Wisconsin Legislature: 344,466

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.

344,471 Section 471. 938.357 (4g) (title) of the statutes is created to read:

938.357 (4g) (title) Aftercare plan.

344,472 Section 472. 938.357 (4g) (a), (b), (c) (intro.) and (d) of the statutes are amended to read:

938.357 (4g) (a) Not later than 120 days after the date on which the juvenile is placed in a secured juvenile correctional facility, a secured child caring institution or a secured group home residential care center for children and youth, or within 30 days after the date on which the department requests the aftercare plan, whichever is earlier, the aftercare provider designated under s. 938.34 (4n) shall prepare an aftercare plan for the juvenile. If the designated aftercare provider designated under s. 938.34 (4n) is a county department, that county department shall submit the aftercare plan to the department within the time limits specified in this paragraph, unless the department waives those time limits under par. (b).

(b) The department may waive the time period within which an aftercare plan must be prepared and submitted under par. (a) if the department anticipates that the juvenile will remain in the secured juvenile correctional facility, secured child caring institution or secured group home residential care center for children and youth for a period exceeding 8 months or if the juvenile is subject to s. 48.366 or 938.183. If the department waives that time period, the designated aftercare provider designated under s. 938.34 (4n) shall prepare the aftercare plan within 30 days after the date on which the department requests the aftercare plan.

(d) A juvenile may be released from a secured juvenile correctional facility, a secured child caring institution or a secured group home residential care center for children and youth whether or not an aftercare plan has been prepared under this subsection.

344,473 Section 473. 938.357 (4m) (title) and (5) (title) of the statutes are created to read:

938.357 (4m) (title) Release to aftercare supervision.

(5) (title) Revocation of aftercare supervision.

344,474 Section 474. 938.357 (5) (a), (c), (d), (e) and (f) of the statutes are amended to read:

938.357 (5) (a) The department or a county department, whichever has been designated as a juvenile's aftercare provider under s. 938.34 (4n), may revoke the aftercare status of that juvenile. Revocation of aftercare supervision shall not require prior Prior notice of a change in placement under sub. (1) (am) 1. is not required.

(d) A hearing on the revocation shall be conducted by the division of hearings and appeals in the department of administration within 30 days after the juvenile is taken into custody for an alleged violation of the conditions a condition of the juvenile's aftercare supervision. This time limit may be waived only upon the agreement of the aftercare provider, the juvenile, and the juvenile's counsel.

(e) If the hearing examiner finds that the juvenile has violated a condition of aftercare supervision, the hearing examiner shall determine whether confinement in a secured juvenile correctional facility , a secured child caring institution or a secured group home residential care center for children and youth is necessary to protect the public, to provide for the juvenile's rehabilitation, or to not depreciate the seriousness of the violation.

(f) Review of a revocation decision shall be by certiorari to the court by whose order the juvenile was that placed the juvenile in a secured the juvenile correctional facility, a secured child caring institution or a or secured group home residential care center for children and youth.

344,475 Section 475. 938.357 (5m) (title) of the statutes is created to read:

938.357 (5m) (title) Child support.

344,476 Section 476. 938.357 (5m) (a) and (b) of the statutes are amended to read:

938.357 (5m) (a) If a proposed change in placement changes would change a juvenile's placement from a placement in the juvenile's home to a placement outside the juvenile's home, the court shall order the juvenile's parent to provide a statement of the income, assets, debts, and living expenses of the juvenile and the juvenile's parent to the court or the person or agency primarily responsible for implementing the dispositional order by a date specified by the court. The clerk of court shall provide, without charge, to any parent ordered to provide a that statement of income, assets, debts and living expenses a document setting forth the percentage standard established by the department of workforce development under s. 49.22 (9) and listing the factors that a court may consider under s. 301.12 (14) (c). If the juvenile is placed outside the juvenile's home, the court shall determine the liability of the parent in the manner provided in s. 301.12 (14).

(b) If the court orders the juvenile's parent to provide a statement of the income, assets, debts, and living expenses of the juvenile and juvenile's parent to the court or if the court orders the juvenile's parent to provide that statement to the person or agency primarily responsible for implementing the dispositional order and that person or agency is not the county department, the court shall also order the juvenile's parent to provide that statement to the county department by a date specified by the court. The county department shall provide, without charge, to the parent a form on which to provide that statement, and the parent shall provide that statement on that form. The county department shall use the information provided in the statement to determine whether the department may claim federal foster care and adoption assistance reimbursement under 42 USC 670 to 679a for the cost of providing care for the juvenile.

Note: See the Note to s. 938.30 (6) (b) and (c), stats., as affected by this bill.

344,477 Section 477. 938.357 (6) of the statutes is amended to read:

938.357 (6) Duration of order. No change in placement may extend the expiration date of the original order, except that if the change in placement is from a placement in the juvenile's home to a placement in a foster home, treatment foster home, group home, or residential care center for children and youth or in the home of a relative who is not a parent, the court may extend the expiration date of the original order to the date on which the juvenile reaches attains 18 years of age, to the date that is one year after the date of the change in placement order, or, if the juvenile is a full-time student at a secondary school or its vocational or technical equivalent and is reasonably expected to complete the program before reaching attaining 19 years of age, to the date on which the juvenile reaches attains 19 years of age, whichever is later, or for a shorter period of time as specified by the court. If the change in placement is from a placement in a foster home, treatment foster home, group home, or residential care center for children and youth or in the home of a relative to a placement in the juvenile's home and if the expiration date of the original order is more than one year after the date of the change in placement order, the court shall shorten the expiration date of the original order to the date that is one year after the date of the change in placement order or to an earlier date as specified by the court.

344,478 Section 478. 938.36 (1) (title) of the statutes is created to read:

938.36 (1) (title) Residential services; parental duty to support.

344,479 Section 479. 938.36 (1) (b) of the statutes is amended to read:

938.36 (1) (b) In determining the amount of support under par. (a), the court may consider all relevant financial information or other information relevant to the parent's earning capacity, including information reported under s. 49.22 (2m) to the department of workforce development, or the county child support agency, under s. 59.53 (5). If the court has insufficient information with which to determine the amount of support, the court shall order the juvenile's parent to furnish a statement of the income, assets, debts, and living expenses of the juvenile and the juvenile's parent, if the parent has not already done so, to the court within 10 days after the court's order transferring custody or designating an alternative placement is entered or at such other time as ordered by the court.

Note: See the Note to s. 938.30 (6) (b) and (c), stats., as affected by this bill.

344,480 Section 480. 938.36 (2) of the statutes is amended to read:

938.36 (2) Services or treatment; county payment; parental contribution. If a juvenile whose legal custody has not been taken from a parent or guardian is given educational and social services, or medical, psychological, or psychiatric treatment by order of the court, the cost thereof, if ordered by the court, shall be a charge upon court may order the county to pay for those services or treatment. This section does not prevent recovery of reasonable contribution toward the costs from the parent or guardian of the juvenile as the court may order based on the ability of the parent or guardian to pay. This subsection is subject to s. 301.03 (18).

344,481 Section 481. 938.36 (3) (title) of the statutes is created to read:

938.36 (3) (title) Services provided by school district.

344,482 Section 482. 938.361 (1) (title) and (2) (title) of the statutes are created to read:

938.361 (1) (title) Definitions.

(2) (title) Payment by parent or insurer.

344,483 Section 483. 938.361 (2) (a) 2. of the statutes is amended to read:

938.361 (2) (a) 2. This paragraph applies to payment for alcohol and other drug abuse services in any county, regardless of whether the county is a including pilot county counties under s. 938.547.

344,484 Section 484. 938.361 (2) (am), (b) and (c) of the statutes are amended to read:

938.361 (2) (am) 1. If a court assigned to exercise jurisdiction under this chapter and ch. 48 in a pilot county that has a pilot program under s. 938.547 finds that payment is not attainable cannot be attained under par. (a), the court may order payment in accordance with under par. (b).

2. If a court assigned to exercise jurisdiction under this chapter and ch. 48 in a county that does not have is not a pilot program county under s. 938.547 finds that payment is not attainable cannot be attained under par. (a), the court may order payment in accordance with under s. 938.34 (6) (ar) or 938.36.

3. If a municipal court finds that payment is not attainable cannot be attained under par. (a), the municipal court may order the municipality over which the municipal court has jurisdiction to pay for any alcohol and other drug abuse services ordered by the municipal court.

(b) 1. In counties that have a pilot program counties under s. 938.547, in addition to using the alternative provided for ordering payment under par. (a), the court assigned to exercise jurisdiction under this chapter and ch. 48 may order a county department of human services established under s. 46.23 or a county department established under s. 51.42 or 51.437 in the juvenile's county of legal residence to pay for the alcohol and other drug abuse services whether or not custody has been taken from the parent.