938.205(1)(1) A juvenile may be held under
s. 938.207,
938.208 or
938.209 (1) if the intake worker determines that there is probable cause to believe the juvenile is within the jurisdiction of the court and if probable cause exists to believe any of the following:
938.205 Note
NOTE: Sub. (1) (intro.) is shown as affected by two acts of the 1997 legislature and as merged by the revisor under s. 13.93 (2) (c).
938.205(1)(a)
(a) That if the juvenile is not held he or she will commit injury to the person or property of others.
938.205(1)(b)
(b) That the parent, guardian or legal custodian of the juvenile or other responsible adult is neglecting, refusing, unable or unavailable to provide adequate supervision and care and that services to ensure the juvenile's safety and well-being are not available or would be inadequate.
938.205(1)(c)
(c) That the juvenile will run away or be taken away so as to be unavailable for proceedings of the court or its officers or proceedings of the division of hearings and appeals in the department of administration for revocation of aftercare supervision.
938.205(2)
(2) The criteria for holding a juvenile in custody specified in this section shall govern the decision of all persons responsible for determining whether the action is appropriate.
938.205 History
History: 1995 a. 77,
275;
1997 a. 35,
296; s. 13.93 (2) (c).
938.207
938.207
Places where a juvenile may be held in nonsecure custody. 938.207(1)(1) A juvenile held in physical custody under
s. 938.205 may be held in any of the following places:
938.207(1)(c)
(c) A licensed foster home or a licensed treatment foster home provided the placement does not violate the conditions of the license.
938.207(1)(cm)
(cm) A licensed group home provided that the placement does not violate the conditions of the license.
938.207(1)(d)
(d) A nonsecure facility operated by a licensed child welfare agency.
938.207(1)(e)
(e) A licensed private or public shelter care facility.
938.207(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.
938.207(1)(i)
(i) An approved public treatment facility for emergency treatment if the juvenile is held under
s. 938.20 (6).
938.207(2)
(2) If a facility listed in
sub. (1) (b) to
(k) is used to hold juveniles in custody, or if supervisory services of a home detention program are provided to juveniles held under
sub. (1) (a), its authorized rate shall be paid by the county for the care of the juvenile. If no authorized rate has been established, a reasonable sum to be fixed by the court shall be paid by the county for the supervision or care of the juvenile.
938.207 History
History: 1995 a. 77.
938.208
938.208
Criteria for holding a juvenile in a secure detention facility. A juvenile may be held in a secure detention facility if the intake worker determines that one of the following conditions applies:
938.208(1)
(1) Probable cause exists to believe that the juvenile has committed a delinquent act and either presents a substantial risk of physical harm to another person or a substantial risk of running away so as to be unavailable for a court hearing or a revocation hearing for juveniles on aftercare supervision. For juveniles who have been adjudged delinquent, the delinquent act referred to in this section may be the act for which the juvenile was adjudged delinquent. If the intake worker determines that any of the following conditions applies, the juvenile is considered to present a substantial risk of physical harm to another person:
938.208(1)(a)
(a) Probable cause exists to believe that the juvenile has committed a delinquent act that would be a felony under
s. 940.01,
940.02,
940.03,
940.05,
940.19 (2) to
(6),
940.21,
940.225 (1),
940.31,
941.20 (3),
943.02 (1),
943.23 (1g),
(1m) or
(1r),
943.32 (2),
947.013 (1t),
(1v) or
(1x),
948.02 (1) or
(2),
948.025 or
948.03 if committed by an adult.
938.208(1)(b)
(b) Probable cause exists to believe that the juvenile possessed, used or threatened to use a handgun, as defined in
s. 175.35 (1) (b), short-barreled rifle, as defined in
s. 941.28 (1) (b), or short-barreled shotgun, as defined in
s. 941.28 (1) (c), while committing a delinquent act that would be a felony under
ch. 940 if committed by an adult.
938.208(1)(c)
(c) Probable cause exists to believe that the juvenile has possessed or gone armed with a short-barreled rifle or a short-barreled shotgun in violation of
s. 941.28, or has possessed or gone armed with a handgun in violation of
s. 948.60.
938.208(2)
(2) Probable cause exists to believe that the juvenile is a fugitive from another state or has run away from a secured correctional facility and there has been no reasonable opportunity to return the juvenile.
938.208(3)
(3) The juvenile consents in writing to being held in order to protect him or her from an imminent physical threat from another and such secure custody is ordered by the judge in a protective order.
938.208(4)
(4) Probable cause exists to believe that the juvenile, having been placed in nonsecure custody by an intake worker under
s. 938.207 or by the judge or juvenile court commissioner under
s. 938.21 (4), has run away or committed a delinquent act and no other suitable alternative exists.
938.208(5)
(5) Probable cause exists to believe that the juvenile has been adjudged or alleged to be delinquent and has run away from another county and would run away from nonsecure custody pending his or her return. A juvenile may be held in secure custody under this subsection for no more than 24 hours after the end of the day that the decision to hold the juvenile was made unless an extension of those 24 hours is ordered by the judge for good cause shown. Only one extension may be ordered by the judge.
938.208(6)
(6) Probable cause exists to believe that the juvenile is subject to the jurisdiction of the court of criminal jurisdiction under
s. 938.183 (1) and is under 15 years of age.
938.208 History
History: 1995 a. 77,
352.
938.209
938.209
Criteria for holding a juvenile in a county jail or a municipal lockup facility. 938.209(1)
(1) Subject to
s. 938.208, a county jail may be used as a secure detention facility if the criteria under either
par. (a) or
(b) are met:
938.209(1)(a)
(a) There is no other secure detention facility approved by the department or a county which is available and all of the following conditions are met:
938.209(1)(a)1.
1. The jail meets the standards for secure detention facilities established by the department.
938.209(1)(a)2.
2. The juvenile is held in a room separated and removed from incarcerated adults.
938.209(1)(a)3.
3. The juvenile is not held in a cell designed for the administrative or disciplinary segregation of adults.
938.209(1)(a)5.
5. The judge reviews the status of the juvenile every 3 days.
938.209(1)(b)
(b) The juvenile presents a substantial risk of physical harm to other persons in the secure detention facility, as evidenced by previous acts or attempts, which can only be avoided by transfer to the jail. The conditions of
par. (a) 1. to
5. shall be met. The juvenile shall be given a hearing and transferred only upon order of the judge.
938.209(2m)(a)(a) A juvenile who is alleged to have committed a delinquent act may be held in a municipal lockup facility if all of the following criteria are met:
938.209(2m)(a)1.
1. The department has approved the municipal lockup facility as a suitable place for holding juveniles in custody.
938.209(2m)(a)2.
2. The juvenile is held in the municipal lockup facility for not more than 6 hours while awaiting his or her hearing under
s. 938.21 (1) (a).
938.209(2m)(a)3.
3. There is sight and sound separation between the juvenile and any adult who is being held in the municipal lockup facility.
938.209(2m)(b)
(b) The department shall promulgate rules establishing minimum requirements for the approval of a municipal lockup facility as a suitable place for holding juveniles in custody and for the operation of such a facility. The rules shall be designed to protect the health, safety and welfare of the juveniles held in those facilities.
938.209(3)
(3) The restrictions of this section do not apply to the use of jail for a juvenile who has been waived to adult court under
s. 938.18 or who is under the jurisdiction of an adult court under
s. 938.183, unless the juvenile is under the jurisdiction of an adult court under
s. 938.183 (1) and is under 15 years of age.
938.209 History
History: 1995 a. 77,
352;
1997 a. 35,
296.
938.21
938.21
Hearing for juvenile in custody. 938.21(1)(a)(a) If a juvenile who has been taken into custody is not released under
s. 938.20, a hearing to determine whether the juvenile shall continue to be held in custody under the criteria of
ss. 938.205 to
938.209 (1) shall be conducted by the judge or juvenile court commissioner within 24 hours after the end of the day that the decision to hold the juvenile was made, excluding Saturdays, Sundays and legal holidays. By the time of the hearing a petition under
s. 938.25 shall be filed, except that no petition need be filed where a juvenile is taken into custody under
s. 938.19 (1) (b) or
(d) 2.,
6. or
7. or where the juvenile is a runaway from another state, in which case a written statement of the reasons for holding a juvenile in custody shall be substituted if the petition is not filed. If no hearing has been held within 24 hours or if no petition or statement has been filed at the time of the hearing, the juvenile shall be released except as provided in
par. (b). A parent not present at the hearing shall be granted a rehearing upon request.
938.21(1)(b)
(b) If no petition has been filed by the time of the hearing, a juvenile may be held in custody with the approval of the judge or juvenile court commissioner for an additional 48 hours from the time of the hearing only if, as a result of the facts brought forth at the hearing, the judge or juvenile court commissioner determines that probable cause exists to believe that the juvenile is an imminent danger to himself or herself or to others, or that probable cause exists to believe that the parent, guardian or legal custodian of the juvenile or other responsible adult is 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 48-hour extension period provided for in this paragraph, the judge or juvenile court commissioner shall order the juvenile's immediate release from custody.
938.21(2)
(2) Proceedings concerning runaway or delinquent juveniles. 938.21(2)(ag)(ag) Proceedings concerning a juvenile who comes within the jurisdiction of the court under
s. 938.12 or
938.13 (7) or
(12) shall be conducted according to this subsection.
938.21(2)(am)
(am) A juvenile held in a nonsecure place of custody may waive in writing the hearing under this section. After any waiver, a hearing shall be granted upon the request of the juvenile or any other interested party. Any juvenile transferred to a secure detention facility shall thereafter have a hearing under this section.
938.21(2)(b)
(b) A copy of the petition shall be given to the juvenile at or prior to the time of the hearing. Prior notice of the hearing shall be given to the juvenile's parent, guardian and legal custodian and to the juvenile in accordance with
s. 938.20 (8).
938.21(2)(c)
(c) Prior to the commencement of the hearing, the juvenile shall be informed by the judge or juvenile court commissioner of the allegations that have been or may be made, the nature and possible consequences of this hearing as compared to possible future hearings, the provisions of
s. 938.18 if applicable, the right to counsel under
s. 938.23 regardless of ability to pay if the juvenile is not yet represented by counsel, the right to remain silent, the fact that the silence may not be adversely considered by the judge or juvenile court commissioner, the right to confront and cross-examine witnesses and the right to present witnesses.
938.21(2)(d)
(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 possible. Whether or not counsel was present, any order to hold the juvenile in custody shall be subject to rehearing for good cause.
938.21(3)
(3) Proceedings concerning juveniles in need of protection or services. 938.21(3)(ag)(ag) 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.
938.21(3)(am)
(am) 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.
938.21(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 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).
938.21(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.
938.21(3)(e)
(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 possible. Any order to hold the juvenile in custody shall be subject to rehearing for good cause, whether or not counsel was present.
938.21(3m)
(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.
938.21(4)
(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:
938.21(4)(a)
(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.
938.21(4m)
(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.
938.21(5)(a)(a) All orders to hold in custody shall be in writing, listing the reasons and criteria forming the basis for the decision.
938.21(5)(b)
(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 safely to his or her home and to involve the parents in planning for the juvenile.
938.21(6)
(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.
938.21(7)
(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.
938.21 History
History: 1995 a. 77,
275;
1997 a. 35,
237,
296.
938.22
938.22
Establishment of secure detention facilities and shelter care facilities. 938.22(1)(a)(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. A private entity may establish a secure detention facility in accordance with
ss. 301.36 and
301.37 and contract with one or more county boards of supervisors under
s. 938.222 for holding juveniles in the private secure detention facility.
938.22(1)(b)
(b) Subject to
sub. (3) (ar), in counties having a population of less than 500,000, the nonjudicial operational policies of a public secure detention facility or shelter care facility shall be determined by the county board of supervisors or, in the case of a public secure detention facility or shelter care facility established by 2 or more counties, by the county boards of supervisors for the 2 or more counties jointly. Those policies shall be executed by the superintendent appointed under
sub. (3) (a).
938.22(1)(c)
(c) In counties having a population of 500,000 or more, the nonjudicial operational policies of a public secure detention facility and the detention section of the children's 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.
938.22(1)(d)
(d) The nonjudicial operational policies of a private secure detention facility shall be established by the private entity operating the secure detention facility. Those policies shall be executed by the superintendent appointed under
sub. (3) (bm).
938.22(2)(a)(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 family services. A private entity that proposes to establish a secure detention facility shall submit plans for the secure detention facility to the department of corrections. The applicable department shall review the submitted plans. A county or a private entity may not implement any such plan unless the applicable department has approved the plan. 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.
938.22(2)(b)
(b) If the department 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.
938.22(2)(c)
(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.
