AB130: Bill Text

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.

AB130,222,2 (e) The court shall appoint a guardian ad litem, or extend the appointment of a guardian ad litem previously appointed under par. (a), for any juvenile alleged or found to be in need of protection or services, if the court has ordered, or if a request or recommendation has been made that the court order, the juvenile to be placed out of his or her home under s. 938.345 or 938.357.

AB130,222,7 (2) Qualifications. The guardian ad litem shall be an attorney admitted to practice in this state. No person who is an interested party in a proceeding, who appears as counsel in a proceeding on behalf of any party or who is a relative or representative of an interested party may be appointed guardian ad litem in that proceeding.

AB130,222,16 (3) Responsibilities. The guardian ad litem shall be an advocate for the best interests of the person for whom the appointment is made. The guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but shall not be bound by, the wishes of such person or the positions of others as to the best interests of such person. If the guardian ad litem determines that the best interests of the person are substantially inconsistent with the wishes of such person, the guardian ad litem shall so inform the court and the court may appoint counsel to represent that person. The guardian ad litem has none of the rights or duties of a general guardian.

AB130,222,20 (4) Matters involving juvenile in need of protection or services. (a) In any matter involving a juvenile found to be in need of protection or services, the guardian ad litem may, if reappointed or if the appointment is continued under sub. (7), do any of the following:

AB130,222,21 1. Participate in permanency planning under ss. 48.43 (5) and 938.38.

AB130,222,22 2. Petition for a change in placement under s. 938.357.

AB130,222,24 3. Petition for termination of parental rights or any other matter specified under s. 48.14.

AB130,222,25 4. Petition for revision of dispositional orders under s. 938.363.

AB130,223,1 5. Petition for extension of dispositional orders under s. 938.365.

AB130,223,3 6. Petition for a temporary restraining order and injunction under s. 813.122 or 813.125.

AB130,223,5 7. Petition for relief from a judgment terminating parental rights under s. 48.46.

AB130,223,6 8. Perform any other duties consistent with this chapter and ch. 48.

AB130,223,9 (b) The court shall order the agency identified under s. 938.355 (2) (b) 1. as primarily responsible for the provision of services to notify the guardian ad litem, if any, regarding actions to be taken under par. (a).

AB130,223,24 (7) Termination and extension of appointment. The appointment of a guardian ad litem under sub. (1) terminates upon the entry of the court's final order or upon the termination of any appeal in which the guardian ad litem participates. The guardian ad litem may appeal, may participate in an appeal or may do neither. If an appeal is taken by any party and the guardian ad litem chooses not to participate in that appeal, he or she shall file with the appellate court a statement of reasons for not participating. Irrespective of the guardian ad litem's decision not to participate in an appeal, the appellate court may order the guardian ad litem to participate in the appeal. At any time, the guardian ad litem, any party or the person for whom the appointment is made may request in writing or on the record that the court extend or terminate the appointment or reappointment. The court may extend that appointment, or reappoint a guardian ad litem appointed under this section, after the entry of the final order or after the termination of the appeal, but the court shall specifically state the scope of the responsibilities of the guardian ad litem during the period of that extension or reappointment.

AB130,224,5 (8) Compensation. On order of the court, the guardian ad litem appointed under this chapter shall be allowed reasonable compensation to be paid by the county of venue. If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys under s. 977.08 (4m).

AB130,224,9 938.237 Civil law and ordinance proceedings initiated by citation in the court assigned to exercise jurisdiction under this chapter and ch. 48. (1) The citation forms under s. 23.54, 66.119, 778.25, 778.26 or 800.02 may be used to commence an action for a violation of civil laws and ordinances in the court.

AB130,224,17 (2) The procedures for issuance and filing of a citation, and for forfeitures, stipulations and deposits in ss. 23.50 to 23.67, 23.75 (3) and (4), 66.119, 778.25, 778.26 and 800.01 to 800.04 except s. 800.04 (2) (b), when the citation is issued by a law enforcement officer, shall be used as appropriate, except that this chapter shall govern taking and holding a juvenile in custody, s. 938.37 shall govern costs, penalty assessments and jail assessments, and a capias shall be substituted for an arrest warrant. Sections 66.119 (3) (c) and (d), 66.12 (1) and 778.10 as they relate to collection of forfeitures do not apply.

AB130,225,4 (3) If a juvenile to whom a citation has been issued does not submit a deposit or a stipulation and deposit, the juvenile shall appear in the court for a plea hearing under s. 938.30 at the date, time and place for the court appearance specified on the citation. If the juvenile does not submit a stipulation and deposit or if the court refuses to accept a deposit unaccompanied by a stipulation, the juvenile may be summoned to appear and the procedures that govern petitions for civil law or ordinance violations under s. 938.125 shall govern all proceedings initiated by a citation, except that the citation shall not be referred to the court intake worker for an intake inquiry. If the court finds that a juvenile violated a municipal ordinance or a civil law punishable by a forfeiture under this section, the court shall enter a dispositional order under s. 938.344, if applicable, or if s. 938.344 does not apply, the court may enter any of the dispositional orders under s. 938.343.

AB130,225,6 SUBCHAPTER V Procedure

AB130,225,14 938.24 Receipt of jurisdictional information; intake inquiry. (1) Except when a citation has been issued under s. 938.17 (2), information indicating that a juvenile should be referred to the court as delinquent, in need of protection or services or in violation of a civil law or a county, town or municipal ordinance shall be referred to the intake worker, who shall conduct an intake inquiry on behalf of the court to determine whether the available facts establish prima facie jurisdiction and to determine the best interests of the juvenile and of the public with regard to any action to be taken.

AB130,225,18 (1m) As part of the intake inquiry, the intake worker shall inform the juvenile and the juvenile's parent, guardian and legal custodian that they may request counseling from a person designated by the court to provide dispositional services under s. 938.069.

AB130,225,23 (2) (a) As part of the intake inquiry the intake worker may conduct multidisciplinary screens and intake conferences with notice to the juvenile, parent, guardian and legal custodian. If sub. (2m) applies, the intake worker shall conduct a multidisciplinary screen under s. 938.547 if the juvenile has not refused to participate under par. (b).

AB130,226,3 (b) No juvenile or other person may be compelled to appear at any conference, participate in a multidisciplinary screen, produce any papers or visit any place by an intake worker.

AB130,226,5 (2m) (a) In counties that have a pilot program under s. 938.547, a multidisciplinary screen shall be conducted for:

AB130,226,6 1. Any juvenile alleged to have committed a violation specified under ch. 161.

AB130,226,9 2. Any juvenile alleged to be delinquent or in need of protection and services who has at least 2 prior adjudications for a violation of s. 125.07 (4) (a) or (b), 125.085 (3) (b) or 125.09 (2) or a local ordinance that strictly conforms to any of those sections.

AB130,226,12 3. Any juvenile alleged to have committed any offense which appears to the intake worker to be directly motivated by the juvenile's need to purchase or otherwise obtain alcohol beverages or controlled substances.

AB130,226,14 4. Any juvenile 12 years of age or older who requests and consents to a multidisciplinary screen.

AB130,226,16 5. Any juvenile who consents to a multidisciplinary screen requested by his or her parents.

AB130,226,18 (b) The multidisciplinary screen may be conducted by an intake worker for any reason other than those specified in the criteria under par. (a).

AB130,226,22 (3) If the intake worker determines as a result of the intake inquiry that the juvenile should be referred to the court, the intake worker shall request that the district attorney, corporation counsel or other official specified in s. 938.09 file a petition.

AB130,227,3 (4) If the intake worker determines as a result of the intake inquiry that the case should be subject to a deferred prosecution agreement, or should be closed, the intake worker shall so proceed. If a petition has been filed, a deferred prosecution agreement may not be entered into or a case may not be closed unless the petition is withdrawn by the district attorney, corporation counsel or other official specified in s. 938.09, or is dismissed by the judge.

AB130,227,21 (5) The intake worker shall recommend that a petition be filed, enter into a deferred prosecution agreement or close the case within 40 days or sooner of receipt of referral information. If the case is closed or a deferred prosecution agreement is entered into, the district attorney, corporation counsel or other official under s. 938.09 shall receive written notice of such action. In addition, if a deferred prosecution agreement is entered into, the judge or juvenile court commissioner shall receive written notice of such action and, on receipt of that notice, shall enter an order requiring compliance with that agreement. A notice of deferred prosecution of an alleged delinquency case shall include a summary of the facts surrounding the allegation and a list of prior intake referrals and dispositions. If a law enforcement officer has made a recommendation concerning the juvenile, the intake worker shall forward this recommendation to the district attorney under s. 938.09. Notwithstanding the requirements of this section, the district attorney may initiate a delinquency petition under s. 938.25 within 20 days after notice that the case has been closed or that a deferred prosecution agreement has been entered into. The judge shall grant appropriate relief as provided in s. 938.315 (3) with respect to any such petition which is not referred or filed within the time limits specified within this subsection.

AB130,227,24 (6) The intake worker shall perform his or her responsibilities under this section under general written policies which the judge shall promulgate under s. 938.06 (1) or (2).

AB130,228,3 (7) If a citation is issued to a juvenile, the citation shall not be the subject of an intake inquiry or a review by an intake worker for the purpose of recommending deferred prosecution.

AB130,228,8 938.243 Basic rights: duty of intake worker. (1) Before conferring with the parent or juvenile during the intake inquiry, the intake worker shall personally inform a juvenile alleged to have committed a delinquent act, and parents and juveniles 10 years of age or over who are the focus of an inquiry regarding the need for protection or services under s. 938.13 (4), (6), (6m) or (7), of all of the following:

AB130,228,9 (ag) That the referral may result in a petition to the court.

AB130,228,10 (am) What allegations could be in the petition to the court.

AB130,228,12 (b) The nature and possible consequences of the proceedings including the provisions of ss. 938.17, 938.18 and 938.366 if applicable.

AB130,228,15 (c) The right to remain silent and the fact that in a delinquency proceeding the silence of the juvenile shall not be adversely considered by the court although the silence of any party may be relevant in any nondelinquency proceeding.

AB130,228,16 (d) The right to confront and cross-examine those appearing against them.

AB130,228,17 (e) The right to counsel under s. 938.23.

AB130,228,18 (f) The right to present and subpoena witnesses.

AB130,228,22 (h) The right to have the allegations of the petition proved by clear and convincing evidence unless the juvenile comes within the court's jurisdiction under s. 938.12 or 938.13 (12), in which case the standard of proof shall be beyond a reasonable doubt.

AB130,229,4 (1m) If the juvenile who is the subject of the intake inquiry is alleged to have committed an act which resulted in personal injury or damage to or loss of the property of another, the intake worker shall inform the juvenile's parents in writing 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.

AB130,229,6 (2) This section does not apply if the juvenile was present at a hearing under s. 938.21.

AB130,229,13 (3) If the juvenile has not had a hearing under s. 938.21 and was not present at an intake conference under s. 938.24, the intake worker shall inform the juvenile, parent, guardian and legal custodian as appropriate of their basic rights under this section. This notice shall be given verbally, either in person or by telephone, and in writing. This notice shall be given so as to allow the juvenile, parent, guardian or legal custodian sufficient time to prepare for the plea hearing. This subsection does not apply to cases of deferred prosecution under s. 938.245.

AB130,229,20 938.245 Deferred prosecution. (1) The intake worker may enter into a written deferred prosecution agreement with all parties as provided in this section if the intake worker has determined that neither the interests of the juvenile nor of the public require filing of a petition for circumstances relating to s. 938.12, 938.125 or 938.13. Deferred prosecution shall be available only if the facts persuade the intake worker that the jurisdiction of the court, if sought, would exist and upon consent of the juvenile, parent, guardian and legal custodian.