AB130: Bill Text

AB130,206,9 (c) The intake worker may release the juvenile as follows:

AB130,206,15 1. To a parent, guardian or legal custodian, or, if the parent, guardian or legal custodian is unavailable, unwilling or unable to provide supervision for the juvenile, release the juvenile to a responsible adult, counseling or warning the juvenile as may be appropriate, or, if the juvenile is 15 years of age or older, release the juvenile without immediate adult supervision, counseling or warning the juvenile as may be appropriate.

AB130,206,18 1m. In the case of a juvenile who has violated the terms of aftercare supervision administered by the department or a county department, to the department or county department, whichever has aftercare supervision of the juvenile.

AB130,206,19 2. In the case of a runaway juvenile, to a home authorized under s. 48.227.

AB130,206,23 (d) If the juvenile is released from custody, the intake worker shall immediately notify the juvenile's parent, guardian and legal custodian of the time and circumstances of the release and the person, if any, to whom the juvenile was released.

AB130,207,17 (8) If a juvenile is held in custody, the intake worker shall notify the juvenile's parent, guardian and legal 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. If a juvenile who has violated the terms of aftercare supervision administered by the department or a county department is held in custody, the intake worker shall also notify the department or county department, whichever has supervision over the juvenile, of the reasons for holding the juvenile in custody, of the juvenile's whereabouts and of the time and place of the detention hearing required under s. 938.21. The parent, guardian and legal 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 that hearing, the right to counsel under s. 938.23 regardless of ability to pay, and the right to present and cross-examine witnesses at the hearing. If the parent, guardian or legal custodian is not immediately available, the intake worker or another person designated by the court shall provide notice as soon as possible. When the juvenile is alleged to have committed a delinquent act, the juvenile shall receive the same notice about the detention hearing as the parent, guardian or legal custodian. The intake worker shall notify both the juvenile and the juvenile's parent, guardian or legal custodian.

AB130,207,21 938.205 Criteria for holding a juvenile in physical custody. (1) A juvenile may be held under s. 938.207, 938.208 or 938.209 if the intake worker determines that there is probable cause to believe the juvenile is within the jurisdiction of the court and if probable cause exists to believe one of the following:

AB130,207,23 (a) That if the juvenile is not held he or she will commit injury to the person or property of others.

AB130,208,2 (b) That the parent, guardian or legal custodian of the juvenile or other responsible adult is unavailable, unwilling or unable to provide adequate supervision and care and that services to ensure the juvenile's safety and well-being are not available or would be inadequate.

AB130,208,5 (c) That the juvenile will run away or be taken away so as to be unavailable for proceedings of the court or its officers or proceedings of the division of hearings and appeals in the department of administration for revocation of aftercare supervision.

AB130,208,8 (2) The criteria for holding a juvenile in custody specified in this section shall govern the decision of all persons responsible for determining whether the action is appropriate.

AB130,208,11 938.207 Places where a juvenile may be held in nonsecure custody. (1) A juvenile held in physical custody under s. 938.205 may be held in any of the following places:

AB130,208,12 (a) The home of a parent or guardian.

AB130,208,13 (b) The home of a relative.

AB130,208,15 (c) A licensed foster home or a licensed treatment foster home provided the placement does not violate the conditions of the license.

AB130,208,17 (cm) A licensed group home provided that the placement does not violate the conditions of the license.

AB130,208,18 (d) A nonsecure facility operated by a licensed child welfare agency.

AB130,208,19 (e) A licensed private or public shelter care facility.

AB130,208,23 (f) The home of a person not a relative, if the placement does not exceed 30 days, though the placement may be extended for an additional 30 days for cause by the court, and if the person has not had a foster home or treatment foster home license refused, revoked or suspended within the last 2 years.

AB130,208,25 (g) A hospital as defined in s. 50.33 (2) (a) and (c) or physician's office if the juvenile is held under s. 938.20 (4).

AB130,209,1 (h) A place listed in s. 51.15 (2) if the juvenile is held under s. 938.20 (5).

AB130,209,3 (i) An approved public treatment facility for emergency treatment if the juvenile is held under s. 938.20 (6).

AB130,209,4 (k) A facility under s. 48.58.

AB130,209,9 (2) If a facility listed in sub. (1) (b) to (k) is used to hold juveniles in custody, or if supervisory services of a home detention program are provided to juveniles held under sub. (1) (a), its authorized rate shall be paid by the county for the care of the juvenile. If no authorized rate has been established, a reasonable sum to be fixed by the court shall be paid by the county for the supervision or care of the juvenile.

AB130,209,12 938.208 Criteria for holding a juvenile in a secure detention facility. A juvenile may be held in a secure detention facility if the intake worker determines that one of the following conditions applies:

AB130,209,20 (1) Probable cause exists to believe that the juvenile has committed a delinquent act and either presents a substantial risk of physical harm to another person or a substantial risk of running away so as to be unavailable for a court hearing or a revocation hearing for juveniles on aftercare supervision. For juveniles on aftercare supervision, the delinquent act referred to in this section may be the act for which the juvenile was adjudged delinquent. If the intake worker determines that any of the following conditions applies, the juvenile is considered to present a substantial risk of physical harm to another person:

AB130,209,24 (a) Probable cause exists to believe that the juvenile has committed a delinquent act that would be a felony under s. 940.01, 940.02, 940.03, 940.05, 940.19 (2) to (6), 940.21, 940.225 (1), 940.31, 941.20 (3), 943.23 (1g), (1m) or (1r), 943.32 (2), 948.02 (1) or (2), 948.025 or 948.03 if committed by an adult.

AB130,210,5 (b) Probable cause exists to believe that the juvenile possessed, used or threatened to use a handgun, as defined in s. 175.35 (1) (b), short-barreled rifle, as defined in s. 941.28 (1) (b), or short-barreled shotgun, as defined in s. 941.28 (1) (c), while committing a delinquent act that would be a felony under ch. 940 if committed by an adult.

AB130,210,8 (c) Probable cause exists to believe that the juvenile has possessed or gone armed with a short-barreled rifle or a short-barreled shotgun in violation of s. 941.28, or has possessed or gone armed with a handgun in violation of s. 948.60.

AB130,210,11 (2) Probable cause exists to believe that the juvenile is a fugitive from another state or has run away from a secured correctional facility and there has been no reasonable opportunity to return the juvenile.

AB130,210,14 (3) The juvenile consents in writing to being held in order to protect him or her from an imminent physical threat from another and such secure custody is ordered by the judge in a protective order.

AB130,210,18 (4) Probable cause exists to believe that the juvenile, having been placed in nonsecure custody by an intake worker under s. 938.207 or by the judge or juvenile court commissioner under s. 938.21 (4), has run away or committed a delinquent act and no other suitable alternative exists.

AB130,210,25 (5) Probable cause exists to believe that the juvenile has been adjudged or alleged to be delinquent and has run away from another county and would run away from nonsecure custody pending his or her return. A juvenile may be held in secure custody under this subsection for no more than 24 hours after the end of the day that the decision to hold the juvenile was made unless an extension of those 24 hours is ordered by the judge for good cause shown. Only one extension may be ordered by the judge.

AB130,211,3 938.209 Criteria for holding a juvenile in a county jail. Subject to the provisions of s. 938.208, a county jail may be used as a secure detention facility if the criteria under either sub. (1) or (2) are met:

AB130,211,5 (1) There is no other secure detention facility approved by the department of corrections or a county which is available and all of the following conditions are met:

AB130,211,7 (a) The jail meets the standards for secure detention facilities established by the department of corrections.

AB130,211,9 (b) The juvenile is held in a room separated and removed from incarcerated adults.

AB130,211,11 (c) The juvenile is not held in a cell designed for the administrative or disciplinary segregation of adults.

AB130,211,12 (d) Adequate supervision is provided.

AB130,211,13 (e) The judge reviews the status of the juvenile every 3 days.

AB130,211,17 (2) The juvenile presents a substantial risk of physical harm to other persons in the secure detention facility, as evidenced by previous acts or attempts, which can only be avoided by transfer to the jail. The provisions of sub. (1) (a) to (e) shall be met. The juvenile shall be given a hearing and transferred only upon order of the judge.

AB130,211,20 (3) The restrictions of this section do not apply to the use of jail for a juvenile who has been waived to adult court under s. 938.18 or who is under the jurisdiction of an adult court under s. 938.183.

AB130,212,9 938.21 Hearing for juvenile in custody. (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 the juvenile shall continue to be held in custody under the criteria of ss. 938.205 to 938.209 shall be conducted by the judge or juvenile court commissioner within 24 hours after the end of the day that 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 shall be filed, except that no petition need be filed where a juvenile is taken into custody under s. 938.19 (1) (b) or (d) 2., 6. or 7. or where 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 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 shall be granted a rehearing upon request.

AB130,212,20 (b) If no petition has been filed by the time of the hearing, a juvenile may be held in custody with the approval of the judge or juvenile court commissioner 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 juvenile court commissioner 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 unwilling 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 a petition within the 48-hour extension period provided for in this paragraph, the judge or juvenile court commissioner shall order the juvenile's immediate release from custody.

AB130,212,23 (2) Proceedings concerning runaway or delinquent juveniles. Proceedings concerning a juvenile who comes within the jurisdiction of the court under s. 938.12 or 938.13 (7) or (12) shall be conducted according to this subsection.

AB130,213,2 (a) A juvenile held in a nonsecure place of custody may waive in writing the hearing under this section. After any waiver, a hearing shall be granted upon the request of the juvenile or any other interested party. Any juvenile transferred to a secure detention facility shall thereafter have a hearing under this section.

AB130,213,5 (b) A copy of the petition 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 s. 938.20 (8).

AB130,213,13 (c) Prior to the commencement of the hearing, the juvenile shall be informed by the judge or juvenile court commissioner 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 juvenile court commissioner, the right to confront and cross-examine witnesses and the right to present witnesses.

AB130,213,19 (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 may be possible. Whether or not counsel was present, any order to hold the juvenile in custody shall be subject to rehearing for good cause.

AB130,213,22 (3) Proceedings concerning juveniles in need of protection or services. Proceedings concerning a juvenile who comes within the jurisdiction of the court under s. 938.13 (4), (6), (6m) or (14) shall be conducted according to this subsection.

AB130,213,25 (a) The parent, guardian or legal custodian may waive the hearing under this section. Agreement in writing of the juvenile is required if he or she is over 12. After any waiver, a hearing shall be granted at the request of any interested party.

AB130,214,5 (b) If present at the hearing, a copy of the petition 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 s. 938.20 (8).

AB130,214,11 (d) Prior to the commencement of the hearing, 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 counsel under s. 938.23 regardless of ability to pay, the right to confront and cross-examine witnesses and the right to present witnesses.

AB130,214,18 (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 may be possible. Any order to hold the juvenile in custody shall be subject to rehearing for good cause, whether or not counsel was present.

AB130,215,3 (3m) Parental notice required. If the juvenile has been taken into custody because he or she committed an act which resulted in personal injury or damage to or loss of the property of another, the court, prior to the commencement of any hearing under this section, shall attempt to notify the juvenile's parents of the possibility of disclosure of the identity of the juvenile and the parents, of the juvenile's police records and of the outcome of proceedings against the juvenile for use in civil actions for damages against the juvenile or the parents and of the parents' potential liability for acts of their juveniles. If the court is unable to provide the notice before commencement of the hearing, it shall provide the juvenile's parents with the specified information in writing as soon as possible after the hearing.

AB130,215,6 (4) Continuation of custody. If the judge or juvenile court commissioner finds that the juvenile should be continued in custody under the criteria of s. 938.205, he or she shall enter one of the following orders:

AB130,215,14 (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.

AB130,215,16 (b) Order the juvenile held in an appropriate manner under s. 938.207, 938.208 or 938.209.

AB130,215,19 (4m) Electronic monitoring. The judge or juvenile court commissioner may include in an order under sub. (4) (a) or (b) a condition that the juvenile be monitored by an electronic monitoring system.

AB130,215,21 (5) Orders in writing. (a) All orders to hold in custody shall be in writing, listing the reasons and criteria forming the basis for the decision.

AB130,216,2 (b) An order relating to a juvenile held in custody outside of his or her home shall also describe any efforts that were made to permit the juvenile to remain at home and the services that are needed to ensure the juvenile's well-being, to enable the juvenile to return to his or her home and to involve the parents in planning for the juvenile.

AB130,216,7 (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, with notice, so as to return the juvenile to 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.

AB130,216,12 (7) Deferred prosecution. If the judge or juvenile court commissioner determines that the best interests of the juvenile and the public are served, he or she may enter a consent decree under s. 938.32 or order the petition dismissed and refer the matter to the intake worker for deferred prosecution in accordance with s. 938.245.

AB130,216,17 938.22 Establishment of secure detention facilities and shelter care facilities. (1) (a) The county board of supervisors may establish a secure detention facility or a shelter care facility or both or the county boards of supervisors for 2 or more counties may jointly establish a secure detention facility or a shelter care facility or both in accordance with ss. 46.16, 46.20 and 301.36.

AB130,216,25 (b) Subject to sub. (3) (ar), in counties having a population of less than 500,000, the policies of the secure detention facility or shelter care facility shall be determined by the judge of the court assigned to exercise jurisdiction under this chapter and ch. 48 with the approval of the chief judge of the judicial administrative district or, in the case of a secure detention facility or shelter care facility established by 2 or more counties, by a committee of the judges of the courts in the participating counties assigned to exercise jurisdiction under this chapter and ch. 48 with the approval of the chief judge of the judicial administrative district.

AB130,217,5 (c) In counties having a population of 500,000 or more, the nonjudicial operational policies of the secure detention facility and the detention section of the juvenile delinquency court center shall be established by the county board of supervisors, and the execution thereof shall be the responsibility of the director of the children's court center.

AB130,217,15 (2) (a) Counties shall submit plans for the secure detention facility or juvenile portion of the county jail to the department of corrections and submit plans for the shelter care facility to the department of health and social services. The applicable department shall review the submitted plans. The counties may not implement any such plan unless the applicable department has approved the plan. After consultation with the department of health and social services, the department of corrections shall promulgate rules establishing minimum requirements for the approval of the operation of secure 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 in these facilities.

AB130,217,22 (b) If the department of corrections approves, a secure detention facility or a holdover room may be a part of a public building in which there is a jail or other facility for the detention of adults if the secure detention facility or holdover room is so physically segregated from the jail or other facility that the secure detention facility or holdover room may be entered without passing through areas where adults are confined and that juveniles detained in the secure detention facility or holdover room cannot communicate with or view adults confined therein.

AB130,217,25 (c) A shelter care facility shall be used for the temporary care of juveniles. A shelter care facility, other than a holdover room, may not be in the same building as a facility for the detention of adults.

AB130,218,11 (3) (a) In counties having a population of less than 500,000, public secure detention facilities and public shelter care facilities shall be in the charge of a superintendent. The judge of the court assigned to exercise jurisdiction under this chapter and ch. 48 with the approval of the chief judge of the judicial administrative district or, where 2 or more counties operate joint public secure detention facilities or public shelter care facilities, the committee of judges of the courts assigned to exercise jurisdiction under this chapter and ch. 48 with the approval of the chief judge of the judicial administrative district shall appoint the superintendent and other necessary personnel for the care and education of the juveniles in secure detention or shelter care facilities, subject to par. (am) and to civil service regulations in counties having civil service.

AB130,218,18 (am) If a secure 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 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.

AB130,218,24 (ar) Notwithstanding sub. (1) (b), if a secure 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 shall determine the policies of that secure detention facility or holdover room relating to security and emergency response and shall determine the procedures for implementing those policies.

AB130,219,6 (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 secure detention facilities, the secure 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.

AB130,219,9 (c) All superintendents appointed under par. (a) or (b) 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.

AB130,219,13 (5) A county board of supervisors, or 2 or more county boards of supervisors jointly, may contract with privately operated shelter care facilities or home detention programs for purchase of services. A county board of supervisors may delegate this authority to its county department.

AB130,219,15 (7) No person may establish a shelter care facility without first obtaining a license under s. 48.66 (1).

AB130,219,20 938.225 Statewide plan for secure detention facilities. The department shall assist counties in establishing secure detention facilities under s. 938.22 by developing and promulgating a statewide plan for the establishment and maintenance of suitable secure detention facilities reasonably accessible to each court.

AB130,219,23 938.23 Right to counsel. (1) Right of juveniles to legal representation. Juveniles subject to proceedings under this chapter shall be afforded legal representation as follows:

AB130,220,6 (a) Any juvenile alleged to be delinquent under s. 938.12 or held in a secure detention facility shall be represented by counsel at all stages of the proceedings, but 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 correctional facility, transfer legal custody of the juvenile to the department of corrections for participation in the youthful offender program or transfer jurisdiction over the juvenile to adult court.

AB130,220,8 (am) A juvenile subject to a sanction under s. 938.355 (6) (a) shall be entitled to representation by counsel at the hearing under s. 938.355 (6) (c).

AB130,220,10 (ar) A juvenile subject to proceedings under s. 938.357 (3) or (5) shall be afforded legal representation as provided in those subsections.

AB130,220,15 (b) 1. If a juvenile is alleged to be in need of protection or services under s. 938.13, the juvenile may be represented by counsel at the discretion of the court. Except as provided in subd. 2., a juvenile 15 years of age or older may waive counsel if the court is satisfied such waiver is knowingly and voluntarily made and the court accepts the waiver.

AB130,220,21 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 may appoint a guardian ad litem instead of counsel.

AB130,220,25 (2m) Right to counsel; extended court jurisdiction. A person subject to s. 938.366 shall be represented by counsel at all proceedings under that section, except that the person may waive the right to counsel if the court is satisfied that the waiver is knowingly and voluntarily made and the court accepts the waiver.

AB130,221,3 (3) Power of the court to appoint counsel. 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.

AB130,221,12 (4) Providing counsel. In any 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 and counsel is not knowingly and voluntarily waived, the court shall refer the person 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.

AB130,221,15 (5) Counsel of own choosing. Regardless of any provision of this section, 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.

AB130,221,19 (6) Definition. For the purposes of this section, "counsel" means an attorney acting as adversary counsel who shall advance and protect the legal rights of the party represented, and who may not act as guardian ad litem for any party in the same proceeding.

AB130,221,21 938.235 Guardian ad litem. (1) Appointment. (a) The court may appoint a guardian ad litem in any appropriate matter under this chapter.