SB288: Bill Text

SB288, s. 279 Section 279. 938.21 (3) (d) of the statutes is amended to read:

SB288,147,21 938.21 (3) (d) Prior to the commencement of the hearing, the court shall inform the parent, guardian, or legal custodian, or Indian custodian 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 present, confront, and cross-examine witnesses, and the right to present witnesses and, in the case of a parent or Indian custodian of an Indian juvenile who is the subject of an Indian juvenile custody proceeding, as defined in s. 938.028 (2) (b), the right to counsel under s. 938.028 (4) (b).

SB288, s. 280 Section 280. 938.21 (3) (e) of the statutes is amended to read:

SB288,148,5 938.21 (3) (e) If the parent, guardian, or legal custodian, Indian custodian, or the juvenile is not represented by counsel at the hearing and if the juvenile is continued in custody as a result of the hearing, the parent, guardian, legal custodian, Indian custodian, or juvenile may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold the juvenile in custody be reheard. If the request is made, a rehearing shall take place as soon as possible. An order to hold the juvenile in custody shall be reheard for good cause, whether or not counsel was present.

SB288, s. 281 Section 281. 938.21 (5) (d) 1. of the statutes is renumbered 938.21 (5) (d) and amended to read:

SB288,148,13 938.21 (5) (d) If the court finds that any of the circumstances specified in s. 938.355 (2d) (b) 1. to 4. applies with respect to a parent, the court shall hold a hearing under s. 938.38 (4m) within 30 days after the date of that finding to determine the permanency plan for the juvenile. If a hearing is held under this subdivision, the agency responsible for preparing the permanency plan shall file the permanency plan with the court not less than 5 days before the date of the hearing.

SB288, s. 282 Section 282. 938.21 (5) (d) 2. of the statutes, as affected by 2009 Wisconsin Act 28, is repealed.

SB288, s. 283 Section 283. 938.21 (5) (d) 3. of the statutes, as affected by 2009 Wisconsin Act 28, is repealed.

SB288, s. 284 Section 284. 938.23 (2g) of the statutes is created to read:

SB288,148,24 938.23 (2g) Right of Indian juvenile's parent or Indian custodian to counsel. Whenever an Indian juvenile is the subject of a proceeding under s. 938.13 (4), (6), (6m), or (7) involving the removal of the Indian juvenile from the home of his or her parent or Indian custodian or the placement of the Indian juvenile in an out-of-home care placement, the Indian juvenile's parent or Indian custodian shall have the right to be represented by counsel as provided in sub. (4).

SB288, s. 285 Section 285. 938.23 (3) of the statutes is amended to read:

SB288,149,6 938.23 (3) Power of the court to appoint counsel. Except as provided in this subsection, at any time, upon request or on its own motion, the court may appoint counsel for the juvenile or any party, unless the juvenile or the party has or wishes to retain counsel of his or her own choosing. The Except as provided in sub. (2g), the court may not appoint counsel for any party other than the juvenile in a proceeding under s. 938.13.

SB288, s. 286 Section 286. 938.23 (4) of the statutes is amended to read:

SB288,149,22 938.23 (4) Providing counsel. If a juvenile has a right to be represented by counsel or is provided counsel at the discretion of the court under this section and counsel is not knowingly and voluntarily waived, the court shall refer the juvenile to the state public defender and counsel shall be appointed by the state public defender under s. 977.08 without a determination of indigency. In any situation under sub. (2g) in which a parent 18 years of age or over is entitled to representation by counsel; counsel is not knowingly and voluntarily waived; and it appears that the parent is unable to afford counsel in full, or the parent so indicates; the court shall refer the parent to the authority for indigency determinations specified under s. 977.07 (1). In any other situation under this section in which a person has a right to be represented by counsel or is provided counsel at the discretion of the court, competent and independent counsel shall be provided and reimbursed in any manner suitable to the court regardless of the person's ability to pay, except that the court may not order a person who files a petition under s. 813.122 or 813.125 to reimburse counsel for the juvenile who is named as the respondent in that petition.

SB288, s. 287 Section 287. 938.235 (4) (a) 7. of the statutes is amended to read:

SB288,149,25 938.235 (4) (a) 7. Petition for relief from a judgment terminating parental rights under s. 48.028 or 48.46.

SB288, s. 288 Section 288. 938.24 (2r) (title) of the statutes is amended to read:

SB288,150,2 938.24 (2r) (title) American Indian juvenile; notification of tribal court.

SB288, s. 289 Section 289. 938.24 (2r) (a) (intro.) of the statutes is amended to read:

SB288,150,10 938.24 (2r) (a) (intro.) If the intake worker determines as a result of the intake inquiry that the juvenile is an American Indian juvenile who has allegedly committed a delinquent act and that all of the following circumstances apply, the intake worker shall promptly notify the clerk of the tribal court under subd. 1., a person who serves as the tribal juvenile intake worker, or a tribal prosecuting attorney that the juvenile has allegedly committed a delinquent act under those circumstances:

SB288, s. 290 Section 290. 938.24 (2r) (a) 1. of the statutes is amended to read:

SB288,150,15 938.24 (2r) (a) 1. At the time of the delinquent act the juvenile was under an order of a tribe's tribal court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile's parent, or permanent guardianship.

SB288, s. 291 Section 291. 938.24 (2r) (a) 2. of the statutes is amended to read:

SB288,150,23 938.24 (2r) (a) 2. At the time of the delinquent act the juvenile was physically outside the boundaries of that tribe's the reservation of the Indian tribe of the tribal court and any off-reservation trust land of either that Indian tribe or a member of that Indian tribe as a direct consequence of a tribal court order under subd. 1., including a tribal court order placing the juvenile in the home of a relative of the juvenile who on or after the date of the tribal court order resides physically outside the boundaries of a reservation and off-reservation trust land.

SB288, s. 292 Section 292. 938.24 (2r) (b) of the statutes is amended to read:

SB288,151,11 938.24 (2r) (b) If the intake worker is notified by an official of the Indian tribe that a petition relating to the delinquent act has been or may be filed in tribal court, the intake worker shall consult with tribal officials, unless the intake worker determines under sub. (4) that the case should be closed. After the consultation, the intake worker shall determine whether the best interests of the juvenile and of the public would be served by having the matter proceed solely in tribal court. If the intake worker determines that the best interests of the juvenile and of the public would be served by having the matter proceed solely in tribal court, the intake worker shall close the case. If the intake worker determines that the best interests of the juvenile and of the public would not be served by having the matter proceed solely in tribal court, the intake worker shall proceed under sub. (3) or (4).

SB288, s. 293 Section 293. 938.243 (1) (e) of the statutes is amended to read:

SB288,151,13 938.243 (1) (e) The right of the juvenile to counsel under s. 938.23.

SB288, s. 294 Section 294. 938.25 (2g) (title) of the statutes is amended to read:

SB288,151,15 938.25 (2g) (title) American Indian juvenile; consultation with tribal court.

SB288, s. 295 Section 295. 938.255 (1) (cm) of the statutes is amended to read:

SB288,151,21 938.255 (1) (cm) If the petition is initiating proceedings other than proceedings under s. 938.12, 938.125 or 938.13 (12) under s. 938.13 (4), (6), (6m), or (7), whether the juvenile may be subject to the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and, if the juvenile may be subject to that act, the names and addresses of the juvenile's Indian custodian, if any, and Indian tribe, if known.

SB288, s. 296 Section 296. 938.255 (1) (cr) 1. a. of the statutes is amended to read:

SB288,151,23 938.255 (1) (cr) 1. a. The juvenile is an American Indian juvenile.

SB288, s. 297 Section 297. 938.255 (1) (cr) 1. b. of the statutes is amended to read:

SB288,152,4 938.255 (1) (cr) 1. b. At the time of the alleged delinquent act, the juvenile was under an order of a tribe's tribal court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile's parent, or permanent guardianship.

SB288, s. 298 Section 298. 938.255 (1) (cr) 1. c. of the statutes is amended to read:

SB288,152,12 938.255 (1) (cr) 1. c. At the time of the delinquent act the juvenile was physically outside the boundaries of that tribe's the reservation of the Indian tribe of the tribal court and any off-reservation trust land of either that Indian tribe or a member of that Indian tribe as a direct consequence of a tribal court order under subd. 1. b., including a tribal court order placing the juvenile in the home of a relative of the juvenile who on or after the date of the tribal court order resides physically outside the boundaries of a reservation and off-reservation trust land.

SB288, s. 299 Section 299. 938.255 (1) (cr) 2. of the statutes is amended to read:

SB288,152,18 938.255 (1) (cr) 2. If the statement under subd. 1. is included in the petition and if the intake worker, district attorney, or corporation counsel has been notified by an official of the Indian tribe that a petition relating to the delinquent act has been or may be filed in tribal court with respect to the alleged delinquent act, a statement to that effect.

SB288, s. 300 Section 300. 938.255 (1) (g) of the statutes is created to read:

SB288,153,5 938.255 (1) (g) If the petitioner knows or has reason to know that the juvenile is an Indian juvenile, if the juvenile is alleged to come within the provisions of s. 938.13 (4), (6), (6m), or (7), and if the juvenile has been removed from the home of his or her parent or Indian custodian, reliable and credible information showing that continued custody of the juvenile by the juvenile's parent or Indian custodian is likely to result in serious emotional or physical damage to the juvenile under s. 938.028 (4) (d) 1. and reliable and credible information showing that active efforts under s. 938.028 (4) (d) 2. have been made to prevent the breakup of the Indian juvenile's family and that those efforts have proved unsuccessful. The petition shall set forth with specificity both the information required under this paragraph and the information required under par. (f).

SB288, s. 301 Section 301. 938.255 (2) of the statutes is amended to read:

SB288,153,8 938.255 (2) If any of the facts in sub. (1) (a) to (cr) and, (f), and (g) are not known or cannot be ascertained by the petitioner, the petition shall so state.

SB288, s. 302 Section 302. 938.255 (4) of the statutes is amended to read:

SB288,153,15 938.255 (4) Copy to juvenile, parents, and others. A copy of the petition shall be given to the juvenile and to the parents, guardian, legal custodian and physical custodian. If the juvenile is an Indian juvenile who is alleged to come within the provisions of s. 938.13 (4), (6), (6m), or (7), and who has been removed from the home of his or her parent or Indian custodian, a copy of the petition shall also be given to the Indian juvenile's Indian custodian and tribe.

SB288, s. 303 Section 303. 938.27 (3) (a) 1. of the statutes is amended to read:

SB288,154,4 938.27 (3) (a) 1. The court shall notify, under s. 938.273, the juvenile, any parent, guardian, and legal custodian of the juvenile, any foster parent, treatment foster parent, or other physical custodian described in s. 48.62 (2) of the juvenile, and any person specified in par. (b) or (d), if applicable, of all hearings involving the juvenile under this subchapter, except hearings on motions for which notice must be provided only to the juvenile and his or her counsel. If parents entitled to notice have the same place of residence, notice to one constitutes notice to the other. The first notice to any interested party, foster parent, treatment foster parent, or other physical custodian described in s. 48.62 (2) shall be in writing and may have a copy of the petition attached to it. Notices of subsequent hearings may be given by telephone at least 72 hours before the time of the hearing. The person giving telephone notice shall place in the case file a signed statement of the date and time notice was given and the person to whom he or she spoke.

SB288, s. 304 Section 304. 938.27 (3) (a) 1. of the statutes, as affected by 2009 Wisconsin Acts 28 and .... (this act), is repealed and recreated to read:

SB288,154,19 938.27 (3) (a) 1. The court shall notify, under s. 938.273, the juvenile, any parent, guardian, and legal custodian of the juvenile, any foster parent or other physical custodian described in s. 48.62 (2) of the juvenile, and any person specified in par. (b) or (d), if applicable, of all hearings involving the juvenile under this subchapter, except hearings on motions for which notice must be provided only to the juvenile and his or her counsel. If parents entitled to notice have the same place of residence, notice to one constitutes notice to the other. The first notice to any interested party, foster parent, or other physical custodian described in s. 48.62 (2) shall be in writing and may have a copy of the petition attached to it. Notices of subsequent hearings may be given by telephone at least 72 hours before the time of the hearing. The person giving telephone notice shall place in the case file a signed statement of the date and time notice was given and the person to whom he or she spoke.

SB288, s. 305 Section 305. 938.27 (3) (d) of the statutes is created to read:

SB288,154,25 938.27 (3) (d) If the petition that was filed relates to facts concerning a situation under s. 938.13 (4), (6), (6m), or (7) involving an Indian juvenile who has been removed from the home of his or her parent or Indian custodian, the court shall notify, under s. 938.273, the Indian juvenile's Indian custodian and tribe and that Indian custodian or tribe may intervene at any point in the proceeding.

SB288, s. 306 Section 306. 938.27 (4) (b) of the statutes is amended to read:

SB288,155,3 938.27 (4) (b) Advise the juvenile and any other party, if applicable, of his or her right to legal counsel regardless of ability to pay.

SB288, s. 307 Section 307. 938.273 (1) (a) of the statutes of the statutes is amended to read:

SB288,155,7 938.273 (1) (a) Service Except as provided in pars. (ag), (ar), and (b), service of summons or notice required by s. 938.27 may be made by mailing a copy of the summons or notice to the persons person summoned or notified. If

SB288,155,14 (ar) Except as provided in par. (b), if the persons person, other than a person specified in s. 938.27 (4m), fail fails to appear at the hearing or otherwise to acknowledge service, a continuance shall be granted, except as provided under par. (b), and service shall be made personally by delivering to the persons person a copy of the summons or notice; except that if the court determines that it is impracticable to serve the summons or notice personally, it the court may order service by certified mail addressed to the last-known addresses address of the persons person.

SB288, s. 308 Section 308. 938.273 (1) (ag) of the statutes is created to read:

SB288,155,18 938.273 (1) (ag) In a situation described in s. 938.27 (3) (d), service of summons or notice required by s. 938.27 to an Indian juvenile's parent, Indian custodian, or tribe shall be made as provided in s. 938.028 (4) (a).

SB288, s. 309 Section 309. 938.273 (1) (b) of the statutes is amended to read:

SB288,155,23 938.273 (1) (b) The court may refuse to grant a continuance when the juvenile is being held in secure custody, but if the court so refuses, it the court shall order that service of notice of the next hearing be made personally or by certified mail to the last-known address of the person who failed to appear at the hearing.

SB288, s. 310 Section 310. 938.273 (1) (c) of the statutes is renumbered 938.273 (1) (c) (intro.) and amended to read:

SB288,156,3 938.273 (1) (c) (intro.) Personal service shall be made at least 72 hours before the hearing. Mail shall be sent at least 7 days before the hearing, except that when as follows:

SB288,156,5 1. When the petition is filed under s. 938.13 and the person to be notified lives outside the state, the mail shall be sent at least 14 days before the hearing.

SB288, s. 311 Section 311. 938.273 (1) (c) 2. of the statutes is created to read:

SB288,156,13 938.273 (1) (c) 2. When a petition under s. 938.13 (4), (6), (6m), or (7) involves an Indian juvenile who has been removed from the home of his or her parent or Indian custodian and the person to be notified is the Indian juvenile's parent, Indian custodian, or tribe, the mail shall be sent so that it is received by the person to be notified at least 10 days before the hearing or, if the identity or location of the person to be notified cannot be determined by the U.S. secretary of the interior at least 10 days before the hearing.

SB288, s. 312 Section 312. 938.299 (6) (d) of the statutes is amended to read:

SB288,156,23 938.299 (6) (d) The court may stay the proceedings under this chapter pending the outcome of the paternity proceedings under subch. IX of ch. 767 if the court determines that the paternity proceedings will not unduly delay the proceedings under this chapter and the determination of paternity is necessary to the court's disposition of the juvenile if the juvenile is found to be in need of protection or services or if the court determines or has reason to know that the paternity proceedings may result in a finding that the juvenile is an Indian juvenile and in a petition by the juvenile's parent, Indian custodian, or tribe for transfer of the proceeding to the jurisdiction of the tribe.

SB288, s. 313 Section 313. 938.299 (9) (title) of the statutes is amended to read:

SB288,156,25 938.299 (9) (title) American Indian juvenile; tribal court involvement.

SB288, s. 314 Section 314. 938.299 (9) (a) of the statutes is amended to read:

SB288,157,8 938.299 (9) (a) If a petition under s. 938.12 or 938.13 (12) includes the statement in s. 938.255 (1) (cr) 2. or if the court is informed during a proceeding under s. 938.12 or 938.13 (12) that a petition relating to the delinquent act has been filed in a tribe's tribal court with respect to a juvenile to whom the circumstances specified in s. 938.255 (1) (cr) 1. apply, the court shall stay the proceeding and communicate with the tribal court in which the other proceeding is or may be pending to discuss which court is the more appropriate forum.

SB288, s. 315 Section 315. 938.299 (10) of the statutes is created to read:

SB288,157,19 938.299 (10) If at any point in a proceeding under s. 938.13 (4), (6), (6m), or (7) the court determines or has reason to know that the juvenile is an Indian juvenile, the court shall provide notice of the proceeding to the juvenile's parent, Indian custodian, and tribe in the manner specified in s. 938.028 (4) (a). The next hearing in the proceeding may not be held until at least 10 days after receipt of the notice by the parent, Indian custodian, and tribe or, if the identity or location of the parent, Indian custodian, or tribe cannot be determined, until at least 10 days after receipt of the notice by the U.S. secretary of the interior. On request of the parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for that hearing.

SB288, s. 316 Section 316. 938.30 (1) of the statutes is amended to read:

SB288,158,7 938.30 (1) Time of hearing. Except as provided in this subsection and s. 938.299 (10), the hearing to determine the juvenile's plea to a citation or a petition under s. 938.12, 938.125, or 938.13 (12) or (14), or to determine whether any party wishes to contest an allegation that the juvenile is in need of protection or services under s. 938.13 (4), (6), (6m), or (7) or (14) shall take place on a date which allows reasonable time for the parties to prepare but is within 30 days after the filing of a petition or issuance of a citation for a juvenile who is not being held in secure custody or within 10 days after the filing of a petition or issuance of a citation for a juvenile who is being held in secure custody. In a municipal court operated jointly by 2 or more cities, towns or villages under s. 755.01 (4), the hearing to determine the juvenile's plea shall take place within 45 days after the filing of a petition or issuance of a citation for a juvenile who is not being held in secure custody.

SB288, s. 317 Section 317. 938.30 (2) of the statutes is amended to read:

SB288,158,16 938.30 (2) Information to juvenile and parents; basic rights; substitution. At or before the commencement of the hearing under this section the juvenile and the parent, guardian, or legal custodian, or Indian custodian shall be advised of their rights as specified in s. 938.243 and shall be informed that the hearing shall be to the court and that a request for a substitution of judge under s. 938.29 must be made before the end of the plea hearing or is waived. Nonpetitioning parties, including the juvenile, shall be granted a continuance of the plea hearing if they wish to consult with an attorney on the request for a substitution of a judge.

SB288, s. 318 Section 318. 938.30 (6) (a) of the statutes is amended to read:

SB288,158,25 938.30 (6) (a) If a petition is not contested, the court, subject to s. 938.299 (10), shall set a date for the dispositional hearing which allows reasonable time for the parties to prepare but is no more than 10 days from the plea hearing for a juvenile who is held in secure custody and no more than 30 days from the plea hearing for a juvenile who is not held in secure custody. If Subject to s. 938.299 (10), if all parties consent, the court may proceed immediately with the dispositional hearing. If a citation is not contested, the court may proceed immediately to enter a dispositional order.

SB288, s. 319 Section 319. 938.30 (7) of the statutes is amended to read:

SB288,159,7 938.30 (7) Contested petitions or citations; date for fact-finding hearing. If the petition or citation is contested, the court, subject to s. 938.299 (10), shall set a date for the fact-finding hearing that allows a reasonable time for the parties to prepare but is no more than 20 days from after the plea hearing for a juvenile who is held in secure custody and no more than 30 days from after the plea hearing for a juvenile who is not held in secure custody.

SB288, s. 320 Section 320. 938.305 of the statutes is amended to read:

SB288,159,16 938.305 Hearing upon the involuntary removal of a juvenile. Notwithstanding other time periods for hearings under this chapter, if a juvenile is removed from the physical custody of the juvenile's parent or guardian under s. 938.19 (1) (c) or (d) 5. without the consent of the parent or guardian, the court, subject to s. 938.299 (10), shall schedule a plea hearing and fact-finding hearing within 30 days after a request from the parent or guardian from whom custody was removed. The plea hearing and fact-finding hearing may be combined. This time period may be extended only with the consent of the requesting parent or guardian.

SB288, s. 321 Section 321. 938.31 (5) of the statutes is created to read:

SB288,160,2 938.31 (5) If the juvenile is an Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7), the court shall also determine at the fact-finding hearing whether continued custody of the Indian juvenile by the Indian juvenile's parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian juvenile under s. 938.028 (4) (d) 1. and whether active efforts under s. 938.028 (4) (d) 2. have been made to prevent the breakup of the Indian juvenile's family and whether those efforts have proved unsuccessful, unless partial summary judgment on the allegations under s. 938.13 (4), (6), (6m), or (7) is granted, in which case the court shall make those determinations at the dispositional hearing.

SB288, s. 322 Section 322. 938.31 (7) (a) of the statutes is amended to read:

SB288,160,10 938.31 (7) (a) At the close of the fact-finding hearing, the court, subject to s. 938.299 (10), shall set a date for the dispositional hearing that allows a reasonable time for the parties to prepare but is no more than 10 days after the fact-finding hearing for a juvenile in secure custody and no more than 30 days after the fact-finding hearing for a juvenile not held in secure custody. If Subject to s. 938.299 (10), if all parties consent, the court may immediately proceed with a dispositional hearing.

SB288, s. 323 Section 323. 938.315 (1) (a) 11. of the statutes is created to read: