48.205 Note
NOTE: 1993 Wis. Act 395, which creates subs. (1) (am) and (bm), contains extensive explanatory notes.
48.207
48.207
Places where a child may be held in nonsecure custody. 48.207(1)(1) A child held in physical custody under
s. 48.205 may be held in any of the following places:
48.207(1)(c)
(c) A licensed foster home or a licensed treatment foster home provided the placement does not violate the conditions of the license.
48.207(1)(cm)
(cm) A licensed group home provided that the placement does not violate the conditions of the license.
48.207(1)(d)
(d) A nonsecure facility operated by a licensed child welfare agency.
48.207(1)(e)
(e) A licensed private or public shelter care facility.
48.207(1)(f)
(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.
48.207(1)(i)
(i) An approved public treatment facility for emergency treatment if the child is held under
s. 48.20 (6).
48.207(2)
(2) If a facility listed in
sub. (1) (b) to
(k) is used to hold children in custody, or if supervisory services of a home detention program are provided to children held under
sub. (1) (a), its authorized rate shall be paid by the county for the care of the child. 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 child.
48.207(3)
(3) A child taken into custody under
s. 48.981 may be held in a hospital, foster home, treatment foster home, relative's home or other appropriate medical or child welfare facility which is not used primarily for the detention of delinquent children.
48.208
48.208
Criteria for holding a child in a secure detention facility. A child may be held in a secure detention facility if the intake worker determines that one of the following conditions applies:
48.208(3)
(3) The child 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.
48.208(4)
(4) Probable cause exists to believe that the child, having been placed in nonsecure custody by an intake worker under
s. 48.207 or by the judge or juvenile court commissioner under
s. 48.21 (4), has run away or committed a delinquent act and no other suitable alternative exists.
48.208 Annotation
See note to 785.02, citing In Interest of D. L. D. 110 W (2d) 168, 327 NW (2d) 682 (1983).
48.208 Annotation
See note to 785.02, citing 70 Atty. Gen. 98.
48.209
48.209
Criteria for holding a child in a county jail. Subject to the provisions of
s. 48.208, a county jail may be used as a secure detention facility if the criteria under either
sub. (1) or
(2) are met:
48.209(1)
(1) There is no other secure detention facility approved by the department of corrections or a county which is available and:
48.209(1)(a)
(a) The jail meets the standards for secure detention facilities established by the department of corrections;
48.209(1)(b)
(b) The child is held in a room separated and removed from incarcerated adults;
48.209(1)(c)
(c) The child is not held in a cell designed for the administrative or disciplinary segregation of adults;
48.209(1)(e)
(e) The judge reviews the status of the child every 3 days.
48.209(2)
(2) The child 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 child shall be given a hearing and transferred only upon order of the judge.
48.21
48.21
Hearing for child in custody. 48.21(1)(a)(a) If a child who has been taken into custody is not released under
s. 48.20, a hearing to determine whether the child shall continue to be held in custody under the criteria of
ss. 48.205 to
48.209 shall be conducted by the judge or juvenile court commissioner within 48 hours of the time the decision to hold the child was made, excluding Saturdays, Sundays and legal holidays. By the time of the hearing a petition under
s. 48.25 shall be filed, except that no petition need be filed where a child is taken into custody under
s. 48.19 (1) (b) or
(d) 2. or
7. or where the child is a runaway from another state, in which case a written statement of the reasons for holding a child in custody shall be substituted if the petition is not filed. If no hearing has been held within 48 hours, excluding Saturdays, Sundays and legal holidays, or if no petition or statement has been filed at the time of the hearing, the child shall be released except as provided in
par. (b). A parent not present at the hearing shall be granted a rehearing upon request.
48.21(1)(b)
(b) If no petition has been filed by the time of the hearing, a child may be held in custody with approval of the judge or juvenile court commissioner for an additional 72 hours from the time of the hearing, excluding Saturdays, Sundays and legal holidays, 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 child 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 child or other responsible adult is neglecting, refusing, unable or unavailable to provide adequate supervision and care. The extension may be granted only once for any petition. In the event of failure to file a petition within the extension period provided for in this paragraph, the judge or juvenile court commissioner shall order the child's immediate release from custody.
48.21(3)
(3) Proceedings concerning children in need of protection or services. Proceedings concerning a child who comes within the jurisdiction of the court under
s. 48.13 shall be conducted according to this subsection.
48.21(3)(a)
(a) The parent, guardian or legal custodian may waive the hearing under this section. Agreement in writing of the child is required if he or she is over 12. After any waiver, a hearing shall be granted at the request of any interested party.
48.21(3)(b)
(b) If present at the hearing, a copy of the petition shall be given to the parent, guardian or legal custodian, and to the child 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 child's parent, guardian and legal custodian and to the child if he or she is 12 years of age or older in accordance with
s. 48.20 (8).
48.21(3)(d)
(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 confront and cross-examine witnesses and the right to present witnesses.
48.21(3)(e)
(e) If the parent, guardian or legal custodian or the child is not represented by counsel at the hearing and the child is continued in custody as a result of the hearing, the parent, guardian, legal custodian or child may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold the child 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 child in custody shall be subject to rehearing for good cause, whether or not counsel was present.
48.21(3m)
(3m) Parental notice required. If the child 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 child's parents of the possibility of disclosure of the identity of the child and the parents, of the child's police records and of the outcome of proceedings against the child for use in civil actions for damages against the child or the parents and of the parents' potential liability for acts of their children. If the court is unable to provide the notice before commencement of the hearing, it shall provide the child's parents with the specified information in writing as soon as possible after the hearing.
48.21(4)
(4) Continuation of custody. If the judge or juvenile court commissioner finds that the child should be continued in custody under the criteria of
s. 48.205, he or she shall enter one of the following orders:
48.21(4)(a)
(a) Place the child with a parent, guardian, legal custodian or other responsible person and may impose reasonable restrictions on the child's travel, association with other persons or places of abode during the period of placement, including a condition requiring the child to return to other custody as requested; or subject the child to the supervision of an agency agreeing to supervise the child. 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 child.
48.21(5)(a)(a) All orders to hold in custody shall be in writing, listing the reasons and criteria forming the basis for the decision.
48.21(5)(b)
(b) An order relating to a child held in custody outside of his or her home shall also describe any efforts that were made to permit the child to remain at home and the services that are needed to ensure the child's well-being, to enable the child to return to his or her home and to involve the parents in planning for the child.
48.21(6)
(6) Amendment of order. An order placing a child under
sub. (4) (a) on conditions specified in this section may at any time be amended, with notice, so as to return the child to another form of custody for failure to conform to the conditions originally imposed. A child may be transferred to secure custody if he or she meets the criteria of
s. 48.208.
48.21(7)
(7) Informal disposition. If the judge or juvenile court commissioner determines that the best interests of the child and the public are served, he or she may enter a consent decree under
s. 48.32 or order the petition dismissed and refer the matter to the intake worker for informal disposition in accordance with
s. 48.245.
48.21 Annotation
See note to Art. I, sec. 8, citing State ex rel Bernal v. Hershman, 54 W (2d) 626, 196 NW (2d) 721.
48.21 Annotation
When party waives custody hearing pursuant to (3) (a), trial court need not enter written custody order or inform parties of rights; department need not file petition within 24 hours pursuant to (1) (b). In Interest of G.H. 150 W (2d) 407, 441 NW (2d) 227 (1989).
48.21 Annotation
The 24 hour period under sub. (1) (a) runs from the time the intake worker decides to hold the child. Curtis W. v. State, 192 W (2d) 719, 531 NW (2d) 633 (Ct. App. 1995).
48.215
48.215
Mother-young child care program. Sections 48.19 to
48.21 do not apply to children participating in the mother-young child care program under
s. 301.049.
48.215 History
History: 1991 a. 39.
48.215 Annotation
Developmentally disabled father's allegation that the county, in violation of the Americans with Disabilities Act, did not take into account his disability in attempting to provide court ordered services was not a basis to attack a termination proceeding. The ADA did not place an added burden on the county to meet the requirements of sub. (2) (b). In Interest of Torrence P. 187 W (2d) 10, 522 NW (2d) 243 (Ct. App. 1994).
48.227(1)(1) Nothing contained in this section prohibits a home licensed under
s. 48.48 or
48.75 from providing housing and services to a runaway child with the consent of the child and the consent of the child's parent, guardian or legal custodian, under the supervision of a county department, a child welfare agency or the department. When the parent, guardian or legal custodian and the child both consent to the provision of these services and the child has not been taken into custody, no hearing as described in this section is required.
48.227(2)
(2) Any person who operates a home under
sub. (1) and licensed under
s. 48.48 or
48.75, when engaged in sheltering a runaway child without the consent of the child's parent, guardian or legal custodian, shall notify the intake worker of the presence of the child in the home within 12 hours. The intake worker shall notify the parent, guardian and legal custodian as soon as possible of the child's presence in that home. A hearing shall be held under
sub. (4). The child shall not be removed from the home except with the approval of the court under
sub. (4). This subsection does not prohibit the parent, guardian or legal custodian from conferring with the child or the person operating the home.
48.227(3)
(3) For runaway children who have been taken into custody and then released, the judge may, with the agreement of the persons operating the homes, designate homes licensed under
ss. 48.48 and
48.75 as places for the temporary care and housing of such children. If the parent, guardian or legal custodian refuses to consent, the person taking the child into custody or the intake worker may release the child to one of the homes designated under this section; however, a hearing shall be held under
sub. (4). The child shall not be removed from the home except with the approval of the court under
sub. (4). This subsection does not prohibit the parent, guardian, or legal custodian from conferring with the child or the person operating the home.
48.227(4)(a)(a) If the child's parent, guardian or legal custodian does not consent to the temporary care and housing of the child at the runaway home as provided under
sub. (2) or
(3), a hearing shall be held on the issue by the judge or juvenile court commissioner within 24 hours of the time that the child entered the runaway home, excluding Saturdays, Sundays and legal holidays. The intake worker shall notify the child and the child's parent, guardian or legal custodian of the time, place and purpose of the hearing.
48.227(4)(c)
(c) For the purposes of this section, the court has jurisdiction over a runaway child only to the extent that it may hold the hearings and make the orders provided in this section.
48.227(4)(d)
(d) At the hearing, the child, the child's parent, guardian or legal custodian and a representative of the runaway home may present evidence, cross-examine and confront witnesses and be represented by counsel or guardian ad litem.
48.227(4)(e)
(e) At the conclusion of the hearing, the court may order:
48.227(4)(e)1.
1. That the child be released to his or her parent, guardian or legal custodian; or
48.227(4)(e)2.
2. That, with the consent of the child and the runaway home, the child remain in the care of the runaway home for a period of not more than 20 days. Without further proceedings, the child shall be released whenever the child indicates, either by statement or conduct, that he or she wishes to leave the home or whenever the runaway home withdraws its consent. During this time period not to exceed 20 days ordered by the court, the child's parent, guardian or legal custodian may not remove the child from the home but may confer with the child or with the person operating the home. If, at the conclusion of the time period ordered by the court the child has not left the home, and no petition concerning the child has been filed under
s. 48.13,
938.12 or
938.13, the child shall be released from the home. If a petition concerning the child has been filed under
s. 48.13,
938.12 or
938.13, the child may be held in temporary physical custody under
ss. 48.20 to
48.21 or
938.20 to
938.21.
48.227(5)
(5) No person operating an approved or licensed home in compliance with this section is subject to civil or criminal liability by virtue of false imprisonment.
48.23
48.23
Right to counsel. 48.23(1)(1)
Right of children to legal representation. Children subject to proceedings under this chapter shall be afforded legal representation as follows:
48.23(1)(a)
(a) Any child held in a secure detention facility shall be represented by counsel at all stages of the proceedings, but a child 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.
48.23(1)(b)1.1. If a child is alleged to be in need of protection or services under
s. 48.13, the child may be represented by counsel at the discretion of the court. Except as provided in
subd. 2., a child 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.
48.23(1)(b)2.
2. If the petition is contested, the court may not place the child outside his or her home unless the child is represented by counsel at the fact-finding hearing and subsequent proceedings. If the petition is not contested, the court may not place the child outside his or her home unless the child is represented by counsel at the hearing at which the placement is made. For a child under 12 years of age, the judge may appoint a guardian ad litem instead of counsel.
48.23(1)(c)
(c) Any child subject to the jurisdiction of the court under
s. 48.14 (5) shall be represented by counsel. No waiver of counsel may be accepted by the court.
48.23(1)(cm)
(cm) Any minor who is subject to the jurisdiction of the circuit court under
s. 48.16 and who is required to appear in court shall be represented by counsel.
48.23(2)
(2) Right of parents to counsel. Whenever a child is the subject of a proceeding involving a contested adoption or the involuntary termination of parental rights, any parent under 18 years of age who appears before the court shall be represented by counsel; but no such parent may waive counsel. A minor parent petitioning for the voluntary termination of parental rights shall be represented by a guardian ad litem. If a proceeding involves a contested adoption or the involuntary termination of parental rights, any parent 18 years old or older who appears before the court shall be represented by counsel; but the parent may waive counsel provided the court is satisfied such waiver is knowingly and voluntarily made.
48.23(3)
(3) Power of the court to appoint counsel. Except in proceedings under
s. 48.13, at any time, upon request or on its own motion, the court may appoint counsel for the child or any party, unless the child or the party has or wishes to retain counsel of his or her own choosing. The court may not appoint counsel for any party other than the child in a proceeding under
s. 48.13.
48.23(3m)
(3m) Guardians ad litem or counsel for abused or neglected children. The court shall appoint counsel for any child alleged to be in need of protection or services under
s. 48.13 (3),
(3m),
(10),
(10m) and
(11), except that if the child is less than 12 years of age the court may appoint a guardian ad litem instead of counsel. The guardian ad litem or counsel for the child shall not be the same as counsel for any party or any governmental or social agency involved.
48.23(4)
(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. If the referral is of a person who has filed a petition under
s. 48.375 (7), the state public defender shall appoint counsel within 24 hours after that referral. Any counsel appointed in a petition filed under
s. 48.375 (7) shall continue to represent the child in any appeal brought under
s. 809.105 unless the child requests substitution of counsel or extenuating circumstances make it impossible for counsel to continue to represent the child. In any situation under
sub. (2) in which a parent 18 years of age or older 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 child who is named as the respondent in that petition.
48.23(5)
(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.
48.23(6)
(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.
48.23 History
History: 1977 c. 354,
355,
447,
449;
1979 c. 300,
356;
1987 a. 27;
1987 a. 383;
1989 a. 31; Sup. Ct. Order, 151 W (2d) xxv (1989);
1989 a. 56,
107;
1991 a. 263;
1993 a. 377,
385,
395,
451,
491;
1995 a. 27,
77.
48.23 Cross-reference
Cross-reference: See s.
48.275 (2), concerning contribution toward legal expenses by parent or guardian.
48.23 Annotation
See note to 48.422, citing In re Termination of Parental Rights to M. A. M. 116 W (2d) 432, 342 NW (2d) 410 (1984).
48.23 Annotation
Neither temporary custody order nor custodial interrogation were proceedings under (1) (a). State v. Woods, 117 W (2d) 701, 345 NW (2d) 457 (1984).
