938.355(6d)(c)2.
2. Notwithstanding
ss. 938.19 to
938.21, but subject to
subds. 2g.,
2m., and
2r., if a juvenile who has been found to be in need of protection or services under
s. 938.13 violates a condition specified in
sub. (2) (b) 7., the juvenile's caseworker or any other person authorized to provide or providing intake or dispositional services for the court under
s. 938.067 or
938.069 may, without a hearing, take the juvenile into custody and place the juvenile in a place of nonsecure custody designated by that person for not more than 72 hours as a consequence of that violation. A person who takes a juvenile into custody under this subdivision shall permit the juvenile to make a written or oral statement concerning the possible placement of the juvenile and the course of conduct for which the juvenile was taken into custody. A person designated by the court or the county department who is employed in a supervisory position by a person authorized to provide or providing intake or dispositional services under
s. 938.067 or
938.069 shall review that statement and either approve the placement, modify the terms of the placement, or order the juvenile to be released from custody.
938.355(6d)(c)2g.
2g. The taking into custody and placement of a juvenile under
subd. 1. or
2. is subject to any general written policies adopted by the court under
s. 938.06 (1) and
(2) and to any policies adopted by the county board relating to such taking into custody and placement.
938.355(6d)(c)2m.
2m. Short-term detention may be imposed under
subd. 1. or
2. only if at the dispositional hearing the court explained the conditions specified in
sub. (2) (b) 7. to the juvenile and informed the juvenile of that possible placement or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible placement and that he or she understands those conditions and that possible placement.
938.355(6d)(c)3.
3. A juvenile may be taken into and held in custody under both
subds. 1. and
2. in connection with the same course of conduct, except that no juvenile may be held in custody for more than a total of 72 hours under
subds. 1. and
2. in connection with the same course of conduct unless the juvenile receives a hearing under
par. (d).
938.355(6d)(c)4.
4. Subject to
par. (d),
subds. 1. and
2. do not preclude a juvenile who has been found to be in need of protection or services and who has violated a condition specified in
sub. (2) (b) 7. from being taken into and held in custody under
ss. 938.19 to
938.21.
938.355(6d)(d)
(d)
Hearing; when required. If a juvenile is held under
par. (a),
(b), or
(c) in a juvenile detention facility, juvenile portion of a county jail, or place of nonsecure custody for longer than 72 hours, the juvenile is entitled to a hearing under
sub. (6) (c) or
s. 938.21. The hearing shall be conducted in the manner provided in
sub. (6) or
s. 938.21, except that, notwithstanding
s. 938.21 (1) (a), the hearing shall be conducted within 72 hours, rather than 24 hours, after the time that the decision to hold the juvenile was made and a written statement of the reasons for continuing to hold the juvenile in custody may be filed instead of a petition under
s. 938.25.
938.355(6d)(e)
(e)
County board authorization required. The use of placement in a juvenile detention facility or in a juvenile portion of a county jail as a place of short-term detention under
par. (a) 1. or
2. or
(b) 1. or
2. is subject to the adoption of a resolution by the county board of supervisors under
s. 938.06 (5) authorizing the use of those placements as places of short-term detention under
par. (a) 1. or
2. or
(b) 1. or
2.
938.355(6g)
(6g) Contempt for continued violation of order. 938.355(6g)(a)(a) If a juvenile upon whom the court has imposed a sanction under
sub. (6) (a) or
(6m) commits a 2nd or subsequent violation of a condition specified in
sub. (2) (b) 7., the district attorney may file a petition under
s. 938.12 charging the juvenile with contempt of court, as defined in
s. 785.01 (1), and reciting the recommended disposition under
s. 938.34. The district attorney may file the petition on his or her own initiative or on the request of the court that imposed the condition specified in
sub. (2) (b) 7. or that imposed the sanction under
sub. (6) (a) or
(6m). If the district attorney files the petition on the request of the court that imposed the condition specified in
sub. (2) (b) 7. or that imposed the sanction under
sub. (6) (a) or
(6m), that court is disqualified from holding a hearing on the contempt petition.
938.355(6g)(b)
(b) The court may find a juvenile in contempt of court, as defined in
s. 785.01 (1), and order a disposition under
s. 938.34 if the court makes all of the following findings:
938.355(6g)(b)1.
1. That the juvenile has previously been sanctioned under
sub. (6) (a) or
(6m) for violating a condition specified in
sub. (2) (b) 7. and, subsequent to that sanction, has committed another violation of a condition specified in
sub. (2) (b) 7.
938.355(6g)(b)2.
2. That at the sanction hearing the court explained the conditions to the juvenile and informed the juvenile of a possible finding of contempt for a violation and the possible consequences of that contempt.
938.355(6g)(b)4.
4. That the court has considered less restrictive alternatives and found them to be ineffective.
938.355(6g)(c)
(c) This subsection does not preclude a person who is aggrieved by a juvenile's violation of a condition specified in
sub. (2) (b) 7. from proceeding against the juvenile for contempt of court under
ch. 785.
938.355(6m)
(6m) Sanctions for violation of order: truancy or habitual truancy. 938.355(6m)(a)(a)
Violation of habitual truancy order. If the court finds by a preponderance of the evidence that a juvenile who has been found to have violated a municipal ordinance enacted under
s. 118.163 (2) or who has been found to be in need of protection or services under
s. 938.13 (6) has violated a condition specified under
sub. (2) (b) 7., the court may order as a sanction any combination of the sanctions under
subds.1g. to
4. and the dispositions under
s. 938.342 (1g) (d) to
(j) and
(1m), regardless of whether the disposition was imposed in the order violated by the juvenile. A sanction may be imposed under this paragraph only if at the dispositional hearing under
s. 938.335 the court explained those conditions to the juvenile and informed the juvenile of the possible sanctions under this paragraph for a violation or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and possible sanctions and that he or she understands those conditions and possible sanctions. The court may not impose a sanction under this paragraph on a juvenile who is subject to an order under this section or
s. 938.357 or
938.365 that terminates as provided in
sub. (4) (am) 4. or
s. 938.357 (6) (a) 4. or
938.365 (5) (b) 4. The court may order as a sanction under this paragraph any of the following:
938.355(6m)(a)1g.
1g. Placement of the juvenile in a juvenile detention facility or juvenile portion of a county jail that meets the standards promulgated by the department by rule or in a place of nonsecure custody, for not more than 10 days and the provision of educational services consistent with his or her current course of study during the period of placement. The juvenile shall be given credit against the period of detention or nonsecure custody imposed under this subdivision for all time spent in secure detention in connection with the course of conduct for which the detention or nonsecure custody was imposed. The use of placement in a juvenile detention facility or in a juvenile portion of a county jail as a sanction under this subdivision is subject to the adoption of a resolution by the county board of supervisors under
s. 938.06 (5) authorizing the use of those placements as a sanction. If the court orders placement of the juvenile in a place of nonsecure custody under the supervision of the county department, the court shall order the juvenile into the placement and care responsibility of the county department as required under
42 USC 672 (a) (2) and shall assign the county department primary responsibility for providing services to the juvenile.
938.355(6m)(a)1m.
1m. Suspension or limitation on the use of the juvenile's operating privilege, as defined under
s. 340.01 (40), or of any approval issued under
ch. 29 for not more than one year. If the juvenile does not hold a valid operator's license under
ch. 343, other than an instruction permit under
s. 343.07 or a restricted license under
s. 343.08, on the date of the order issued under this subdivision, the court may order the suspension or limitation to begin on the date on which the juvenile is first eligible for issuance or reinstatement of an operator's license under
ch. 343. If the court suspends a juvenile's operating privilege or an approval issued under
ch. 29, the court shall immediately take possession of the suspended approval and may take possession of, and if possession is taken, shall destroy, the suspended license. The court shall forward to the department that issued the license or approval a notice stating the reason for and the duration of the suspension, together with any approval of which the court takes possession.
938.355(6m)(a)2.
2. Counseling or participation for not more than 25 hours in a supervised work program or other community service work under
s. 938.34 (5g).
938.355(6m)(a)3.
3. Detention in the juvenile's home or current residence for a period of not more than 30 days except during hours in which the juvenile is attending religious worship or a school program, including travel time required to get to and from the place of worship or school program. The order may permit a juvenile to leave his or her home or current residence if he or she is accompanied by a parent or guardian.
938.355(6m)(a)4.
4. Participation after school, in the evening, on weekends, on other nonschool days, or at any other time that the juvenile is not under immediate adult supervision, in the social, behavioral, academic, community service, and other programming of a youth report center.
Subdivision 2. and
s. 938.34 (5g) apply to any community service work performed by a juvenile under this subdivision.
938.355(6m)(ag)
(ag)
Violation of truancy order. If the court finds by a preponderance of the evidence that a juvenile who has been found to have violated a municipal ordinance enacted under
s. 118.163 (1m) has violated a condition specified under
sub. (2) (b) 7., the court may order as a sanction any combination of the operating privilege suspension specified in
par. (a) and the dispositions specified in
s. 938.342 (1g) (b) to
(k) and
(1m), regardless of whether the disposition was imposed in the order violated by the juvenile. A sanction may be imposed under this paragraph only if at the dispositional hearing under
s. 938.335 the court explained those conditions to the juvenile and informed the juvenile of the possible sanctions under this paragraph for a violation or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and possible sanctions and that he or she understands those conditions and possible sanctions.
938.355(6m)(am)1.1. If a juvenile who has violated a municipal ordinance enacted under
s. 118.163 (2) violates a condition of a dispositional order imposed by the municipal court, the municipal court may petition the court assigned to exercise jurisdiction under this chapter and
ch. 48 to impose on the juvenile the sanction specified in
par. (a) 1g. A sanction may be imposed under this subdivision only if, at the time of the judgment the municipal court explained the conditions to the juvenile and informed the juvenile of that possible sanction or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible sanction and that he or she understands those conditions and that possible sanction. The petition shall contain a statement of whether the juvenile may be subject to the federal Indian Child Welfare Act,
25 USC 1901 to
1963, and, if the juvenile may be subject to that act, the names and addresses of the juvenile's Indian custodian, if any, and tribe, if known.
938.355(6m)(am)2.
2. If the court assigned to exercise jurisdiction under this chapter and
ch. 48 imposes the sanction under
par. (a) 1g. on a petition under
subd. 1., the court shall order the municipality of the municipal court that filed the petition to pay to the county the cost of providing the sanction imposed under
par. (a) 1g.
938.355(6m)(b)
(b)
Motion for sanction. A motion for the imposition of a sanction under
par. (a) or
(ag) may be brought by the person or agency primarily responsible for providing dispositional services to the juvenile, the district attorney, the corporation counsel or the court that entered the dispositional order. If the court initiates the motion, that court is disqualified from holding a hearing on the motion. Notice of the motion shall be given to the juvenile, guardian ad litem, counsel, parent, guardian, legal custodian and all parties present at the original dispositional hearing.
938.355(6m)(bm)
(bm)
Indian juvenile; notice. If the person initiating the motion knows or has reason to know that the juvenile is an Indian juvenile who has been found to be in need of protection or services under
s. 938.13 (6) or who has been adjudged to have violated an ordinance enacted under
s. 118.163 (2), and if the motion is seeking removal of the juvenile from the home of his or her parent or Indian custodian and placement in a place of nonsecure custody specified in
par. (a) 1g., notice under
par. (b) to the Indian juvenile's parent shall be provided in the manner specified in
s. 938.028 (4) (a). In like manner, the court shall also notify the Indian juvenile's Indian custodian and tribe. No hearing may be held under
par. (c) until at least 10 days after receipt of the notice by the Indian juvenile's parent, Indian custodian, and tribe or, if the identity or location of the Indian juvenile's parent, Indian custodian, or tribe cannot be determined, until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the Indian juvenile's parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for the hearing.
938.355(6m)(c)
(c)
Sanction hearing. Before imposing a sanction under
par. (a) or
(ag), the court shall hold a hearing at which the juvenile is entitled to be represented by legal counsel and to present evidence. Except as provided in
par. (bm), the hearing shall be held within 15 days after the filing of a motion under
par. (b).
938.355(6m)(cm)
(cm)
Reasonable efforts finding. The court may not order the sanction of placement in a place of nonsecure custody under
par. (a) 1g. unless the court finds that the agency primarily responsible for providing services for the juvenile has made reasonable efforts to prevent the removal of the juvenile from his or her home and that continued placement of the juvenile in his or her home is contrary to the welfare of the juvenile. The court shall make the findings under this paragraph on a case-by-case basis based on circumstances specific to the juvenile and shall document or reference the specific information on which that finding is based in the sanction order. A sanction order that merely references this paragraph without documenting or referencing that specific information in the sanction order or an amended sanction order that retroactively corrects an earlier sanction order that does not comply with this paragraph is not sufficient to comply with this paragraph.
938.355(6m)(cr)
(cr)
Indian juvenile; findings. In the case of an Indian juvenile who has been found to be in need of protection or services under
s. 938.13 (6) or who has been adjudged to have violated an ordinance enacted under
s. 118.163 (2), the court may not order the sanction of removal from the home of the Indian juvenile's parent or Indian custodian and placement in a place of nonsecure custody specified in
par. (a) 1g., unless the court finds by clear and convincing evidence, including the testimony of one or more qualified expert witnesses, that continued custody of the Indian juvenile by the parent or Indian custodian is likely to result in serious emotional or physical damage to the juvenile under
s. 938.028 (4) (d) 1. and the court finds that active efforts under
s. 938.028 (4) (d) 2. have been made to prevent the breakup of the Indian juvenile's family and that those efforts have proved unsuccessful. These findings are not required if they were made in the dispositional order under which the juvenile is being sanctioned. The findings under this paragraph shall be in addition to the findings under
par. (cm), except that for the sole purpose of determining whether the cost of providing care for an Indian juvenile is eligible for reimbursement under
42 USC 670 to
679b, the findings under this paragraph and the findings under
par. (cm) shall be considered to be the same findings.
938.355(7)
(7) Orders applicable to parents, guardians, legal custodians, and other adults. In addition to any dispositional order entered under
s. 938.34 or
938.345, the court may enter an order applicable to a juvenile's parent, guardian, or legal custodian or to another adult, as provided under
s. 938.45.
938.355 History
History: 1995 a. 77,
352;
1997 a. 27,
35,
205,
237,
239,
252;
1999 a. 9,
32,
103;
2001 a. 16,
69,
109;
2003 a. 50;
2005 a. 277,
344;
2007 a. 20,
97;
2009 a. 28,
79,
94,
103,
180,
185,
302;
2011 a. 181,
258;
2013 a. 165,
334,
362; s. 35.17 corrections in (6d) (a) 2r., (b) 2r.
938.355 Annotation
Mandatory time limits affect the trial court's competency to act, but an objection must be raised before the trial court to avoid waiver. In Interest of L.M.C.
146 Wis. 2d 377,
430 N.W.2d 352 (Ct. App. 1988).
938.355 Annotation
Section 118.16 (5) does not limit a court's discretion in setting school attendance requirements in a dispositional order for a delinquent juvenile and in imposing sanctions when the order is violated. By its terms, s. 118.16 (5) is limited to children who are in need of protection and services as a result of being habitual truants. State v. Jason R.N.
201 Wis. 2d 646,
549 N.W.2d 752 (Ct. App. 1996),
95-1728.
938.355 Annotation
There is no requirement that the court apply the sanctions in sub. (6) (d) in graduated order of severity. Sanctions are solely within the discretion of the court. State v. Jason R.N.
201 Wis. 2d 646,
549 N.W.2d 752 (Ct. App. 1996),
95-1728.
938.355 Annotation
Sanctions for a violation of a dispositional order by a delinquent were found to not be punitive for purposes of double jeopardy. Craig S.G. v. State,
209 Wis. 2d 65,
561 N.W.2d 807 (Ct. App. 1997),
96-0761.
938.355 Note
NOTE: The above annotations cite to s. 48.355, the predecessor statute to s. 938.355.
938.355 Annotation
All juveniles who violate a condition of a dispositional order are subject to sanctions under sub. (6) (d), but the restrictions that may be imposed on habitual truants are limited by sub. (6m). Under sub. (6g), no juvenile can be charged with contempt of court for the first violation of a dispositional order. State v. Aaron D.
214 Wis. 2d 56,
571 N.W.2d 399 (Ct. App. 1997),
97-0806.
938.355 Annotation
The one-year limitation in sub. (4) is not limited to the original dispositional order but also applies to subsequent proceedings in the case including revisions of the dispositional order. State v. Kendall G.
2001 WI App 95,
243 Wis. 2d 67,
625 N.W.2d 918,
00-3240.
938.355 Annotation
Sub. (6) (a) requires that the court assure that the juvenile has the ability to comprehend the conditions of a dispositional order and potential sanctions whether informed of them at the dispositional hearing or a later time. Once the issue of the juvenile's ability to understand the conditions and sanctions is raised, the burden shifts to the prosecution to establish that the juvenile is capable of understanding the court's warnings. State v. Eugene W.
2002 WI App 54,
251 Wis. 2d 259,
641 N.W.2d 467,
01-2274.
938.355 Annotation
The focus of sub. (4) (a) is not on the juvenile's seventeenth birthday. The critical phrase is "original dispositional order." There is a critical distinction between an original dispositional order and an extended or revised dispositional order. State v. Terry T.
2003 WI App 21,
259 Wis. 2d 339,
657 N.W.2d 97,
02-2502.
938.355 Annotation
Sub. (6) (d) recognizes that multiple conditions may be violated in any one incident but only allows one sanction per incident, not per condition violation. What constitutes an incident is determined by whether the juvenile's course of conduct is marked by different and distinct volitional acts in between which the juvenile had sufficient time to reflect and choose to commit himself or herself to a particular act. State v. Ellis H.
2004 WI App 123,
274 Wis. 2d 703,
684 N.W.2d 157,
03-3178.
938.355 Annotation
Section 938.355 provides a variety of sanctions for juveniles who have violated their dispositional orders. Section 938.357 enumerates the ways in which a juvenile's placement may be changed. Nothing in either statute indicates that it is to be the exclusive mechanism for violation of a disposition order. Section 938.34 (16) specifically allows an alternative procedure for dealing with violations of a disposition order when part of the disposition is imposed and stayed. State v. Richard J.D.
2006 WI App 242,
297 Wis. 2d 20,
724 N.W.2d 665,
06-0555.
938.355 Annotation
A circuit court judge hearing a municipal truancy case is acting as a juvenile court and the case is governed by ch. 938. The court lacks statutory authority to order sanctions if the court never enters written dispositional orders that could serve as a basis for sanctions. Under sub. (6m) (ag), a court may sanction a juvenile who has been adjudicated truant if it finds by a preponderance of the evidence that the juvenile violated a condition of a dispositional order. Sub. (2) (b) states that the dispositional order shall be in writing. A court's minutes sheet is not a court order. A court order must be signed by a judge. State v. Dylan S.
2012 WI App 25,
339 Wis. 2d 442,
813 N.W.2d 229,
11-1338.
938.356
938.356
Duty of court to warn. 938.356(1)
(1)
Oral warning. Whenever the court orders a juvenile to be placed outside his or her home or denies a parent visitation because the juvenile has been adjudged to be delinquent or to be in need of protection or services under
s. 938.34,
938.345,
938.357,
938.363, or
938.365 and whenever the court reviews a permanency plan under
s. 938.38 (5m), the court shall orally inform the parent or parents who appear in court of any grounds for termination of parental rights under
s. 48.415 which may be applicable and of the conditions necessary for the juvenile to be returned to the home or for the parent to be granted visitation.
938.356(2)
(2) Written warning. In addition to the notice required under
sub. (1), any written order which places a juvenile outside the home or denies visitation under
sub. (1) shall notify the parent or parents of the information specified under
sub. (1).
938.357
938.357
Change in placement. 938.357(1)(1)
Request by person or agency responsible for dispositional order or district attorney. 938.357(1)(a)(a)
Applicable procedures. The person or agency primarily responsible for implementing the dispositional order or the district attorney may request a change in the placement of the juvenile, whether or not the change requested is authorized in the dispositional order, as provided in
par. (am) or
(c), whichever is applicable.
938.357(1)(am)1.1. If the proposed change in placement involves any change in placement other than a change in placement under
par. (c), the person or agency primarily responsible for implementing the dispositional order or the district attorney shall cause written notice of the proposed change in placement to be sent to the juvenile, the parent, guardian, and legal custodian of the juvenile, and any foster parent or other physical custodian described in
s. 48.62 (2) of the juvenile. If the juvenile is an Indian juvenile who has been removed from the home of his or her parent or Indian custodian under
s. 938.13 (4),
(6),
(6m), or
(7), written notice shall also be sent to the Indian juvenile's Indian custodian and tribe. The notice shall contain the name and address of the new placement, the reasons for the change in placement, a statement describing why the new placement is preferable to the present placement, and a statement of how the new placement satisfies objectives of the treatment plan ordered by the court.
938.357(1)(am)1g.
1g. If the juvenile is an Indian juvenile who has been removed from the home of his or her parent or Indian custodian under
s. 938.13 (4),
(6),
(6m), or
(7), and if the proposed change in placement would change the Indian juvenile's placement from a placement outside that home to another placement outside that home, a notice under
subd. 1. shall also contain a statement as to whether the new 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 new placement is not in compliance with that order, specific information showing good cause, as described in
s. 938.028 (6) (d), for departing from that order.
938.357(1)(am)2.
2. Except as provided in
subd. 2r., any person receiving the notice under
subd. 1. or notice of a specific placement under
s. 938.355 (2) (b) 2. may obtain a hearing on the matter by filing an objection with the court within 10 days after receipt of the notice. Except as provided in
subds. 2m. and
2r., placements may not be changed until 10 days after that notice is sent to the court unless the parent, guardian, legal custodian, or Indian custodian, the juvenile, if 12 or more years of age, and the juvenile's tribe, if the juvenile is an Indian juvenile who has been removed from the home of his or her parent or Indian custodian under
s. 938.13 (4),
(6),
(6m), or
(7), sign written waivers of objection.
938.357(1)(am)2m.
2m. Changes in placement that were authorized in the dispositional order may be made immediately if notice is given as required under
subd. 1. In addition, a hearing is not required for placement changes authorized in the dispositional order except when an objection filed by a person who received notice alleges that new information is available that affects the advisability of the court's dispositional order.
938.357(1)(am)2r.
2r. If the proposed change in placement involves a juvenile who is subject to a dispositional order that terminates as provided in
sub. (6) (a) 4. or
s. 938.355 (4) (am) 4. or
938.365 (5) (b) 4., the person or agency primarily responsible for implementing the dispositional order or the district attorney may request a change in placement under this paragraph only if the juvenile or the juvenile's guardian on behalf of the juvenile consents to the change in placement. That person or agency or the district attorney shall cause written notice of the proposed change in placement to be sent to the juvenile, the guardian of the juvenile, and any foster parent or other physical custodian described in
s. 48.62 (2) of the juvenile. No hearing is required for a change in placement described in this subdivision, and the juvenile's placement may be changed at any time after notice of the proposed change in placement is sent to the court.
938.357(1)(am)3.
3. If the court changes the juvenile's placement from a placement outside the home to another placement outside the home, the change in placement order shall contain the applicable order under
sub. (2v) (a) 1m. and the applicable statement under
sub. (2v) (a) 2. If the court changes the placement of an Indian juvenile who has been removed from the home of his or her parent or Indian custodian under
s. 938.13 (4),
(6),
(6m), or
(7) from a placement outside that home to another placement outside that home, the change in placement order shall, in addition, comply with the order of placement preference under
s. 938.028 (6) (a) or, if applicable,
s. 938.028 (6) (b), unless the court finds good cause, as described in
s. 938.028 (6) (d), for departing from that order.
938.357(1)(c)1.1. If the proposed change in placement would change the placement of a juvenile placed in the home to a placement outside the home, the person or agency primarily responsible for implementing the dispositional order or the district attorney shall submit a request for the change in placement to the court. The request shall contain the name and address of the new placement, the reasons for the change in placement, a statement describing why the new placement is preferable to the present placement, and a statement of how the new placement satisfies objectives of the treatment plan ordered by the court. The request shall also contain specific information showing that continued placement of the juvenile in his or her home would be contrary to the welfare of the juvenile and, unless any of the circumstances under
s. 938.355 (2d) (b) 1. to
4. applies, specific information showing that the agency primarily responsible for implementing the dispositional order has made reasonable efforts to prevent the removal of the juvenile from the home, while assuring that the juvenile's health and safety are the paramount concerns.
938.357(1)(c)1m.
1m. If the juvenile is an Indian juvenile who is in need of protection or services under
s. 938.13 (4),
(6),
(6m), or
(7), and if the proposed change in placement would change the placement of the juvenile from a placement in the home of his or her parent or Indian custodian to a placement outside that home, a request under
subd. 1. shall also contain specific information showing that continued custody of the Indian juvenile by the parent or Indian custodian is likely to result in serious emotional or physical damage to the juvenile under
s. 938.028 (4) (d) 1., specific information showing that active efforts under
s. 938.028 (4) (d) 2. have been made to prevent the breakup of the Indian juvenile's family and that those efforts have proved unsuccessful, a statement as to whether the new 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 new placement is not in compliance with that order, specific information showing good cause, as described in
s. 938.028 (6) (d), for departing from that order.
938.357(1)(c)2.
2. The court shall hold a hearing prior to ordering a change in placement requested under
subd. 1. At least 3 days prior to the hearing, the court shall provide notice of the hearing, together with a copy of the request for the change in placement, to the juvenile, the parent, guardian, and legal custodian of the juvenile, all parties that are bound by the dispositional order, and, if the juvenile is an Indian juvenile who is in need of protection or services under
s. 938.13 (4),
(6),
(6m), or
(7), the Indian juvenile's Indian custodian and tribe. Subject to
subd. 2r., if all parties consent, the court may proceed immediately with the hearing.
938.357(1)(c)2m.
2m. If the court changes the juvenile's placement from a placement in the juvenile's home to a placement outside the juvenile's home, the parent, if present at the hearing, shall be requested to provide the names and other identifying information of 3 relatives of the juvenile or other individuals 18 years of age or over whose homes the parent requests the court to consider as placements for the juvenile, unless that information has previously been provided under this subdivision,
sub. (2m) (bm), or
s. 938.21 (2) (e) or
(3) (f) or
938.335 (6). If the parent does not provide that information at the hearing, the county department or the agency primarily responsible for implementing the dispositional order shall permit the parent to provide the information at a later date.
938.357(1)(c)2r.
2r. In a proceeding involving an Indian juvenile who is in need of protection or services under
s. 938.13 (4),
(6),
(6m), or
(7), if the proposed change in placement would change the placement of the juvenile from a placement in the home of his or her parent or Indian custodian to a placement outside that home notice under
subd. 2. to the Indian juvenile's parent, Indian custodian, and tribe shall be provided in the manner specified in
s. 938.028 (4) (a). No hearing on the request may be held until at least 10 days after receipt of the notice by the Indian juvenile's parent, Indian custodian, and tribe or, if the identity or location of the Indian juvenile's parent, Indian custodian, or tribe cannot be determined, until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the Indian juvenile's parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for the hearing.
938.357(1)(c)3.
3. If the court changes the juvenile's placement from a placement in the juvenile's home to a placement outside the juvenile's home, the change in placement order shall contain the findings under
sub. (2v) (a) 1., the applicable order under
sub. (2v) (a) 1m., the applicable statement under
sub. (2v) (a) 2., and, if in addition the court finds that any of the circumstances under
s. 938.355 (2d) (b) 1. to
4. applies with respect to a parent, the determination under
sub. (2v) (a) 3. If the court changes the placement of an Indian juvenile who is in need of protection or services under
s. 938.13 (4),
(6),
(6m), or
(7) from a placement in the home of his or her parent or Indian custodian to a placement outside that home, the change in placement order shall contain the findings under
sub. (2v) (a) 4. and comply with the order of placement preference under
s. 938.028 (6) (a) or, if applicable,
s. 938.028 (6) (b), unless the court finds good cause, as described in
s. 938.028 (6) (d), for departing from that order.
938.357(2)
(2) Emergency change in placement. If emergency conditions necessitate an immediate change in the placement of a juvenile placed outside the home, the person or agency primarily responsible for implementing the dispositional order may remove the juvenile to a new placement, whether or not authorized by the existing dispositional order, without the prior notice under
sub. (1) (am) 1. or the consent required under
sub. (1) (am) 2r. The notice shall be sent within 48 hours after the emergency change in placement. Any party receiving notice may demand a hearing under
sub. (1) (am) 2. In emergency situations, a juvenile may be placed in a licensed public or private shelter care facility as a transitional placement for not more than 20 days or in any placement authorized under
s. 938.34 (3).
938.357(2m)(a)(a)
Request; information required. Except as provided in
par. (bv), the juvenile, the parent, guardian, or legal custodian of the juvenile, any person or agency primarily bound by the dispositional order, other than the person or agency responsible for implementing the order, or, if the juvenile is an Indian juvenile who is in need of protection or services under
s. 938.13 (4),
(6),
(6m), or
(7), the Indian juvenile's Indian custodian may request a change in placement under this paragraph. The request shall contain the name and address of the new placement requested and shall state what new information is available that affects the advisability of the current placement. If the proposed change in placement would change the placement of a juvenile placed in the juvenile's home to a placement outside the home, the request shall also contain specific information showing that continued placement of the juvenile in the juvenile's home would be contrary to the welfare of the juvenile and, unless any of the circumstances under
s. 938.355 (2d) (b) 1. to
4. applies, specific information showing that the agency primarily responsible for implementing the dispositional order has made reasonable efforts to prevent the removal of the juvenile from the home, while assuring that the juvenile's health and safety are the paramount concerns. The request shall be submitted to the court. The court may also propose a change in placement on its own motion.
938.357(2m)(am)1.1. If the proposed change of placement would change the placement of an Indian juvenile placed in the home of his or her parent or Indian custodian under
s. 938.13 (4),
(6),
(6m), or
(7) to a placement outside that home, a request under
par. (a) shall also contain specific information showing that continued custody of the Indian juvenile by the parent or Indian custodian is likely to result in serious emotional or physical damage to the juvenile under
s. 938.028 (4) (d) 1., specific information showing that active efforts under
s. 938.028 (4) (d) 2. have been made to prevent the breakup of the Indian juvenile's family and that those efforts have proved unsuccessful, a statement as to whether the new 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 new placement is not in compliance with that order, specific information showing good cause, as described in
s. 938.028 (6) (d), for departing from that order.
938.357(2m)(am)2.
2. If the proposed change in placement would change the placement of an Indian juvenile who is in need of protection or services under
s. 938.13 (4),
(6),
(6m), or
(7) from a placement outside the home of his or her parent or Indian custodian to another placement outside that home, a request under
par. (a) shall also contain a statement as to whether the new 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 new placement is not in compliance with that order, specific information showing good cause, as described in
s. 938.028 (6) (d), for departing from that order.
938.357(2m)(b)
(b)
Hearing; when required. The court shall hold a hearing prior to ordering any change in placement requested or proposed under
par. (a) if the request states that new information is available that affects the advisability of the current placement. Except as provided in
par. (bv), a hearing is not required if the requested or proposed change in placement does not involve a change in placement of a juvenile placed in the juvenile's home to a placement outside the juvenile's home, written waivers of objection to the proposed change in placement are signed by all parties entitled to receive notice under this paragraph, and the court approves. If a hearing is scheduled, not less than 3 days before the hearing the court shall notify the juvenile, the parent, guardian, and legal custodian of the juvenile, any foster parent or other physical custodian described in
s. 48.62 (2) of the juvenile, all parties who are bound by the dispositional order, and, if the juvenile is an Indian juvenile who is in need of protection or services under
s. 938.13 (4),
(6),
(6m), or
(7), the Indian juvenile's Indian custodian and tribe. A copy of the request or proposal for the change in placement shall be attached to the notice. Subject to
par. (br), if all of the parties consent, the court may proceed immediately with the hearing.
938.357(2m)(bm)
(bm)
Juvenile placed outside the home. If the court changes the juvenile's placement from a placement in the juvenile's home to a placement outside the juvenile's home, the parent, if present at the hearing, shall be requested to provide the names and other identifying information of 3 relatives of the juvenile or other individuals 18 years of age or over whose homes the parent requests the court to consider as placements for the juvenile, unless that information has previously been provided under this paragraph,
sub. (1) (c) 2m., or
s. 938.21 (2) (e) or
(3) (f) or
938.335 (6). If the parent does not provide that information at the hearing, the county department or the agency primarily responsible for implementing the dispositional order shall permit the parent to provide the information at a later date.
938.357(2m)(br)
(br)
Indian juvenile; notice. If the juvenile is an Indian juvenile who is in need of protection or services under
s. 938.13 (4),
(6),
(6m), or
(7), and if the proposed change in placement would change the placement of the Indian juvenile from a placement in the home of his or her parent or Indian custodian to a placement outside that home, notice under
par. (b) to the Indian juvenile's parent, Indian custodian, and tribe shall be provided in the manner specified in
s. 938.028 (4) (a). No hearing on the request or proposal may be held until at least 10 days after receipt of the notice by the Indian juvenile's parent, Indian custodian, and tribe or, if the identity or location of the Indian juvenile's parent, Indian custodian, or tribe cannot be determined, until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the Indian juvenile's parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for the hearing.
938.357(2m)(bv)
(bv) If the proposed change in placement involves a juvenile who is subject to a dispositional order that terminates as provided in
sub. (6) (a) 4. or
s. 938.355 (4) (am) 4. or
938.365 (5) (b) 4., only the juvenile or the juvenile's guardian on behalf of the juvenile or a person or agency primarily bound by the dispositional order may request a change in placement under
par. (a). No hearing is required for a change in placement described in this paragraph if written waivers of objection to the proposed change in placement are signed by the juvenile, the guardian of the juvenile, and all parties that are bound by the dispositional order. If a hearing is scheduled, the court may proceed immediately with the hearing on the consent of the person who requested the change in placement, the juvenile, the guardian of the juvenile, and all parties who are bound by the dispositional order.
938.357(2m)(c)1.1. If the court changes the juvenile's placement from a placement in the juvenile's home to a placement outside the juvenile's home, the change in placement order shall contain the findings under
sub. (2v) (a) 1., the applicable order under
sub. (2v) (a) 1m., the applicable statement under
sub. (2v) (a) 2., and, if in addition the court finds that any of the circumstances under
s. 938.355 (2d) (b) 1. to
4. applies with respect to a parent, the determination under
sub. (2v) (a) 3. If the court changes the placement of an Indian juvenile who is in need of protection or services under
s. 938.13 (4),
(6),
(6m), or
(7) from a placement in the home of his or her parent or Indian custodian to a placement outside that home, the change in placement order shall, in addition, contain the findings under
sub. (2v) (a) 4. and comply with the order of placement preference under
s. 938.028 (6) (a) or, if applicable,
s. 938.028 (6) (b), unless the court finds good cause, as described in
s. 938.028 (6) (d), for departing from that order.
938.357(2m)(c)2.
2. If the court changes the juvenile's placement from a placement outside the home to another placement outside the home, the change in placement order shall contain the applicable order under
sub. (2v) (a) 1m. and the applicable statement under
sub. (2v) (a) 2. If the court changes the placement of an Indian juvenile who is in need of protection or services under
s. 938.13 (4),
(6),
(6m), or
(7) from a placement outside the home of his or her parent or Indian custodian to another placement outside that home, the change in placement order shall, in addition, comply with the order of placement preference under
s. 938.028 (6) (a) or, if applicable,
s. 938.028 (6) (b), unless the court finds good cause, as described in
s. 938.028 (6) (d), for departing from the order.
938.357(2r)
(2r) Removal from foster home or physical custodian. If a hearing is held under
sub. (1) (am) 2. or
(2m) (b) and the change in placement would remove a juvenile from a foster home or other placement with a physical custodian described in
s. 48.62 (2), the court shall give the foster parent or other physical custodian a right to be heard at the hearing by permitting the 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 relating to the juvenile and the requested change in placement. A foster parent or other physical custodian who receives notice of a hearing under
sub. (1) (am) 1. or
(2m) (b) and a right to be heard under this subsection 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.
938.357(2v)(a)(a)
Contents of order. A change in placement order under
sub. (1) or
(2m) shall contain all of the following:
938.357(2v)(a)1.
1. If the court changes the juvenile's placement from a placement in the juvenile's home to a placement outside the juvenile's home, a finding that continued placement of the juvenile in his or her home would be contrary to the welfare of the juvenile and, unless a circumstance under
s. 938.355 (2d) (b) 1. to
4. applies, a finding that the agency primarily responsible for implementing the dispositional order has made reasonable efforts to prevent the removal of the juvenile from the home, while assuring that the juvenile's health and safety are the paramount concerns.
938.357(2v)(a)1m.
1m. If the change in placement order changes the placement of a juvenile who is under the supervision of the county department to a placement outside the juvenile's home, whether from a placement in the home or from another placement outside the home, an order ordering the juvenile into, or to be continued in, the placement and care responsibility of the county department as required under
42 USC 672 (a) (2) and assigning the county department primary responsibility, or continued primary responsibility, for providing services to the juvenile.
938.357(2v)(a)2.
2. If the change in placement order would change the placement of the juvenile to a placement outside the home recommended by the person or agency primarily responsible for implementing the dispositional order, whether from a placement in the home or from another placement outside the home, a statement that the court approves the placement recommended by the person or agency. If the change in placement order would change the placement of the juvenile to a placement outside the home that is not a placement recommended by that person or agency, whether from a placement in the home or from another placement outside the home, a statement that the court has given bona fide consideration to the recommendations made by that person or agency and all parties relating to the juvenile's placement.
938.357(2v)(a)2m.
2m. If the juvenile has one or more siblings, as defined in
s. 938.38 (4) (br) 1., who have been placed outside the home or for whom a change in placement to a placement outside the home is requested, a finding as to whether the county department or the agency primarily responsible for implementing the dispositional order has made reasonable efforts to place the juvenile in a placement that enables the sibling group to remain together, unless the court 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 shall order the county department or agency to make reasonable efforts to provide for frequent visitation or other ongoing interaction between the juvenile and the siblings, unless the court determines that such visitation or interaction would be contrary to the safety or well-being of the juvenile or any of those siblings.
938.357(2v)(a)3.
3. If the court finds that any of the circumstances under
s. 938.355 (2d) (b) 1. to
4. applies with respect to a parent, a determination that the agency primarily responsible for providing services under the change in placement order is not required to make reasonable efforts with respect to the parent to make it possible for the juvenile to return safely to his or her home. This subdivision does not apply to a juvenile who is subject to a dispositional order that terminates as provided in
s. 938.355 (4) (am) 4.,
938.357 (6) (a) 4., or
938.365 (5) (b) 4.
938.357(2v)(a)4.
4. If the change in placement order changes the placement of an Indian juvenile who is in need of protection or services under
s. 938.13 (4),
(6),
(6m), or
(7) from a placement in the home of his or her parent or Indian custodian to a placement outside that home, a finding supported by clear and convincing evidence, including the testimony of one or more qualified expert witnesses, that continued custody of the Indian juvenile by the parent or Indian custodian is likely to result in serious emotional or physical damage to the juvenile under
s. 938.028 (4) (d) 1. and a finding that active efforts under
s. 938.028 (4) (d) 2. have been made to prevent the breakup of the Indian juvenile's family and that those efforts have proved unsuccessful. The findings under this subdivision shall be in addition to the findings under
subd. 1., except that for the sole purpose of determining whether the cost of providing care for an Indian juvenile is eligible for reimbursement under
42 USC 670 to
679b, the findings under this subdivision and the findings under
subd. 1. shall be considered to be the same findings. The findings under this subdivision are not required if they were made in a previous order in the proceeding unless a change in circumstances warrants new findings.
