48.185 Annotation
This section does not authorize change of venue, upon motion of party or upon stipulation of parties, after adjudication but before the first dispositional hearing.
75 Atty. Gen. 100.
HOLDING A CHILD OR AN EXPECTANT MOTHER IN CUSTODY
48.19
48.19
Taking a child into custody. 48.19(1)
(1) A child may be taken into custody under any of the following:
48.19(1)(c)
(c) An order of the judge if made upon a showing satisfactory to the judge that the welfare of the child demands that the child be immediately removed from his or her present custody. The order shall specify that the child be held in custody under
s. 48.207 (1).
48.19(1)(cm)
(cm) An order of the judge if made upon a showing satisfactory to the judge that the child is an expectant mother, that due to the child expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered unless the child expectant mother is taken into custody and that the child expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her. The order shall specify that the child expectant mother be held in custody under
s. 48.207 (1).
48.19(1)(d)
(d) Circumstances in which a law enforcement officer believes on reasonable grounds that any of the following conditions exists:
48.19(1)(d)1.
1. A capias or a warrant for the child's apprehension has been issued in this state, or that the child is a fugitive from justice.
48.19(1)(d)2.
2. A capias or a warrant for the child's apprehension has been issued in another state.
48.19(1)(d)4.
4. The child has run away from his or her parents, guardian or legal or physical custodian.
48.19(1)(d)5.
5. The child is suffering from illness or injury or is in immediate danger from his or her surroundings and removal from those surroundings is necessary.
48.19(1)(d)7.
7. The child has violated the conditions of an order under
s. 48.21 (4) or the conditions of an order for temporary physical custody by an intake worker.
48.19(1)(d)8.
8. The child is an expectant mother and there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered due to the child expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, unless the child expectant mother is taken into custody.
48.19(2)
(2) When a child is taken into physical custody as provided in this section, the person taking the child into custody shall immediately attempt to notify the parent, guardian and legal custodian of the child by the most practical means. The person taking the child into custody shall continue such attempt until the parent, guardian and legal custodian of the child are notified, or the child is delivered to an intake worker under
s. 48.20 (3), whichever occurs first. If the child 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 child are notified.
48.19(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.
48.19 Annotation
A viable fetus is not a "person" within the definition of a child under s. 48.02 (2). A court may not order protective custody of a fetus by requiring custody of the mother. State ex rel. Angela M.W. v. Kruzicki,
209 Wis. 2d 112,
561 N.W.2d 729 (1997),
95-2480.
48.193
48.193
Taking an adult expectant mother into custody. 48.193(1)(1) An adult expectant mother of an unborn child may be taken into custody under any of the following:
48.193(1)(c)
(c) An order of the judge if made upon a showing satisfactory to the judge that due to the adult expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered unless the adult expectant mother is taken into custody and that the adult expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her. The order shall specify that the adult expectant mother be held in custody under
s. 48.207 (1m).
48.193(1)(d)
(d) Circumstances in which a law enforcement officer believes on reasonable grounds that any of the following conditions exists:
48.193(1)(d)1.
1. A capias or warrant for the apprehension of the adult expectant mother has been issued in this state or in another state.
48.193(1)(d)2.
2. There is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered due to the adult expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, unless the adult expectant mother is taken into custody.
48.193(1)(d)3.
3. The adult expectant mother has violated the conditions of an order under
s. 48.213 (3) or the conditions of an order for temporary physical custody by an intake worker.
48.193(2)
(2) When an adult expectant mother of an unborn child is taken into physical custody as provided in this section, the person taking the adult expectant mother into custody shall immediately attempt to notify an adult relative or friend of the adult expectant mother by the most practical means. The person taking the adult expectant mother into custody shall continue such attempt until an adult relative or friend is notified, or the adult expectant mother is delivered to an intake worker under
s. 48.203 (2), whichever occurs first. If the adult expectant mother is delivered to the intake worker before an adult relative or friend is notified, the intake worker, or another person at his or her direction, shall continue the attempt to notify until an adult relative or friend of the adult expectant mother is notified.
48.193(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.
48.193 History
History: 1997 a. 292.
48.195
48.195
Taking a newborn child into custody. 48.195(1)
(1)
Taking child into custody. In addition to being taken into custody under
s. 48.19, a child whom a law enforcement officer, emergency medical technician, or hospital staff member reasonably believes to be 72 hours old or younger may be taken into custody under circumstances in which a parent of the child relinquishes custody of the child to the law enforcement officer, emergency medical technician, or hospital staff member and does not express an intent to return for the child. If a parent who wishes to relinquish custody of his or her child under this subsection is unable to travel to a sheriff's office, police station, fire station, hospital, or other place where a law enforcement officer, emergency medical technician, or hospital staff member is located, the parent may dial the telephone number "911" or, in an area in which the telephone number "911" is not available, the number for an emergency medical service provider, and the person receiving the call shall dispatch a law enforcement officer or emergency medical technician to meet the parent and take the child into custody. A law enforcement officer, emergency medical technician, or hospital staff member who takes a child into custody under this subsection shall take any action necessary to protect the health and safety of the child, shall, within 24 hours after taking the child into custody, deliver the child to the intake worker under
s. 48.20, and shall, within 5 days after taking the child into custody, file a birth certificate for the child under
s. 69.14 (3).
48.195(2)(a)(a) Except as provided in this paragraph, a parent who relinquishes custody of a child under
sub. (1) and any person who assists the parent in that relinquishment have the right to remain anonymous. The exercise of that right shall not affect the manner in which a law enforcement officer, emergency medical technician, or hospital staff member performs his or her duties under this section. No person may induce or coerce or attempt to induce or coerce a parent or person assisting a parent who wishes to remain anonymous into revealing his or her identity, unless the person has reasonable cause to suspect that the child has been the victim of abuse or neglect, as defined in
s. 48.981 (1) (d), or that the person assisting the parent is coercing the parent into relinquishing custody of the child.
48.195(2)(b)
(b) A parent who relinquishes custody of a child under
sub. (1) and any person who assists the parent in that relinquishment may leave the presence of the law enforcement officer, emergency medical technician, or hospital staff member who took custody of the child at any time, and no person may follow or pursue the parent or person assisting the parent, unless the person has reasonable cause to suspect that the child has been the victim of abuse or neglect, as defined in
s. 48.981 (1) (d), or that the person assisting the parent has coerced the parent into relinquishing custody of the child.
48.195(2)(c)
(c) No officer, employee, or agent of this state or of a political subdivision of this state may attempt to locate or ascertain the identity of a parent who relinquishes custody of a child under
sub. (1) or any person who assists the parent in that relinquishment, unless the officer, employee, or agent has reasonable cause to suspect that the child has been the victim of abuse or neglect, as defined in
s. 48.981 (1) (d), or that the person assisting the parent has coerced the parent into relinquishing custody of the child.
48.195(2)(d)
(d) Any person who obtains any information relating to the relinquishment of a child under
sub. (1) shall keep that information confidential and may not disclose that information, except to the following persons:
48.195(2)(d)1.
1. The birth parent of the child, if the birth parent has waived his or her right under
par. (a) to remain anonymous, or the adoptive parent of the child, if the child is later adopted.
48.195(2)(d)2.
2. Appropriate staff of the department, county department, or licensed child welfare agency that is providing services to the child.
48.195(2)(d)4.
4. An attending physician for purposes of diagnosis and treatment of the child.
48.195(2)(d)5.
5. The child's foster parent, treatment foster parent, or other person having physical custody of the child.
48.195(2)(d)6.
6. A court conducting proceedings under
s. 48.21, proceedings relating to a petition under
s. 48.13 (2m) or
48.42, or dispositional proceedings under
subch. VI or
VIII relating to the child, the county corporation counsel, district attorney, or agency legal counsel representing the interests of the public in those proceedings, or the guardian ad litem representing the interests of the child in those proceedings.
48.195(2)(d)7.
7. A tribal court, or other adjudicative body authorized by an American Indian tribe or band to perform child welfare functions, that is exercising jurisdiction over proceedings relating to the child, an attorney representing the interests of the American Indian tribe or band in those proceedings, or an attorney representing the interests of the child in those proceedings.
48.195(3)(a)(a) Subject to
par. (b), a law enforcement officer, emergency medical technician, or hospital staff member who takes a child into custody under
sub. (1) shall make available to the parent who relinquishes custody of the child the maternal and child health toll-free telephone number maintained by the department under
42 USC 705 (a) (5) (E).
48.195(3)(b)
(b) The decision whether to accept the information made available under
par. (a) is entirely voluntary on the part of the parent. No person may induce or coerce or attempt to induce or coerce any parent into accepting that information.
48.195(4)(a)(a) Any parent who relinquishes custody of his or her child under
sub. (1) and any person who assists the parent in that relinquishment are immune from any civil or criminal liability for any good faith act or omission in connection with that relinquishment. The immunity granted under this paragraph includes immunity for exercising the right to remain anonymous under
sub. (2) (a), the right to leave at any time under
sub. (2) (b), and the right not to accept any information under
sub. (3) (b) and immunity from prosecution under
s. 948.20 for abandonment of a child or under
s. 948.21 for neglecting a child.
48.195(4)(b)
(b) Any law enforcement officer, emergency medical technician, or hospital staff member who takes a child into custody under
sub. (1) is immune from any civil liability to the child's parents, or any criminal liability for any good faith act or omission occurring solely in connection with the act of receiving custody of the child from the child's parents, but is not immune from any civil or criminal liability for any act or omission occurring in subsequently providing care for the child.
48.195(4)(c)
(c) In any civil or criminal proceeding, the good faith of a person specified in
par. (a) or
(b) is presumed. This presumption may be overcome only by clear and convincing evidence.
48.195(5)
(5) Medical assistance eligibility. A child who is taken into custody under
sub. (1) is presumed to be eligible for medical assistance under
s. 49.46 or
49.47.
48.195(6)
(6) Rules. The department shall promulgate rules to implement this section. In promulgating those rules, the department shall consider the different circumstances under which a parent might relinquish custody of a child under
sub. (1). The rules shall include rules prescribing a means by which a parent who relinquishes custody of his or her child under
sub. (1) may, until the granting of an order terminating parental rights, choose to be identified as the child's parent.
48.195 History
History: 2001 a. 2.
48.195 Cross-reference
Cross Reference: See also ch.
DCF 39, Wis. adm. code.
48.20
48.20
Release or delivery of child from custody. 48.20(2)(ag)(ag) Except as provided in
pars. (b) to
(d), a person taking a child into custody shall make every effort to release the child immediately to the child's parent, guardian or legal custodian.
48.20(2)(b)
(b) If the child's parent, guardian or legal custodian is unavailable, unwilling or unable to provide supervision for the child, the person who took the child into custody may release the child to a responsible adult after counseling or warning the child as may be appropriate.
48.20(2)(c)
(c) If the child is 15 years of age or older, the person who took the child into custody may release the child without immediate adult supervision after counseling or warning the child as may be appropriate.
48.20(2)(d)
(d) If the child is a runaway, the person who took the child into custody may release the child to a home authorized under
s. 48.227.
48.20(3)
(3) If the child is released under
sub. (2) (b) to
(d), the person who took the child into custody shall immediately notify the child's parent, guardian and legal custodian of the time and circumstances of the release and the person, if any, to whom the child was released. If the child is not released under
sub. (2), the person who took the child into custody shall arrange in a manner determined by the court and law enforcement agencies for the child to be interviewed by the intake worker under
s. 48.067 (2), and shall make a statement in writing with supporting facts of the reasons why the child was taken into physical custody and shall give any child 12 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.
48.20(4)
(4) If the child is believed to be suffering from a serious physical condition which requires either prompt diagnosis or prompt treatment, the person taking the child into physical custody, the intake worker or other appropriate person shall deliver the child to a hospital as defined in
s. 50.33 (2) (a) and
(c) or physician's office.
48.20(4m)
(4m) If the child is an expectant mother and if the unborn child or child expectant mother is believed to be suffering from a serious physical condition which requires either prompt diagnosis or prompt treatment, the person taking the child expectant mother into physical custody, the intake worker or other appropriate person shall deliver the child expectant mother to a hospital as defined in
s. 50.33 (2) (a) and
(c) or physician's office.
48.20(5)
(5) If the child is believed to be mentally ill, drug dependent or developmentally disabled, and exhibits conduct which constitutes a substantial probability of physical harm to the child or to others, or a very substantial probability of physical impairment or injury to the child exists due to the impaired judgment of the child, and the standards of
s. 51.15 are met, the person taking the child into physical custody, the intake worker or other appropriate person shall proceed under
s. 51.15.
48.20(6)
(6) If the child 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 child into physical custody, the intake worker or other appropriate person shall proceed under
s. 51.45 (11).
48.20(7)(a)(a) When a child is interviewed by an intake worker, the intake worker shall inform any child who is alleged to be in need of protection or services and who is 12 years of age or older of his or her right to counsel.
48.20(7)(b)
(b) The intake worker shall review the need to hold the child in custody and shall make every effort to release the child from custody as provided in
par. (c). The intake worker shall base his or her decision as to whether to release the child or to continue to hold the child in custody on the criteria specified in
s. 48.205 (1) and criteria established under
s. 48.06 (1) or
(2).
48.20(7)(c)
(c) The intake worker may release the child:
48.20(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 child, release the child to a responsible adult, counseling or warning the child as may be appropriate, or, if a child is 15 years of age or older, release the child without immediate adult supervision, counseling or warning the child as may be appropriate; or
48.20(7)(d)
(d) If the child is released from custody, the intake worker shall immediately notify the child's parent, guardian and legal custodian of the time and circumstances of the release and the person, if any, to whom the child was released.
48.20(8)
(8) If a child is held in custody, the intake worker shall notify the child's parent, guardian and legal custodian of the reasons for holding the child in custody and of the child's whereabouts unless there is reason to believe that notice would present imminent danger to the child. The parent, guardian and legal custodian shall also be notified of the time and place of the detention hearing required under
s. 48.21, 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 child is 12 years of age or older, the child shall receive the same notice about the detention hearing as the parent, guardian or legal custodian. The intake worker shall notify both the child and the child's parent, guardian or legal custodian. When the child is an expectant mother who has been taken into custody under
s. 48.19 (1) (cm) or
(d) 8., the unborn child, through the unborn child's guardian ad litem, shall receive the same notice about the whereabouts of the child expectant mother, about the reasons for holding the child expectant mother in custody and about the detention hearing as the child expectant mother and her parent, guardian or legal custodian. The intake worker shall notify the child expectant mother, her parent, guardian or legal custodian and the unborn child, by the unborn child's guardian ad litem.
48.203
48.203
Release or delivery of adult expectant mother from custody. 48.203(1)(1) A person taking an adult expectant mother of an unborn child into custody shall make every effort to release the adult expectant mother to an adult relative or friend of the adult expectant mother after counseling or warning the adult expectant mother as may be appropriate or, if an adult relative or friend is unavailable, unwilling or unable to accept the release of the adult expectant mother, the person taking the adult expectant mother into custody may release the adult expectant mother under the adult expectant mother's own supervision after counseling or warning the adult expectant mother as may be appropriate.
48.203(2)
(2) If the adult expectant mother is not released under
sub. (1), the person who took the adult expectant mother into custody shall arrange in a manner determined by the court and law enforcement agencies for the adult expectant mother to be interviewed by the intake worker under
s. 48.067 (2), and shall make a statement in writing with supporting facts of the reasons why the adult expectant mother was taken into physical custody and shall give the adult expectant mother 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.
48.203(3)
(3) If the unborn child or adult expectant mother is believed to be suffering from a serious physical condition which requires either prompt diagnosis or prompt treatment, the person taking the adult expectant mother into physical custody, the intake worker or other appropriate person shall deliver the adult expectant mother to a hospital, as defined in
s. 50.33 (2) (a) and
(c), or physician's office.
48.203(4)
(4) If the adult expectant mother is believed to be mentally ill, drug dependent or developmentally disabled, and exhibits conduct which constitutes a substantial probability of physical harm to herself or others, or a substantial probability of physical impairment or injury to the adult expectant mother exists due to the impaired judgment of the adult expectant mother, and the standards of
s. 51.15 are met, the person taking the adult expectant mother into physical custody, the intake worker or other appropriate person shall proceed under
s. 51.15.
48.203(5)
(5) If the adult expectant mother is believed to be an intoxicated person who has threatened, attempted or inflicted physical harm on herself or on another and is likely to inflict such physical harm unless committed, or is incapacitated by alcohol, the person taking the adult expectant mother into physical custody, the intake worker or other appropriate person shall proceed under
s. 51.45 (11).
48.203(6)(a)(a) When an adult expectant mother is interviewed by an intake worker, the intake worker shall inform the adult expectant mother of her right to counsel.
48.203(6)(b)
(b) The intake worker shall review the need to hold the adult expectant mother in custody and shall make every effort to release the adult expectant mother from custody as provided in
par. (c). The intake worker shall base his or her decision as to whether to release the adult expectant mother or to continue to hold the adult expectant mother in custody on the criteria specified in
s. 48.205 (1m) and criteria established under
s. 48.06 (1) or
(2).
48.203(6)(c)
(c) The intake worker may release the adult expectant mother to an adult relative or friend of the adult expectant mother after counseling or warning the adult expectant mother as may be appropriate or, if an adult relative or friend is unavailable, unwilling or unable to accept the release of the adult expectant mother, the intake worker may release the adult expectant mother under the adult expectant mother's own supervision after counseling or warning the adult expectant mother as may be appropriate.
48.203(7)
(7) If an adult expectant mother is held in custody, the intake worker shall notify the adult expectant mother and the unborn child, through the unborn child's guardian ad litem, of the reasons for holding the adult expectant mother in custody, the time and place of the detention hearing required under
s. 48.213, the nature and possible consequences of that hearing, and the right to present and cross-examine witnesses at the hearing.
