2005 Wisconsin Act 344

344,198 Section 198. 938.209 (2m) (title) and (3) (title) of the statutes are created to read:

938.209 (2m) (title) Municipal lockup.

(3) (title) Juveniles under adult court jurisdiction.

344,199 Section 199. 938.21 (1) of the statutes is amended to read:

938.21 (1) Hearing; when held. (a) If a juvenile who has been taken into custody is not released under s. 938.20, a hearing to determine whether to continue to hold the juvenile shall continue to be held in custody under the criteria of ss. 938.205 to 938.209 (1) shall be conducted by the judge or circuit court commissioner by the court within 24 hours after the end of the day that on which the decision to hold the juvenile was made, excluding Saturdays, Sundays, and legal holidays. By the time of the hearing a petition under s. 938.25 or a request for a change in placement under s. 938.357, a request for a revision of the dispositional order under s. 938.363, or a request for an extension of a dispositional order under s. 938.365 shall be filed, except that no petition or request need be filed where if a juvenile is taken into custody under s. 938.19 (1) (b) or (d) 2., 6., or 7. or where if the juvenile is a runaway from another state, in which case a written statement of the reasons for holding a juvenile in custody shall be substituted if the petition is not filed. If no hearing has been held within 24 hours or if no petition, request, or statement has been filed at the time of the hearing, the juvenile shall be released except as provided in par. (b). A parent not present at the hearing The court shall be granted grant a rehearing upon request of a parent not present at the hearing for good cause shown.

(b) If no petition or request has been filed by the time of the hearing, a juvenile may be held in custody with the approval of the judge or circuit court commissioner court for an additional 48 hours from the time of the hearing only if, as a result of the facts brought forth at the hearing, the judge or circuit court commissioner court determines that probable cause exists to believe that the juvenile is an imminent danger to himself or herself or to others, or that probable cause exists to believe that the parent, guardian, or legal custodian of the juvenile or other responsible adult is neglecting, refusing, unable, or unavailable to provide adequate supervision and care. The extension may be granted only once for any petition. In the event of failure to file If a petition or request is not filed within the 48-hour extension period provided for in under this paragraph, the judge or circuit court commissioner court shall order the juvenile's immediate release from custody.

Note: Modifies s. 938.21 (1) (a), stats., so that a request for a change in placement, a request for a revision of the dispositional order, or a request for an extension of a dispositional order may be filed instead of a delinquency or juvenile in need of protection or services (JIPS) petition.

344,200 Section 200. 938.21 (2) (b), (c) and (d) of the statutes are amended to read:

938.21 (2) (b) A copy of the petition or request shall be given to the juvenile at or prior to the time of the hearing. Prior notice of the hearing shall be given to the juvenile's parent, guardian, and legal custodian and to the juvenile in accordance with under s. 938.20 (8).

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

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

344,201 Section 201. 938.21 (3) (b), (d) and (e) of the statutes are amended to read:

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, and to the juvenile if he or she is 12 years of age or older, before the hearing begins. Prior notice of the hearing shall be given to the juvenile's parent, guardian, and legal custodian and to the juvenile if he or she is 12 years of age or older in accordance with under s. 938.20 (8).

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

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

344,202 Section 202. 938.21 (4) (intro.) of the statutes is amended to read:

938.21 (4) Order to continue in custody. (intro.) If the judge or circuit court commissioner court finds that the juvenile should be continued in custody under the criteria of s. 938.205, he or she the court shall enter one of the following orders:

344,203 Section 203. 938.21 (4) (a) and (4m) of the statutes are amended to read:

938.21 (4) (a) Place the juvenile with a parent, guardian, legal custodian, or other responsible person and may impose reasonable restrictions on the juvenile's travel, association with other persons, or places of abode during the period of placement, including a condition requiring the juvenile to return to other custody as requested; or subject the juvenile to the supervision of an agency agreeing to supervise the juvenile. Reasonable restrictions may be placed upon the conduct of the parent, guardian, legal custodian, or other responsible person which may be necessary to ensure the safety of the juvenile.

(4m) Electronic monitoring. The judge or circuit court commissioner may include in an An order under sub. (4) (a) or (b) may include a condition that the juvenile be monitored by an electronic monitoring system.

344,204 Section 204. 938.21 (5) (b) 1. and 3. of the statutes are amended to read:

938.21 (5) (b) 1. A finding that continued placement of the juvenile in his or her home would be contrary to the welfare of the juvenile. Unless the judge or circuit court commissioner court finds that any of the circumstances specified in s. 938.355 (2d) (b) 1. to 4. applies, the order shall in addition include a finding as to whether the person who took the juvenile into custody and the intake worker have 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, and a finding as to whether the person who took the juvenile into custody and the intake worker have made reasonable efforts to make it possible for the juvenile to return safely home or, if. If for good cause shown sufficient information is not available for the judge or circuit court commissioner court to make a finding as to whether those reasonable efforts were made to prevent the removal of the juvenile from the home, the order shall include a finding as to whether those reasonable efforts were made to make it possible for the juvenile to return safely home and an order for the county department or agency primarily responsible for providing services to the juvenile under the custody order to file with the court sufficient information for the judge or circuit court commissioner court to make a finding as to whether those reasonable efforts were made to prevent the removal of the juvenile from the home by no later than 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of the order.

3. If the judge or circuit court commissioner court finds that any of the circumstances specified in s. 938.355 (2d) (b) 1. to 4. applies with respect to a parent, a determination that the county department or agency primarily responsible for providing services under the custody 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.

Note: Revises s. 938.21 (5) (b) 1., stats., by specifying that the 5-day time limit in which to make a finding following the custody hearing as to whether reasonable efforts were made to prevent removal of the juvenile from the home excludes Saturdays, Sundays, and legal holidays.

344,205 Section 205. 938.21 (5) (c) and (d) 1. of the statutes are amended to read:

938.21 (5) (c) The judge or circuit court commissioner court shall make the findings specified in par. (b) 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 custody order. A custody order that merely references par. (b) 1. or 3. without documenting or referencing that specific information in the custody order or an amended custody order that retroactively corrects an earlier custody order that does not comply with this paragraph is not sufficient to comply with this paragraph.

(d) 1. If the judge or circuit court commissioner court finds that any of the circumstances specified in s. 938.355 (2d) (b) 1. to 4. applies with respect to a parent, the judge or circuit court commissioner 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 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.

344,206 Section 206. 938.21 (6) of the statutes is amended to read:

938.21 (6) Amendment of order. An order placing a juvenile under sub. (4) (a) on conditions specified in this section may at any time be amended at any time, with notice, so as to return place the juvenile to in another form of custody for failure to conform to the conditions originally imposed. A juvenile may be transferred to secure custody if he or she meets the criteria of s. 938.208.

344,207 Section 207. 938.21 (7) of the statutes is amended to read:

938.21 (7) Deferred prosecution. If the judge or circuit court commissioner court determines that the best interests of the juvenile and the public are served, he or she the court may enter a consent decree under s. 938.32 or order dismiss the petition dismissed and refer the matter to the intake worker for deferred prosecution in accordance with s. 938.245.

344,208 Section 208. 938.22 (title) of the statutes is amended to read:

938.22 (title) Establishment of county or County and private juvenile facilities.

344,209 Section 209. 938.22 (1) (title) of the statutes is created to read:

938.22 (1) (title) Establishment and policies.

344,210 Section 210. 938.22 (1) (a), (b) and (c) of the statutes are amended to read:

938.22 (1) (a) Subject to s. 48.66 (1) (b), the county board of supervisors of any a county may establish a secured group home or a secure juvenile detention facility in accordance with ss. 301.36 and 301.37 or the county boards of supervisors for 2 or more counties may jointly establish a secured group home or a secure juvenile detention facility in accordance with ss. 46.20, 301.36, and 301.37. The county board of supervisors of any a county may establish a shelter care facility in accordance with ss. 46.16 and 46.17 or the county boards of supervisors for 2 or more counties may jointly establish a shelter care facility in accordance with ss. 46.16, 46.17, and 46.20. A private entity may establish a secure juvenile detention facility in accordance with ss. 301.36 and 301.37 and contract with one or more county boards of supervisors under s. 938.222 for holding to hold juveniles in the private secure juvenile detention facility.

(b) Subject to sub. (3) (ar), in counties having a population of less than 500,000, the nonjudicial operational policies of a public secured group home, secure juvenile detention facility or shelter care facility shall be determined by the county board of supervisors or, in the case of a public secured group home, secure juvenile detention facility or shelter care facility established by 2 or more counties, by the county boards of supervisors for the 2 or more counties jointly. Those policies shall be executed by the superintendent appointed under sub. (3) (a).

(c) In counties having a population of 500,000 or more, the nonjudicial operational policies of a public secured group home, secure juvenile detention facility and the detention section of the children's court center shall be established by the county board of supervisors, and the execution thereof policies shall be the responsibility of executed by the director of the children's court center.

344,211 Section 211. 938.22 (2) (title) of the statutes is created to read:

938.22 (2) (title) Plans and requirements.

344,212 Section 212. 938.22 (2) (a) and (b) of the statutes are amended to read:

938.22 (2) (a) Counties shall submit plans for the secured group home, secure a juvenile detention facility or juvenile portion of the county jail to the department of corrections and submit plans for the a shelter care facility to the department of health and family services. A private entity that proposes to establish a secure juvenile detention facility shall submit plans for the secure detention facility to the department of corrections. The applicable department shall review the submitted plans. A county or a private entity may not implement any such a plan unless the applicable department has approved the plan. The department of corrections shall promulgate rules establishing minimum requirements for the approval of the and operation of secured group homes, secure juvenile detention facilities and the juvenile portion of county jails. The plans and rules shall be designed to protect the health, safety, and welfare of the juveniles placed in those facilities.

(b) If the department approves, a secure juvenile detention facility or a holdover room may be a part of located in a public building in which there is a jail or other facility for the detention of adults if the secure juvenile detention facility or holdover room is so physically segregated from the jail or other facility so that juveniles may enter the secure juvenile detention facility or holdover room may be entered without passing through areas where adults are confined and that juveniles detained in the secure juvenile detention facility or holdover room cannot communicate with or view adults confined therein in the jail or other facility.

344,213 Section 213. 938.22 (3) of the statutes is amended to read:

938.22 (3) Supervision of facility. (a) In counties having a population of less than 500,000, public secured group homes, secure juvenile detention facilities and public shelter care facilities shall be in the charge of a superintendent. The county board of supervisors or, where 2 or more counties operate joint public secured group homes, secure juvenile detention facilities or shelter care facilities, the county boards of supervisors for the 2 or more counties jointly shall appoint the superintendent and other necessary personnel for the care and education of the juveniles placed in those facilities, subject to par. (am) and to civil service regulations in counties having civil service.

(am) If a secure juvenile detention facility or holdover room is part of a public building in which there is a jail or other facility for the detention of adults, the sheriff or other keeper of the jail or other facility for the detention of adults may nominate persons to be considered under par. (a) for the position of superintendent of the secure juvenile detention facility or holdover room. Nominees under this paragraph shall have demonstrated administrative abilities and a demonstrated interest in the problems of juvenile justice and the welfare of juveniles.

(ar) Notwithstanding sub. (1) (b), if a secure juvenile detention facility or holdover room is part of located in a public building in which there is a jail or other facility for the detention of adults, the sheriff or other keeper of the jail or other facility for the detention of adults shall determine the security and emergency response policies of that secure juvenile detention facility or holdover room relating to security and emergency response and shall determine the procedures for implementing those policies.

(b) In counties having a population of 500,000 or more, the director of the children's court center shall be in charge of and responsible for public secured group homes, secure juvenile detention facilities, the secure juvenile detention section of the center, and the personnel assigned to this section, including a detention supervisor or superintendent. The director of the children's court center may also serve as superintendent of detention if the county board of supervisors so determines.

(bm) A private secure juvenile detention facility shall be in the charge of a superintendent appointed by the private entity operating the secure detention facility.

(c) All superintendents A superintendent appointed under par. (a), (b), or (bm) after May 1, 1992, shall, within one year after that appointment, successfully complete an administrative training program approved or provided by the department of justice.

344,214 Section 214. 938.22 (5) (title) and (7) (title) of the statutes are created to read:

938.22 (5) (title) County contracts with private facilities.

(7) (title) Licensing of shelter care facilities.

344,215 Section 215. 938.22 (7) (a) and (b) of the statutes are amended to read:

938.22 (7) (a) No person may establish a shelter care facility without first obtaining a license under s. 48.66 (1) (a). To obtain a license under s. 48.66 (1) (a) to operate a shelter care facility, a person must meet the minimum requirements for a license established by the department of health and family services under s. 48.67, meet the requirements specified in s. 48.685, and pay the license fee under par. (b). A license issued under s. 48.66 (1) (a) to operate a shelter care facility is valid until revoked or suspended, but shall be reviewed every 2 years as provided in s. 48.66 (5).

(b) Before the department of health and family services may issue a license under s. 48.66 (1) (a) to operate a shelter care facility, the shelter care facility must shall pay to that department a biennial fee of $60.50, plus a biennial fee of $18.15 per juvenile, based on the number of juveniles that the shelter care facility is licensed to serve. A shelter care facility that wishes to continue a license issued under s. 48.66 (1) (a) shall pay the fee under this paragraph by the continuation date of the license. A new shelter care facility shall pay the fee under this paragraph by no later than 30 days before the opening of the shelter care facility.

344,216 Section 216. 938.222 (1) of the statutes is amended to read:

938.222 (1) Uses of facilities. The county board of supervisors of any a county may contract with a private entity that operates a secure juvenile detention facility for the use of the secure detention facility for the holding of to hold juveniles who meet the criteria under s. 48.208, 938.17 (1), 938.183 (1m) (a), or 938.208 or who are subject to a disposition under s. 938.17 (1) (b) or 938.34 (3) (f), a sanction under s. 938.355 (6) (d) 1., or short-term detention under s. 938.355 (6d) or 938.534 (1).

344,217 Section 217. 938.222 (2) (title) of the statutes is created to read:

938.222 (2) (title) Contract requirements.

344,218 Section 218. 938.222 (2) (a) 1. and 2. of the statutes are amended to read:

938.222 (2) (a) 1. That the private secure juvenile detention facility meet or exceed the minimum requirements for the approval and operation of a secure juvenile detention facility established by the department by rules promulgated rule under s. 938.22 (2) (a) and that the private secure juvenile detention facility be approved by the department under s. 301.36.

2. That the private secure juvenile detention facility provide educational programming, health care, and other care that is equivalent to that which a juvenile would receive if held in a public secure juvenile detention facility.

344,219 Section 219. 938.223 (1) (title) of the statutes is created to read:

938.223 (1) (title) Uses of facilities.

344,220 Section 220. 938.223 (2) (title) of the statutes is created to read:

938.223 (2) (title) Contract requirements.

344,221 Section 221. 938.223 (2) (a) 1. and 2. of the statutes are amended to read:

938.223 (2) (a) 1. That the Minnesota secure juvenile detention facility meet or exceed the minimum requirements for the approval and operation of a Wisconsin secure juvenile detention facility established by the department by rules promulgated rule under s. 938.22 (2) (a) and that the Minnesota secure juvenile detention facility be approved by the department under s. 301.36.

2. That the Minnesota secure juvenile detention facility provide educational programming, health care, and other care that is equivalent to that which a juvenile would receive if held in a Wisconsin secure juvenile detention facility.

344,222 Section 222. 938.223 (3) of the statutes is amended to read:

938.223 (3) Minnesota juveniles in Wisconsin facilities. The county board of supervisors of any a county that operates a secure juvenile detention facility may contract with one or more counties in Minnesota for the use of the secure juvenile detention facility operated by the Wisconsin county for the holding of juveniles transferred to that secure juvenile detention facility by the Minnesota county.

344,223 Section 223. 938.224 (1) of the statutes is amended to read:

938.224 (1) Uses of facilities. The county board of supervisors of any a county may contract with the department for the use of a secured juvenile correctional facility operated by the department for the holding of juveniles who meet the criteria under s. 48.208, 938.17 (1), 938.183 (1m) (a), or 938.208 or who are subject to a disposition under s. 938.17 (1) (b) or 938.34 (3) (f), a sanction under s. 938.355 (6) (d) 1., or short-term detention under s. 938.355 (6d) or 938.534 (1).

344,224 Section 224. 938.224 (2) (title), (3) (title) and (4) (title) of the statutes are created to read:

938.224 (2) (title) Contract requirements.

(3) (title) Additional requirements.

(4) (title) Supervision and control of juveniles.

344,225 Section 225. 938.23 (1g) and (1m) (a), (am) and (b) 2. of the statutes are amended to read:

938.23 (1g) Definition. In this section, "counsel" means an attorney acting as adversary counsel who.

(1j) Duties of Counsel. Counsel shall advance and protect the legal rights of the party represented, and who. Counsel may not act as guardian ad litem for any party in the same proceeding.

(1m) (a) Any A juvenile alleged to be delinquent under s. 938.12 or held in a secure juvenile detention facility shall be represented by counsel at all stages of the proceedings, but a. A juvenile 15 years of age or older may waive counsel if the court is satisfied that the waiver is knowingly and voluntarily made and the court accepts the waiver. If the waiver is accepted, the court may not place the juvenile in a secured juvenile correctional facility, a secured child caring institution or a secured group home residential care center for children and youth, transfer supervision of the juvenile to the department for participation in the serious juvenile offender program, or transfer jurisdiction over the juvenile to adult court.

(am) A juvenile subject to a sanction under s. 938.355 (6) (a) shall be is entitled to representation by counsel at the hearing under s. 938.355 (6) (c).

(b) 2. If the petition is contested, the court may not place the juvenile outside his or her home unless the juvenile is represented by counsel at the fact-finding hearing and subsequent proceedings. If the petition is not contested, the court may not place the juvenile outside his or her home unless the juvenile is represented by counsel at the hearing at which the placement is made. For a juvenile under 12 years of age, the judge court may appoint a guardian ad litem instead of counsel.

344,226 Section 226. 938.23 (3), (4) and (5) of the statutes are amended to read:

938.23 (3) Power of the court to appoint counsel. Except in proceedings under s. 938.13 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 court may not appoint counsel for any party other than the juvenile in a proceeding under s. 938.13.

(4) Providing counsel. In any situation under this section in which 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 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.

(5) Counsel of own choosing. Regardless of any provision of this section Notwithstanding subs. (3) and (4), any party is entitled to retain counsel of his or her own choosing at his or her own expense in any proceeding under this chapter.