48.315 Annotation
The word "continuance" in sub. (2) is sufficiently broad to encompass situations in which the fact-finding hearing is originally scheduled beyond the statutory 45-day time period. A circuit court's schedule or lawyers' or litigants' difficulties in scheduling court dates may amount to good cause for extension, delay, or continuance under sub. (2). State v. Robert K. 2005 WI 152,
286 Wis. 2d 143,
706 N.W.2d 257,
04-2330.
48.315 Annotation
Reassignment of a case to a different judge because of docket congestion does not constitute disqualification of a judge under sub. (1) (c). Brown County v. Shannon R. 2005 WI 160,
286 Wis. 2d 278,
706 N.W.2d 269,
04-1305.
48.317
48.317
Jeopardy. Jeopardy attaches:
48.317(1)
(1) In a trial to the court, when a witness is sworn.
48.317(2)
(2) In a jury trial, when the jury selection is completed and the jury sworn.
48.317 History
History: 1977 c. 354.
48.32
48.32
Consent decree. 48.32(1)(a)(a) At any time after the filing of a petition for a proceeding relating to
s. 48.13 or
48.133 and before the entry of judgment, the judge or a circuit court commissioner may suspend the proceedings and place the child or expectant mother under supervision in the home or present placement of the child or expectant mother. The court may establish terms and conditions applicable to the child and the child's parent, guardian or legal custodian, to the child expectant mother and her parent, guardian or legal custodian or to the adult expectant mother, including the condition specified in
sub. (1b). 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; by the child expectant mother, her parent, guardian or legal custodian, the unborn child by the unborn child's guardian ad litem and the person filing the petition under
s. 48.25; or by the adult expectant mother, the unborn child by the unborn child's guardian ad litem and the person filing the petition under
s. 48.25. The consent decree shall be reduced to writing and given to the parties.
48.32(1)(b)1.1. If at the time the consent decree is entered into the child is placed outside the home under a voluntary agreement under
s. 48.63 or is otherwise living outside the home without a court order and if the consent decree maintains the child in that placement or other living arrangement, the consent decree shall include all of the following:
48.32(1)(b)1.a.
a. A finding that placement of the child in his or her home would be contrary to the welfare of the child.
48.32(1)(b)1.b.
b. A finding as to whether the county department, the department, in a county having a population of 500,000 or more, or the agency primarily responsible for providing services to the child has made reasonable efforts to prevent the removal of the child from the home, while assuring that the child's health and safety are the paramount concerns, unless the judge or circuit court commissioner finds that any of the circumstances specified in
s. 48.355 (2d) (b) 1. to
5. applies.
48.32(1)(b)1.c.
c. If a permanency plan has previously been prepared for the child, a finding as to whether the county department, department, or agency has made reasonable efforts to achieve the goal of the child's permanency plan[,] including, if appropriate, through an out-of-state placement{,}.
48.32 Note
NOTE: Subd. 1. c. is shown as affected by 2 acts of the 2009 Wisconsin legislature and as merged by the legislative reference bureau under s. 13.92 (2) (i). The comma in square brackets was removed by
2009 Wis. Act 185, but its reinsertion is required. The comma in curly brackets was inserted by
2009 Wis. Act 79, but is unnecessary. Corrective legislation is pending.
48.32(1)(b)1.d.
d. If the child's placement or other living arrangement is under the supervision of the county department or, in a county having a population of 500,000 or more, the department, an order ordering the child into the placement and care responsibility of the county department or department as required under
42 USC 672 (a) (2) and assigning the county department or department primary responsibility for providing services to the child.
48.32(1)(b)1m.
1m. If the child has one or more siblings, as defined in
s. 48.38 (4) (br) 1., who have also been removed from the home, the consent decree shall include a finding as to whether the county department, department in a county having a population of 500,000 or more, or agency primarily responsible for providing services to the child has made reasonable efforts to place the child in a placement that enables the sibling group to remain together, unless the judge or circuit court commissioner determines that a joint placement would be contrary to the safety or well-being of the child or any of those siblings, in which case the judge or circuit court commissioner shall order the county department, department, or agency to make reasonable efforts to provide for frequent visitation or other ongoing interaction between the child and the siblings, unless the judge or circuit court commissioner determines that such visitation or interaction would be contrary to the safety or well-being of the child or any of those siblings.
48.32(1)(b)2.
2. If the judge or circuit court commissioner finds that any of the circumstances specified in
s. 48.355 (2d) (b) 1. to
5. applies with respect to a parent, the consent decree shall include a determination that the county department, department, in a county having a population of 500,000 or more, or agency primarily responsible for providing services under the consent decree is not required to make reasonable efforts with respect to the parent to make it possible for the child to return safely to his or her home.
48.32(1)(b)3.
3. The judge or circuit court commissioner shall make the findings specified in
subds. 1. and
2. on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which those findings are based in the consent decree. A consent decree that merely references
subd. 1. or
2. without documenting or referencing that specific information in the consent decree or an amended consent decree that retroactively corrects an earlier consent decree that does not comply with this subdivision is not sufficient to comply with this subdivision.
48.32(1)(c)
(c) If the judge or circuit court commissioner finds that any of the circumstances specified in
s. 48.355 (2d) (b) 1. to
5. applies with respect to a parent, the judge or circuit court commissioner shall hold a hearing under
s. 48.38 (4m) within 30 days after the date of that finding to determine the permanency plan for the child.
48.32(1)(d)1.1. In the case of an Indian child, if at the time the consent decree is entered into the Indian child is placed outside the home of his or her parent or Indian custodian under a voluntary agreement under
s. 48.63 or is otherwise living outside that home without a court order and if the consent decree maintains the Indian child in that placement or other living arrangement, the consent decree shall include a finding supported by clear and convincing evidence, including the testimony of one or more qualified expert witnesses, that continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child under
s. 48.028 (4) (d) 1. and a finding that active efforts under
s. 48.028 (4) (d) 2. have been made to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful. The findings under this subdivision shall be in addition to the findings under
par. (b) 1., except that for the sole purpose of determining whether the cost of providing care for an Indian child is eligible for reimbursement under
42 USC 670 to
679b, the findings under this subdivision and the findings under
par. (b) 1. shall be considered to be the same findings.
48.32(1)(d)2.
2. If the placement or other living arrangement under
subd. 1. departs from the order of placement preference under
s. 48.028 (7) (b) or, if applicable,
s. 48.028 (7) (c), the court shall also find good cause, as described in
s. 48.028 (7) (e), for departing from that order.
48.32(1b)
(1b) The judge or a circuit court commissioner may, as a condition under
sub. (1), request a court-appointed special advocate program to designate a court-appointed special advocate for the child to perform the activities specified in
s. 48.236 (3) that are authorized in the memorandum of understanding under
s. 48.07 (5) (a). A court-appointed special advocate designated under this subsection shall have the authority specified in
s. 48.236 (4) that is authorized in the memorandum of understanding under
s. 48.07 (5) (a).
48.32(2)(a)(a) A consent decree shall remain in effect up to 6 months unless the child, parent, guardian, legal custodian or expectant mother is discharged sooner by the judge or circuit court commissioner.
48.32(2)(c)
(c) Upon the motion of the court or the application of the child, parent, guardian, legal custodian, expectant mother, unborn child by the unborn child's guardian ad litem, intake worker or any agency supervising the child or expectant mother under the consent decree, the court may, after giving notice to the parties to the consent decree, their counsel or guardian ad litem and the court-appointed special advocate for the child, 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 child, parent, guardian, legal custodian, expectant mother or unborn child by the unborn child's guardian ad litem objects to the extension, the judge shall schedule a hearing and make a determination on the issue of extension. An extension under this paragraph of a consent decree relating to an unborn child who is alleged to be in need of protection or services may be granted after the child is born.
48.32(3)
(3) If, prior to discharge by the court, or the expiration of the consent decree, the court finds that the child, parent, guardian, legal custodian or expectant mother has failed to fulfill the express terms and conditions of the consent decree or that the child or expectant mother objects to the continuation of the consent decree, the hearing under which the child or expectant mother was placed on supervision may be continued to conclusion as if the consent decree had never been entered.
48.32(5)
(5) A court which, under this section, elicits or examines information or material about a child or an expectant mother which would be inadmissible in a hearing on the allegations of the petition may not, over objections of one of the parties, participate in any subsequent proceedings if any of the following applies:
48.32(5)(a)
(a) The court refuses to enter into a consent decree and the allegations in the petition remain to be decided in a hearing at which one of the parties denies the allegations forming the basis for a child or unborn child in need of protection or services petition.
48.32(5)(b)
(b) A consent decree is granted but the petition under
s. 48.13 or
48.133 is subsequently reinstated.
48.32(6)
(6) The judge or circuit court commissioner shall inform the child and the child's parent, guardian or legal custodian, or the adult expectant mother, in writing, of the right of the child or expectant mother to object to the continuation of the consent decree under
sub. (3) and the fact that the hearing under which the child or expectant mother was placed on supervision may be continued to conclusion as if the consent decree had never been entered.
48.32 History
History: 1977 c. 354;
1985 a. 311;
1987 a. 27,
285,
339;
1991 a. 213,
253,
315;
1993 a. 98;
1995 a. 24,
77,
448;
1997 a. 292;
1999 a. 149;
2001 a. 61,
109;
2007 a. 20;
2009 a. 28,
79,
94,
185; s. 13.92 (2) (i).
48.32 Annotation
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 Wis. 2d 480,
526 N.W.2d 275 (Ct. App. 1994).
DISPOSITION
48.33
48.33
Court reports. 48.33(1)(1)
Report required. Before the disposition of a child or unborn 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:
48.33(1)(a)
(a) The social history of the child or of the expectant mother of the unborn child.
48.33(1)(b)
(b) A recommended plan of rehabilitation or treatment and care for the child or expectant mother 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 or unborn child abuse, which also includes an assessment of risks to the physical safety and physical health of the child or unborn child and a description of a plan for controlling the risks.
48.33(1)(c)
(c) A description of the specific services or continuum of services which the agency is recommending that the court order for the child or family or for the expectant mother of the unborn child, the persons or agencies that would be primarily responsible for providing those services, the identity of the person or agency that would provide case management or coordination of services, if any, and, in the case of a child adjudged to be in need of protection or services, whether or not the child should receive a coordinated services plan of care.
48.33(1)(d)
(d) A statement of the objectives of the plan, including any behavior changes desired of the child or expectant mother and the academic, social and vocational skills needed by the child or the expectant mother.
48.33(1)(e)
(e) 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.
48.33(1)(f)
(f) If the agency is recommending that the court order the child's parent, guardian or legal custodian or the expectant mother to participate in mental health treatment, anger management, individual or family counseling or parent or prenatal development training and education, a statement as to the availability of those services and as to the availability of funding for those services.
48.33(2)
(2) Home placement reports. A report recommending that the child remain in his or her home or that the expectant mother remain in 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.
48.33(4)
(4) Other out-of-home placements. A report recommending placement of an adult expectant mother outside of her home shall be in writing. A report recommending placement of a child in a foster home, treatment foster home, group home, or residential care center for children and youth, in the home of a relative other than a parent, or in the home of a guardian under
s. 48.977 (2) shall be in writing and shall include all of the following:
Effective date note
NOTE: Sub. (4) (intro.) is amended by
2009 Wis. Act 28 eff. the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read:
Effective date text
(4) Other out-of-home placements. A report recommending placement of an adult expectant mother outside of her home shall be in writing. A report recommending placement of a child in a foster home, group home, or residential care center for children and youth, in the home of a relative other than a parent, or in the home of a guardian under s. 48.977 (2) shall be in writing and shall include all of the following:
48.33(4)(b)
(b) 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 child support agency under
s. 59.53 (5) for the establishment of child support.
48.33(4)(c)
(c) Specific information showing that continued placement of the child in his or her home would be contrary to the welfare of the child, specific information showing that the county department, the department, in a county having a population of 500,000 or more, or the agency primarily responsible for providing services to the child has made reasonable efforts to prevent the removal of the child from the home, while assuring that the child's health and safety are the paramount concerns, unless any of the circumstances specified in
s. 48.355 (2d) (b) 1. to
5. applies, and, if a permanency plan has previously been prepared for the child, specific information showing that the county department, department, or agency has made reasonable efforts to achieve the goal of the child's permanency plan[,] including, if appropriate, through an out-of-state placement{,}.
48.33 Note
NOTE: Par. (c) is shown as affected by 2 acts of the 2009 Wisconsin legislature and as merged by the legislative reference bureau under s. 13.92 (2) (i). The comma in square brackets was removed by
2009 Wis. Act 185, but its reinsertion is required. The comma in curly brackets was inserted by
2009 Wis. Act 79, but is unnecessary. Corrective legislation is pending.
48.33(4)(d)1.1. If the child has one or more siblings, as defined in
s. 48.38 (4) (br) 1., who have been removed from the home or for whom an out-of-home placement is recommended, specific information showing that the county department, department in a county having a population of 500,000 or more, or agency primarily responsible for providing services to the child has made reasonable efforts to place the child in a placement that enables the sibling group to remain together, unless the county department, department, or agency recommends that the child and his or her siblings not be placed in a joint placement, in which case the report shall include specific information showing that a joint placement would be contrary to the safety or well-being of the child or any of those siblings and the specific information required under
subd. 2.
48.33(4)(d)2.
2. If a recommendation is made that the child and his or her siblings not be placed in a joint placement, specific information showing that the county department, department, or agency has made reasonable efforts to provide for frequent visitation or other ongoing interaction between the child and the siblings, unless the county department, department, or agency recommends that such visitation or interaction not be provided, in which case the report shall include specific information showing that such visitation or interaction would be contrary to the safety or well-being of the child or any of those siblings.
48.33(4)(dm)
(dm) If the agency knows or has reason to know that the child is an Indian child who is being removed from the home of his or her parent or Indian custodian, a description of any efforts undertaken to determine whether the child is an Indian child; specific information showing that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child under
s. 48.028 (4) (d) 1.; specific information showing that active efforts under
s. 48.028 (4) (d) 2. have been made to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful; a statement as to whether the out-of-home care placement recommended is in compliance with the order of placement preference under
s. 48.028 (7) (b) or, if applicable,
s. 48.028 (7) (c); and, if the recommended placement is not in compliance with that order, specific information showing good cause, as described in
s. 48.028 (7) (e), for departing from that order.
48.33 Note
NOTE: Par. (dm) was created as par. (d) by
2009 Wis. Act 94 and renumbered to par. (dm) by the legislative reference bureau under s. 13.92 (1) (bm) 2.
48.33(4m)
(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. 49.345 (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:
48.33(4m)(a)
(a) A copy of its recommendation for child support.
48.33(4m)(b)
(b) A written explanation of how the parent may request that the court modify the amount of child support under
s. 49.345 (14) (c).
48.33(5)
(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.
Effective date note
NOTE: Sub. (5) is amended by
2009 Wis. Act 28 eff. the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read:
Effective date text
(5) Identity of foster parent; confidentiality. If the report recommends placement in a foster home, and the name of the 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 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. After notifying the child's parent or guardian, the court shall hold a hearing prior to ordering the information withheld.
48.33 History
History: 1977 c. 354;
1979 c. 300;
1983 a. 399;
1987 a. 27,
339;
1989 a. 31,
41,
107;
1993 a. 377,
385,
446,
481;
1995 a. 27,
77,
201;
1997 a. 27,
292;
2001 a. 59,
109;
2005 a. 25;
2007 a. 20;
2009 a. 28,
79,
94,
185,
334; s. 13.92 (1) (bm) 2., (2) (i).
48.335
48.335
Dispositional hearings. 48.335(1)
(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 or an unborn child is adjudged to be in need of protection or services under
s. 48.133.
48.335(3)
(3) 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.
48.335(3g)
(3g) At hearings under this section, if the agency, as defined in
s. 48.38 (1) (a), is recommending placement of the child in a foster home, treatment foster home, group home, or residential care center for children and youth or in the home of a relative other than a parent, the agency shall present as evidence specific information showing all of the following:
Effective date note
NOTE: Sub. (3g) (intro.) is amended by
2009 Wis. Act 28 eff. the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read:
Effective date text
(3g) At hearings under this section, if the agency, as defined in s. 48.38 (1) (a), is recommending placement of the child in a foster home, group home, or residential care center for children and youth or in the home of a relative other than a parent, the agency shall present as evidence specific information showing all of the following:
48.335(3g)(a)
(a) That continued placement of the child in his or her home would be contrary to the welfare of the child.
48.335(3g)(b)
(b) That the county department, the department, in a county having a population of 500,000 or more, or the agency primarily responsible for providing services to the child has made reasonable efforts to prevent the removal of the child from the home, while assuring that the child's health and safety are the paramount concerns, unless any of the circumstances specified in
s. 48.355 (2d) (b) 1. to
5. applies.
48.335(3g)(c)
(c) That, if a permanency plan has previously been prepared for the child, the county department, department, or agency has made reasonable efforts to achieve the goal of the child's permanency plan[,] including, if appropriate, through an out-of-state placement{,}.
48.335 Note
NOTE: Par. (c) is shown as affected by 2 acts of the 2009 Wisconsin legislature and as merged by the legislative reference bureau under s. 13.92 (2) (i). The comma in square brackets was removed by
2009 Wis. Act 185, but its reinsertion is required. The comma in curly brackets was inserted by
2009 Wis. Act 79, but is unnecessary. Corrective legislation is pending.
48.335(3g)(d)1.1. If the child has one or more siblings, as defined in
s. 48.38 (4) (br) 1., who have been removed from the home or for whom an out-of-home placement is recommended, that the county department, department, or agency has made reasonable efforts to place the child in a placement that enables the sibling group to remain together, unless the county department, department, or agency recommends that the child and his or her siblings not be placed in a joint placement, in which case the county department, department, or agency shall present as evidence specific information showing that a joint placement would be contrary to the safety or well-being of the child or any of those siblings and the specific information required under
subd. 2.
48.335(3g)(d)2.
2. If a recommendation is made that the child and his or her siblings not be placed in a joint placement, that the county department, department, or agency has made reasonable efforts to provide for frequent visitation or other ongoing interaction between the child and the siblings, unless the county department, department, or agency recommends that such visitation or interaction not be provided, in which case the county department, department, or agency shall present as evidence specific information showing that such visitation or interaction would be contrary to the safety or well-being of the child or any of those siblings.
48.335(3j)
(3j) At hearings under this section involving an Indian child, if the agency, as defined in
s. 48.38 (1) (a), is recommending removal of the Indian child from the home of his or her parent or Indian custodian and placement of the Indian child in a foster home, treatment foster home, group home, or residential care center for children and youth or in the home of a relative other than a parent, the agency shall present as evidence specific information showing all of the following:
48.335 Note
NOTE: Sub. (3j) (intro.) is amended by
2009 Wis. Act 94 effective the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9), as created by
2009 Wisconsin Act 28 to read:
Effective date text
(3j) At hearings under this section involving an Indian child, if the agency, as defined in s. 48.38 (1) (a), is recommending removal of the Indian child from the home of his or her parent or Indian custodian and placement of the Indian child in a foster home, group home, or residential care center for children and youth or in the home of a relative other than a parent, the agency shall present as evidence specific information showing all of the following:
48.335(3j)(a)
(a) That continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child under
s. 48.028 (4) (d) 1.
48.335(3j)(b)
(b) That active efforts under
s. 48.028 (4) (d) 2. have been made to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful.
48.335(3j)(c)
(c) That the placement recommended is in compliance with the order of placement preference under
s. 48.028 (7) (b) or, if applicable,
s. 48.028 (7) (c) or, if that placement is not in compliance with that order, good cause, as described in
s. 48.028 (7) (e), for departing from that order.
48.335(3r)
(3r) 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.
48.335(4)
(4) At hearings under this section,
s. 48.357,
48.363 or
48.365, 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 audiovisual means, if available, under
s. 807.13 (2). The request and the showing of good cause may be made by telephone.
48.335(5)
(5) At the conclusion of the hearing, the court shall make a dispositional order in accordance with
s. 48.355.
48.335(6)
(6) If the dispositional order places the child outside the home, the parent, if present at the hearing, shall be requested to provide the names and other identifying information of 3 relatives of the child or other individuals 18 years of age or over whose homes the parent requests the court to consider as placements for the child, unless that information has previously been provided under
s. 48.21 (3) (f). If the parent does not provide that information at the hearing, the county department, the department in a county having a population of 500,000 or more, or the agency primarily responsible for providing services to the child under the dispositional order shall permit the parent to provide the information at a later date.
48.335 History
History: 1977 c. 354;
1979 c. 300,
331,
359; Sup. Ct. Order, 141 Wis. 2d xiii (1987);
1993 a. 98,
481;
1995 a. 77;
1997 a. 252,
292;
2001 a. 109;
2007 a. 20;
2009 a. 28,
79,
94,
185; s. 13.92 (2) (i).
