AB421: Bill Text

AB421,142,2 938.028 (2) (c) "Out-of-home care placement" means the removal of an Indian juvenile from the home of his or her parent or Indian custodian for temporary placement in a foster home, treatment foster home, group home, residential care center for children and youth, or shelter care facility, in the home of a relative other than a parent, or in the home of a guardian, from which placement the parent or Indian custodian cannot have the juvenile returned upon demand. "Out-of-home care placement" does not include holding an Indian juvenile in custody under ss. 938.19 to 938.21.

AB421, s. 259 Section 259. 938.028 (6) (a) 2. and 3. of the statutes, as affected by 2009 Wisconsin Act .... (this act), are amended to read:

AB421,142,6 938.028 (6) (a) 2. A foster home or treatment foster home licensed, approved, or specified by the Indian juvenile's tribe.

AB421,142,8 3. An Indian foster home or treatment foster home licensed or approved by the department, a county department, or a child welfare agency.

AB421, s. 260 Section 260. 938.13 (intro.) of the statutes is amended to read:

AB421,142,13 938.13 Jurisdiction over juveniles alleged to be in need of protection or services. (intro.) The Except as provided in s. 938.028 (3), the court has exclusive original jurisdiction over a juvenile alleged to be in need of protection or services which can be ordered by the court if any of the following conditions applies:

AB421, s. 261 Section 261. 938.15 of the statutes is amended to read:

AB421,142,22 938.15 Jurisdiction of other courts to determine legal custody. Nothing Except as provided in s. 938.028 (3), nothing in this chapter deprives another court of the right to determine the legal custody of a juvenile by habeas corpus or to determine the legal custody or guardianship of a juvenile if the legal custody or guardianship is incidental to the determination of an action pending in that court. But Except as provided in s. 938.028 (3), the jurisdiction of the court assigned to exercise jurisdiction under this chapter and ch. 48 is paramount in all cases involving juveniles alleged to come within the provisions of ss. 938.12 to 938.14.

AB421, s. 262 Section 262. 938.185 (4) (title) of the statutes is amended to read:

AB421,142,24 938.185 (4) (title) American Indian juveniles.

AB421, s. 263 Section 263. 938.185 (4) (intro.) of the statutes is amended to read:

AB421,143,4 938.185 (4) (intro.) Venue for a proceeding under s. 938.12 or 938.13 (12) based on an allegation that an American Indian juvenile has committed a delinquent act may not be in the county specified in sub. (1) (a), unless that county is specified in sub. (1) (b) or (c), if all of the following circumstances apply:

AB421, s. 264 Section 264. 938.185 (4) (a) of the statutes is amended to read:

AB421,143,9 938.185 (4) (a) At the time of the alleged delinquent act the juvenile was under an order of a tribe's tribal court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile's parent, or permanent guardianship.

AB421, s. 265 Section 265. 938.185 (4) (b) of the statutes is amended to read:

AB421,143,17 938.185 (4) (b) At the time of the alleged delinquent act the juvenile was physically outside the boundaries of that tribe's the reservation of the Indian tribe of the tribal court and any off-reservation trust land of either that Indian tribe or a member of that Indian tribe as a direct consequence of a tribal court order under par. (a), including a tribal court order placing the juvenile in the home of a relative of the juvenile who on or after the date of the tribal court order resides physically outside the boundaries of a reservation and off-reservation trust land.

AB421, s. 266 Section 266. 938.19 (2) of the statutes is amended to read:

AB421,144,5 938.19 (2) Notification of parent, guardian, legal custodian, Indian custodian. When a juvenile is taken into physical custody under this section, the person taking the juvenile into custody shall immediately attempt to notify the parent, guardian, and legal custodian, and Indian 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, and Indian 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, and Indian 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, and Indian custodian of the juvenile are notified.

AB421, s. 267 Section 267. 938.20 (2) (ag) of the statutes is amended to read:

AB421,144,9 938.20 (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, or Indian custodian.

AB421, s. 268 Section 268. 938.20 (2) (b) of the statutes is amended to read:

AB421,144,14 938.20 (2) (b) If the juvenile's parent, guardian or, legal custodian, or Indian 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.

AB421, s. 269 Section 269. 938.20 (3) of the statutes is amended to read:

AB421,145,3 938.20 (3) Notification to parent, guardian, legal custodian, Indian custodian of release. 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, and Indian 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). The person who took the juvenile into custody shall make a statement in writing with supporting facts of the reasons why the juvenile was taken into physical custody and shall give a copy of the statement to the intake worker and to any juvenile 10 years of age or older. If the intake interview is not done in person, the report may be read to the intake worker.

AB421, s. 270 Section 270. 938.20 (7) (c) 1. of the statutes is amended to read:

AB421,145,10 938.20 (7) (c) 1. To a parent, guardian, or legal custodian, or Indian custodian, or to a responsible adult if the parent, guardian, or legal custodian, or Indian custodian is unavailable, unwilling, or unable to provide supervision for the juvenile, counseling or warning the juvenile as may be appropriate; or, if the juvenile is 15 years of age or older, without immediate adult supervision, counseling or warning the juvenile as may be appropriate.

AB421, s. 271 Section 271. 938.20 (7) (d) of the statutes is amended to read:

AB421,145,15 938.20 (7) (d) If the juvenile is released from custody, the intake worker shall immediately notify the juvenile's parent, guardian and , legal custodian, and Indian custodian of the time and circumstances of the release and the person, if any, to whom the juvenile was released.

AB421, s. 272 Section 272. 938.20 (8) (a) of the statutes is amended to read:

AB421,146,4 938.20 (8) (a) If a juvenile is held in custody, the intake worker shall notify the juvenile's parent, guardian, and legal custodian, and Indian 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. The parent, guardian, and legal custodian, and Indian 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 the hearing, and the right to present and cross-examine witnesses at the hearing, and, in the case of a parent or Indian custodian of an Indian juvenile who is the subject of an Indian juvenile custody proceeding, as defined in s. 938.028 (2) (b), the right to counsel under s. 938.028 (4) (b). If the parent, guardian, or legal custodian, or Indian custodian is not immediately available, the intake worker or another person designated by the court shall provide notice as soon as possible.

AB421, s. 273 Section 273. 938.207 (1g) of the statutes is created to read:

AB421,146,15 938.207 (1g) Indian juvenile; placement preferences. An Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is held in physical custody under s. 938.205 (1) shall be placed in compliance with s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b), unless the person responsible for determining the placement finds good cause, as described in s. 938.028 (6) (d), for departing from the order of placement preference under s. 938.028 (6) (a) or finds that emergency conditions necessitate departing from that order. When the reason for departing from that order is resolved, the Indian juvenile shall be placed in compliance with the order of placement preference under s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b).

AB421, s. 274 Section 274. 938.21 (2) (title) of the statutes is amended to read:

AB421,146,17 938.21 (2) (title) Proceedings concerning runaway or delinquent juveniles.

AB421, s. 275 Section 275. 938.21 (2) (ag) of the statutes is amended to read:

AB421,146,21 938.21 (2) (ag) Proceedings concerning a juvenile who comes within the jurisdiction of the court under s. 938.12 or 938.13 (7) or (12) or (14) shall be conducted according to this subsection.

AB421, s. 276 Section 276. 938.21 (3) (ag) of the statutes is amended to read:

AB421,146,25 938.21 (3) (ag) Proceedings concerning a juvenile who comes within the jurisdiction of the court under s. 938.13 (4), (6), (6m), or (14) (7) shall be conducted according to this subsection.

AB421, s. 277 Section 277. 938.21 (3) (am) of the statutes is amended to read:

AB421,147,5 938.21 (3) (am) The parent, guardian, or legal custodian, or Indian custodian may waive his or her right to participate in the hearing under this section. After any waiver, a rehearing shall be granted at the request of the parent, guardian, legal custodian, Indian custodian, or any other interested party for good cause shown.

AB421, s. 278 Section 278. 938.21 (3) (b) of the statutes is amended to read:

AB421,147,12 938.21 (3) (b) If present at the hearing, a copy of the petition or request shall be given to the parent, guardian, or legal custodian , or Indian 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 Indian custodian and to the juvenile if he or she is 12 years of age or older under s. 938.20 (8).

AB421, s. 279 Section 279. 938.21 (3) (d) of the statutes is amended to read:

AB421,147,21 938.21 (3) (d) Prior to the commencement of the hearing, the court shall inform the parent, guardian, or legal custodian, or Indian custodian 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 present, confront, and cross-examine witnesses, and the right to present witnesses and, in the case of a parent or Indian custodian of an Indian juvenile who is the subject of an Indian juvenile custody proceeding, as defined in s. 938.028 (2) (b), the right to counsel under s. 938.028 (4) (b).

AB421, s. 280 Section 280. 938.21 (3) (e) of the statutes is amended to read:

AB421,148,5 938.21 (3) (e) If the parent, guardian, or legal custodian, Indian custodian, or the juvenile is not represented by counsel at the hearing and if the juvenile is continued in custody as a result of the hearing, the parent, guardian, legal custodian, Indian 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 possible. An order to hold the juvenile in custody shall be reheard for good cause, whether or not counsel was present.

AB421, s. 281 Section 281. 938.21 (5) (d) 1. of the statutes is renumbered 938.21 (5) (d) and amended to read:

AB421,148,13 938.21 (5) (d) If the court finds that any of the circumstances specified in s. 938.355 (2d) (b) 1. to 4. applies with respect to a parent, the court shall hold a hearing under s. 938.38 (4m) within 30 days after the date of that finding to determine the permanency plan for the juvenile. If a hearing is held under this subdivision, the agency responsible for preparing the permanency plan shall file the permanency plan with the court not less than 5 days before the date of the hearing.

AB421, s. 282 Section 282. 938.21 (5) (d) 2. of the statutes, as affected by 2009 Wisconsin Act 28, is repealed.

AB421, s. 283 Section 283. 938.21 (5) (d) 3. of the statutes, as affected by 2009 Wisconsin Act 28, is repealed.

AB421, s. 284 Section 284. 938.23 (2g) of the statutes is created to read:

AB421,148,24 938.23 (2g) Right of Indian juvenile's parent or Indian custodian to counsel. Whenever an Indian juvenile is the subject of a proceeding under s. 938.13 (4), (6), (6m), or (7) involving the removal of the Indian juvenile from the home of his or her parent or Indian custodian or the placement of the Indian juvenile in an out-of-home care placement, the Indian juvenile's parent or Indian custodian shall have the right to be represented by counsel as provided in sub. (4).

AB421, s. 285 Section 285. 938.23 (3) of the statutes is amended to read:

AB421,149,6 938.23 (3) Power of the court to appoint counsel. Except as provided in this subsection, at any time, upon request or on its own motion, the court may appoint counsel for the juvenile or any party, unless the juvenile or the party has or wishes to retain counsel of his or her own choosing. The Except as provided in sub. (2g), the court may not appoint counsel for any party other than the juvenile in a proceeding under s. 938.13.

AB421, s. 286 Section 286. 938.23 (4) of the statutes is amended to read:

AB421,149,22 938.23 (4) Providing counsel. If a juvenile has a right to be represented by counsel or is provided counsel at the discretion of the court under this section and counsel is not knowingly and voluntarily waived, the court shall refer the juvenile to the state public defender and counsel shall be appointed by the state public defender under s. 977.08 without a determination of indigency. In any situation under sub. (2g) in which a parent 18 years of age or over is entitled to representation by counsel; counsel is not knowingly and voluntarily waived; and it appears that the parent is unable to afford counsel in full, or the parent so indicates; the court shall refer the parent to the authority for indigency determinations specified under s. 977.07 (1). In any other situation under this section in which a person has a right to be represented by counsel or is provided counsel at the discretion of the court, competent and independent counsel shall be provided and reimbursed in any manner suitable to the court regardless of the person's ability to pay, except that the court may not order a person who files a petition under s. 813.122 or 813.125 to reimburse counsel for the juvenile who is named as the respondent in that petition.

AB421, s. 287 Section 287. 938.235 (4) (a) 7. of the statutes is amended to read:

AB421,149,25 938.235 (4) (a) 7. Petition for relief from a judgment terminating parental rights under s. 48.028 or 48.46.

AB421, s. 288 Section 288. 938.24 (2r) (title) of the statutes is amended to read:

AB421,150,2 938.24 (2r) (title) American Indian juvenile; notification of tribal court.

AB421, s. 289 Section 289. 938.24 (2r) (a) (intro.) of the statutes is amended to read:

AB421,150,10 938.24 (2r) (a) (intro.) If the intake worker determines as a result of the intake inquiry that the juvenile is an American Indian juvenile who has allegedly committed a delinquent act and that all of the following circumstances apply, the intake worker shall promptly notify the clerk of the tribal court under subd. 1., a person who serves as the tribal juvenile intake worker, or a tribal prosecuting attorney that the juvenile has allegedly committed a delinquent act under those circumstances:

AB421, s. 290 Section 290. 938.24 (2r) (a) 1. of the statutes is amended to read:

AB421,150,15 938.24 (2r) (a) 1. At the time of the delinquent act the juvenile was under an order of a tribe's tribal court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile's parent, or permanent guardianship.

AB421, s. 291 Section 291. 938.24 (2r) (a) 2. of the statutes is amended to read:

AB421,150,23 938.24 (2r) (a) 2. At the time of the delinquent act the juvenile was physically outside the boundaries of that tribe's the reservation of the Indian tribe of the tribal court and any off-reservation trust land of either that Indian tribe or a member of that Indian tribe as a direct consequence of a tribal court order under subd. 1., including a tribal court order placing the juvenile in the home of a relative of the juvenile who on or after the date of the tribal court order resides physically outside the boundaries of a reservation and off-reservation trust land.

AB421, s. 292 Section 292. 938.24 (2r) (b) of the statutes is amended to read:

AB421,151,11 938.24 (2r) (b) If the intake worker is notified by an official of the Indian tribe that a petition relating to the delinquent act has been or may be filed in tribal court, the intake worker shall consult with tribal officials, unless the intake worker determines under sub. (4) that the case should be closed. After the consultation, the intake worker shall determine whether the best interests of the juvenile and of the public would be served by having the matter proceed solely in tribal court. If the intake worker determines that the best interests of the juvenile and of the public would be served by having the matter proceed solely in tribal court, the intake worker shall close the case. If the intake worker determines that the best interests of the juvenile and of the public would not be served by having the matter proceed solely in tribal court, the intake worker shall proceed under sub. (3) or (4).

AB421, s. 293 Section 293. 938.243 (1) (e) of the statutes is amended to read:

AB421,151,13 938.243 (1) (e) The right of the juvenile to counsel under s. 938.23.

AB421, s. 294 Section 294. 938.25 (2g) (title) of the statutes is amended to read:

AB421,151,15 938.25 (2g) (title) American Indian juvenile; consultation with tribal court.

AB421, s. 295 Section 295. 938.255 (1) (cm) of the statutes is amended to read:

AB421,151,21 938.255 (1) (cm) If the petition is initiating proceedings other than proceedings under s. 938.12, 938.125 or 938.13 (12) under s. 938.13 (4), (6), (6m), or (7), whether the juvenile may be subject to the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and, if the juvenile may be subject to that act, the names and addresses of the juvenile's Indian custodian, if any, and Indian tribe, if known.

AB421, s. 296 Section 296. 938.255 (1) (cr) 1. a. of the statutes is amended to read:

AB421,151,23 938.255 (1) (cr) 1. a. The juvenile is an American Indian juvenile.

AB421, s. 297 Section 297. 938.255 (1) (cr) 1. b. of the statutes is amended to read:

AB421,152,4 938.255 (1) (cr) 1. b. At the time of the alleged delinquent act, the juvenile was under an order of a tribe's tribal court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile's parent, or permanent guardianship.

AB421, s. 298 Section 298. 938.255 (1) (cr) 1. c. of the statutes is amended to read:

AB421,152,12 938.255 (1) (cr) 1. c. At the time of the delinquent act the juvenile was physically outside the boundaries of that tribe's the reservation of the Indian tribe of the tribal court and any off-reservation trust land of either that Indian tribe or a member of that Indian tribe as a direct consequence of a tribal court order under subd. 1. b., including a tribal court order placing the juvenile in the home of a relative of the juvenile who on or after the date of the tribal court order resides physically outside the boundaries of a reservation and off-reservation trust land.

AB421, s. 299 Section 299. 938.255 (1) (cr) 2. of the statutes is amended to read:

AB421,152,18 938.255 (1) (cr) 2. If the statement under subd. 1. is included in the petition and if the intake worker, district attorney, or corporation counsel has been notified by an official of the Indian tribe that a petition relating to the delinquent act has been or may be filed in tribal court with respect to the alleged delinquent act, a statement to that effect.

AB421, s. 300 Section 300. 938.255 (1) (g) of the statutes is created to read:

AB421,153,5 938.255 (1) (g) If the petitioner knows or has reason to know that the juvenile is an Indian juvenile, if the juvenile is alleged to come within the provisions of s. 938.13 (4), (6), (6m), or (7), and if the juvenile has been removed from the home of his or her parent or Indian custodian, reliable and credible information showing that continued custody of the juvenile by the juvenile's parent or Indian custodian is likely to result in serious emotional or physical damage to the juvenile under s. 938.028 (4) (d) 1. and reliable and credible information showing that active efforts under s. 938.028 (4) (d) 2. have been made to prevent the breakup of the Indian juvenile's family and that those efforts have proved unsuccessful. The petition shall set forth with specificity both the information required under this paragraph and the information required under par. (f).

AB421, s. 301 Section 301. 938.255 (2) of the statutes is amended to read:

AB421,153,8 938.255 (2) If any of the facts in sub. (1) (a) to (cr) and, (f), and (g) are not known or cannot be ascertained by the petitioner, the petition shall so state.

AB421, s. 302 Section 302. 938.255 (4) of the statutes is amended to read:

AB421,153,15 938.255 (4) Copy to juvenile, parents, and others. A copy of the petition shall be given to the juvenile and to the parents, guardian, legal custodian and physical custodian. If the juvenile is an Indian juvenile who is alleged to come within the provisions of s. 938.13 (4), (6), (6m), or (7), and who has been removed from the home of his or her parent or Indian custodian, a copy of the petition shall also be given to the Indian juvenile's Indian custodian and tribe.

AB421, s. 303 Section 303. 938.27 (3) (a) 1. of the statutes is amended to read: