938.355(5)
(5) Effect of court order. Any party, person or agency who provides services for the juvenile under this section shall be bound by the court order.
938.355(6)(a)(a) If a juvenile who has been adjudged delinquent or to have violated a civil law or ordinance, other than an ordinance enacted under
s. 118.163 (1m) or
(2), violates a condition specified in
sub. (2) (b) 7., the court may impose on the juvenile any of the sanctions specified in
par. (d) if, at the dispositional hearing under
s. 938.335, the court explained the conditions to the juvenile and informed the juvenile of those possible sanctions or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and possible sanctions and that he or she understands those conditions and possible sanctions. If a juvenile who has been found to be in need of protection or services under
s. 938.13 (4),
(6m),
(7),
(12) or
(14) violates a condition specified in
sub. (2) (b) 7., the court may impose on the juvenile any of the sanctions specified in
par. (d), other than placement in a secure detention facility or juvenile portion of a county jail, if, at the dispositional hearing under
s. 938.335, the court explained the conditions to the juvenile and informed the juvenile of those possible sanctions or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and possible sanctions and that he or she understands those conditions and possible sanctions. The court may not order the sanction of placement in a place of nonsecure custody specified in
par. (d) 1. unless the court finds that the agency primarily responsible for providing services for the juvenile has made reasonable efforts to prevent the removal of the juvenile from his or her home and that continued placement of the juvenile in his or her home is contrary to the welfare of the juvenile.
938.355(6)(an)1.1. If a juvenile who has violated a municipal ordinance, other than an ordinance enacted under
s. 118.163 (1m) or
(2), violates a condition of a dispositional order imposed by the municipal court, the municipal court may petition the court assigned to exercise jurisdiction under this chapter and
ch. 48 to impose on the juvenile the sanction specified in
par. (d) 1. or the sanction specified in
par. (d) 3., with monitoring by an electronic monitoring system, if, at the time of the judgment the municipal court explained the conditions to the juvenile and informed the juvenile of those possible sanctions for a violation or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and possible sanctions and that he or she understands those conditions and possible sanctions. The petition shall contain a statement of whether the juvenile may be subject to the federal Indian child welfare act,
25 USC 1911 to
1963.
938.355(6)(an)2.
2. If the court assigned to exercise jurisdiction under this chapter and
ch. 48 imposes the sanction specified in
par. (d) 1. or home detention with monitoring by an electronic monitoring system as specified in
par. (d) 3., on a petition described in
subd. 1., that court shall order the municipality of the municipal court that filed the petition to pay to the county the cost of providing the sanction imposed under
par. (d) 1. or
3.
938.355(6)(b)
(b) A motion for imposition of a sanction may be brought by the person or agency primarily responsible for the provision of dispositional services, the district attorney or corporation counsel or the court that entered the dispositional order. If the court initiates the motion, that court is disqualified from holding a hearing on the motion. Notice of the motion shall be given to the juvenile, guardian ad litem, counsel, parent, guardian, legal custodian and all parties present at the original dispositional hearing. The motion shall contain a statement of whether the juvenile may be subject to the federal Indian child welfare act,
25 USC 1911 to
1963.
938.355(6)(c)
(c) Before imposing any sanction, the court shall hold a hearing, at which the juvenile is entitled to be represented by legal counsel and to present evidence.
938.355(6)(d)
(d) If the court finds by a preponderance of the evidence that the juvenile has violated a condition of his or her dispositional order, the court may order any of the following sanctions as a consequence for any incident in which the juvenile has violated one or more conditions of his or her dispositional order:
938.355(6)(d)1.
1. Placement of the juvenile in a secure detention facility or juvenile portion of a county jail that meets the standards promulgated by the department by rule or in a place of nonsecure custody, for not more than 10 days and the provision of educational services consistent with his or her current course of study during the period of placement. The juvenile shall be given credit against the period of detention or nonsecure custody imposed under this subdivision for all time spent in secure detention in connection with the course of conduct for which the detention or nonsecure custody was imposed.
938.355(6)(d)2.
2. Suspension of or limitation on the use of the juvenile's operating privilege, as defined under
s. 340.01 (40), or of any approval issued under
ch. 29 for a period of not more than 3 years. If the juvenile does not hold a valid operator's license under
ch. 343, other than an instruction permit under
s. 343.07 or a restricted license under
s. 343.08, on the date of the order issued under this subdivision, the court may order the suspension to begin on the date that the operator's license would otherwise be reinstated or issued after the juvenile applies and qualifies for issuance or 2 years after the date of the order issued under this subdivision, whichever occurs first. If the court suspends the juvenile's operating privileges or an approval issued under
ch. 29, the court shall immediately take possession of the suspended license or approval and forward it to the department that issued it, together with the notice of suspension.
938.355(6)(d)3.
3. Detention in the juvenile's home or current residence for a period of not more than 30 days under rules of supervision specified in the order. An order under this subdivision may require the juvenile to be monitored by an electronic monitoring system.
938.355(6)(d)4.
4. Not more than 25 hours of uncompensated participation in a supervised work program or other community service work under
s. 938.34 (5g).
938.355(6)(e)
(e) This subsection does not preclude a person who is aggrieved by a juvenile's violation of a condition specified in
sub. (2) (b) 7. from proceeding against the juvenile for contempt of court under
ch. 785.
938.355(6d)(a)1.1. Notwithstanding
ss. 938.19 to
938.21, but subject to any general written policies adopted by the court under
s. 938.06 (1) or
(2) and to any policies adopted by the county board relating to the taking into custody and placement of a juvenile under this subdivision, if a juvenile who has been adjudged delinquent violates a condition specified in
sub. (2) (b) 7., the juvenile's caseworker or any other person authorized to provide or providing intake or dispositional services for the court under
s. 938.067 or
938.069 may, without a hearing, take the juvenile into custody and place the juvenile in a secure detention facility or juvenile portion of a county jail that meets the standards promulgated by the department by rule or in a place of nonsecure custody designated by that person for not more than 72 hours while the alleged violation and the appropriateness of a sanction under
sub. (6) are being investigated, if at the dispositional hearing the court explained those conditions to the juvenile and informed the juvenile of the possibility of that placement or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible placement and that he or she understands those conditions and that possible placement.
938.355(6d)(a)2.
2. Notwithstanding
ss. 938.19 to
938.21, but subject to any general written policies adopted by the court under
s. 938.06 (1) or
(2) and to any policies adopted by the county board relating to the taking into custody and placement of a juvenile under this subdivision, if a juvenile who has been adjudged delinquent violates a condition specified in
sub. (2) (b) 7., the juvenile's caseworker or any other person authorized to provide or providing intake or dispositional services for the court under
s. 938.067 or
938.069 may, without a hearing, take the juvenile into custody and place the juvenile in a secure detention facility or juvenile portion of a county jail that meets the standards promulgated by the department by rule or in a place of nonsecure custody designated by that person for not more than 72 hours as a consequence of that violation, if at the dispositional hearing the court explained those conditions to the juvenile and informed the juvenile of the possibility of that placement or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible placement and that he or she understands those conditions and that possible placement. A person who takes a juvenile into custody under this subdivision shall permit the juvenile to make a written or oral statement concerning the possible placement of the juvenile and the course of conduct for which the juvenile was taken into custody. A person designated by the court or county department who is employed in a supervisory position by a person authorized to provide or providing intake or dispositional services under
s. 938.067 or
938.069 shall review that statement and shall either approve the placement or order the juvenile to be released from custody.
938.355(6d)(a)3.
3. A juvenile may be taken into and held in custody under both
subds. 1. and
2. in connection with the same course of conduct, except that no juvenile may be held in custody for more than a total of 72 hours under
subds. 1. and
2. in connection with the same course of conduct unless the juvenile receives a hearing under
par. (d).
938.355(6d)(b)
(b)
Violation of condition of county aftercare supervision. 938.355(6d)(b)1.1. Notwithstanding
ss. 938.19 to
938.21, but subject to any general written policies adopted by the court under
s. 938.06 (1) or
(2), to any policies adopted by the county department relating to aftercare supervision administered by the county department and to any policies adopted by the county board relating to the taking into custody and placement of a juvenile under this subdivision, if a juvenile who is on aftercare supervision administered by the county department violates a condition of that supervision, the juvenile's caseworker or any other person authorized to provide or providing intake or dispositional services for the court under
s. 938.067 or
938.069 may, without a hearing, take the juvenile into custody and place the juvenile in a secure detention facility or juvenile portion of a county jail that meets the standards promulgated by the department by rule or in a place of nonsecure custody designated by that person for not more than 72 hours while the alleged violation and the appropriateness of revoking the juvenile's aftercare status are being investigated, if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible placement and that he or she understands those conditions and that possible placement.
938.355(6d)(b)2.
2. Notwithstanding
ss. 938.19 to
938.21, but subject to any general written policies adopted by the court under
s. 938.06 (1) or
(2), to any policies adopted by the county department relating to aftercare supervision administered by the county department and to any policies adopted by the county board relating to the taking into custody and placement of a juvenile under this subdivision, if a juvenile who is on aftercare supervision administered by the county department violates a condition of that supervision, the juvenile's caseworker or any other person authorized to provide or providing intake or dispositional services for the court under
s. 938.067 or
938.069 may, without a hearing, take the juvenile into custody and place the juvenile in a secure detention facility or juvenile portion of a county jail that meets the standards promulgated by the department by rule or in a place of nonsecure custody designated by that person for not more than 72 hours as a consequence of that violation, if at the dispositional hearing the court explained those conditions to the juvenile and informed the juvenile of the possibility of that placement or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible placement and that he or she understands those conditions and that possible placement. A person who takes a juvenile into custody under this subdivision shall permit the juvenile to make a written or oral statement concerning the possible placement of the juvenile and the course of conduct for which the juvenile was taken into custody. A person designated by the court or the county department who is employed in a supervisory position by a person authorized to provide or providing intake or dispositional services under
s. 938.067 or
938.069 shall review that statement and shall either approve the placement of the juvenile or order the juvenile to be released from custody.
938.355(6d)(b)3.
3. A juvenile may be taken into and held in custody under both
subds. 1. and
2. in connection with the same course of conduct, except that no juvenile may be held in custody for more than a total of 72 hours under
subds. 1. and
2. in connection with the same course of conduct unless the juvenile receives a hearing under
par. (d).
938.355(6d)(c)1.1. Notwithstanding
ss. 938.19 to
938.21, but subject to any general written policies adopted by the court under
s. 938.06 (1) or
(2) and to any policies adopted by the county board relating to the taking into custody and placement of a juvenile under this subdivision, if a juvenile who has been found to be in need of protection or services under
s. 938.13 violates a condition specified in
sub. (2) (b) 7., the juvenile's caseworker or any other person authorized to provide or providing intake or dispositional services for the court under
s. 938.067 or
938.069 may, without a hearing, take the juvenile into custody and place the juvenile in a place of nonsecure custody designated by that person for not more than 72 hours while the alleged violation and the appropriateness of a sanction under
sub. (6) or
(6m) are being investigated, if at the dispositional hearing the court explained those conditions to the juvenile and informed the juvenile of the possibility of that placement or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible placement and that he or she understands those conditions and that possible placement.
938.355(6d)(c)2.
2. Notwithstanding
ss. 938.19 to
938.21, but subject to any general written policies adopted by the court under
s. 938.06 (1) or
(2) and to any policies adopted by the county board relating to the taking into custody and placement of a juvenile under this subdivision, if a juvenile who has been found to be in need of protection or services under
s. 938.13 violates a condition specified in
sub. (2) (b) 7., the juvenile's caseworker or any other person authorized to provide or providing intake or dispositional services for the court under
s. 938.067 or
938.069 may, without a hearing, take the juvenile into custody and place the juvenile in a place of nonsecure custody designated by that person for not more than 72 hours as a consequence of that violation, if at the dispositional hearing the court explained those conditions to the juvenile and informed the juvenile of the possibility of that placement or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible placement and that he or she understands those conditions and that possible placement. A person who takes a juvenile into custody under this subdivision shall permit the juvenile to make a written or oral statement concerning the possible placement of the juvenile and the course of conduct for which the juvenile was taken into custody. A person designated by the court or the county department who is employed in a supervisory position by a person authorized to provide or providing intake or dispositional services under
s. 938.067 or
938.069 shall review that statement and shall either approve the placement or order the juvenile to be released from custody.
938.355(6d)(c)3.
3. A juvenile may be taken into and held in custody under both
subds. 1. and
2. in connection with the same course of conduct, except that no juvenile may be held in custody for more than a total of 72 hours under
subds. 1. and
2. in connection with the same course of conduct unless the juvenile receives a hearing under
par. (d).
938.355(6d)(d)
(d)
Hearing; when required. If a juvenile is held under
par. (a),
(b) or
(c) in a secure detention facility, juvenile portion of a county jail or place of nonsecure custody for longer than 72 hours, the juvenile is entitled to a hearing under
sub. (6) (c) or
s. 938.21. The hearing shall be conducted in the manner provided in
sub. (6) or
s. 938.21, except that for a hearing under
s. 938.21 the hearing shall be conducted within 72 hours, rather than 24 hours, after the time that the decision to hold the juvenile was made and a written statement of the reasons for continuing to hold the juvenile in custody may be filed rather than a petition under
s. 938.25.
938.355(6d)(e)
(e)
County board authorization required. The use of placement in a secure detention facility or in a juvenile portion of a county jail as a place of short-term detention under
par. (a) 1. or
2. or
(b) 1. or
2. is subject to the adoption of a resolution by the county board of supervisors under
s. 938.06 (5) authorizing the use of those placements as places of short-term detention under
par. (a) 1. or
2. or
(b) 1. or
2.
938.355(6g)
(6g) Contempt for continued violation of order. 938.355(6g)(a)(a) If a juvenile upon whom the court has imposed a sanction under
sub. (6) (a) or
(6m) commits a 2nd or subsequent violation of a condition specified in
sub. (2) (b) 7., the district attorney may file a petition under
s. 938.12 charging the juvenile with contempt of court, as defined in
s. 785.01 (1), and reciting the disposition under
s. 938.34 sought to be imposed. The district attorney may bring the motion on his or her own initiative or on the request of the court that imposed the condition specified in
sub. (2) (b) 7. or that imposed the sanction under
sub. (6) (a) or
(6m). If the district attorney brings the motion on the request of the court that imposed the condition specified in
sub. (2) (b) 7. or that imposed the sanction under
sub. (6) (a) or
(6m), that court is disqualified from holding any hearing on the contempt petition.
938.355(6g)(b)
(b) The court may find a juvenile in contempt of court, as defined in
s. 785.01 (1), and order a disposition under
s. 938.34 only if the court makes all of the following findings:
938.355(6g)(b)1.
1. That the juvenile has previously been sanctioned under
sub. (6) (a) or
(6m) for violating a condition specified in
sub. (2) (b) 7. and, subsequent to that sanction, has committed another violation of a condition specified in
sub. (2) (b) 7.
938.355(6g)(b)2.
2. That at the sanction hearing the court explained the conditions to the juvenile and informed the juvenile of a possible finding of contempt for a violation and the possible consequences of that contempt.
938.355(6g)(b)4.
4. That the court has considered less restrictive alternatives and found them to be ineffective.
938.355(6g)(c)
(c) This subsection does not preclude a person who is aggrieved by a juvenile's violation of a condition specified in
sub. (2) (b) 7. from proceeding against the juvenile for contempt of court under
ch. 785.
938.355(6m)
(6m) Sanctions for violation of order: truancy or habitual truancy. 938.355(6m)(a)(a) If the court finds by a preponderance of the evidence that a juvenile who has been found to have violated a municipal ordinance enacted under
s. 118.163 (2) or who has been found to be in need of protection or services under
s. 938.13 (6) has violated a condition specified under
sub. (2) (b) 7., the court may order as a sanction any combination of the sanctions specified in
subds.1g. to
3. and the dispositions specified in
s. 938.342 (1g) (d) to
(j) and
(1m), regardless of whether the disposition was imposed in the order violated by the juvenile, if at the dispositional hearing under
s. 938.335 the court explained those conditions to the juvenile and informed the juvenile of the possible sanctions under this paragraph for a violation or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and possible sanctions and that he or she understands those conditions and possible sanctions. The court may order as a sanction under this paragraph any of the following:
938.355(6m)(a)1g.
1g. Placement of the juvenile in a secure detention facility or juvenile portion of a county jail that meets the standards promulgated by the department by rule or in a place of nonsecure custody, for not more than 10 days and the provision of educational services consistent with his or her current course of study during the period of placement. The juvenile shall be given credit against the period of detention or nonsecure custody imposed under this subdivision for all time spent in secure detention in connection with the course of conduct for which the detention or nonsecure custody was imposed. The use of placement in a secure detention facility or in a juvenile portion of a county jail as a sanction under this subdivision is subject to the adoption of a resolution by the county board of supervisors under
s. 938.06 (5) authorizing the use of those placements as a sanction.
938.355(6m)(a)1m.
1m. Suspension or limitation on the use of the juvenile's operating privilege, as defined under
s. 340.01 (40), or of any approval issued under
ch. 29 for not more than one year. If the juvenile does not hold a valid operator's license under
ch. 343, other than an instruction permit under
s. 343.07 or a restricted license under
s. 343.08, on the date of the order issued under this subdivision, the court may order the suspension or limitation to begin on the date that the operator's license would otherwise be reinstated or issued after the juvenile applies and qualifies for issuance or 2 years after the date of the order issued under this subdivision, whichever occurs first. If the court suspends a juvenile's operating privilege or an approval issued under
ch. 29, the court shall immediately take possession of the suspended license or approval and forward it to the department that issued the license or approval with a notice stating the reason for and the duration of the suspension.
938.355(6m)(a)2.
2. Counseling or participation for not more than 25 hours in a supervised work program or other community service work under
s. 938.34 (5g).
938.355(6m)(a)3.
3. Detention in the juvenile's home or current residence for a period of not more than 30 days except during hours in which the juvenile is attending religious worship or a school program, including travel time required to get to and from the place of worship or school program. The order may permit a juvenile to leave his or her home or current residence if he or she is accompanied by a parent or guardian.
938.355(6m)(ag)
(ag) If the court finds by a preponderance of the evidence that a juvenile who has been found to have violated a municipal ordinance enacted under
s. 118.163 (1m) has violated a condition specified under
sub. (2) (b) 7., the court may order as a sanction any combination of the operating privilege suspension specified in
par. (a) and the dispositions specified in
s. 938.342 (1g) (b) to
(j) and
(1m), regardless of whether the disposition was imposed in the order violated by the juvenile, if at the dispositional hearing under
s. 938.335 the court explained those conditions to the juvenile and informed the juvenile of the possible sanctions under this paragraph for a violation or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and possible sanctions and that he or she understands those conditions and possible sanctions.
938.355(6m)(am)1.1. If a juvenile who has violated a municipal ordinance enacted under
s. 118.163 (2) violates a condition of a dispositional order imposed by the municipal court, the municipal court may petition the court assigned to exercise jurisdiction under this chapter and
ch. 48 to impose on the juvenile the sanction specified in
par. (a) 1g. if, at the time of the judgment the municipal court explained the conditions to the juvenile and informed the juvenile of that possible sanction for a violation or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible sanction and that he or she understands those conditions and that possible sanction. The petition shall contain a statement of whether the juvenile may be subject to the federal Indian child welfare act,
25 USC 1911 to
1963.
938.355(6m)(am)2.
2. If the court assigned to exercise jurisdiction under this chapter and
ch. 48 imposes the sanction specified in
par. (a) 1g. on a petition described in
subd. 1., that court shall order the municipality of the municipal court that filed the petition to pay to the county the cost of providing the sanction imposed under
par. (a) 1g.
938.355(6m)(b)
(b) A motion for the imposition of a sanction under
par. (a) or
(ag) may be brought by the person or agency primarily responsible for providing dispositional services to the juvenile, the district attorney, the corporation counsel or the court that entered the dispositional order. If the court initiates the motion, that court is disqualified from holding a hearing on the motion. Notice of the motion shall be given to the juvenile, guardian ad litem, counsel, parent, guardian, legal custodian and all parties present at the original dispositional hearing.
938.355(6m)(c)
(c) Before imposing a sanction under
par. (a) or
(ag), the court shall hold a hearing at which the juvenile is entitled to be represented by legal counsel and to present evidence. The hearing shall be held within 15 days after the filing of a motion under
par. (b).
938.355(7)
(7) Orders applicable to parents, guardians, legal custodians and other adults. In addition to any dispositional order entered under
s. 938.34 or
938.345, the court may enter an order applicable to a juvenile's parent, guardian or legal custodian or to another adult, as provided under
s. 938.45.
938.355 Annotation
Mandatory time limits affect the trial court's competency to act, but an objection must be raised before the trial court to avoid waiver. In Interest of L.M.C.
146 Wis. 2d 377,
430 N.W.2d 352 (Ct. App. 1988).
938.355 Annotation
Section 118.16 (5) does not limit a court's discretion in setting school attendance requirements in a dispositional order for a delinquent juvenile and in imposing sanctions where the order is violated. By its terms s. 118.16 (5) is limited to children who are in need of protection and services as a result of being habitual truants. State v. Jason R.N.
201 Wis. 2d 646,
549 N.W.2d 752 (Ct. App. 1996).
938.355 Annotation
There is no requirement that the court apply the sanctions in sub. (6) (d) in graduated order of severity. Sanctions are solely within the discretion of the court. State v. Jason R.N.
201 Wis. 2d 646,
549 N.W.2d 752 (Ct. App. 1996).
938.355 Annotation
Sanctions for a violation of a dispositional order by a delinquent were found to not be punitive for purposes of double jeopardy. Craig S. G. v. State,
209 Wis. 2d 65,
561 N.W.2d 807 (Ct. App. 1997).
938.355 Note
NOTE: The above annotated cases cite to s. 48.355, the predecessor statute to s. 938.355.
938.355 Annotation
All juveniles who violate a condition of a dispositional order are subject to sanctions under sub. (6) (d), but the restrictions that may be imposed on habitual truants are limited by sub. (6m). Under sub. (6g) no juvenile can be charged with contempt of court for the first violation of a dispositional order. State v. Aaron D.
214 Wis. 2d 56,
571 N.W.2d 399 (Ct. App. 1997).
938.355 Annotation
Expungement under sub. (4m) only applies to offenses committed after the effective date of ch. 938, July 1, 1996. State v. Jason J.C.
216 Wis. 2d 12,
573 N.W.2d 564 (Ct. App. 1997).
938.356
938.356
Duty of court to warn. 938.356(1)
(1) Whenever the court orders a juvenile to be placed outside his or her home or denies a parent visitation because the juvenile has been adjudged to be in need of protection or services under
s. 938.345,
938.357,
938.363 or
938.365, the court shall orally inform the parent or parents who appear in court of any grounds for termination of parental rights under
s. 48.415 which may be applicable and of the conditions necessary for the juvenile to be returned to the home or for the parent to be granted visitation.
938.356(2)
(2) In addition to the notice required under
sub. (1), any written order which places a juvenile outside the home or denies visitation under
sub. (1) shall notify the parent or parents of the information specified under
sub. (1).
938.356 History
History: 1995 a. 77,
275.
938.357
938.357
Change in placement. 938.357(1)(1) The person or agency primarily responsible for implementing the dispositional order or the district attorney may request a change in the placement of the juvenile, whether or not the change requested is authorized in the dispositional order and shall cause written notice to be sent to the juvenile or the juvenile's counsel or guardian ad litem, parent, foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2), guardian and legal custodian. The notice shall contain the name and address of the new placement, the reasons for the change in placement, a statement describing why the new placement is preferable to the present placement and a statement of how the new placement satisfies objectives of the treatment plan ordered by the court. Any person receiving the notice under this subsection or notice of the specific foster or treatment foster placement under
s. 938.355 (2) (b) 2. may obtain a hearing on the matter by filing an objection with the court within 10 days after receipt of the notice. Placements shall not be changed until 10 days after such notice is sent to the court unless the parent, guardian or legal custodian and the juvenile, if 12 or more years of age, sign written waivers of objection, except that placement changes which were authorized in the dispositional order may be made immediately if notice is given as required in this subsection. In addition, a hearing is not required for placement changes authorized in the dispositional order except where an objection filed by a person who received notice alleges that new information is available which affects the advisability of the court's dispositional order.
938.357(2)
(2) If emergency conditions necessitate an immediate change in the placement of a juvenile placed outside the home, the person or agency primarily responsible for implementing the dispositional order may remove the juvenile to a new placement, whether or not authorized by the existing dispositional order, without the prior notice provided in
sub. (1). The notice shall, however, be sent within 48 hours after the emergency change in placement. Any party receiving notice may demand a hearing under
sub. (1). In emergency situations, the juvenile may be placed in a licensed public or private shelter care facility as a transitional placement for not more than 20 days, as well as in any placement authorized under
s. 938.34 (3).
938.357(2m)
(2m) The juvenile, the parent, guardian or legal custodian of the juvenile or any person or agency primarily bound by the dispositional order, other than the person or agency responsible for implementing the order, may request a change in placement under this subsection. The request shall contain the name and address of the place of the new placement requested and shall state what new information is available which affects the advisability of the current placement. This request shall be submitted to the court. In addition, the court may propose a change in placement on its own motion. The court shall hold a hearing on the matter prior to ordering any change in placement under this subsection if the request states that new information is available which affects the advisability of the current placement, unless written waivers of objection to the proposed change in placement are signed by all parties entitled to receive notice under
sub. (1) and the court approves. If a hearing is scheduled, the court shall notify the juvenile, the 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 all parties who are bound by the dispositional order at least 3 days prior to the hearing. A copy of the request or proposal for the change in placement shall be attached to the notice. If all the parties consent, the court may proceed immediately with the hearing.
938.357(2r)
(2r) If a hearing is held under
sub. (1) or
(2m) and the change in placement would remove a juvenile from a foster home, treatment foster home or other placement with a physical custodian described in
s. 48.62 (2), the court shall give the foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) an opportunity to be heard at the hearing by permitting the foster parent, treatment foster parent or other physical custodian to make a written or oral statement during the hearing or to submit a written statement prior to the hearing relating to the juvenile and the requested change in placement. Any written or oral statement made under this subsection shall be made under oath or affirmation. A foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) who receives notice of a hearing under
sub. (1) or
(2m) and an opportunity to be heard under this subsection does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and opportunity to be heard.
938.357(3)
(3) Subject to
sub. (4) (b) and
(c) and
(5) (e), if the proposed change in placement would involve placing a juvenile in a secured correctional facility, a secured child caring institution or a secured group home, notice shall be given as provided in
sub. (1). A hearing shall be held, unless waived by the juvenile, parent, guardian and legal custodian, before the judge makes a decision on the request. The juvenile shall be entitled to counsel at the hearing, and any party opposing or favoring the proposed new placement may present relevant evidence and cross-examine witnesses. The proposed new placement may be approved only if the judge finds, on the record, that the conditions set forth in
s. 938.34 (4m) have been met.
938.357(4)(a)(a) When the juvenile is placed with the department, the department may, after an examination under
s. 938.50, place the juvenile in a secured correctional facility or a secured child caring institution or on aftercare supervision, either immediately or after a period of placement in a secured correctional facility or a secured child caring institution. The department shall send written notice of the change to the parent, guardian, legal custodian, county department designated under
s. 938.34 (4n), if any, and committing court. If the department places a juvenile in a Type 2 secured correctional facility operated by a child welfare agency, the department shall reimburse the child welfare agency at the rate established under
s. 46.037 that is applicable to the type of placement that the child welfare agency is providing for the juvenile. A juvenile who is placed in a Type 2 secured correctional facility or a secured child caring institution remains under the supervision of the department, remains subject to the rules and discipline of that department and is considered to be in custody, as defined in
s. 946.42 (1) (a).
938.357(4)(b)1.1. If a juvenile whom the department has placed in a Type 2 secured correctional facility operated by a child welfare agency violates a condition of his or her placement in the Type 2 secured correctional facility, the child welfare agency operating the Type 2 secured correctional facility shall notify the department and the department, after consulting with the child welfare agency, may place the juvenile in a Type 1 secured correctional facility under the supervision of the department without a hearing under
sub. (1).
938.357(4)(b)2.
2. If a juvenile whom the court has placed in a Type 2 child caring institution under
s. 938.34 (4d) violates a condition of his or her placement in the Type 2 child caring institution, the child welfare agency operating the Type 2 child caring institution shall notify the county department that has supervision over the juvenile and, if the county department agrees to a change in placement under this subdivision, the child welfare agency shall notify the department and the department, after consulting with the child welfare agency, may place the juvenile in a Type 1 secured correctional facility under the supervision of the department, without a hearing under
sub. (1), for not more than 10 days. If a juvenile is placed in a Type 1 secured correctional facility under this subdivision, the county department that has supervision over the juvenile shall reimburse the child welfare agency operating the Type 2 child caring institution in which the juvenile was placed at the rate established under
s. 46.037, and that child welfare agency shall reimburse the department at the rate specified in
s. 301.26 (4) (d) 2.,
3. or
4., whichever is applicable, for the cost of the juvenile's care while placed in a Type 1 secured correctional facility.
938.357(4)(b)3.
3. The child welfare agency operating the Type 2 secured correctional facility or Type 2 child caring institution shall send written notice of a change in placement under
subd. 1. or
2. to the parent, guardian, legal custodian, county department and committing court.
938.357(4)(b)4.
4. A juvenile may seek review of a decision of the department under
subd. 1. or
2. only by the common law writ of certiorari.
938.357(4)(c)1.1. If a juvenile is placed in a Type 2 secured correctional facility operated by a child welfare agency under
par. (a) and it appears that a less restrictive placement would be appropriate for the juvenile, the department, after consulting with the child welfare agency that is operating the Type 2 secured correctional facility in which the juvenile is placed, may place the juvenile in a less restrictive placement, and may return the juvenile to the Type 2 secured correctional facility without a hearing under
sub. (1). The child welfare agency shall establish a rate for each type of placement in the manner provided in
s. 46.037.
938.357(4)(c)2.
2. If a juvenile is placed in a Type 2 child caring institution under
s. 938.34 (4d) and it appears that a less restrictive placement would be appropriate for the juvenile, the child welfare agency operating the Type 2 child caring institution shall notify the county department that has supervision over the juvenile and, if the county department agrees to a change in placement under this subdivision, the child welfare agency may place the juvenile in a less restrictive placement. A child welfare agency may also, with the agreement of the county department that has supervision over a juvenile who is placed in a less restrictive placement under this subdivision, return the juvenile to the Type 2 child caring institution without a hearing under
sub. (1). The child welfare agency shall establish a rate for each type of placement in the manner provided in
s. 46.037.
938.357(4)(c)3.
3. The child welfare agency operating the Type 2 secured correctional facility or Type 2 child caring institution shall send written notice of a change in placement under
subd. 1. or
2. to the parent, guardian, legal custodian, county department and committing court.
938.357(4)(c)4.
4. A juvenile may seek review of a decision of the department or county department under
subd. 1. or
2. only by the common law writ of certiorari.
938.357(4)(d)
(d) The department may transfer a juvenile who is placed in a Type 1 secured correctional facility to the Racine youthful offender correctional facility named in
s. 302.01 if the juvenile is 15 years of age or over and the office of juvenile offender review in the department has determined that the conduct of the juvenile in the Type 1 secured correctional facility presents a serious problem to the juvenile or others. The factors that the office of juvenile offender review may consider in making that determination shall include, but are not limited to, whether and to what extent the juvenile's conduct in the Type 1 secured correctional facility is violent and disruptive, the security needs of the Type 1 secured correctional facility and whether and to what extent the juvenile is refusing to cooperate or participate in the treatment programs provided for the juvenile in the Type 1 secured correctional facility. Notwithstanding
sub. (1), a juvenile is not entitled to a hearing regarding the department's exercise of authority under this paragraph unless the department provides for a hearing by rule. A juvenile may seek review of a decision of the department under this paragraph only by the common law writ of certiorari. If the department transfers a juvenile under this paragraph, the department shall send written notice of the transfer to the parent, guardian, legal custodian and committing court.
938.357 Note
NOTE: The provisions of par. (d) that subject a juvenile to placement in an adult (Type 1) prison were held to violate Article I, s. 7 of the Wisconsin Constitution and the 6th and 14th amendments of the U. S. Constitution and to be severed from the remainder of ch. 938 by the Supreme Court in State of Wisconsin v. Hezzie R.
219 Wis. 2d 849,
580 N.W.2d 660 (1998).
938.357(4d)(a)(a) Except as provided in
par. (b), the court may not change a juvenile's placement to a placement in the home of a person who has been convicted under
s. 940.01 of the first-degree intentional homicide, or under
s. 940.05 of the 2nd-degree intentional homicide, of a parent of the juvenile, if the conviction has not been reversed, set aside or vacated.
938.357(4d)(am)
(am) Except as provided in par (b), if a parent in whose home a juvenile is placed is convicted under
s. 940.01 of the first-degree intentional homicide, or under
s. 940.05 of the 2nd-degree intentional homicide, of the juvenile's other parent, and the conviction has not been reversed, set aside or vacated, the court shall change the juvenile's placement to a placement out of the home of the parent on petition of the juvenile, the guardian or legal custodian of the juvenile, a person or agency bound by the dispositional order or the district attorney or corporation counsel of the county in which the dispositional order was entered, or on the court's own motion, and on notice to the parent.
938.357(4d)(b)
(b) Paragraphs (a) and
(am) do not apply if the court determines by clear and convincing evidence that the placement would be in the best interests of the juvenile. The court shall consider the wishes of the juvenile in making that determination.
938.357(4g)(a)(a) Not later than 120 days after the date on which the juvenile is placed in a secured correctional facility, a secured child caring institution or a secured group home, or within 30 days after the date on which the department requests the aftercare plan, whichever is earlier, the aftercare provider designated under
s. 938.34 (4n) shall prepare an aftercare plan for the juvenile. If the aftercare provider designated under
s. 938.34 (4n) is a county department, that county department shall submit the aftercare plan to the department within the time limits specified in this paragraph, unless the department waives those time limits under
par. (b).
938.357(4g)(b)
(b) The department may waive the time period within which an aftercare plan must be prepared and submitted under
par. (a) if the department anticipates that the juvenile will remain in the secured correctional facility, secured child caring institution or secured group home for a period exceeding 8 months or if the juvenile is subject to
s. 48.366 or
938.183. If the department waives that time period, the aftercare provider designated under
s. 938.34 (4n) shall prepare the aftercare plan within 30 days after the date on which the department requests the aftercare plan.
