938.38(4)(h)1.
1. The anticipated age at which the juvenile will be discharged from out-of-home care.
938.38(4)(h)2.
2. The anticipated amount of time available in which to prepare the juvenile for the transition from out-of-home care to independent living.
938.38(4)(h)3.
3. The anticipated location and living situation of the juvenile on discharge from out-of-home care.
938.38(4)(h)4.
4. A description of the assessment processes, tools, and methods that have been or will be used to determine the programs and services that are or will be provided to assist the juvenile in preparing for the transition from out-of-home care to independent living.
938.38(4)(h)5.
5. The rationale for each program or service that is or will be provided to assist the juvenile in preparing for the transition from out-of-home care to independent living, the time frames for delivering those programs or services, and the intended outcome of those programs or services.
938.38(4)(i)
(i) A statement as to whether the juvenile's age and developmental level are sufficient for the court to consult with the juvenile at the permanency plan determination hearing under
sub. (4m) (c) or at the permanency plan hearing under
sub. (5m) (c) 2. or for the court or panel to consult with the juvenile at the permanency plan review under
sub. (5) (bm) 2. and, if a decision is made that it would not be age appropriate or developmentally appropriate for the court to consult with the juvenile, a statement as to why consultation with the juvenile would not be appropriate.
938.38(4)(im)
(im) If the juvenile is an Indian juvenile who is placed outside the home of his or her parent or Indian custodian under
s. 938.13 (4),
(6),
(6m), or
(7), all of the following:
938.38(4)(im)1.
1. The name, address, and telephone number of the Indian juvenile's Indian custodian and tribe.
938.38(4)(im)2.
2. A description of the remedial services and rehabilitation programs offered under
s. 938.028 (4) (d) 2. in an effort to prevent the breakup of the Indian juvenile's family.
938.38(4)(im)3.
3. A statement as to whether the Indian juvenile's placement is in compliance with the order of placement preference under
s. 938.028 (6) (a) or, if applicable,
s. 938.028 (6) (b) and, if the placement is not in compliance with that order, a statement as to whether there is good cause, as described in
s. 938.028 (6) (d), for departing from that order.
938.38 Note
NOTE: Par. (im) was created as par. (i) by
2009 Wis. Act 94 and renumbered to par. (im) by the legislative reference bureau under s. 13.92 (1) (bm) 2.
938.38(4m)
(4m) Reasonable efforts not required; [Permanency] permanency plan determination hearing. 938.38(4m)(a)(a) If in a proceeding under
s. 938.21,
938.32,
938.355,
938.357, or
938.365 the court finds that any of the circumstances 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 paragraph, 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. At the hearing, the court shall consider placing the juvenile in a placement outside this state if the court determines that such a placement would be in the best interests of the juvenile and appropriate to achieving the goal of the juvenile's permanency plan.
938.38 Note
NOTE: Sub. (4m) (title) and (a) are shown as created by
2009 Wis. Act 79, s.
158, and
2009 Wis. Act 94, s.
381, and as merged by the legislative reference bureau under s. 13.92 (2) (i). "Permanency" was capitalized in Act 94, but not Act 79. Corrective legislation is pending.
938.38(4m)(b)
(b) At least 10 days before the date of the hearing, the court shall notify the juvenile;[, the juvenile's] any parent, guardian, and legal custodian[;] of the juvenile;[, and the juvenile's] any foster parent, [or] treatment foster parent, or other physical custodian described in
s. 48.62 (2) of the juvenile{,} the operator of the facility in which the juvenile is living, or the relative with whom the juvenile is living{;} and, if the juvenile is an Indian juvenile who is or is alleged to be in need of protection or services under
s. 938.13 (4),
(6),
(6m), or
(7), the Indian juvenile's Indian custodian and tribe of the time, place, and purpose of the hearing, of the issues to be determined at the hearing, and of the fact that they shall have a right to be heard at the hearing.
938.38 Note
NOTE: Par. (b) is shown as created by
2009 Wis. Act 79, s.
158, and
2009 Wis. Act 94, s.
381, and as merged by the legislative reference bureau under s. 13.92 (2) (i). The material in square brackets was created in Act 79, but is inconsistent with, and made unnecessary by, the sentence structure created by Act 94. The punctuation in curly brackets was not included in either Act, but is required for correct punctuation. Par. (b) is shown below as amended by Act 79, s. 159, and Act 94, s. 382, with the same bracketed text as shown above, effective the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9). Corrective legislation is pending.
Effective date text
(b) At least 10 days before the date of the hearing, the court shall notify the juvenile;[, the juvenile's] any parent, guardian, and legal custodian[;] of the juvenile; [, and the juvenile's] any foster parent or other physical custodian described in s. 48.62 (2) of the juvenile{,} the operator of the facility in which the juvenile is living, or the relative with whom the juvenile is living{;} and, if the juvenile is an Indian juvenile who is or is alleged to be in need of protection or services under s. 938.13 (4), (6), (6m), or (7), the Indian juvenile's Indian custodian and tribe of the time, of the time, place, and purpose of the hearing, of the issues to be determined at the hearing, and of the fact that they shall have a right to be heard at the hearing.
938.38(4m)(c)
(c) If the juvenile's permanency plan includes a statement under
sub. (4) (i) indicating that the juvenile's age and developmental level are sufficient for the court to consult with the juvenile regarding the juvenile's permanency plan or if, notwithstanding a decision under
sub. (4) (i) that it would not be appropriate for the court to consult with the juvenile, the court determines that consultation with the juvenile would be in the best interests of the juvenile, the court shall consult with the juvenile, in an age-appropriate and developmentally appropriate manner, regarding the juvenile's permanency plan and any other matters the court finds appropriate. If none of those circumstances apply, the court may permit the juvenile's caseworker, the juvenile's counsel, or, subject to
s. 938.235 (3) (a), the juvenile's guardian ad litem to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, expressing the juvenile's wishes, goals, and concerns regarding the permanency plan and those matters. If the court permits such a written or oral statement to be made or submitted, the court may nonetheless require the juvenile to be physically present at the hearing.
938.38(4m)(d)
(d) The court shall give a foster parent, treatment foster parent, [or] other physical custodian described in
s. 48.62 (2){,} operator of a facility, or relative who is notified of a hearing under
par. (b) a right to be heard at the hearing by permitting the foster parent, treatment foster parent, [or] other physical custodian{,} operator, or relative 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. The foster parent, treatment foster parent, [or] other physical custodian{,} operator of a facility, or relative does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and right to be heard.
938.38 Note
NOTE: Par. (d) is shown as merged by the legislative reference bureau under s. 13.92 (2) (i) from s. 938.38 (4m) (d), as created by
2009 Wis. Act 79, s.
158, and s. 938.38 (4m) (c), as created by
2009 Wis. Act 94, s.
381. Each "or" in square brackets is made unnecessary by the merger. Punctuation in curly brackets was not included in either act, but is required for correct punctuation. Par. (d), as merged, is shown below as amended by Act 79, s. 159, and Act 94, s. 382, effective the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9). Each "or" in square brackets is made unnecessary by the merger. Punctuation in curly brackets was not included in either act, but is required for correct punctuation. Corrective legislation is pending.
Effective date text
(d) The court shall give a foster parent{,} [or] other physical custodian described in s. 48.62 (2){,} operator of a facility, or relative who is notified of a hearing under par. (b) a right to be heard at the hearing by permitting the foster parent{,} [or] other physical custodian{,} operator, or relative 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. The foster parent, treatment foster parent, [or] other physical custodian{,} operator of a facility, or relative does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and right to be heard.
938.38(5)(a)(a) Except as provided in
s. 48.63 (5) (d), the court or a panel appointed under
par. (ag) shall review the permanency plan in the manner provided in this subsection not later than 6 months after the date on which the juvenile was first removed from his or her home and every 6 months after a previous review under this subsection for as long as the juvenile is placed outside the home, except that for the review that is required to be conducted not later than 12 months after the juvenile was first removed from his or her home and the reviews that are required to be conducted every 12 months after that review, the court shall hold a hearing under
sub. (5m) to review the permanency plan. The hearing may be instead of or in addition to the review under this subsection.
938.38(5)(ag)
(ag) If the court elects not to review the permanency plan, the court shall appoint a panel to review the permanency plan. The panel shall consist of 3 persons who are either designated by an independent agency that has been approved by the chief judge of the judicial administrative district or designated by the agency that prepared the permanency plan. A voting majority of persons on each panel shall be persons who are not employed by the agency that prepared the permanency plan and who are not responsible for providing services to the juvenile or the parents of the juvenile whose permanency plan is the subject of the review.
938.38(5)(am)
(am) The court may appoint an independent agency to designate a panel to conduct a permanency plan review under
par. (a). If the court appoints an independent agency under this paragraph, the county department of the county of the court shall authorize and contract for the purchase of services from the independent agency.
938.38(5)(b)
(b) The court or the agency shall notify the juvenile; the juvenile's parent, guardian, and legal custodian; and the juvenile's foster parent or treatment foster parent, the operator of the facility in which the juvenile is living, or the relative with whom the juvenile is living; and, if the juvenile is an Indian juvenile who is placed outside the home of his or her parent or Indian custodian under
s. 938.13 (4),
(6),
(6m), or
(7), the Indian juvenile's Indian custodian and tribe of the time, place, and purpose of the review, of the issues to be determined as part of the review, and of the fact that they shall have right to be heard at the review as provided in
par. (bm) 1. The court or agency shall notify the person representing the interests of the public, the juvenile's counsel, and the juvenile's guardian ad litem of the time, place, and purpose of the review, of the issues to be determined as part of the review, and of the fact that they may have an opportunity to be heard at the review as provided in
par. (bm) 1. The notices under this paragraph shall be provided in writing not less than 30 days before the review and copies of the notices shall be filed in the juvenile's case record.
938.38 Note
NOTE: Par. (b) is shown as affected by
2009 Wis. Act 79, s.
160, and
2009 Wis. Act 94, s.
383, and as merged by the legislative reference bureau under s. 13.92 (2) (i). Par. (b) is repealed and recreated by
2009 Wis. Act 94, s.
384, effective the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read as follows. Act 94, s. 384, did not take cognizance of the repeal and recreation of the provision by
2009 Wis. Act 79, s.
161. The bracketed material shows the changes needed to give effect to the Act 79 changes. Material that was not changed by Act 94, s. 384, but that was deleted or replaced by Act 79, s. 161, is shown in square brackets and material that was inserted by Act 79 but not included in Act 94 is shown in curly brackets. Corrective legislation is pending.
Effective date text
(b) The court or the agency shall notify the juvenile[, if he or she is 10 years of age or older]; the juvenile's parent, guardian, and legal custodian; the juvenile's foster parent, the operator of the facility in which the juvenile is living, or the relative with whom the juvenile is living; and, if the juvenile is an Indian juvenile who is placed outside the home of his or her parent or Indian custodian under s. 938.13 (4), (6), (6m), or (7), the Indian juvenile's Indian custodian and tribe of the [date,] time, [and] place{, and purpose} of the review, of the issues to be determined as part of the review, and of the fact that they [may have an opportunity] {shall have a right} to be heard at the review [by submitting written comments not less than 10 working days before the review or by participating at the review] {as provided in par. (bm) 1}. The court or agency shall notify the person representing the interests of the public, the juvenile's counsel, the juvenile's guardian ad litem of the [date] {time, place, and purpose} of the review, of the issues to be determined as part of the review, and of the fact that they may [submit written comments not less than 10 working days before the review] {have an opportunity to be heard at the review as provided in par. (bm) 1}. The notices under this paragraph shall be provided in writing not less than 30 days before the review and copies of the notices shall be filed in the juvenile's case record.
938.38(5)(bm)1.1. A juvenile, parent, guardian, legal custodian, foster parent, treatment foster parent, operator of a facility, or relative who is provided notice of the review under
par. (b) shall have a right to be heard at the review by submitting written comments relevant to the determinations specified in
par. (c) not less than 10 working days before the date of the review or by participating at the review. A person representing the interests of the public, counsel, or guardian ad litem who is provided notice of the review under
par. (b) may have an opportunity to be heard at the review by submitting written comments relevant to the determinations specified in
par. (c) not less than 10 working days before the date of the review. A foster parent, treatment foster parent, operator of a facility, or relative who receives notice of a review under
par. (b) and a right to be heard under this subdivision does not become a party to the proceeding on which the review is held solely on the basis of receiving that notice and right to be heard.
Effective date note
NOTE: Subd. 1. is amended by
2009 Wis. Act 79 eff. the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read as follows. The correct word is shown in brackets.
Effective date text
1. A juvenile, parent, guardian, legal custodian, foster parent, operator of a facility, or relative who is provided notice of the review under par. (b) shall have a right to be heard at the review by submitting written comments relevant to the determinations specified in par. (c) not less than 10 working days before the date of the review or by participating at the review. A person representing the interests of the public, counsel, or guardian ad litem who is provided notice of the review under par. (b) may have an opportunity to be heard at the review by submitting written comments relevant to the determinations specified in par. (c) not less than 10 working days before the date of the review. A foster parent, operator of a facility, or relative who receives notice of a hearing [review] under par. (b) and a right to be heard under this subdivision does not become a party to the proceeding on which the review is held solely on the basis of receiving that notice and right to be heard.
938.38(5)(bm)2.
2. If the juvenile's permanency plan includes a statement under
sub. (4) (i) indicating that the juvenile's age and developmental level are sufficient for the court or panel to consult with the juvenile regarding the juvenile's permanency plan or if, notwithstanding a decision under
sub. (4) (i) that it would not be appropriate for the court or panel to consult with the juvenile, the court or panel determines that consultation with the juvenile would be in the best interests of the juvenile, the court or panel shall consult with the juvenile, in an age-appropriate and developmentally appropriate manner, regarding the juvenile's permanency plan and any other matters the court or panel finds appropriate. If none of those circumstances apply, the court or panel may permit the juvenile's caseworker, the juvenile's counsel, or, subject to
s. 938.235 (3) (a), the juvenile's guardian ad litem to make a written or oral statement during the review, or to submit a written statement prior to the review, expressing the juvenile's wishes, goals, and concerns regarding the permanency plan and those matters. If the court or panel permits such a written or oral statement to be made or submitted, the court or panel may nonetheless require the juvenile to be physically present at the review.
938.38(5)(c)
(c) The court or the panel shall determine each of the following:
938.38(5)(c)1.
1. The continuing necessity for and the safety and appropriateness of the placement.
938.38(5)(c)2.
2. The extent of compliance with the permanency plan by the agency and any other service providers, the juvenile's parents, the juvenile and the juvenile's guardian, if any.
938.38(5)(c)3.
3. The extent of any efforts to involve appropriate service providers in addition to the agency's staff in planning to meet the special needs of the juvenile and the juvenile's parents.
938.38(5)(c)4.
4. The progress toward eliminating the causes for the juvenile's placement outside of his or her home and toward returning the juvenile safely to his or her home or obtaining a permanent placement for the juvenile.
938.38(5)(c)5.
5. The date by which it is likely that the juvenile will be returned to his or her home or placed for adoption, with a guardian or in some other alternative permanent placement.
938.38(5)(c)6.
6. If the juvenile has been placed outside of his or her home, as described in
s. 938.365 (1), in a foster home, treatment foster home, group home, nonsecured residential care center for children and youth, or shelter care facility for 15 of the most recent 22 months, not including any period during which the juvenile was a runaway from the out-of-home placement or the first 6 months of any period during which the juvenile was returned to his or her home for a trial home visit, the appropriateness of the permanency plan and the circumstances which prevent the juvenile from any of the following:
Effective date note
NOTE: Subd. 6. (intro.) is repealed and recreated by
2009 Wis. Act 79 eff. the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read:
Effective date text
6. If the juvenile has been placed outside of his or her home, as described in s. 938.365 (1), in a foster home, group home, nonsecured residential care center for children and youth, or shelter care facility for 15 of the most recent 22 months, not including any period during which the juvenile was a runaway from the out-of-home placement or the first 6 months of any period during which the juvenile was returned to his or her home for a trial home visit, the appropriateness of the permanency plan and the circumstances which prevent the juvenile from any of the following:
938.38(5)(c)6.b.
b. Having a petition for the involuntary termination of parental rights filed on behalf of the juvenile.
938.38(5)(c)6.cm.
cm. Being placed in the home of a fit and willing relative of the juvenile.
938.38(5)(c)6.d.
d. Being placed in some other alternative permanent placement, including sustaining care, independent living, or long-term foster care.
938.38(5)(c)7.
7. Whether reasonable efforts were made by the agency to achieve the goal of the permanency plan[,] including, if appropriate, through an out-of-state placement{,}.
938.38 Note
NOTE: Subd. 7. is shown as affected by 2 acts of the 2009 Wisconsin legislature and as merged by the legislative reference bureau under s. 13.92 (2) (i). The comma in square brackets was removed by
2009 Wis. Act 185, but its reinsertion is required. The comma in curly brackets was inserted by
2009 Wis. Act 79, but is unnecessary. Corrective legislation is pending.
938.38(5)(c)8.
8. If the juvenile has one or more siblings, as defined in
s. 938.38 (4) (br) 1., who have also been removed from the home, whether reasonable efforts were made by the agency to place the juvenile in a placement that enables the sibling group to remain together, unless the court or panel determines that a joint placement would be contrary to the safety or well-being of the juvenile or any of those siblings, in which case the court or panel shall determine whether reasonable efforts were made by the agency to provide for frequent visitation or other ongoing interaction between the juvenile and those siblings, unless the court or panel determines that such visitation or interaction would be contrary to the safety or well-being of the juvenile or any of those siblings.
938.38(5)(c)8m.
8m. If the juvenile is an Indian juvenile who is placed outside the home of his or her parent or Indian custodian under
s. 938.13 (4),
(6),
(6m), or
(7), whether active efforts under
s. 938.028 (4) (d) 2. were made to prevent the breakup of the Indian juvenile's family, whether those efforts have proved unsuccessful, whether the Indian child's placement is in compliance with the order of placement preference under
s. 938.028 (6) (a) or, if applicable,
s. 938.028 (6) (b), and, if the placement is not in compliance with that order, whether there is good cause, as described in
s. 938.028 (6) (d), for departing from that order.
938.38 Note
NOTE: Subd. 8m. was created as subd. 8. by
2009 Wis. Act 94 and renumbered to subd. 8m. by the legislative reference bureau under s. 13.92 (1) (bm) 2.
938.38(5)(d)
(d) Notwithstanding
s. 938.78 (2) (a), the agency that prepared the permanency plan shall, at least 5 days before a review by a review panel, provide to each person appointed to the review panel, the juvenile's parent, guardian, and legal custodian, the person representing the interests of the public, the juvenile's counsel, the juvenile's guardian ad litem, and, if the juvenile is an Indian juvenile who is placed outside the home of his or her parent or Indian custodian under
s. 938.13 (4),
(6),
(6m), or
(7), the Indian juvenile's Indian custodian and tribe a copy of the permanency plan and any written comments submitted under
par. (bm) 1. Notwithstanding
s. 938.78 (2) (a), a person appointed to a review panel, the person representing the interests of the public, the juvenile's counsel, the juvenile's guardian ad litem, and, if the juvenile is an Indian juvenile who is placed outside the home of his or her parent or Indian custodian under
s. 938.13 (4),
(6),
(6m), or
(7), the Indian juvenile's Indian custodian and tribe may have access to any other records concerning the juvenile for the purpose of participating in the review. A person permitted access to a juvenile's records under this paragraph may not disclose any information from the records to any other person.
938.38 Note
NOTE: Par. (d) is shown as affected by 2 acts of the 2009 Wisconsin legislature and as merged by the legislative reference bureau under s. 13.92 (2) (i).
938.38(5)(e)
(e) Within 30 days, the agency shall prepare a written summary of the determinations under
par. (c) and shall provide a copy to the court that entered the order; the juvenile or the juvenile's counsel or guardian ad litem; the person representing the interests of the public; the juvenile's parent, guardian, [and] or legal custodian; the juvenile's foster parent or treatment foster parent, the operator of the facility where the juvenile is living, or the relative with whom the juvenile is living; and, if the juvenile is an Indian juvenile who is placed outside the home of his or her parent or Indian custodian under
s. 938.13 (4),
(6),
(6m), or
(7), the Indian juvenile's Indian custodian and tribe.
938.38 Note
NOTE: Par. (e) is shown as affected by
2009 Wis. Act 79, s.
169, and
2009 Wis. Act 94, s.
387, and as merged by the legislative reference bureau under s. 13.92 (2) (i). The material in brackets was inserted by Act 79 but made unnecessary by the treatment by Act 94. Par. (e) is repealed and recreated by
2009 Wis. Act 94, s.
388, effective the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read as follows. Act 94, s. 388, did not take cognizance of the repeal and recreation of the provision by
2009 Wis. Act 79, s.
170. The bracketed material shows the changes needed to give effect to the Act 79 changes. Material that was not changed by Act 94, s. 388, but that was deleted or replaced by Act 79, s. 170, is shown in square brackets and material that was inserted by Act 79 but not included in Act 94 is shown in curly brackets. Corrective legislation is pending.
Effective date text
(e) Within 30 days, the agency shall prepare a written summary of the determinations under par. (c) and shall provide a copy to the court that entered the order; the juvenile or the juvenile's counsel or guardian ad litem; the person representing the interests of the public; the juvenile's parent, guardian, or legal custodian; the juvenile's foster parent [or]{,} the operator of the facility where the juvenile is living{, or the relative with whom the juvenile is living}; and, if the juvenile is an Indian juvenile who is placed outside the home of his or her parent or Indian custodian under s. 938.13 (4), (6), (6m), or (7), the Indian juvenile's Indian custodian and tribe.
938.38(5)(f)
(f) If the summary prepared under
par. (e) indicates that the review panel made recommendations that conflict with the court order or that provide for additional services not specified in the court order, the agency primarily responsible for providing services to the juvenile shall request a revision of the court order.
938.38(5m)(a)(a) The court shall hold a hearing to review the permanency plan and to make the determinations specified in
sub. (5) (c) no later than 12 months after the date on which the juvenile was first removed from the home and every 12 months after a previous hearing under this subsection for as long as the juvenile is placed outside the home.
938.38(5m)(b)
(b) Not less than 30 days before the date of the hearing, the court shall notify the juvenile; the juvenile's parent, guardian, and legal custodian; and the juvenile's foster parent or treatment foster parent, the operator of the facility in which the juvenile is living, or the relative with whom the juvenile is living of the time, place, and purpose of the hearing, of the issues to be determined at the hearing, and of the fact that they shall have a right to be heard at the hearing as provided in
par. (c) 1. and shall notify the juvenile's counsel, and the juvenile's guardian ad litem; the agency that prepared the permanency plan; the person representing the interests of the public; and, if the juvenile is an Indian juvenile who is placed outside the home of his or her parent or Indian custodian under
s. 938.13 (4),
(6),
(6m), or
(7), the Indian juvenile's Indian custodian and tribe of the time, place, and purpose of the hearing, of the issues to be determined at the hearing, and of the fact that they may have an opportunity to be heard at the hearing as provided in
par. (c) 1.
938.38 Note
NOTE: Par. (b) is shown as affected by
2009 Wis. Act 79, s.
171, and
2009 Wis. Act 94, s.
389, and as merged by the legislative reference bureau under s. 13.92 (2) (i). Par. (b) is repealed and recreated by
2009 Wis. Act 94, s.
390, effective the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read as follows. Act 94, s. 390, did not take cognizance of the repeal and recreation of the provision by
2009 Wis. Act 79, s.
172. The bracketed material shows the changes needed to give effect to the Act 79 changes. Material that was not changed by Act 94, s. 390, but that was deleted or replaced by Act 79, s. 172, is shown in square brackets and material that was inserted by Act 79 but not included in Act 94 is shown in curly brackets. Corrective legislation is pending.
Effective date text
(b) Not less than 30 days before the date of the hearing, the court shall notify the juvenile; the juvenile's parent, guardian, and legal custodian; {and} the juvenile's foster parent, the operator of the facility in which the juvenile is living, or the relative with whom the juvenile is living[;] {of the time, place, and purpose of the hearing, of the issues to be determined at the hearing, and of the fact that they shall have a right to be heard at the hearing as provided in par. (c) 1. and shall notify} the juvenile's counsel, and the juvenile's guardian ad litem; the agency that prepared the permanency plan; the person representing the interests of the public; and, if the juvenile is an Indian juvenile who is placed outside the home of his or her parent or Indian custodian under s. 938.13 (4), (6), (6m), or (7), the Indian juvenile's Indian custodian and tribe of the [date,] time, [and] place{, and purpose} of the hearing{, of the issues to be determined at the hearing, and of the fact that they may have an opportunity to be heard at the hearing as provided in par. (c) 1}.
938.38(5m)(c)1.1. A juvenile, parent, guardian, legal custodian, foster parent, treatment foster parent, operator of a facility, or relative who is provided notice of the hearing under
par. (b) shall have a right to be heard at the hearing by submitting written comments relevant to the determinations specified in
sub. (5) (c) not less than 10 working days before the date of the hearing or by participating at the hearing. A counsel, guardian ad litem, agency, or person representing the interests of the public who is provided notice of the hearing under
par. (b) may have an opportunity to be heard at the hearing by submitting written comments relevant to the determinations specified in
sub. (5) (c) not less than 10 working days before the date of the hearing or by participating at the hearing. A foster parent, treatment foster parent, operator of a facility, or relative who receives notice of a hearing under
par. (b) and a right 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 right to be heard.
Effective date note
NOTE: Subd. 1. is repealed and recreated by
2009 Wis. Act 79 eff. the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read:
Effective date text
1. A juvenile, parent, guardian, legal custodian, foster parent, operator of a facility, or relative who is provided notice of the hearing under par. (b) shall have a right to be heard at the hearing by submitting written comments relevant to the determinations specified in sub. (5) (c) not less than 10 working days before the date of the hearing or by participating at the hearing. A counsel, guardian ad litem, agency, or person representing the interests of the public who is provided notice of the hearing under par. (b) may have an opportunity to be heard at the hearing by submitting written comments relevant to the determinations specified in sub. (5) (c) not less than 10 working days before the date of the hearing or by participating at the hearing. A foster parent, operator of a facility, or relative who receives notice of a hearing under par. (b) and a right 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 right to be heard.
938.38(5m)(c)2.
2. If the juvenile's permanency plan includes a statement under
sub. (4) (i) indicating that the juvenile's age and developmental level are sufficient for the court to consult with the juvenile regarding the juvenile's permanency plan or if, notwithstanding a decision under
sub. (4) (i) that it would not be appropriate for the court to consult with the juvenile, the court determines that consultation with the juvenile would be in the best interests of the juvenile, the court shall consult with the juvenile, in an age-appropriate and developmentally appropriate manner, regarding the juvenile's permanency plan and any other matters the court finds appropriate. If none of those circumstances apply, the court may permit the juvenile's caseworker, the juvenile's counsel, or, subject to
s. 938.235 (3) (a), the juvenile's guardian ad litem to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, expressing the juvenile's wishes, goals, and concerns regarding the permanency plan and those matters. If the court permits such a written or oral statement to be made or submitted, the court may nonetheless require the juvenile to be physically present at the hearing.
938.38(5m)(d)
(d) At least 5 days before the date of the hearing the agency that prepared the permanency plan shall provide a copy of the permanency plan and any written comments submitted under
par. (c) 1. to the court, to the juvenile's parent, guardian, and legal custodian, to the person representing the interests of the public, to the juvenile's counsel or guardian ad litem, and, if the juvenile is an Indian juvenile who is placed outside the home of his or her parent or Indian custodian under
s. 938.13 (4),
(6),
(6m), or
(7), to the Indian juvenile's Indian custodian and tribe. Notwithstanding
s. 938.78 (2) (a), the person representing the interests of the public, the juvenile's counsel or guardian ad litem, and, if the juvenile is an Indian juvenile who is placed outside the home of his or her parent or Indian custodian under
s. 938.13 (4),
(6),
(6m), or
(7), the Indian juvenile's Indian custodian and tribe may have access to any other records concerning the juvenile for the purpose of participating in the review. A person permitted access to a juvenile's records under this paragraph may not disclose any information from the records to any other person.
938.38 Note
NOTE: Par. (d) is shown as affected by 2 acts of the 2009 Wisconsin legislature and as merged by the legislative reference bureau under s. 13.92 (2) (i).
938.38(5m)(e)
(e) After the hearing, the court shall make written findings of fact and conclusions of law relating to the determinations under
sub. (5) (c) and shall provide a copy of those findings of fact and conclusions of law to the juvenile; the juvenile's parent, guardian, and legal custodian; the juvenile's foster parent or treatment foster parent, the operator of the facility in which the juvenile is living, or the relative with whom the juvenile is living; the agency that prepared the permanency plan; the person representing the interests of the public; and, if the juvenile is an Indian juvenile who is placed outside the home of his or her parent or Indian custodian under
s. 938.13 (4),
(6),
(6m), or
(7), the Indian juvenile's Indian custodian and tribe. The court shall make the findings specified in
sub. (5) (c) 7. 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 findings of fact and conclusions of law prepared under this paragraph. Findings of fact and conclusions of law that merely reference
sub. (5) (c) 7. without documenting or referencing that specific information in the findings of fact and conclusions of law or amended findings of fact and conclusions of law that retroactively correct earlier findings of fact and conclusions of law that do not comply with this paragraph are not sufficient to comply with this paragraph.
938.38 Note
NOTE: Par. (e) is repealed and recreated by
2009 Wis. Act 94 effective the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9), as created by
2009 Wisconsin Act 28 to read:
Effective date text
(e) After the hearing, the court shall make written findings of fact and conclusions of law relating to the determinations under sub. (5) (c) and shall provide a copy of those findings of fact and conclusions of law to the juvenile; the juvenile's parent, guardian, and legal custodian; the juvenile's foster parent, the operator of the facility in which the juvenile is living, or the relative with whom the juvenile is living; the agency that prepared the permanency plan; the person representing the interests of the public; and, if the juvenile is an Indian juvenile who is placed outside the home of his or her parent or Indian custodian under s. 938.13 (4), (6), (6m), or (7), the Indian juvenile's Indian custodian and tribe. The court shall make the findings specified in sub. (5) (c) 7. 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 findings of fact and conclusions of law prepared under this paragraph. Findings of fact and conclusions of law that merely reference sub. (5) (c) 7. without documenting or referencing that specific information in the findings of fact and conclusions of law or amended findings of fact and conclusions of law that retroactively correct earlier findings of fact and conclusions of law that do not comply with this paragraph are not sufficient to comply with this paragraph.
938.38(5m)(f)
(f) If the findings of fact and conclusions of law under
par. (e) conflict with the juvenile's dispositional order or provide for any additional services not specified in the dispositional order, the court shall revise the dispositional order under
s. 938.363 or order a change in placement under
s. 938.357, as appropriate.
938.38(6)
(6) Rules. The department shall promulgate rules establishing the following:
938.38(6)(a)
(a) Procedures for conducting permanency plan reviews.
938.38(6)(c)
(c) Standards for reasonable efforts to prevent placement of juveniles outside of their homes, while assuring that their health and safety are the paramount concerns, and to make it possible for juveniles to return safely to their homes if they have been placed outside of their homes.
938.38(6)(d)
(d) The format for permanency plans and review panel reports.
938.38(6)(e)
(e) Standards and guidelines for decisions regarding the placement of juveniles.
938.38 History
History: 1995 a. 77,
275,
352;
1997 a. 35,
237,
296;
1999 a. 9;
2001 a. 59,
69,
109;
2003 a. 321;
2005 a. 156,
344,
448;
2007 a. 20,
97;
2009 a. 28,
79,
94,
185; s. 13.92 (1) (bm) 2., (2) (i).
938.38 Annotation
The time limits in sub. (3) are not a prerequisite to trial court jurisdiction. Interest of Scott Y.
175 Wis. 2d 222,
499 N.W.2d 219 (Ct. App. 1993).
938.38 Note
NOTE: The above annotation cites to s. 48.38, the predecessor statute to s. 938.38.
938.39
938.39
Disposition by court bars criminal proceeding. Disposition by the court of any violation of state law within its jurisdiction under
s. 938.12 bars any future criminal proceeding on the same matter in circuit court when the juvenile reaches the age of 17. This section does not affect criminal proceedings in circuit court that were transferred under
s. 938.18.
938.39 History
History: 1995 a. 77;
2005 a. 344.
938.39 Annotation
The extension of a previously entered dispositional order due to the juvenile's participation in an armed robbery while subject to the order was not a "disposition" of the armed robbery charge, and the subsequent prosecution of the armed robbery charge in adult court did not violate s. 48.39 [now s. 938.39] or the constitutional protection against double jeopardy. State v. Stephens,
201 Wis. 2d 82,
548 N.W.2d 108 (Ct. App. 1996),
95-2103.
