HOLDING A JUVENILE IN CUSTODY
938.19
938.19
Taking a juvenile into custody. 938.19(1)
(1) A juvenile may be taken into custody under any of the following:
938.19(1)(c)
(c) An order of the judge if made upon a showing satisfactory to the judge that the welfare of the juvenile demands that the juvenile be immediately removed from his or her present custody. The order shall specify that the juvenile be held in custody under
s. 938.207.
938.19(1)(d)
(d) Circumstances in which a law enforcement officer believes on reasonable grounds that any of the following conditions exists:
938.19(1)(d)1.
1. A capias or a warrant for the juvenile's apprehension has been issued in this state, or that the juvenile is a fugitive from justice.
938.19(1)(d)2.
2. A capias or a warrant for the juvenile's apprehension has been issued in another state.
938.19(1)(d)3.
3. The juvenile is committing or has committed an act which is a violation of a state or federal criminal law.
938.19(1)(d)4.
4. The juvenile has run away from his or her parents, guardian or legal or physical custodian.
938.19(1)(d)5.
5. The juvenile is suffering from illness or injury or is in immediate danger from his or her surroundings and removal from those surroundings is necessary.
938.19(1)(d)6.
6. The juvenile has violated a condition of court-ordered supervision or aftercare supervision administered by the department or a county department, a condition of the juvenile's placement in a Type 2 secured correctional facility or a Type 2 child caring institution, or a condition of the juvenile's participation in the intensive supervision program under
s. 938.534.
938.19(1)(d)7.
7. The juvenile has violated the conditions of an order under
s. 938.21 (4) or the conditions of an order for temporary physical custody by an intake worker.
938.19(1)(d)8.
8. The juvenile has violated a civil law or a local ordinance punishable by a forfeiture, except that in that case the juvenile shall be released immediately under
s. 938.20 (2) (ag) or as soon as reasonably possible under
s. 938.20 (2) (b) to
(g).
938.19(1m)
(1m) A juvenile who is absent from school without an acceptable excuse under
s. 118.15 may be taken into custody by an individual designated under
s. 118.16 (2m) (a) if the school attendance officer of the school district in which the juvenile resides or the juvenile's parent, guardian or legal custodian requests that the juvenile be taken into custody. The request shall specifically identify the juvenile.
938.19(2)
(2) When a juvenile is taken into physical custody as provided in this section, the person taking the juvenile into custody shall immediately attempt to notify the parent, guardian and legal custodian of the juvenile by the most practical means. The person taking the juvenile into custody shall continue such attempt until the parent, guardian and legal custodian of the juvenile are notified, or the juvenile is delivered to an intake worker under
s. 938.20 (3), whichever occurs first. If the juvenile is delivered to the intake worker before the parent, guardian and legal custodian are notified, the intake worker, or another person at his or her direction, shall continue the attempt to notify until the parent, guardian and legal custodian of the juvenile are notified.
938.19(3)
(3) Taking into custody is not an arrest except for the purpose of determining whether the taking into custody or the obtaining of any evidence is lawful.
938.19 History
History: 1995 a. 77;
2001 a. 16.
938.19 Annotation
A juvenile may not be taken into custody under sub. (1) (d) 7. for violating an ordinance that does not impose a forfeiture although a forfeiture may be imposed under s. 48.343 (2) (now 938.43). In Interest of J.F.F.
164 Wis. 2d 10,
473 N.W.2d 546 (Ct. App. 1991).
938.19 Note
NOTE: The above annotation cites to s. 48.19, the predecessor statute to s. 938.19.
938.20
938.20
Release or delivery from custody. 938.20(2)(ag)(ag) Except as provided in
pars. (b) to
(g), a person taking a juvenile into custody shall make every effort to release the juvenile immediately to the juvenile's parent, guardian or legal custodian.
938.20(2)(b)
(b) If the juvenile's parent, guardian or legal custodian is unavailable, unwilling or unable to provide supervision for the juvenile, the person who took the juvenile into custody may release the juvenile to a responsible adult after counseling or warning the juvenile as may be appropriate.
938.20(2)(c)
(c) If the juvenile is 15 years of age or older, the person who took the juvenile into custody may release the juvenile without immediate adult supervision after counseling or warning the juvenile as may be appropriate.
938.20(2)(cm)
(cm) If the juvenile has violated a condition of aftercare supervision administered by the department or a county department, a condition of the juvenile's placement in a Type 2 secured correctional facility or a Type 2 child caring institution, or a condition of the juvenile's participation in the intensive supervision program under
s. 938.534, the person who took the juvenile into custody may release the juvenile to the department or county department, whichever has supervision over the juvenile.
938.20(2)(d)
(d) If the juvenile is a runaway, the person who took the juvenile into custody may release the juvenile to a home authorized under
s. 48.227.
938.20(2)(e)
(e) If a juvenile is taken into custody under
s. 938.19 (1) (d) 10., the law enforcement officer who took the juvenile into custody may release the juvenile under
par. (ag) or
(b) or, if the school board of the school district in which the juvenile resides has established a youth service center under
s. 118.16 (4) (e), may deliver that juvenile to that youth service center. If the juvenile is delivered to a youth service center, personnel of the youth service center may release the juvenile to the juvenile's parent, guardian or legal custodian, or release the juvenile to the juvenile's school, after counseling the juvenile as may be appropriate. If the juvenile is released to the juvenile's school, personnel of the youth service center shall immediately notify the juvenile's parent, guardian and legal custodian that the juvenile was taken into custody under
s. 938.19 (1) (d) 10. and released to the juvenile's school.
938.20(2)(f)
(f) If a juvenile is taken into custody under
s. 938.19 (1m), the person who took the juvenile into custody may release the juvenile under
par. (ag),
(b) or
(e) or to the juvenile's school administrator, as defined in
s. 125.09 (2) (a) 3., or a school employee designated by the school administrator. If a juvenile is released to a school administrator or the school administrator's designee under this paragraph, the school administrator or designee shall do all of the following:
938.20(2)(f)1.
1. Immediately notify the juvenile's parent, guardian or legal custodian that the juvenile was taken into custody under
s. 938.19 (1m) and released to the school administrator or his or her designee.
938.20(2)(f)2.
2. Make a determination of whether the juvenile is a child at risk, as defined in
s. 118.153 (1) (a), unless that determination has been made within the current school semester. If a juvenile is determined to be a child at risk under this subdivision, the school administrator shall provide a program for the juvenile according to the plan developed under
s. 118.153 (2) (a).
938.20(2)(f)3.
3. Provide the juvenile and his or her parent or guardian with an opportunity for educational counseling to determine whether a change in the juvenile's program or curriculum, including any of the modifications specified in
s. 118.15 (1) (d), would resolve the juvenile's truancy problem, unless the juvenile and his or her parent or guardian have been provided with an opportunity for educational counseling within the current school semester.
938.20(2)(g)
(g) If a juvenile is taken into custody under
s. 938.19 (1) (d) 10. and is not released under
par. (ag),
(b) or
(e) or if a juvenile is taken into custody under
s. 938.19 (1m) and is not released under
par. (ag),
(b),
(e) or
(f), the person who took the juvenile into custody shall release the juvenile without immediate adult supervision after counseling or warning the juvenile as may be appropriate.
938.20(3)
(3) If the juvenile is released under
sub. (2) (b) to
(d) or
(g), the person who took the juvenile into custody shall immediately notify the juvenile's parent, guardian and legal custodian of the time and circumstances of the release and the person, if any, to whom the juvenile was released. If the juvenile is not released under
sub. (2), the person who took the juvenile into custody shall arrange in a manner determined by the court and law enforcement agencies for the juvenile to be interviewed by the intake worker under
s. 938.067 (2), and shall make a statement in writing with supporting facts of the reasons why the juvenile was taken into physical custody and shall give any juvenile 10 years of age or older a copy of the statement in addition to giving a copy to the intake worker. When the intake interview is not done in person, the report may be read to the intake worker.
938.20(4)
(4) If the juvenile is believed to be suffering from a serious physical condition which requires either prompt diagnosis or prompt treatment, the person taking the juvenile into physical custody, the intake worker or other appropriate person shall deliver the juvenile to a hospital as defined in
s. 50.33 (2) (a) and
(c) or physician's office.
938.20(5)
(5) If the juvenile is believed to be mentally ill, drug dependent or developmentally disabled, and exhibits conduct which constitutes a substantial probability of physical harm to the juvenile or to others, or a very substantial probability of physical impairment or injury to the juvenile exists due to the impaired judgment of the juvenile, and the standards of
s. 51.15 are met, the person taking the juvenile into physical custody, the intake worker or other appropriate person shall proceed under
s. 51.15.
938.20(6)
(6) If the juvenile is believed to be an intoxicated person who has threatened, attempted or inflicted physical harm on himself or herself or on another and is likely to inflict such physical harm unless committed, or is incapacitated by alcohol, the person taking the juvenile into physical custody, the intake worker or other appropriate person shall proceed under
s. 51.45 (11).
938.20(7)(a)(a) When a juvenile is interviewed by an intake worker, the intake worker shall inform any juvenile possibly involved in a delinquent act of his or her right to counsel and the right against self-incrimination.
938.20(7)(b)
(b) The intake worker shall review the need to hold the juvenile in custody and shall make every effort to release the juvenile from custody as provided in
par. (c). The intake worker shall base his or her decision as to whether to release the juvenile or to continue to hold the juvenile in custody on the criteria specified in
s. 938.205 and criteria established under
s. 938.06 (1) or
(2).
938.20(7)(c)
(c) The intake worker may release the juvenile as follows:
938.20(7)(c)1.
1. To a parent, guardian or legal custodian, or, if the parent, guardian or legal custodian is unavailable, unwilling or unable to provide supervision for the juvenile, release the juvenile to a responsible adult, counseling or warning the juvenile as may be appropriate, or, if the juvenile is 15 years of age or older, release the juvenile without immediate adult supervision, counseling or warning the juvenile as may be appropriate.
938.20(7)(c)1m.
1m. In the case of a juvenile who has violated a condition of aftercare supervision administered by the department or a county department, a condition of the juvenile's placement in a Type 2 secured correctional facility or a Type 2 child caring institution, or a condition of the juvenile's participation in the intensive supervision program under
s. 938.534, to the department or county department, whichever has supervision of the juvenile.
938.20(7)(d)
(d) If the juvenile is released from custody, the intake worker shall immediately notify the juvenile's parent, guardian and legal custodian of the time and circumstances of the release and the person, if any, to whom the juvenile was released.
938.20(8)
(8) If a juvenile is held in custody, the intake worker shall notify the juvenile's parent, guardian, and legal custodian of the reasons for holding the juvenile in custody and of the juvenile's whereabouts unless there is reason to believe that notice would present imminent danger to the juvenile. If a juvenile who has violated a condition of aftercare supervision administered by the department or a county department, a condition of the juvenile's placement in a Type 2 secured correctional facility or a Type 2 child caring institution, or a condition of the juvenile's participation in the intensive supervision program under
s. 938.534 is held in custody, the intake worker shall also notify the department or county department, whichever has supervision over the juvenile, of the reasons for holding the juvenile in custody, of the juvenile's whereabouts, and of the time and place of the detention hearing required under
s. 938.21. The parent, guardian, and legal custodian shall also be notified of the time and place of the detention hearing required under
s. 938.21, the nature and possible consequences of that hearing, and the right to present and cross-examine witnesses at the hearing. If the parent, guardian, or legal custodian is not immediately available, the intake worker or another person designated by the court shall provide notice as soon as possible. When the juvenile is alleged to have committed a delinquent act, the juvenile shall receive the same notice about the detention hearing as the parent, guardian, or legal custodian. The intake worker shall notify both the juvenile and the juvenile's parent, guardian, or legal custodian.
938.205
938.205
Criteria for holding a juvenile in physical custody. 938.205(1)(1) A juvenile may be held under
s. 938.207,
938.208 or
938.209 (1) if the intake worker determines that there is probable cause to believe the juvenile is within the jurisdiction of the court and if probable cause exists to believe any of the following:
938.205(1)(a)
(a) That if the juvenile is not held he or she will commit injury to the person or property of others.
938.205(1)(b)
(b) That the parent, guardian or legal custodian of the juvenile or other responsible adult is neglecting, refusing, unable or unavailable to provide adequate supervision and care and that services to ensure the juvenile's safety and well-being are not available or would be inadequate.
938.205(1)(c)
(c) That the juvenile will run away or be taken away so as to be unavailable for proceedings of the court or its officers, proceedings of the division of hearings and appeals in the department of administration for revocation of aftercare supervision, or action by the department or county department relating to a violation of a condition of the juvenile's placement in a Type 2 secured correctional facility or a Type 2 child caring institution or a condition of the juvenile's participation in the intensive supervision program under
s. 938.534.
938.205(2)
(2) The criteria for holding a juvenile in custody specified in this section shall govern the decision of all persons responsible for determining whether the action is appropriate.
938.207
938.207
Places where a juvenile may be held in nonsecure custody. 938.207(1)(1) A juvenile held in physical custody under
s. 938.205 may be held in any of the following places:
938.207(1)(a)
(a) The home of a parent or guardian, except that a juvenile may not be held in the home of a parent or guardian if the parent or guardian 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, and the conviction has not been reversed, set aside or vacated, unless the person making the custody decision determines by clear and convincing evidence that the placement would be in the best interests of the juvenile. The person making the custody decision shall consider the wishes of the juvenile in making that determination.
938.207(1)(b)
(b) The home of a relative, except that a juvenile may not be held in the home of a relative if the relative 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, and the conviction has not been reversed, set aside or vacated, unless the person making the custody decision determines by clear and convincing evidence that the placement would be in the best interests of the juvenile. The person making the custody decision shall consider the wishes of the juvenile in making that determination.
938.207(1)(c)
(c) A licensed foster home or a licensed treatment foster home provided the placement does not violate the conditions of the license.
938.207(1)(cm)
(cm) A licensed group home provided that the placement does not violate the conditions of the license.
938.207(1)(d)
(d) A nonsecure facility operated by a licensed child welfare agency.
938.207(1)(e)
(e) A licensed private or public shelter care facility.
938.207(1)(f)
(f) The home of a person not a relative, if the placement does not exceed 30 days, though the placement may be extended for an additional 30 days for cause by the court, and if the person has not had a foster home or treatment foster home license refused, revoked or suspended within the last 2 years.
938.207(1)(i)
(i) An approved public treatment facility for emergency treatment if the juvenile is held under
s. 938.20 (6).
938.207(2)
(2) If a facility listed in
sub. (1) (b) to
(k) is used to hold juveniles in custody, or if supervisory services of a home detention program are provided to juveniles held under
sub. (1) (a), its authorized rate shall be paid by the county for the care of the juvenile. If no authorized rate has been established, a reasonable sum to be fixed by the court shall be paid by the county for the supervision or care of the juvenile.
938.207 History
History: 1995 a. 77;
1999 a. 9.
938.208
938.208
Criteria for holding a juvenile in a secure detention facility. A juvenile may be held in a secure detention facility if the intake worker determines that one of the following conditions applies:
938.208(1)
(1) Probable cause exists to believe that the juvenile has committed a delinquent act and either presents a substantial risk of physical harm to another person or a substantial risk of running away so as to be unavailable for a court hearing, a revocation of aftercare supervision hearing, or action by the department or county department relating to a violation of a condition of the juvenile's placement in a Type 2 secured correctional facility or a Type 2 child caring institution or a condition of the juvenile's participation in the intensive supervision program under
s. 938.534. For juveniles who have been adjudged delinquent, the delinquent act referred to in this section may be the act for which the juvenile was adjudged delinquent. If the intake worker determines that any of the following conditions applies, the juvenile is considered to present a substantial risk of physical harm to another person:
938.208(1)(a)
(a) Probable cause exists to believe that the juvenile has committed a delinquent act that would be a felony under
s. 940.01,
940.02,
940.03,
940.05,
940.19 (2) to
(6),
940.21,
940.225 (1),
940.31,
941.20 (3),
943.02 (1),
943.23 (1g),
943.32 (2),
947.013 (1t),
(1v) or
(1x),
948.02 (1) or
(2),
948.025 or
948.03 if committed by an adult.
Effective date note
NOTE: Par. (a) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(a) Probable cause exists to believe that the juvenile has committed a delinquent act that would be a felony under s. 940.01, 940.02, 940.03, 940.05, 940.19 (2) to (6), 940.21, 940.225 (1), 940.31, 941.20 (3), 943.02 (1), 943.23 (1g), (1m) or (1r), 943.32 (2), 947.013 (1t), (1v) or (1x), 948.02 (1) or (2), 948.025 or 948.03 if committed by an adult.
938.208(1)(b)
(b) Probable cause exists to believe that the juvenile possessed, used or threatened to use a handgun, as defined in
s. 175.35 (1) (b), short-barreled rifle, as defined in
s. 941.28 (1) (b), or short-barreled shotgun, as defined in
s. 941.28 (1) (c), while committing a delinquent act that would be a felony under
ch. 940 if committed by an adult.
938.208(1)(c)
(c) Probable cause exists to believe that the juvenile has possessed or gone armed with a short-barreled rifle or a short-barreled shotgun in violation of
s. 941.28, or has possessed or gone armed with a handgun in violation of
s. 948.60.
938.208(2)
(2) Probable cause exists to believe that the juvenile is a fugitive from another state or has run away from a secured correctional facility, a secured child caring institution or a secured group home and there has been no reasonable opportunity to return the juvenile.
938.208(3)
(3) The juvenile consents in writing to being held in order to protect him or her from an imminent physical threat from another and such secure custody is ordered by the judge in a protective order.
938.208(4)
(4) Probable cause exists to believe that the juvenile, having been placed in nonsecure custody by an intake worker under
s. 938.207 or by the judge or circuit court commissioner under
s. 938.21 (4), has run away or committed a delinquent act and no other suitable alternative exists.
938.208(5)
(5) Probable cause exists to believe that the juvenile has been adjudged or alleged to be delinquent and has run away from another county and would run away from nonsecure custody pending his or her return. A juvenile may be held in secure custody under this subsection for no more than 24 hours after the end of the day that the decision to hold the juvenile was made unless an extension of those 24 hours is ordered by the judge for good cause shown. Only one extension may be ordered by the judge.
938.208(6)
(6) Probable cause exists to believe that the juvenile is subject to the jurisdiction of the court of criminal jurisdiction under
s. 938.183 (1) and is under 15 years of age.
938.209
938.209
Criteria for holding a juvenile in a county jail or a municipal lockup facility. 938.209(1)
(1) Subject to
s. 938.208, a county jail may be used as a secure detention facility if the criteria under either
par. (a) or
(b) are met:
938.209(1)(a)
(a) There is no other secure detention facility approved by the department or a county which is available and all of the following conditions are met:
938.209(1)(a)1.
1. The jail meets the standards for secure detention facilities established by the department.
938.209(1)(a)2.
2. The juvenile is held in a room separated and removed from incarcerated adults.
