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.
938.209(1)(a)3.
3. The juvenile is not held in a cell designed for the administrative or disciplinary segregation of adults.
938.209(1)(a)5.
5. The judge reviews the status of the juvenile every 3 days.
938.209(1)(b)
(b) The juvenile presents a substantial risk of physical harm to other persons in the secure detention facility, as evidenced by previous acts or attempts, which can only be avoided by transfer to the jail. The conditions of
par. (a) 1. to
5. shall be met. The juvenile shall be given a hearing and transferred only upon order of the judge.
938.209(2m)(a)(a) A juvenile who is alleged to have committed a delinquent act may be held in a municipal lockup facility if all of the following criteria are met:
938.209(2m)(a)1.
1. The department has approved the municipal lockup facility as a suitable place for holding juveniles in custody.
938.209(2m)(a)2.
2. The juvenile is held in the municipal lockup facility for not more than 6 hours while awaiting his or her hearing under
s. 938.21 (1) (a).
938.209(2m)(a)3.
3. There is sight and sound separation between the juvenile and any adult who is being held in the municipal lockup facility.
938.209(2m)(b)
(b) The department shall promulgate rules establishing minimum requirements for the approval of a municipal lockup facility as a suitable place for holding juveniles in custody and for the operation of such a facility. The rules shall be designed to protect the health, safety and welfare of the juveniles held in those facilities.
938.209(3)
(3) The restrictions of this section do not apply to the use of jail for a juvenile who has been waived to adult court under
s. 938.18 or who is under the jurisdiction of an adult court under
s. 938.183, unless the juvenile is under the jurisdiction of an adult court under
s. 938.183 (1) and is under 15 years of age.
938.209 History
History: 1995 a. 77,
352;
1997 a. 35,
296.
938.21
938.21
Hearing for juvenile in custody. 938.21(1)(a)(a) If a juvenile who has been taken into custody is not released under
s. 938.20, a hearing to determine whether the juvenile shall continue to be held in custody under the criteria of
ss. 938.205 to
938.209 (1) shall be conducted by the judge or circuit court commissioner within 24 hours after the end of the day that the decision to hold the juvenile was made, excluding Saturdays, Sundays, and legal holidays. By the time of the hearing a petition under
s. 938.25 shall be filed, except that no petition need be filed where a juvenile is taken into custody under
s. 938.19 (1) (b) or
(d) 2.,
6., or
7. or where the juvenile is a runaway from another state, in which case a written statement of the reasons for holding a juvenile in custody shall be substituted if the petition is not filed. If no hearing has been held within 24 hours or if no petition or statement has been filed at the time of the hearing, the juvenile shall be released except as provided in
par. (b). A parent not present at the hearing shall be granted a rehearing upon request for good cause shown.
938.21(1)(b)
(b) If no petition has been filed by the time of the hearing, a juvenile may be held in custody with the approval of the judge or circuit court commissioner for an additional 48 hours from the time of the hearing only if, as a result of the facts brought forth at the hearing, the judge or circuit court commissioner determines that probable cause exists to believe that the juvenile is an imminent danger to himself or herself or to others, or that probable cause exists to believe that the parent, guardian or legal custodian of the juvenile or other responsible adult is neglecting, refusing, unable or unavailable to provide adequate supervision and care. The extension may be granted only once for any petition. In the event of failure to file a petition within the 48-hour extension period provided for in this paragraph, the judge or circuit court commissioner shall order the juvenile's immediate release from custody.
938.21(2)
(2) Proceedings concerning runaway or delinquent juveniles. 938.21(2)(ag)(ag) Proceedings concerning a juvenile who comes within the jurisdiction of the court under
s. 938.12 or
938.13 (7) or
(12) shall be conducted according to this subsection.
938.21(2)(am)
(am) A juvenile held in a nonsecure place of custody may waive in writing his or her right to participate in the hearing under this section. After any waiver, a rehearing shall be granted upon the request of the juvenile or any other interested party for good cause shown. Any juvenile transferred to a secure detention facility shall thereafter have a rehearing under this section.
938.21(2)(b)
(b) A copy of the petition shall be given to the juvenile at or prior to the time of the hearing. Prior notice of the hearing shall be given to the juvenile's parent, guardian and legal custodian and to the juvenile in accordance with
s. 938.20 (8).
938.21(2)(c)
(c) Prior to the commencement of the hearing, the juvenile shall be informed by the judge or circuit court commissioner of the allegations that have been or may be made, the nature and possible consequences of this hearing as compared to possible future hearings, the provisions of
s. 938.18 if applicable, the right to counsel under
s. 938.23 regardless of ability to pay if the juvenile is not yet represented by counsel, the right to remain silent, the fact that the silence may not be adversely considered by the judge or circuit court commissioner, the right to confront and cross-examine witnesses and the right to present witnesses.
938.21(2)(d)
(d) If the juvenile is not represented by counsel at the hearing and the juvenile is continued in custody as a result of the hearing, the juvenile may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold in custody be reheard. If the request is made, a rehearing shall take place as soon as possible. Whether or not counsel was present, any order to hold the juvenile in custody shall be subject to rehearing for good cause.
938.21(3)
(3) Proceedings concerning juveniles in need of protection or services. 938.21(3)(ag)(ag) Proceedings concerning a juvenile who comes within the jurisdiction of the court under
s. 938.13 (4),
(6),
(6m) or
(14) shall be conducted according to this subsection.
938.21(3)(am)
(am) The parent, guardian, or legal custodian may waive his or her right to participate in the hearing under this section. After any waiver, a rehearing shall be granted at the request of the parent, guardian, legal custodian, or any other interested party for good cause shown.
938.21(3)(b)
(b) If present at the hearing, a copy of the petition shall be given to the parent, guardian or legal custodian, and to the juvenile if he or she is 12 years of age or older, before the hearing begins. Prior notice of the hearing shall be given to the juvenile's parent, guardian and legal custodian and to the juvenile if he or she is 12 years of age or older in accordance with
s. 938.20 (8).
938.21(3)(d)
(d) Prior to the commencement of the hearing, the parent, guardian or legal custodian shall be informed by the court of the allegations that have been made or may be made, the nature and possible consequences of this hearing as compared to possible future hearings, the right to confront and cross-examine witnesses and the right to present witnesses.
938.21(3)(e)
(e) If the parent, guardian or legal custodian or the juvenile is not represented by counsel at the hearing and the juvenile is continued in custody as a result of the hearing, the parent, guardian, legal custodian or juvenile may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold the juvenile in custody be reheard. If the request is made, a rehearing shall take place as soon as possible. Any order to hold the juvenile in custody shall be subject to rehearing for good cause, whether or not counsel was present.
938.21(3m)
(3m) Parental notice required. If the juvenile has been taken into custody because he or she committed an act which resulted in personal injury or damage to or loss of the property of another, the court, prior to the commencement of any hearing under this section, shall attempt to notify the juvenile's parents of the possibility of disclosure of the identity of the juvenile and the parents, of the juvenile's police records and of the outcome of proceedings against the juvenile for use in civil actions for damages against the juvenile or the parents and of the parents' potential liability for acts of their juveniles. If the court is unable to provide the notice before commencement of the hearing, it shall provide the juvenile's parents with the specified information in writing as soon as possible after the hearing.
938.21(4)
(4) If the judge or circuit court commissioner finds that the juvenile should be continued in custody under the criteria of
s. 938.205, he or she shall enter one of the following orders:
938.21(4)(a)
(a) Place the juvenile with a parent, guardian, legal custodian or other responsible person and may impose reasonable restrictions on the juvenile's travel, association with other persons or places of abode during the period of placement, including a condition requiring the juvenile to return to other custody as requested; or subject the juvenile to the supervision of an agency agreeing to supervise the juvenile. Reasonable restrictions may be placed upon the conduct of the parent, guardian, legal custodian or other responsible person which may be necessary to ensure the safety of the juvenile.
938.21(4m)
(4m) Electronic monitoring. The judge or circuit court commissioner may include in an order under
sub. (4) (a) or
(b) a condition that the juvenile be monitored by an electronic monitoring system.
938.21(5)(a)(a) All orders to hold in custody shall be in writing, listing the reasons and criteria forming the basis for the decision.
938.21(5)(b)
(b) An order relating to a juvenile held in custody outside of his or her home shall also include all of the following:
938.21(5)(b)1.
1. A finding that continued placement of the juvenile in his or her home would be contrary to the welfare of the juvenile. Unless the judge or circuit court commissioner finds that any of the circumstances specified in
s. 938.355 (2d) (b) 1. to
4. applies, the order shall in addition include a finding as to whether the person who took the juvenile into custody and the intake worker have made reasonable efforts to prevent the removal of the juvenile from the home, while assuring that the juvenile's health and safety are the paramount concerns, and a finding as to whether the person who took the juvenile into custody and the intake worker have made reasonable efforts to make it possible for the juvenile to return safely home or, if for good cause shown sufficient information is not available for the judge or circuit court commissioner to make a finding as to whether those reasonable efforts were made to prevent the removal of the juvenile from the home, a finding as to whether those reasonable efforts were made to make it possible for the juvenile to return safely home and an order for the county department or agency primarily responsible for providing services to the juvenile under the custody order to file with the court sufficient information for the judge or circuit court commissioner to make a finding as to whether those reasonable efforts were made to prevent the removal of the juvenile from the home by no later than 5 days after the date of the order.
938.21(5)(b)2.
2. If the juvenile is held in custody outside the home in a placement recommended by the intake worker, a statement that the court approves the placement recommended by the intake worker or, if the juvenile is placed outside the home in a placement other than a placement recommended by the intake worker, a statement that the court has given bona fide consideration to the recommendations made by the intake worker and all parties relating to the placement of the juvenile.
938.21(5)(b)3.
3. If the judge or circuit court commissioner finds that any of the circumstances specified in
s. 938.355 (2d) (b) 1. to
4. applies with respect to a parent, a determination that the county department or agency primarily responsible for providing services under the custody order is not required to make reasonable efforts with respect to the parent to make it possible for the juvenile to return safely to his or her home.
938.21(5)(c)
(c) The judge or circuit court commissioner shall make the findings specified in
par. (b) 1. and
3. on a case-by-case basis based on circumstances specific to the juvenile and shall document or reference the specific information on which those findings are based in the custody order. A custody order that merely references
par. (b) 1. or
3. without documenting or referencing that specific information in the custody order or an amended custody order that retroactively corrects an earlier custody order that does not comply with this paragraph is not sufficient to comply with this paragraph.
938.21(5)(d)1.1. If the judge or circuit court commissioner finds that any of the circumstances specified in
s. 938.355 (2d) (b) 1. to
4. applies with respect to a parent, the judge or circuit court commissioner shall hold a hearing within 30 days after the date of that finding to determine the permanency plan for the juvenile. If a hearing is held under this subdivision, the agency responsible for preparing the permanency plan shall file the permanency plan with the court not less than 5 days before the date of the hearing.
938.21(5)(d)2.
2. If a hearing is held under subd. 1, at least 10 days before the date of the hearing the court shall notify the juvenile, any parent, guardian, and legal custodian of the juvenile, and any foster parent, treatment foster parent, or other physical custodian described in
s. 48.62 (2) of the juvenile of the time, place, and purpose of the hearing.
938.21(5)(d)3.
3. The court shall give a foster parent, treatment foster parent, or other physical custodian described in
s. 48.62 (2) who is notified of a hearing under
subd. 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, relevant to the issues to be determined at the hearing. A foster parent, treatment foster parent, or other physical custodian who receives a notice of a hearing under
subd. 2. and an opportunity to be heard under this subdivision 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.
938.21(6)
(6) Amendment of order. An order placing a juvenile under
sub. (4) (a) on conditions specified in this section may at any time be amended, with notice, so as to return the juvenile to another form of custody for failure to conform to the conditions originally imposed. A juvenile may be transferred to secure custody if he or she meets the criteria of
s. 938.208.
938.21(7)
(7) Deferred prosecution. If the judge or circuit court commissioner determines that the best interests of the juvenile and the public are served, he or she may enter a consent decree under
s. 938.32 or order the petition dismissed and refer the matter to the intake worker for deferred prosecution in accordance with
s. 938.245.
938.22
938.22
Establishment of county or private juvenile facilities. 938.22(1)(a)(a) Subject to
s. 48.66 (1) (b), the county board of supervisors of any county may establish a secured group home or a secure detention facility in accordance with
ss. 301.36 and
301.37 or the county boards of supervisors for 2 or more counties may jointly establish a secured group home or a secure detention facility in accordance with
ss. 46.20,
301.36 and
301.37. The county board of supervisors of any county may establish a shelter care facility in accordance with
ss. 46.16 and
46.17 or the county boards of supervisors for 2 or more counties may jointly establish a shelter care facility in accordance with
ss. 46.16,
46.17 and
46.20. A private entity may establish a secure detention facility in accordance with
ss. 301.36 and
301.37 and contract with one or more county boards of supervisors under
s. 938.222 for holding juveniles in the private secure detention facility.
938.22(1)(b)
(b) Subject to
sub. (3) (ar), in counties having a population of less than 500,000, the nonjudicial operational policies of a public secured group home, secure detention facility or shelter care facility shall be determined by the county board of supervisors or, in the case of a public secured group home, secure detention facility or shelter care facility established by 2 or more counties, by the county boards of supervisors for the 2 or more counties jointly. Those policies shall be executed by the superintendent appointed under
sub. (3) (a).
938.22(1)(c)
(c) In counties having a population of 500,000 or more, the nonjudicial operational policies of a public secured group home, secure detention facility and the detention section of the children's court center shall be established by the county board of supervisors, and the execution thereof shall be the responsibility of the director of the children's court center.
