48.30(6)(a)(a) If a petition is not contested, the court shall set a date for the dispositional hearing which allows reasonable time for the parties to prepare but is no more than 10 days after the plea hearing for a child who is held in secure custody and no more than 30 days after the plea hearing for a child or an expectant mother who is not held in secure custody. If all parties consent the court may proceed immediately with the dispositional hearing.
48.30(6)(b)
(b) If it appears to the court that disposition of the case may include placement of the child outside the child's home, the court shall order the child's parent to provide a statement of income, assets, debts and living expenses to the court or the designated agency under
s. 48.33 (1) at least 5 days before the scheduled date of the dispositional hearing or as otherwise ordered by the court. The clerk of court shall provide, without charge, to any parent ordered to provide a statement of income, assets, debts and living expenses a document setting forth the percentage standard established by the department of workforce development under
s. 49.22 (9) and the manner of its application established by the department of health and family services under
s. 46.247 and listing the factors that a court may consider under
s. 46.10 (14) (c).
48.30(6)(c)
(c) If the court orders the child's parent to provide a statement of income, assets, debts and living expenses to the court or if the court orders the child's parent to provide that statement to the designated agency under
s. 48.33 (1) and that designated agency is not the county department or, in a county having a population of 500,000 or more, the department, the court shall also order the child's parent to provide that statement to the county department or, in a county having a population of 500,000 or more, the department at least 5 days before the scheduled date of the dispositional hearing or as otherwise ordered by the court. The county department or, in a county having a population of 500,000 or more, the department shall provide, without charge, to the parent a form on which to provide that statement, and the parent shall provide that statement on that form. The county department or, in a county having a population of 500,000 or more, the department shall use the information provided in the statement to determine whether the department may claim federal foster care and adoption assistance reimbursement under
42 USC 670 to
679a for the cost of providing care for the child.
48.30(7)
(7) If the petition is contested, the court shall set a date for the fact-finding hearing which allows reasonable time for the parties to prepare but is no more than 20 days after the plea hearing for a child who is held in secure custody and no more than 30 days after the plea hearing for a child or an expectant mother who is not held in secure custody.
48.30(8)
(8) Before accepting an admission or plea of no contest of the alleged facts in a petition, the court shall:
48.30(8)(a)
(a) Address the parties present including the child or expectant mother personally and determine that the plea or admission is made voluntarily with understanding of the nature of the acts alleged in the petition and the potential dispositions.
48.30(8)(b)
(b) Establish whether any promises or threats were made to elicit the plea or admission and alert unrepresented parties to the possibility that a lawyer may discover defenses or mitigating circumstances which would not be apparent to them.
48.30(8)(c)
(c) Make such inquiries as satisfactorily establishes that there is a factual basis for the plea or admission of the parent and child, of the parent and child expectant mother or of the adult expectant mother.
48.30(9)
(9) If a court commissioner conducts the plea hearing and accepts an admission of the alleged facts in a petition brought under
s. 48.13 or
48.133, the judge shall review the admission at the beginning of the dispositional hearing by addressing the parties and making the inquiries set forth in
sub. (8).
48.30(10)
(10) The court may permit any party to participate in hearings under this section by telephone or live audiovisual means.
48.30 History
History: 1977 c. 354,
355,
447;
1979 c. 300,
331,
355,
359;
1985 a. 321,
332;
1987 a. 151;
1987 a. 403 s.
256; Sup. Ct. Order, 158 Wis. 2d xvii (1990);
1993 a. 163,
474,
481;
1995 a. 77,
225,
404,
417;
1997 a. 3,
252,
292;
1999 a. 103.
48.30 Annotation
The time limits under sub. (1) are mandatory; failure to comply results in the court's loss of competency and is properly remedied by dismissal without prejudice. In Interest of Jason B.
176 Wis. 2d 400,
500 N.W.2d 384 (Ct. App. 1993).
48.30 Annotation
A court's failure to inform a juvenile of the right to judicial substitution does not affect its competence and warrants reversal only if the juvenile suffers actual prejudice. State v. Kywanda F.
200 Wis. 2d 26,
546 N.W.2d 440 (1996).
48.305
48.305
Hearing upon the involuntary removal of a child or expectant mother. Notwithstanding other time periods for hearings under this chapter, if a child is removed from the physical custody of the child's parent or guardian under
s. 48.19 (1) (c) or
(cm) or
(d) 5. or
8. without the consent of the parent or guardian or if an adult expectant mother is taken into custody under
s. 48.193 (1) (c) or
(d) 2. without the consent of the expectant mother, the court 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 or from the adult expectant mother who was taken into custody. The plea hearing and fact-finding hearing may be combined. This time period may be extended only with the consent of the requesting parent, guardian or expectant mother.
48.31
48.31
Fact-finding hearing. 48.31(1)
(1) In this section, "fact-finding hearing" means a hearing to determine if the allegations in a petition under
s. 48.13 or
48.133 or a petition to terminate parental rights are proved by clear and convincing evidence.
48.31(2)
(2) The hearing shall be to the court unless the child, the child's parent, guardian or legal custodian, the unborn child by the unborn child's guardian ad litem or the expectant mother of the unborn child exercises the right to a jury trial by demanding a jury trial at any time before or during the plea hearing. If a jury trial is demanded in a proceeding under
s. 48.13 or
48.133, the jury shall consist of 6 persons. If a jury trial is demanded in a proceeding under
s. 48.42, the jury shall consist of 12 persons unless the parties agree to a lesser number.
Chapters 756 and
805 shall govern the selection of jurors. If the hearing involves a child victim or witness, as defined in
s. 950.02, the court may order the taking and allow the use of a videotaped deposition under
s. 967.04 (7) to
(10) and, with the district attorney, shall comply with
s. 971.105. At the conclusion of the hearing, the court or jury shall make a determination of the facts, except that in a case alleging a child or an unborn child to be in need of protection or services under
s. 48.13 or
48.133, the court shall make the determination under
s. 48.13 (intro.) or
48.133 (intro.) relating to whether the child or unborn child is in need of protection or services which can be ordered by the court. If the court finds that the child or unborn child is not within the jurisdiction of the court or, in a case alleging a child or an unborn child to be in need of protection or services under
s. 48.13 or
48.133, that the child or unborn child is not in need of protection or services which can be ordered by the court or if the court or jury finds that the facts alleged in the petition have not been proved, the court shall dismiss the petition with prejudice.
48.31(4)
(4) The court or jury shall make findings of fact and the court shall make conclusions of law relating to the allegations of a petition filed under
s. 48.13,
48.133 or
48.42, except that the court shall make findings of fact relating to whether the child or unborn child is in need of protection or services which can be ordered by the court. In cases alleging a child to be in need of protection or services under
s. 48.13 (11), the court may not find that the child is suffering emotional damage unless a licensed physician specializing in psychiatry or a licensed psychologist appointed by the court to examine the child has testified at the hearing that in his or her opinion the condition exists, and adequate opportunity for the cross-examination of the physician or psychologist has been afforded. The judge may use the written reports if the right to have testimony presented is voluntarily, knowingly and intelligently waived by the guardian ad litem or legal counsel for the child and the parent or guardian. In cases alleging a child to be in need of protection or services under
s. 48.13 (11m) or an unborn child to be in need of protection or services under
s. 48.133, the court may not find that the child or the expectant mother of the unborn child is in need of treatment and education for needs and problems related to the use or abuse of alcohol beverages, controlled substances or controlled substance analogs and its medical, personal, family or social effects unless an assessment for alcohol and other drug abuse that conforms to the criteria specified under
s. 48.547 (4) has been conducted by an approved treatment facility.
48.31(7)(a)(a) At the close of the fact-finding hearing, the court shall set a date for the dispositional hearing which allows a reasonable time for the parties to prepare but is no more than 10 days after the fact-finding hearing for a child in secure custody and no more than 30 days after the fact-finding hearing for a child or expectant mother who is not held in secure custody. If all parties consent, the court may immediately proceed with a dispositional hearing.
48.31(7)(b)
(b) If it appears to the court that disposition of the case may include placement of the child outside the child's home, the court shall order the child's parent to provide a statement of income, assets, debts and living expenses to the court or the designated agency under
s. 48.33 (1) at least 5 days before the scheduled date of the dispositional hearing or as otherwise ordered by the court. The clerk of court shall provide, without charge, to any parent ordered to provide a statement of income, assets, debts and living expenses a document setting forth the percentage standard established by the department of workforce development under
s. 49.22 (9) and the manner of its application established by the department of health and family services under
s. 46.247 and listing the factors that a court may consider under
s. 46.10 (14) (c).
48.31(7)(c)
(c) If the court orders the child's parent to provide a statement of income, assets, debts and living expenses to the court or if the court orders the child's parent to provide that statement to the designated agency under
s. 48.33 (1) and that designated agency is not the county department or, in a county having a population of 500,000 or more, the department, the court shall also order the child's parent to provide that statement to the county department or, in a county having a population of 500,000 or more, the department at least 5 days before the scheduled date of the dispositional hearing or as otherwise ordered by the court. The county department or, in a county having a population of 500,000 or more, the department shall provide, without charge, to the parent a form on which to provide that statement, and the parent shall provide that statement on that form. The county department or, in a county having a population of 500,000 or more, the department shall use the information provided in the statement to determine whether the department may claim federal foster care and adoption assistance reimbursement under
42 USC 670 to
679a for the cost of providing care for the child.
48.31 History
History: 1977 c. 354,
447;
1979 c. 32 s.
92 (13);
1979 c. 300,
331,
355,
357,
359;
1983 a. 197;
1985 a. 262 s.
8;
1987 a. 339;
1993 a. 481;
1995 a. 77,
275,
404,
448;
1997 a. 3,
35,
292;
1999 a. 103.
48.31 Annotation
As matter of judicial administration, the supreme court mandates procedures for withdrawal of a juvenile's jury demand. In Interest of N.E.
122 Wis. 2d 198,
361 N.W.2d 693 (1985).
48.31 Annotation
A fact-finding hearing under sub. (1) was not closed until the court ruled on a motion to set aside the verdict. In Interest of C.M.L.
157 Wis. 2d 152,
458 N.W.2d 573 (Ct. App. 1990).
48.315
48.315
Delays, continuances and extensions. 48.315(1)
(1) The following time periods shall be excluded in computing time requirements within this chapter:
48.315(1)(a)
(a) Any period of delay resulting from other legal actions concerning the child or the unborn child and the unborn child's expectant mother, including an examination under
s. 48.295 or a hearing related to the mental condition of the child, the child's parent, guardian or legal custodian or the expectant mother, prehearing motions, waiver motions and hearings on other matters.
48.315(1)(b)
(b) Any period of delay resulting from a continuance granted at the request of or with the consent of the child and his or her counsel or of the unborn child by the unborn child's guardian ad litem.
48.315(1)(c)
(c) Any period of delay caused by the disqualification of a judge.
48.315(1)(d)
(d) Any period of delay resulting from a continuance granted at the request of the representative of the public under
s. 48.09 if the continuance is granted because of the unavailability of evidence material to the case when he or she has exercised due diligence to obtain the evidence and there are reasonable grounds to believe that the evidence will be available at the later date, or to allow him or her additional time to prepare the case and additional time is justified because of the exceptional circumstances of the case.
48.315(1)(e)
(e) Any period of delay resulting from the imposition of a consent decree.
48.315(1)(f)
(f) Any period of delay resulting from the absence or unavailability of the child or expectant mother.
48.315(1)(fm)
(fm) Any period of delay resulting from the inability of the court to provide the child with notice of an extension hearing under
s. 48.365 due to the child having run away or otherwise having made himself or herself unavailable to receive that notice.
48.315(1)(g)
(g) A reasonable period of delay when the child is joined in a hearing with another child as to whom the time for a hearing has not expired under this section if there is good cause for not hearing the cases separately.
48.315(2)
(2) A continuance shall be granted by the court only upon a showing of good cause in open court or during a telephone conference under
s. 807.13 on the record and only for so long as is necessary, taking into account the request or consent of the district attorney or the parties and the interest of the public in the prompt disposition of cases.
48.315 History
History: 1977 c. 354; Sup. Ct. Order, 141 Wis. 2d xiii (1987);
1987 a. 403;
1991 a. 263;
1993 a. 98;
1997 a. 292.
48.315 Annotation
A trial court's sua sponte adjournment of a fact-finding hearing beyond the 30-day limit due to a congested calendar constituted good cause under sub. (2) when the adjournment order was entered within the 30-day period. In Matter of J.R.
152 Wis. 2d 598,
449 N.W.2d 52 (Ct. App. 1989).
48.315 Annotation
A court loses competence to exercise jurisdiction to extend an order when the hearing is not held within the 30-day period under s. 48.365 (6); the 30-day period may not be expanded by a continuance under s. 48.315 and the court's loss of competence cannot be waived. In Interest of B.J.N.
162 Wis. 2d 635,
469 N.W.2d 845 (1991).
48.315 Annotation
The period under sub. (1) (c) includes the time required to assign the new judge, send any required notices, notify the parties and arrange for time on the court's calendar; applicable time limits for plea hearings apply after the assignment of the new judge. In Interest of Joshua M.W.
179 Wis. 2d 335,
507 N.W.2d 141 (Ct. App. 1993).
48.315 Annotation
Under sub. (2), "on the record" does not require reporting by a court reporter. A clerk's minutes satisfy the requirement. Waukesha County v. Darlene R.
201 Wis. 2d 633,
549 N.W.2d 489 (Ct. App. 1996).
48.315 Annotation
The benefits of a pretrial are universally recognized by bench and bar such that a court need not specify the factors supporting "good cause" for a continuance of the time limits under sub. (2). Waukesha County v. Darlene R.
201 Wis. 2d 633,
549 N.W.2d 489 (Ct. App. 1996).
48.315 Annotation
Under sub. (1) (a), the time limits are tolled for an examination of a parent under s. 48.295. Waukesha County v. Darlene R.
201 Wis. 2d 633,
549 N.W.2d 489 (Ct. App. 1996).
48.315 Annotation
The general time requirements of sub. (2) control all extensions of time under ch. 48. There are no provisions for waiver of time limits, and the only provisions for delays, continuances, and extensions are under this section. State v. April O. 2000 WI App 70,
233 Wis. 2d 663,
607 N.W.2d 927.
48.317
48.317
Jeopardy. Jeopardy attaches:
48.317(1)
(1) In a trial to the court, when a witness is sworn.
48.317(2)
(2) In a jury trial, when the jury selection is completed and the jury sworn.
48.317 History
History: 1977 c. 354.
48.32
48.32
Consent decree. 48.32(1)(1) At any time after the filing of a petition for a proceeding relating to
s. 48.13 or
48.133 and before the entry of judgment, the judge or juvenile court commissioner may suspend the proceedings and place the child or expectant mother under supervision in the home or present placement of the child or expectant mother. The court may establish terms and conditions applicable to the child and the child's parent, guardian or legal custodian, to the child expectant mother and her parent, guardian or legal custodian or to the adult expectant mother, including the condition specified in
sub. (1b). The order under this section shall be known as a consent decree and must be agreed to by the child if 12 years of age or older, the parent, guardian or legal custodian, and the person filing the petition under
s. 48.25; by the child expectant mother, her parent, guardian or legal custodian, the unborn child by the unborn child's guardian ad litem and the person filing the petition under
s. 48.25; or by the adult expectant mother, the unborn child by the unborn child's guardian ad litem and the person filing the petition under
s. 48.25. The consent decree shall be reduced to writing and given to the parties.
48.32(1b)
(1b) The judge or juvenile court commissioner may, as a condition under
sub. (1), request a court-appointed special advocate program to designate a court-appointed special advocate for the child to perform the activities specified in
s. 48.236 (3) that are authorized in the memorandum of understanding under
s. 48.07 (5) (a). A court-appointed special advocate designated under this subsection shall have the authority specified in
s. 48.236 (4) that is authorized in the memorandum of understanding under
s. 48.07 (5) (a).
48.32(2)(a)(a) A consent decree shall remain in effect up to 6 months unless the child, parent, guardian, legal custodian or expectant mother is discharged sooner by the judge or juvenile court commissioner.
48.32(2)(c)
(c) Upon the motion of the court or the application of the child, parent, guardian, legal custodian, expectant mother, unborn child by the unborn child's guardian ad litem, intake worker or any agency supervising the child or expectant mother under the consent decree, the court may, after giving notice to the parties to the consent decree, their counsel or guardian ad litem and the court-appointed special advocate for the child, if any, extend the decree for up to an additional 6 months in the absence of objection to extension by the parties to the initial consent decree. If the child, parent, guardian, legal custodian, expectant mother or unborn child by the unborn child's guardian ad litem objects to the extension, the judge shall schedule a hearing and make a determination on the issue of extension. An extension under this paragraph of a consent decree relating to an unborn child who is alleged to be in need of protection or services may be granted after the child is born.
48.32(3)
(3) If, prior to discharge by the court, or the expiration of the consent decree, the court finds that the child, parent, guardian, legal custodian or expectant mother has failed to fulfill the express terms and conditions of the consent decree or that the child or expectant mother objects to the continuation of the consent decree, the hearing under which the child or expectant mother was placed on supervision may be continued to conclusion as if the consent decree had never been entered.
48.32(5)
(5) A court which, under this section, elicits or examines information or material about a child or an expectant mother which would be inadmissible in a hearing on the allegations of the petition may not, over objections of one of the parties, participate in any subsequent proceedings if any of the following applies:
48.32(5)(a)
(a) The court refuses to enter into a consent decree and the allegations in the petition remain to be decided in a hearing at which one of the parties denies the allegations forming the basis for a child or unborn child in need of protection or services petition.
48.32(5)(b)
(b) A consent decree is granted but the petition under
s. 48.13 or
48.133 is subsequently reinstated.
48.32(6)
(6) The judge or juvenile court commissioner shall inform the child and the child's parent, guardian or legal custodian, or the adult expectant mother, in writing, of the right of the child or expectant mother to object to the continuation of the consent decree under
sub. (3) and the fact that the hearing under which the child or expectant mother was placed on supervision may be continued to conclusion as if the consent decree had never been entered.
48.32 Annotation
A finding that a consent decree has been violated must be made before the consent decree expires. Filing a motion to vacate the consent decree prior to its expiration does not extend the term of the decree and does not prevent the automatic dismissal of the original petition upon the expiration of the decree. Interest of Leif E.N. & Nora M.S.
189 Wis. 2d 480,
526 N.W.2d 275 (Ct. App. 1994).
DISPOSITION
48.33
48.33
Court reports. 48.33(1)(1)
Report required. Before the disposition of a child or unborn child adjudged to be in need of protection or services the court shall designate an agency, as defined in
s. 48.38 (1) (a), to submit a report which shall contain all of the following:
48.33(1)(a)
(a) The social history of the child or of the expectant mother of the unborn child.
48.33(1)(b)
(b) A recommended plan of rehabilitation or treatment and care for the child or expectant mother which is based on the investigation conducted by the agency and any report resulting from an examination or assessment under
s. 48.295, which employs the least restrictive means available to accomplish the objectives of the plan, and, in cases of child abuse or neglect or unborn child abuse, which also includes an assessment of risks to the physical safety and physical health of the child or unborn child and a description of a plan for controlling the risks.
48.33(1)(c)
(c) A description of the specific services or continuum of services which the agency is recommending that the court order for the child or family or for the expectant mother of the unborn child, the persons or agencies that would be primarily responsible for providing those services, the identity of the person or agency that would provide case management or coordination of services, if any, and, in the case of a child adjudged to be in need of protection or services, whether or not the child should receive an integrated service plan.
48.33(1)(d)
(d) A statement of the objectives of the plan, including any behavior changes desired of the child or expectant mother and the academic, social and vocational skills needed by the child or the expectant mother.
48.33(1)(e)
(e) A plan for the provision of educational services to the child, prepared after consultation with the staff of the school in which the child is enrolled or the last school in which the child was enrolled.
48.33(1)(f)
(f) If the agency is recommending that the court order the child's parent, guardian or legal custodian or the expectant mother to participate in mental health treatment, anger management, individual or family counseling or parent or prenatal development training and education, a statement as to the availability of those services and as to the availability of funding for those services.
48.33(2)
(2) Home placement reports. A report recommending that the child remain in his or her home or that the expectant mother remain in her home may be presented orally at the dispositional hearing if all parties consent. A report that is presented orally shall be transcribed and made a part of the court record.
48.33(4)
(4) Other out-of-home placements. A report recommending placement of an adult expectant mother outside of her home shall be in writing. A report recommending placement of a child in a foster home, treatment foster home, group home or child caring institution shall be in writing and shall include all of the following:
48.33(4)(b)
(b) A recommendation for an amount of child support to be paid by either or both of the child's parents or for referral to the county child support agency under
s. 59.53 (5) for the establishment of child support.
48.33(4m)
(4m) Support recommendations; information to parents. In making a recommendation for an amount of child support under
sub. (4), the agency shall consider the factors that the court considers under
s. 46.10 (14) (c) for deviation from the percentage standard. Prior to the dispositional hearing under
s. 48.335, the agency shall provide the child's parent with all of the following:
48.33(4m)(a)
(a) A copy of its recommendation for child support.
48.33(4m)(b)
(b) A written explanation of how the parent may request that the court modify the amount of child support under
s. 46.10 (14) (c).
48.33(5)
(5) Identity of foster parent or treatment foster parent; confidentiality. If the report recommends placement in a foster home or a treatment foster home, and the name of the foster parent or treatment foster parent is not available at the time the report is filed, the agency shall provide the court and the child's parent or guardian with the name and address of the foster parent or treatment foster parent within 21 days after the dispositional order is entered, except that the court may order the information withheld from the child's parent or guardian if the court finds that disclosure would result in imminent danger to the child or to the foster parent or treatment foster parent. After notifying the child's parent or guardian, the court shall hold a hearing prior to ordering the information withheld.
48.335
48.335
Dispositional hearings. 48.335(1)
(1) The court shall conduct a hearing to determine the disposition of a case in which a child is adjudged to be in need of protection or services under
s. 48.13 or an unborn child is adjudged to be in need of protection or services under
s. 48.133.
48.335(3)
(3) At hearings under this section, any party may present evidence relevant to the issue of disposition, including expert testimony, and may make alternative dispositional recommendations.
48.335(3r)
(3r) At hearings under this section, a parent of the child may present evidence relevant to the amount of child support to be paid by either or both parents.
48.335(4)
(4) At hearings under this section,
s. 48.357,
48.363 or
48.365, on the request of any party, unless good cause to the contrary is shown, the court may admit testimony on the record by telephone or live audiovisual means, if available, under
s. 807.13 (2). The request and the showing of good cause may be made by telephone.
