 1., 1m., and 2., (4) (a), (5) (c), and (6), and 938.992 (3)]; and (2) in other provisions affected by this change that are outside of the Juvenile Justice Code.

344,469 Section 469. 938.357 (4d) (title) of the statutes is created to read:

938.357 (4d) (title) Prohibited placements based on homicide of parent.

344,470 Section 470. 938.357 (4d) (a) and (am) of the statutes are amended to read:

938.357 (4d) (a) Except as provided in par. (b), the court may not change a juvenile's placement to a placement in the home of a person who has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional of the homicide, of a parent of the juvenile under s. 940.01 or 940.05, if the conviction has not been reversed, set aside, or vacated.

(am) Except as provided in par. (b), if a parent in whose home a juvenile is placed is convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional of the homicide, of the juvenile's other parent under s. 940.01 or 940.05, and the conviction has not been reversed, set aside, or vacated, the court shall change the juvenile's placement to a placement out of the home of the parent on petition of the juvenile, the guardian or legal custodian of the juvenile, a person or agency bound by the dispositional order, or the district attorney or corporation counsel of the county in which the dispositional order was entered, or on the court's own motion, and on with notice to the parent.