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.
938.357(4g)(c)
(c) An aftercare plan prepared under
par. (a) or
(b) shall include all of the following:
938.357(4g)(c)2.
2. The conditions, if any, under which the juvenile's aftercare status may be revoked.
938.357(4g)(c)3.
3. Services or programming to be provided to the juvenile while on aftercare.
938.357(4g)(c)4.
4. The estimated length of time that aftercare supervision and services shall be provided to the juvenile.
938.357(4g)(d)
(d) A juvenile may be released from a secured correctional facility, a secured child caring institution or a secured group home whether or not an aftercare plan has been prepared under this subsection.
938.357(4m)
(4m) The department shall try to release a juvenile to aftercare supervision under
sub. (4) within 30 days after the date the department determines the juvenile is eligible for the release.
938.357(5)(a)(a) The department or a county department, whichever has been designated as a juvenile's aftercare provider under
s. 938.34 (4n), may revoke the aftercare status of that juvenile. Revocation of aftercare supervision shall not require prior notice under
sub. (1).
938.357(5)(c)
(c) The juvenile shall be entitled to representation by counsel at all stages of the revocation proceeding.
938.357(5)(d)
(d) A hearing on the revocation shall be conducted by the division of hearings and appeals in the department of administration within 30 days after the juvenile is taken into custody for an alleged violation of the conditions of the juvenile's aftercare supervision. This time limit may be waived only upon the agreement of the aftercare provider, the juvenile and the juvenile's counsel.
938.357(5)(e)
(e) If the hearing examiner finds that the juvenile has violated a condition of aftercare supervision, the hearing examiner shall determine whether confinement in a secured correctional facility, a secured child caring institution or a secured group home is necessary to protect the public, to provide for the juvenile's rehabilitation or to not depreciate the seriousness of the violation.
938.357(5)(f)
(f) Review of a revocation decision shall be by certiorari to the court by whose order the juvenile was placed in a secured correctional facility, a secured child caring institution or a secured group home.
938.357(5)(g)
(g) The department shall promulgate rules setting standards to be used by a hearing examiner to determine whether to revoke a juvenile's aftercare status. The standards shall specify that the burden is on the department or county department seeking revocation to show by a preponderance of the evidence that the juvenile violated a condition of aftercare supervision.
938.357(5m)(a)(a) If a proposed change in placement changes a juvenile's placement from a placement in the juvenile's home to a placement outside the juvenile's home, the court shall order the juvenile's parent to provide a statement of income, assets, debts and living expenses to the court or the person or agency primarily responsible for implementing the dispositional order by a date specified 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 listing the factors that a court may consider under
s. 301.12 (14) (c). If the juvenile is placed outside the juvenile's home, the court shall determine the liability of the parent in the manner provided in
s. 301.12 (14).
938.357(5m)(b)
(b) If the court orders the juvenile's parent to provide a statement of income, assets, debts and living expenses to the court or if the court orders the juvenile's parent to provide that statement to the person or agency primarily responsible for implementing the dispositional order and that person or agency is not the county department, the court shall also order the juvenile's parent to provide that statement to the county department by a date specified by the court. The county 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 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 juvenile.
938.357(6)
(6) No change in placement may extend the expiration date of the original order.
938.36
938.36
Payment for services. 938.36(1)(a)(a) If legal custody is transferred from the parent or guardian or the court otherwise designates an alternative placement for the juvenile by a disposition made under
s. 938.183,
938.34 or
938.345 or by a change in placement under
s. 938.357, the duty of the parent or guardian to provide support shall continue even though the legal custodian or the placement designee may provide the support. A copy of the order transferring custody or designating alternative placement for the juvenile shall be submitted to the agency or person receiving custody or placement and the agency or person may apply to the court for an order to compel the parent or guardian to provide the support. Support payments for residential services, when purchased or otherwise funded or provided by the department of corrections, or a county department under
s. 46.215,
46.22 or
46.23, shall be determined under
s. 301.12 (14). Support payments for residential services, when purchased or otherwise funded by the department of health and family services, or a county department under
s. 51.42 or
51.437, shall be determined under
s. 46.10 (14).
938.36(1)(b)
(b) In determining the amount of support under
par. (a), the court may consider all relevant financial information or other information relevant to the parent's earning capacity, including information reported under
s. 49.22 (2m) to the department of workforce development, or the county child support agency, under
s. 59.53 (5). If the court has insufficient information with which to determine the amount of support, the court shall order the juvenile's parent to furnish a statement of income, assets, debts and living expenses, if the parent has not already done so, to the court within 10 days after the court's order transferring custody or designating an alternative placement is entered or at such other time as ordered by the court.
938.36(2)
(2) If a juvenile whose legal custody has not been taken from a parent or guardian is given educational and social services, or medical, psychological or psychiatric treatment by order of the court, the cost thereof, if ordered by the court, shall be a charge upon the county. This section does not prevent recovery of reasonable contribution toward the costs from the parent or guardian of the juvenile as the court may order based on the ability of the parent or guardian to pay. This subsection is subject to
s. 301.03 (18).
938.36(3)
(3) In determining county liability, this section does not apply to services specified in
ch. 115.
938.361
938.361
Payment for alcohol and other drug abuse services. 938.361(1)(a)
(a) "Alcohol and other drug abuse services" means all of the following:
938.361(2)(a)1.1. If a juvenile's parent neglects, refuses or is unable to provide court-ordered alcohol and other drug abuse services for the juvenile through his or her health insurance or other 3rd-party payments, notwithstanding
s. 938.36 (3) the court assigned to exercise jurisdiction under this chapter and
ch. 48 or municipal court may order the parent to pay for the alcohol and drug abuse services. If the parent consents to provide alcohol and other drug abuse services for a juvenile through his or her health insurance or other 3rd-party payments but the health insurance provider or other 3rd-party payer refuses to provide the alcohol and other drug abuse services the court assigned to exercise jurisdiction under this chapter and
ch. 48 or municipal court may order the health insurance provider or 3rd-party payer to pay for the alcohol and other drug abuse services in accordance with the terms of the parent's health insurance policy or other 3rd-party payment plan.
938.361(2)(a)2.
2. This paragraph applies to payment for alcohol and other drug abuse services in any county, regardless of whether the county is a pilot county under
s. 938.547.
938.361(2)(am)1.1. If a court assigned to exercise jurisdiction under this chapter and
ch. 48 in a county that has a pilot program under
s. 938.547 finds that payment is not attainable under
par. (a), the court may order payment in accordance with
par. (b).
938.361(2)(am)2.
2. If a court assigned to exercise jurisdiction under this chapter and
ch. 48 in a county that does not have a pilot program under
s. 938.547 finds that payment is not attainable under
par. (a), the court may order payment in accordance with
s. 938.34 (6) (ar) or
938.36.
938.361(2)(am)3.
3. If a municipal court finds that payment is not attainable under
par. (a), the municipal court may order the municipality over which the municipal court has jurisdiction to pay for any alcohol and other drug abuse services ordered by the municipal court.
938.361(2)(b)1.1. In counties that have a pilot program under
s. 938.547, in addition to using the alternative provided for under
par. (a), the court assigned to exercise jurisdiction under this chapter and
ch. 48 may order a county department of human services established under
s. 46.23 or a county department established under
s. 51.42 or
51.437 in the juvenile's county of legal residence to pay for the alcohol and other drug abuse services whether or not custody has been taken from the parent.
938.361(2)(b)2.
2. If a judge orders a county department established under
s. 51.42 or
51.437 to provide alcohol and other drug abuse services under this paragraph, the provision of the alcohol and other drug abuse services shall be subject to conditions specified in
ch. 51.
938.361(2)(c)
(c) Payment for alcohol and other drug abuse services by a county department or municipality under this section does not prohibit the county department or municipality from contracting with another county department, municipality, school district or approved treatment facility for the provision of alcohol and other drug abuse services. Payment by the county or municipality under this section does not prevent recovery of reasonable contribution toward the costs of the court-ordered alcohol and other drug abuse services from the parent which is based upon the ability of the parent to pay. This subsection is subject to
s. 46.03 (18).
938.361 History
History: 1995 a. 77,
275.
938.362
938.362
Payment for certain special treatment or care services. 938.362(1)(1) In this section, "special treatment or care" has the meaning given in
s. 938.02 (17m), except that it does not include alcohol and other drug abuse services.
938.362(2)
(2) This section applies to the payment of court-ordered special treatment or care under
s. 938.34 (6) (a) or
(am), whether or not custody has been taken from the parent.
