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 court 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 court 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 court finds that any of the circumstances specified in
s. 938.355 (2d) (b) 1. to
4. applies with respect to a parent, the court 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 under
sub. (4) (a) may be amended at any time, with notice, so as to place the juvenile in 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 court determines that the best interests of the juvenile and the public are served, the court may enter a consent decree under
s. 938.32 or dismiss the petition and refer the matter to the intake worker for deferred prosecution in accordance with
s. 938.245.
938.21 Annotation
When a district attorney receives notice of a deferred prosecution agreement from an intake worker under s. 938.24 (5), the 20 days during which the district attorney may terminate the agreement under s. 938.245 (6) begins. When a court orders a deferred prosecution agreement under sub. (7), the intake worker need not notify the district attorney and nothing triggers a district attorney's authority to terminate the agreement under s. 938.245 (6). An order under sub. (7) dismissing a petition and referring for deferred prosecution does not require district attorney consent. The district attorney may not override the order by filing a new petition with the same charges and facts. State v. Lindsey A.F. 2002 WI App 223,
257 Wis. 2d 650,
653 N.W.2d 116,
01-0081. Affirmed. 2003 WI 63,
262 Wis. 2d 200,
663 N.W.2d 757,
01-0081.
938.21 Annotation
Deferred prosecutions under sub. (7) are not limited to situations in which the child is in custody. State v. Lindsey A.F. 2003 WI 63,
262 Wis. 2d 200,
663 N.W.2d 757,
01-0081.
938.22
938.22
County and private juvenile facilities. 938.22(1)(a)(a) Subject to
s. 48.66 (1) (b), the county board of supervisors of a county may establish a juvenile 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 juvenile detention facility in accordance with
ss. 46.20,
301.36, and
301.37. The county board of supervisors of a 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 juvenile 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 to hold juveniles in the private juvenile 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 juvenile detention facility or shelter care facility shall be determined by the county board of supervisors or, in the case of a public juvenile 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 juvenile detention facility and the detention section of the children's court center shall be established by the county board of supervisors, and the policies shall be executed by the director of the children's court center.
938.22(1)(d)
(d) The nonjudicial operational policies of a private secure detention facility shall be established by the private entity operating the secure detention facility. Those policies shall be executed by the superintendent appointed under
sub. (3) (bm).
938.22(2)(a)(a) Counties shall submit plans for a juvenile detention facility or juvenile portion of the county jail to the department of corrections and submit plans for a shelter care facility to the department of health and family services. A private entity that proposes to establish a juvenile detention facility shall submit plans for the facility to the department of corrections. The applicable department shall review the submitted plans. A county or a private entity may not implement a plan unless the applicable department has approved the plan. The department of corrections shall promulgate rules establishing minimum requirements for the approval and operation of juvenile detention facilities and the juvenile portion of county jails. The plans and rules shall be designed to protect the health, safety, and welfare of the juveniles placed in those facilities.
938.22(2)(b)
(b) If the department approves, a juvenile detention facility or a holdover room may be located in a public building in which there is a jail or other facility for the detention of adults if the juvenile detention facility or holdover room is physically segregated from the jail or other facility so that juveniles may enter the juvenile detention facility or holdover room without passing through areas where adults are confined and juveniles detained in the juvenile detention facility or holdover room cannot communicate with or view adults confined in the jail or other facility.
938.22(2)(c)
(c) A shelter care facility shall be used for the temporary care of juveniles. A shelter care facility, other than a holdover room, may not be in the same building as a facility for the detention of adults.
938.22(3)(a)(a) In counties having a population of less than 500,000, public juvenile detention facilities and public shelter care facilities shall be in the charge of a superintendent. The county board of supervisors or, where 2 or more counties operate joint public juvenile detention facilities or shelter care facilities, the county boards of supervisors for the 2 or more counties jointly shall appoint the superintendent and other necessary personnel for the care and education of the juveniles placed in those facilities, subject to
par. (am) and to civil service regulations in counties having civil service.
938.22(3)(am)
(am) If a juvenile detention facility or holdover room is part of a public building in which there is a jail or other facility for the detention of adults, the sheriff or other keeper of the jail or other facility for the detention of adults may nominate persons for the position of superintendent of the juvenile detention facility or holdover room. Nominees under this paragraph shall have demonstrated administrative abilities and interest in juvenile justice and the welfare of juveniles.
938.22(3)(ar)
(ar) Notwithstanding
sub. (1) (b), if a juvenile detention facility or holdover room is located in a public building in which there is a jail or other facility for the detention of adults, the sheriff or other keeper of the jail or other facility for the detention of adults shall determine the security and emergency response policies of that juvenile detention facility or holdover room and the procedures for implementing those policies.
938.22(3)(b)
(b) In counties having a population of 500,000 or more, the director of the children's court center shall be in charge of and responsible for public juvenile detention facilities, the juvenile detention section of the center, and the personnel assigned to this section, including a detention supervisor or superintendent. The director of the children's court center may also serve as superintendent of detention if the county board of supervisors so determines.
938.22(3)(bm)
(bm) A private juvenile detention facility shall be in the charge of a superintendent appointed by the private entity operating the secure detention facility.
938.22(3)(c)
(c) A superintendent appointed under
par. (a),
(b), or
(bm) after May 1, 1992, shall, within one year after that appointment, successfully complete an administrative training program approved or provided by the department of justice.
938.22(5)
(5) County contracts with private facilities. A county board of supervisors, or 2 or more county boards of supervisors jointly, may contract with privately operated secure detention facilities, shelter care facilities or home detention programs for purchase of services. A county board of supervisors may delegate this authority to its county department.
938.22(7)
(7) Licensing of shelter care facilities. 938.22(7)(a)(a) No person may establish a shelter care facility without first obtaining a license under
s. 48.66 (1) (a). To obtain a license under
s. 48.66 (1) (a) to operate a shelter care facility, a person must meet the minimum requirements for a license established by the department of health and family services under
s. 48.67, meet the requirements specified in
s. 48.685, and pay the license fee under
par. (b). A license issued under
s. 48.66 (1) (a) to operate a shelter care facility is valid until revoked or suspended, but shall be reviewed every 2 years as provided in
s. 48.66 (5).
938.22(7)(b)
(b) Before the department of health and family services may issue a license under
s. 48.66 (1) (a) to operate a shelter care facility, the shelter care facility shall pay to that department a biennial fee of $60.50, plus a biennial fee of $18.15 per juvenile, based on the number of juveniles that the shelter care facility is licensed to serve. A shelter care facility that wishes to continue a license issued under
s. 48.66 (1) (a) shall pay the fee by the continuation date of the license. A new shelter care facility shall pay the fee by no later than 30 days before the opening of the shelter care facility.
938.22(7)(c)
(c) A shelter care facility that wishes to continue a license issued under
s. 48.66 (1) (a) and that fails to pay the fee under
par. (b) by the continuation date of the license or a new shelter care facility that fails to pay the fee under
par. (b) by 30 days before the opening of the shelter care facility shall pay an additional fee of $5 per day for every day after the deadline that the facility fails to pay the fee.
938.222
938.222
Contracts with private entities for secure detention facility services. 938.222(2)(a)1.
1. That the private juvenile detention facility meet or exceed the minimum requirements for the approval and operation of a juvenile detention facility established by the department by rule under
s. 938.22 (2) (a) and that the private juvenile detention facility be approved by the department under
s. 301.36.
938.222(2)(a)2.
2. That the private juvenile detention facility provide educational programming, health care, and other care that is equivalent to that which a juvenile would receive in a public juvenile detention facility.
938.222(2)(b)
(b) In addition to the requirements under
par. (a), a contract under
sub. (1) shall include all of the following:
938.222(2)(b)1.
1. The rates to be paid by the county for holding a juvenile in the private secure detention facility and the charges to be paid by the county for any extraordinary medical and dental expenses and any programming provided for a juvenile who is held in the private secure detention facility.
938.222(2)(b)2.
2. An agreement that the county retains jurisdiction over a juvenile who is held in the private secure detention facility.
938.222(2)(b)3.
3. An agreement that the private secure detention facility is subject to investigation and inspection by the department under
s. 301.36.
938.222(2)(b)4.
4. Any other matters that are necessary and appropriate concerning the obligations, responsibilities and rights of the contracting counties and the department.
938.222 History
History: 1997 a. 27;
2005 a. 344.
938.223
938.223
Contracts with Minnesota counties for secure detention facility services. 938.223(2)(a)1.
1. That the Minnesota juvenile detention facility meet or exceed the minimum requirements for the approval and operation of a Wisconsin juvenile detention facility established by the department by rule under
s. 938.22 (2) (a) and that the Minnesota juvenile detention facility be approved by the department under
s. 301.36.
938.223(2)(a)2.
2. That the Minnesota juvenile detention facility provide educational programming, health care, and other care that is equivalent to that which a juvenile would receive in a Wisconsin juvenile detention facility.
938.223(2)(b)
(b) In addition to the requirements under
par. (a), a contract under
sub. (1) shall include all of the following:
938.223(2)(b)1.
1. The rates to be paid by the Wisconsin county for holding a juvenile in the Minnesota secure detention facility and the charges to be paid by the Wisconsin county for any extraordinary medical and dental expenses and any programming provided for a juvenile who is held in the Minnesota secure detention facility.
938.223(2)(b)2.
2. An agreement that the Wisconsin county retains jurisdiction over a juvenile who is held in the Minnesota secure detention facility.
938.223(2)(b)3.
3. An agreement that the Minnesota secure detention facility is subject to investigation and inspection by the department under
s. 301.36.
938.223(2)(b)4.
4. Any other matters that are necessary and appropriate concerning the obligations, responsibilities and rights of the contracting counties and the department.
938.223(3)
(3) Minnesota juveniles in Wisconsin facilities. The county board of supervisors of a county that operates a juvenile detention facility may contract with one or more counties in Minnesota for the use of the juvenile detention facility operated by the Wisconsin county for the holding of juveniles transferred to that juvenile detention facility by the Minnesota county.
938.224
938.224
Contracts with department for secure detention facility services. 938.224(2)
(2) Contract requirements. A contract under
sub. (1) shall require all of the following:
938.224(2)(a)
(a) That the county may use a secured correctional facility for holding a juvenile under
sub. (1) only if any of the following criteria are met:
938.224(2)(a)1.
1. There is no county-operated secure detention facility approved by the department within 40 miles of the county seat of the county.
938.224(2)(a)2.
2. There is no bed space available in a county-operated secure detention facility approved by the department within 40 miles of the county seat of the county.
938.224(2)(b)
(b) That the county may use a secured correctional facility for holding a juvenile under
sub. (1) only if the department approves that use based on the availability of beds in the secured correctional facility and on the programming needs of the juvenile.
938.224(3)
(3) Additional requirements. In addition to the requirements under
sub. (2), a contract under
sub. (1) shall include all of the following:
938.224(3)(a)
(a) The per person daily rate to be paid by the county for holding a juvenile under
sub. (1) and the charges to be paid by the county for any extraordinary medical and dental expenses and any programming provided for the juvenile by the department.
938.224(3)(b)
(b) Any other matters that are necessary and appropriate concerning the obligations, responsibilities and rights of the contracting county and the department.
938.224(4)
(4) Supervision and control of juveniles. A juvenile held in custody under
sub. (1) is under the supervision and control of the department and is subject to the rules and discipline of the department.
938.224 History
History: 1997 a. 27;
2005 a. 344.
938.225
938.225
Statewide plan for secure detention facilities. The department shall assist counties in establishing secure detention facilities under
s. 938.22 by developing and promulgating a statewide plan for the establishment and maintenance of suitable secure detention facilities reasonably accessible to each court.
938.225 History
History: 1995 a. 77.
938.23
938.23
Right to counsel. 938.23(1g)(1g)
Definition. In this section, "counsel" means an attorney acting as adversary counsel.
938.23(1j)
(1j) Duties of Counsel. Counsel shall advance and protect the legal rights of the party represented. Counsel may not act as guardian ad litem for any party in the same proceeding.
938.23(1m)
(1m) Right of juveniles to legal representation. Juveniles subject to proceedings under this chapter shall be afforded legal representation as follows:
938.23(1m)(a)
(a) A juvenile alleged to be delinquent under
s. 938.12 or held in a juvenile detention facility shall be represented by counsel at all stages of the proceedings. A juvenile 15 years of age or older may waive counsel if the court is satisfied that the waiver is knowingly and voluntarily made and the court accepts the waiver. If the waiver is accepted, the court may not place the juvenile in a juvenile correctional facility or a secured residential care center for children and youth, transfer supervision of the juvenile to the department for participation in the serious juvenile offender program, or transfer jurisdiction over the juvenile to adult court.
938.23(1m)(ar)
(ar) A juvenile subject to proceedings under
s. 938.357 (3) or
(5) shall be afforded legal representation as provided in those subsections.
938.23(1m)(b)1.1. If a juvenile is alleged to be in need of protection or services under
s. 938.13, the juvenile may be represented by counsel at the discretion of the court. Except as provided in
subd. 2., a juvenile 15 years of age or older may waive counsel if the court is satisfied such waiver is knowingly and voluntarily made and the court accepts the waiver.
938.23(1m)(b)2.
2. If the petition is contested, the court may not place the juvenile outside his or her home unless the juvenile is represented by counsel at the fact-finding hearing and subsequent proceedings. If the petition is not contested, the court may not place the juvenile outside his or her home unless the juvenile is represented by counsel at the hearing at which the placement is made. For a juvenile under 12 years of age, the court may appoint a guardian ad litem instead of counsel.
938.23(3)
(3) Power of the court to appoint counsel. Except as provided in this subsection, at any time, upon request or on its own motion, the court may appoint counsel for the juvenile or any party, unless the juvenile or the party has or wishes to retain counsel of his or her own choosing. The court may not appoint counsel for any party other than the juvenile in a proceeding under
s. 938.13.
938.23(4)
(4) Providing counsel. If a juvenile has a right to be represented by counsel or is provided counsel at the discretion of the court under this section and counsel is not knowingly and voluntarily waived, the court shall refer the juvenile to the state public defender and counsel shall be appointed by the state public defender under
s. 977.08 without a determination of indigency. In any other situation under this section in which a person has a right to be represented by counsel or is provided counsel at the discretion of the court, competent and independent counsel shall be provided and reimbursed in any manner suitable to the court regardless of the person's ability to pay, except that the court may not order a person who files a petition under
s. 813.122 or
813.125 to reimburse counsel for the juvenile who is named as the respondent in that petition.
938.23(5)
(5) Counsel of own choosing. Notwithstanding
subs. (3) and
(4), any party is entitled to retain counsel of his or her own choosing at his or her own expense in any proceeding under this chapter.
938.23 Annotation
The right to be represented by counsel includes the right to effective counsel. In Interest of M.D.(S),
168 Wis. 2d 996,
485 N.W.2d 52 (1992).
