AB130: Bill Text

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.

AB130,229,22 (2) (a) A deferred prosecution agreement may provide for any one or more of the following:

AB130,229,25 1. That the juvenile and the juvenile's parent, guardian or legal custodian participate in individual, family or group counseling and that the parent, guardian or legal custodian participate in parenting skills training.

AB130,230,3 2. That the juvenile and a parent, guardian and legal custodian abide by such obligations, including supervision, curfews and school attendance requirements, as will tend to ensure the juvenile's rehabilitation, protection or care.

AB130,230,10 3. That the juvenile submit to an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 938.547 (4) and that is conducted by an approved treatment facility for an examination of the juvenile's use of alcohol beverages or controlled substances and any medical, personal, family or social effects caused by its use, if the multidisciplinary screen conducted under s. 938.24 (2) shows that the juvenile is at risk of having needs and problems related to the use of alcohol beverages or controlled substances and its medical, personal, family or social effects.

AB130,230,17 4. That the juvenile participate in an alcohol and other drug abuse outpatient treatment program, a court-approved pupil assistance program provided by the juvenile's school board or a court-approved alcohol or other drug abuse education program, if an alcohol and other drug abuse assessment conducted under subd. 3. recommends outpatient treatment, intervention or education. The juvenile's participation in a court-approved pupil assistance program under this subdivision is subject to the approval of the juvenile's school board.

AB130,231,3 5. a. That the juvenile participate in a restitution project if the juvenile has attained the age of 10 and the act for which the deferred prosecution agreement is being entered into has resulted in damage to the property of another, or in actual physical injury to another excluding pain and suffering. Subject to subd. 5. c., the deferred prosecution agreement may require the juvenile to repair the damage to property or to make reasonable restitution for the damage or injury if the intake worker, after taking into consideration the well-being and needs of the victim, considers it beneficial to the well-being and behavior of the juvenile. Any such deferred prosecution agreement shall include a determination that the juvenile alone is financially able to pay and may allow up to the date of the expiration of the deferred prosecution agreement for the payment.

AB130,231,9 b. In addition to any other employment or duties permitted under ch. 103 or any rule or order under ch. 103, a juvenile who is 10 to 13 years of age who is participating in a restitution project provided by the county may, for the purpose of making restitution, be employed or perform any duties under any circumstances in which a juvenile 14 or 15 years of age is permitted to be employed or to perform duties under ch. 103 or any rule or order under ch. 103.

AB130,231,11 c. Under this subdivision, a deferred prosecution agreement may not require a juvenile who is 10 to 13 years of age to make more than $250 in restitution.

AB130,231,14 6. If the juvenile has attained the age of 10, that the juvenile participate in a supervised work program or other community service work in accordance with s. 938.34 (5g) (a).

AB130,232,2 7. That the juvenile be placed with a volunteers in probation program under such conditions as the intake worker determines are reasonable and appropriate, if the juvenile is alleged to have committed an act that would constitute a misdemeanor if committed by an adult, if the chief judge of the judicial administrative district has approved under s. 973.11 (2) a volunteers in probation program established in the juvenile's county of residence and if the intake worker determines that volunteer supervision under that volunteers in probation program will likely benefit the juvenile and the community. The conditions that the intake worker may establish under this subdivision may include, but need not be limited to, a request to a volunteer to provide for the juvenile a role model, informal counseling, general monitoring and monitoring of the conditions established by the intake worker, or any combination of these functions, and any other deferred prosecution condition that the intake worker may establish under this paragraph.

AB130,232,4 (b) A deferred prosecution agreement may not include any form of residential placement and may not exceed one year.

AB130,232,9 (c) If the deferred prosecution agreement provides for alcohol and other drug abuse outpatient treatment under par. (a) 4., the juvenile and the juvenile's parent, guardian or legal custodian shall execute an informed consent form that indicates that they are voluntarily and knowingly entering into a deferred prosecution agreement for the provision of alcohol and other drug abuse outpatient treatment.

AB130,232,16 (3) The obligations imposed under a deferred prosecution agreement and its effective date shall be set forth in writing. The judge or juvenile court commissioner shall receive written notice that a deferred prosecution agreement has been entered into and, on receipt of that notice, shall enter an order requiring compliance with that agreement. The juvenile and a parent, guardian and legal custodian shall receive a copy of the agreement and order, as shall any agency providing services under the agreement.

AB130,232,24 (4) The intake worker shall inform the juvenile and the juvenile's parent, guardian and legal custodian in writing of their right to request the court to terminate the deferred prosecution agreement at any time or object at any time to the fact or terms of the deferred prosecution agreement. If an objection arises the intake worker may alter the terms of the agreement or recommend to the district attorney or corporation counsel that a petition be filed. If the deferred prosecution agreement is terminated the intake worker may recommend to the district attorney or corporation counsel that a petition be filed.