48.30(10)
(10) The court may permit any party to participate in hearings under this section by telephone or live audiovisual means.
48.30 History
History: 1977 c. 354,
355,
447;
1979 c. 300,
331,
355,
359;
1985 a. 321,
332;
1987 a. 151;
1987 a. 403 s.
256; Sup. Ct. Order, 158 Wis. 2d xvii (1990);
1993 a. 163,
474,
481;
1995 a. 77,
225,
404,
417;
1997 a. 3,
252,
292;
1999 a. 103;
2001 a. 61;
2007 a. 20.
48.30 Annotation
The time limits under sub. (1) are mandatory; failure to comply results in the court's loss of competency and is properly remedied by dismissal without prejudice. In Interest of Jason B.
176 Wis. 2d 400,
500 N.W.2d 384 (Ct. App. 1993).
48.30 Annotation
A court's failure to inform a juvenile of the right to judicial substitution does not affect its competence and warrants reversal only if the juvenile suffers actual prejudice. State v. Kywanda F.
200 Wis. 2d 26,
546 N.W.2d 440 (1996),
94-1866.
48.305
48.305
Hearing upon the involuntary removal of a child or expectant mother. Notwithstanding other time periods for hearings under this chapter, if a child is removed from the physical custody of the child's parent or guardian under
s. 48.19 (1) (c) or
(cm) or
(d) 5. or
8. without the consent of the parent or guardian or if an adult expectant mother is taken into custody under
s. 48.193 (1) (c) or
(d) 2. without the consent of the expectant mother, the court shall schedule a plea hearing and fact-finding hearing within 30 days after a request from the parent or guardian from whom custody was removed or from the adult expectant mother who was taken into custody. The plea hearing and fact-finding hearing may be combined. This time period may be extended only with the consent of the requesting parent, guardian or expectant mother.
48.31
48.31
Fact-finding hearing. 48.31(1)
(1) In this section, "fact-finding hearing" means a hearing to determine if the allegations in a petition under
s. 48.13 or
48.133 or a petition to terminate parental rights are proved by clear and convincing evidence.
48.31(2)
(2) The hearing shall be to the court unless the child, the child's parent, guardian, or legal custodian, the unborn child by the unborn child's guardian ad litem, or the expectant mother of the unborn child exercises the right to a jury trial by demanding a jury trial at any time before or during the plea hearing. If a jury trial is demanded in a proceeding under
s. 48.13 or
48.133, the jury shall consist of 6 persons. If a jury trial is demanded in a proceeding under
s. 48.42, the jury shall consist of 12 persons unless the parties agree to a lesser number.
Chapters 756 and
805 shall govern the selection of jurors. If the hearing involves a child victim or witness, as defined in
s. 950.02, the court may order that a deposition be taken by audiovisual means and allow the use of a recorded deposition under
s. 967.04 (7) to
(10) and, with the district attorney, shall comply with
s. 971.105. At the conclusion of the hearing, the court or jury shall make a determination of the facts, except that in a case alleging a child or an unborn child to be in need of protection or services under
s. 48.13 or
48.133, the court shall make the determination under
s. 48.13 (intro.) or
48.133 relating to whether the child or unborn child is in need of protection or services that can be ordered by the court. If the court finds that the child or unborn child is not within the jurisdiction of the court or, in a case alleging a child or an unborn child to be in need of protection or services under
s. 48.13 or
48.133, that the child or unborn child is not in need of protection or services that can be ordered by the court or if the court or jury finds that the facts alleged in the petition have not been proved, the court shall dismiss the petition with prejudice.
48.31(4)
(4) The court or jury shall make findings of fact and the court shall make conclusions of law relating to the allegations of a petition filed under
s. 48.13,
48.133 or
48.42, except that the court shall make findings of fact relating to whether the child or unborn child is in need of protection or services which can be ordered by the court. In cases alleging a child to be in need of protection or services under
s. 48.13 (11), the court may not find that the child is suffering emotional damage unless a licensed physician specializing in psychiatry or a licensed psychologist appointed by the court to examine the child has testified at the hearing that in his or her opinion the condition exists, and adequate opportunity for the cross-examination of the physician or psychologist has been afforded. The judge may use the written reports if the right to have testimony presented is voluntarily, knowingly and intelligently waived by the guardian ad litem or legal counsel for the child and the parent or guardian. In cases alleging a child to be in need of protection or services under
s. 48.13 (11m) or an unborn child to be in need of protection or services under
s. 48.133, the court may not find that the child or the expectant mother of the unborn child is in need of treatment and education for needs and problems related to the use or abuse of alcohol beverages, controlled substances or controlled substance analogs and its medical, personal, family or social effects unless an assessment for alcohol and other drug abuse that conforms to the criteria specified under
s. 48.547 (4) has been conducted by an approved treatment facility.
48.31(7)(a)(a) At the close of the fact-finding hearing, the court shall set a date for the dispositional hearing which allows a reasonable time for the parties to prepare but is no more than 10 days after the fact-finding hearing for a child in secure custody and no more than 30 days after the fact-finding hearing for a child or expectant mother who is not held in secure custody. If all parties consent, the court may immediately proceed with a dispositional hearing.
48.31(7)(b)
(b) If it appears to the court that disposition of the case may include placement of the child outside the child's home, the court shall order the child's parent to provide a statement of income, assets, debts, and living expenses to the court or the designated agency under
s. 48.33 (1) at least 5 days before the scheduled date of the dispositional hearing or as otherwise ordered by the court. The clerk of court shall provide, without charge, to any parent ordered to provide a statement of income, assets, debts, and living expenses a document setting forth the percentage standard established by the department under
s. 49.22 (9) and the manner of its application established by the department under
s. 49.345 (14) (g) and listing the factors that a court may consider under
s. 49.345 (14) (c).
48.31(7)(c)
(c) If the court orders the child's parent to provide a statement of income, assets, debts and living expenses to the court or if the court orders the child's parent to provide that statement to the designated agency under
s. 48.33 (1) and that designated agency is not the county department or, in a county having a population of 500,000 or more, the department, the court shall also order the child's parent to provide that statement to the county department or, in a county having a population of 500,000 or more, the department at least 5 days before the scheduled date of the dispositional hearing or as otherwise ordered by the court. The county department or, in a county having a population of 500,000 or more, the department shall provide, without charge, to the parent a form on which to provide that statement, and the parent shall provide that statement on that form. The county department or, in a county having a population of 500,000 or more, the department shall use the information provided in the statement to determine whether the department may claim federal foster care and adoption assistance reimbursement under
42 USC 670 to
679a for the cost of providing care for the child.
48.31 History
History: 1977 c. 354,
447;
1979 c. 32 s.
92 (13);
1979 c. 300,
331,
355,
357,
359;
1983 a. 197;
1985 a. 262 s.
8;
1987 a. 339;
1993 a. 481;
1995 a. 77,
275,
404,
448;
1997 a. 3,
35,
292;
1999 a. 103;
2001 a. 105;
2005 a. 42;
2007 a. 20.
48.31 Annotation
As a matter of judicial administration, the supreme court mandates procedures for withdrawal of a juvenile's jury demand. In Interest of N.E.
122 Wis. 2d 198,
361 N.W.2d 693 (1985).
48.31 Annotation
A fact-finding hearing under sub. (1) was not closed until the court ruled on a motion to set aside the verdict. In Interest of C.M.L.
157 Wis. 2d 152,
458 N.W.2d 573 (Ct. App. 1990).
48.31 Annotation
A child's need for protection or services should be determined as of the date the petition is filed. Children can be adjudicated in need of protection or services when divorced parents have joint custody, one parent committed acts proscribed by s. 48.13 (10), and at the time of the hearing the other can provide the necessary care for the children. State v. Gregory L.S. 2002 WI App 101,
253 Wis. 2d 563,
643 N.W.2d 890,
01-2325.
48.31 Annotation
Even in civil cases not implicating the fundamental rights of birth-parenthood, a defaulting party may appear at the prove-up hearing and counsel may cross-examine the plaintiff's witnesses and present evidence to mitigate or be heard as to the diminution of damages. A parent in a termination-of-parental-rights case is entitled to no less, unless, of course the adult parent knowingly waives the right to counsel. State v. Shirley E. 2006 WI App 55,
290 Wis. 2d 193,
711 N.W.2d 690 05-2752. Affirmed on other grounds. 2006 WI 129,
298 Wis. 2d 1,
724 N.W.2d 623,
05-2752.
48.315
48.315
Delays, continuances and extensions. 48.315(1)
(1) The following time periods shall be excluded in computing time periods under this chapter:
48.315(1)(a)
(a) Any period of delay resulting from other legal actions concerning the child or the unborn child and the unborn child's expectant mother, including an examination under
s. 48.295 or a hearing related to the mental condition of the child, the child's parent, guardian or legal custodian or the expectant mother, prehearing motions, waiver motions and hearings on other matters.
48.315(1)(b)
(b) Any period of delay resulting from a continuance granted at the request of or with the consent of the child and his or her counsel or of the unborn child by the unborn child's guardian ad litem.
48.315(1)(c)
(c) Any period of delay caused by the disqualification of a judge.
48.315(1)(d)
(d) Any period of delay resulting from a continuance granted at the request of the representative of the public under
s. 48.09 if the continuance is granted because of the unavailability of evidence material to the case when he or she has exercised due diligence to obtain the evidence and there are reasonable grounds to believe that the evidence will be available at the later date, or to allow him or her additional time to prepare the case and additional time is justified because of the exceptional circumstances of the case.
48.315(1)(e)
(e) Any period of delay resulting from the imposition of a consent decree.
48.315(1)(f)
(f) Any period of delay resulting from the absence or unavailability of the child or expectant mother.
48.315(1)(fm)
(fm) Any period of delay resulting from the inability of the court to provide the child with notice of an extension hearing under
s. 48.365 due to the child having run away or otherwise having made himself or herself unavailable to receive that notice.
48.315(1)(g)
(g) A reasonable period of delay when the child is joined in a hearing with another child as to whom the time for a hearing has not expired under this section if there is good cause for not hearing the cases separately.
48.315(1)(h)
(h) Any period of delay resulting from the need to appoint a qualified interpreter.
48.315(2)
(2) A continuance shall be granted by the court only upon a showing of good cause in open court or during a telephone conference under
s. 807.13 on the record and only for so long as is necessary, taking into account the request or consent of the district attorney or the parties and the interest of the public in the prompt disposition of cases.
48.315(2m)
(2m) No continuance or extension of a time period specified in this chapter may be granted and no period of delay specified in
sub. (1) may be excluded in computing a time period under this chapter if the continuance, extension, or exclusion would result in any of the following:
48.315(2m)(b)
(b) The court making an initial finding under
s. 48.38 (5m) that the agency primarily responsible for providing services to the child has made reasonable efforts to achieve the goals of the child's permanency plan more than 12 months after the date on which the child was removed from the home or making any subsequent findings under
s. 48.38 (5m) as to those reasonable efforts more than 12 months after the date of a previous finding as to those reasonable efforts.
48.315(3)
(3) Failure by the court or a party to act within any time period specified in this chapter does not deprive the court of personal or subject matter jurisdiction or of competency to exercise that jurisdiction. Failure to object to a period of delay or a continuance waives any challenge to the court's competency to act during the period of delay or continuance. If the court or a party does not act within a time period specified in this chapter, the court, while assuring the safety of the child, may grant a continuance under
sub. (2), dismiss the proceeding without prejudice, release the child from secure or nonsecure custody or from the terms of a custody order, or grant any other relief that the court considers appropriate.
48.315 History
History: 1977 c. 354; Sup. Ct. Order, 141 Wis. 2d xiii (1987);
1987 a. 403;
1991 a. 263;
1993 a. 98;
1997 a. 292;
2001 a. 16,
109;
2007 a. 20,
199.
48.315 Annotation
A trial court's sua sponte adjournment of a fact-finding hearing beyond the 30-day limit due to a congested calendar constituted good cause under sub. (2) when the adjournment order was entered within the 30-day period. In Matter of J.R.
152 Wis. 2d 598,
449 N.W.2d 52 (Ct. App. 1989).
48.315 Annotation
A court loses competence to exercise jurisdiction to extend an order when the hearing is not held within the 30-day period under s. 48.365 (6); the 30-day period may not be expanded by a continuance under s. 48.315 and the court's loss of competence cannot be waived. In Interest of B.J.N.
162 Wis. 2d 635,
469 N.W.2d 845 (1991).
48.315 Annotation
The period under sub. (1) (c) includes the time required to assign the new judge, send any required notices, notify the parties, and arrange for time on the court's calendar; applicable time limits for plea hearings apply after the assignment of the new judge. In Interest of Joshua M.W.
179 Wis. 2d 335,
507 N.W.2d 141 (Ct. App. 1993).
48.315 Annotation
Under sub. (2), "on the record" does not require reporting by a court reporter. A clerk's minutes satisfy the requirement. Waukesha County v. Darlene R.
201 Wis. 2d 633,
549 N.W.2d 489 (Ct. App. 1996),
95-1697.
48.315 Annotation
The benefits of a pretrial are universally recognized by bench and bar such that a court need not specify the factors supporting "good cause" for a continuance of the time limits under sub. (2). Waukesha County v. Darlene R.
201 Wis. 2d 633,
549 N.W.2d 489 (Ct. App. 1996),
95-1697.
48.315 Annotation
Under sub. (1) (a), the time limits are tolled for an examination of a parent under s. 48.295. Waukesha County v. Darlene R.
201 Wis. 2d 633,
549 N.W.2d 489 (Ct. App. 1996),
95-1697.
48.315 Annotation
The general time requirements of sub. (2) control all extensions of time under ch. 48. There are no provisions for waiver of time limits, and the only provisions for delays, continuances, and extensions are under this section. State v. April O. 2000 WI App 70,
233 Wis. 2d 663,
607 N.W.2d 927,
99-2487.
48.315 Annotation
The word "continuance" in sub. (2) is sufficiently broad to encompass situations in which the fact-finding hearing is originally scheduled beyond the statutory 45-day time period. A circuit court's schedule or lawyers' or litigants' difficulties in scheduling court dates may amount to good cause for extension, delay, or continuance under sub. (2). State v. Robert K. 2005 WI 152,
286 Wis. 2d 143,
706 N.W.2d 257,
04-2330.
48.315 Annotation
Reassignment of a case to a different judge because of docket congestion does not constitute disqualification of a judge under sub. (1) (c). Brown County v. Shannon R. 2005 WI 160,
286 Wis. 2d 278,
706 N.W.2d 269,
04-1305.
48.317
48.317
Jeopardy. Jeopardy attaches:
48.317(1)
(1) In a trial to the court, when a witness is sworn.
48.317(2)
(2) In a jury trial, when the jury selection is completed and the jury sworn.
48.317 History
History: 1977 c. 354.
48.32
48.32
Consent decree. 48.32(1)(a)(a) At any time after the filing of a petition for a proceeding relating to
s. 48.13 or
48.133 and before the entry of judgment, the judge or a circuit court commissioner may suspend the proceedings and place the child or expectant mother under supervision in the home or present placement of the child or expectant mother. The court may establish terms and conditions applicable to the child and the child's parent, guardian or legal custodian, to the child expectant mother and her parent, guardian or legal custodian or to the adult expectant mother, including the condition specified in
sub. (1b). The order under this section shall be known as a consent decree and must be agreed to by the child if 12 years of age or older, the parent, guardian or legal custodian, and the person filing the petition under
s. 48.25; by the child expectant mother, her parent, guardian or legal custodian, the unborn child by the unborn child's guardian ad litem and the person filing the petition under
s. 48.25; or by the adult expectant mother, the unborn child by the unborn child's guardian ad litem and the person filing the petition under
s. 48.25. The consent decree shall be reduced to writing and given to the parties.
48.32(1)(b)1.1. If at the time the consent decree is entered into the child is placed outside the home under a voluntary agreement under
s. 48.63 or is otherwise living outside the home without a court order and if the consent decree maintains the child in that placement or other living arrangement, the consent decree shall include all of the following:
48.32(1)(b)1.a.
a. A finding that placement of the child in his or her home would be contrary to the welfare of the child .
48.32(1)(b)1.b.
b. A finding as to whether the county department, the department, in a county having a population of 500,000 or more, or the agency primarily responsible for providing services to the child has made reasonable efforts to prevent the removal of the child from the home, while assuring that the child's health and safety are the paramount concerns, unless the judge or circuit court commissioner finds that any of the circumstances specified in
s. 48.355 (2d) (b) 1. to
5. applies .
48.32(1)(b)1.c.
c. A finding as to whether the county department, department, or agency has made reasonable efforts to achieve the goal of the child's permanency plan, unless return of the child to the home is the goal of the permanency plan and the judge or circuit court commissioner finds that any of the circumstances specified in
s. 48.355 (2d) (b) 1. to
5. applies.
48.32(1)(b)1.d.
d. If the child's placement or other living arrangement is under the supervision of the county department or, in a county having a population of 500,000 or more, the department, an order ordering the child into the placement and care responsibility of the county department or department as required under
42 USC 672 (a) (2) and assigning the county department or department primary responsibility for providing services to the child.
48.32(1)(b)2.
2. If the judge or circuit court commissioner finds that any of the circumstances specified in
s. 48.355 (2d) (b) 1. to
5. applies with respect to a parent, the consent decree shall include a determination that the county department, department, in a county having a population of 500,000 or more, or agency primarily responsible for providing services under the consent decree is not required to make reasonable efforts with respect to the parent to make it possible for the child to return safely to his or her home.
48.32(1)(b)3.
3. The judge or circuit court commissioner shall make the findings specified in
subds. 1. and
2. on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which those findings are based in the consent decree. A consent decree that merely references
subd. 1. or
2. without documenting or referencing that specific information in the consent decree or an amended consent decree that retroactively corrects an earlier consent decree that does not comply with this subdivision is not sufficient to comply with this subdivision.
48.32(1)(c)1.1. If the judge or circuit court commissioner finds that any of the circumstances specified in
s. 48.355 (2d) (b) 1. to
5. 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 child. 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.
48.32(1)(c)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 child, any parent, guardian, and legal custodian of the child, and any foster parent, treatment foster parent, or other physical custodian described in
s. 48.62 (2) of the child of the time, place, and purpose of the hearing.
48.32(1)(c)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.
48.32(1b)
(1b) The judge or a circuit court commissioner may, as a condition under
sub. (1), request a court-appointed special advocate program to designate a court-appointed special advocate for the child to perform the activities specified in
s. 48.236 (3) that are authorized in the memorandum of understanding under
s. 48.07 (5) (a). A court-appointed special advocate designated under this subsection shall have the authority specified in
s. 48.236 (4) that is authorized in the memorandum of understanding under
s. 48.07 (5) (a).
48.32(2)(a)(a) A consent decree shall remain in effect up to 6 months unless the child, parent, guardian, legal custodian or expectant mother is discharged sooner by the judge or circuit court commissioner.
48.32(2)(c)
(c) Upon the motion of the court or the application of the child, parent, guardian, legal custodian, expectant mother, unborn child by the unborn child's guardian ad litem, intake worker or any agency supervising the child or expectant mother under the consent decree, the court may, after giving notice to the parties to the consent decree, their counsel or guardian ad litem and the court-appointed special advocate for the child, if any, extend the decree for up to an additional 6 months in the absence of objection to extension by the parties to the initial consent decree. If the child, parent, guardian, legal custodian, expectant mother or unborn child by the unborn child's guardian ad litem objects to the extension, the judge shall schedule a hearing and make a determination on the issue of extension. An extension under this paragraph of a consent decree relating to an unborn child who is alleged to be in need of protection or services may be granted after the child is born.
48.32(3)
(3) If, prior to discharge by the court, or the expiration of the consent decree, the court finds that the child, parent, guardian, legal custodian or expectant mother has failed to fulfill the express terms and conditions of the consent decree or that the child or expectant mother objects to the continuation of the consent decree, the hearing under which the child or expectant mother was placed on supervision may be continued to conclusion as if the consent decree had never been entered.
48.32(5)
(5) A court which, under this section, elicits or examines information or material about a child or an expectant mother which would be inadmissible in a hearing on the allegations of the petition may not, over objections of one of the parties, participate in any subsequent proceedings if any of the following applies:
48.32(5)(a)
(a) The court refuses to enter into a consent decree and the allegations in the petition remain to be decided in a hearing at which one of the parties denies the allegations forming the basis for a child or unborn child in need of protection or services petition.
48.32(5)(b)
(b) A consent decree is granted but the petition under
s. 48.13 or
48.133 is subsequently reinstated.
48.32(6)
(6) The judge or circuit court commissioner shall inform the child and the child's parent, guardian or legal custodian, or the adult expectant mother, in writing, of the right of the child or expectant mother to object to the continuation of the consent decree under
sub. (3) and the fact that the hearing under which the child or expectant mother was placed on supervision may be continued to conclusion as if the consent decree had never been entered.
48.32 Annotation
A finding that a consent decree has been violated must be made before the consent decree expires. Filing a motion to vacate the consent decree prior to its expiration does not extend the term of the decree and does not prevent the automatic dismissal of the original petition upon the expiration of the decree. Interest of Leif E.N. & Nora M.S.
189 Wis. 2d 480,
526 N.W.2d 275 (Ct. App. 1994).
DISPOSITION
48.33
48.33
Court reports. 48.33(1)(1)
Report required. Before the disposition of a child or unborn child adjudged to be in need of protection or services the court shall designate an agency, as defined in
s. 48.38 (1) (a), to submit a report which shall contain all of the following:
48.33(1)(a)
(a) The social history of the child or of the expectant mother of the unborn child.
48.33(1)(b)
(b) A recommended plan of rehabilitation or treatment and care for the child or expectant mother which is based on the investigation conducted by the agency and any report resulting from an examination or assessment under
s. 48.295, which employs the least restrictive means available to accomplish the objectives of the plan, and, in cases of child abuse or neglect or unborn child abuse, which also includes an assessment of risks to the physical safety and physical health of the child or unborn child and a description of a plan for controlling the risks.
48.33(1)(c)
(c) A description of the specific services or continuum of services which the agency is recommending that the court order for the child or family or for the expectant mother of the unborn child, the persons or agencies that would be primarily responsible for providing those services, the identity of the person or agency that would provide case management or coordination of services, if any, and, in the case of a child adjudged to be in need of protection or services, whether or not the child should receive an integrated service plan.
48.33(1)(d)
(d) A statement of the objectives of the plan, including any behavior changes desired of the child or expectant mother and the academic, social and vocational skills needed by the child or the expectant mother.
48.33(1)(e)
(e) A plan for the provision of educational services to the child, prepared after consultation with the staff of the school in which the child is enrolled or the last school in which the child was enrolled.
48.33(1)(f)
(f) If the agency is recommending that the court order the child's parent, guardian or legal custodian or the expectant mother to participate in mental health treatment, anger management, individual or family counseling or parent or prenatal development training and education, a statement as to the availability of those services and as to the availability of funding for those services.
48.33(2)
(2) Home placement reports. A report recommending that the child remain in his or her home or that the expectant mother remain in her home may be presented orally at the dispositional hearing if all parties consent. A report that is presented orally shall be transcribed and made a part of the court record.
48.33(4)
(4) Other out-of-home placements. A report recommending placement of an adult expectant mother outside of her home shall be in writing. A report recommending placement of a child in a foster home, treatment foster home, group home, or residential care center for children and youth, in the home of a relative other than a parent, or in the home of a guardian under
s. 48.977 (2) shall be in writing and shall include all of the following:
