938.209
938.209
Criteria for holding a juvenile in a county jail or a municipal lockup facility. 938.209(1)
(1)
County jail. Subject to
s. 938.208, a county jail may be used as a juvenile detention facility if the criteria under either
par. (a) or
(b) are met:
938.209(1)(a)
(a) No other juvenile detention facility approved by the department of corrections or a county is available and all of the following conditions are met:
938.209(1)(a)1.
1. The jail meets the standards for juvenile detention facilities established by the department of corrections.
938.209(1)(a)2.
2. The juvenile is held in a room separated and removed from incarcerated adults.
938.209(1)(a)3.
3. The juvenile is not held in a cell designed for the administrative or disciplinary segregation of adults.
938.209(1)(a)5.
5. The court reviews the status of the juvenile every 3 days.
938.209(1)(b)
(b) The juvenile presents a substantial risk of physical harm to other persons in the juvenile detention facility, as evidenced by previous acts or attempts, which can only be avoided by transfer to the jail. The conditions of
par. (a) 1. to
5. shall be met. The juvenile shall be given a hearing and may be transferred only upon a court order.
938.209(2m)(a)(a) A juvenile who is alleged to have committed a delinquent act may be held in a municipal lockup facility if all of the following criteria are met:
938.209(2m)(a)1.
1. The department of corrections has approved the municipal lockup facility as a suitable place for holding juveniles in custody.
938.209(2m)(a)2.
2. The juvenile is held in the municipal lockup facility for not more than 6 hours while awaiting his or her hearing under
s. 938.21 (1) (a).
938.209(2m)(a)3.
3. There is sight and sound separation between the juvenile and any adult who is being held in the municipal lockup facility.
938.209(2m)(b)
(b) The department of corrections shall promulgate rules establishing minimum requirements for the approval of a municipal lockup facility as a suitable place for holding juveniles in custody and for the operation of such a facility. The rules shall be designed to protect the health, safety, and welfare of the juveniles held in those facilities.
938.209(3)
(3) Juveniles under adult court jurisdiction. The restrictions of this section do not apply to the use of jail for a juvenile who has been waived to adult court under
s. 938.18 or who is under the jurisdiction of an adult court under
s. 938.183, unless the juvenile is under the jurisdiction of an adult court under
s. 938.183 (1) and is under 15 years of age.
938.21
938.21
Hearing for juvenile in custody. 938.21(1)(a)(a) If a juvenile who has been taken into custody is not released under
s. 938.20, a hearing to determine whether to continue to hold the juvenile in custody under the criteria of
ss. 938.205 to
938.209 (1) shall be conducted by the court within 24 hours after the end of the day on which the decision to hold the juvenile was made, excluding Saturdays, Sundays, and legal holidays. By the time of the hearing a petition under
s. 938.25 or a request for a change in placement under
s. 938.357, a request for a revision of the dispositional order under
s. 938.363, or a request for an extension of a dispositional order under
s. 938.365 shall be filed, except that no petition or request need be filed if a juvenile is taken into custody under
s. 938.19 (1) (b) or
(d) 2.,
6., or
7. or if the juvenile is a runaway from another state, in which case a written statement of the reasons for holding a juvenile in custody shall be substituted if the petition is not filed. If no hearing has been held within 24 hours or if no petition, request, or statement has been filed at the time of the hearing, the juvenile shall be released except as provided in
par. (b). The court shall grant a rehearing upon request of a parent not present at the hearing for good cause shown.
938.21(1)(b)
(b) If no petition or request has been filed by the time of the hearing, a juvenile may be held in custody with the approval of the court for an additional 48 hours from the time of the hearing only if, as a result of the facts brought forth at the hearing, the court determines that probable cause exists to believe that the juvenile is an imminent danger to himself or herself or to others, or that probable cause exists to believe that the parent, guardian, or legal custodian of the juvenile or other responsible adult is neglecting, refusing, unable, or unavailable to provide adequate supervision and care. The extension may be granted only once for any petition. If a petition or request is not filed within the 48-hour extension period under this paragraph, the court shall order the juvenile's immediate release from custody.
938.21(1m)
(1m) Biological specimen. If the juvenile has been taken into custody on the basis of a violation that would be a violent crime, as defined in
s. 165.84 (7) (ab), if committed by an adult in this state, the court shall determine if a biological specimen has been obtained from the juvenile under
s. 165.84 (7), and if not, the court shall direct that a law enforcement agency or tribal law enforcement agency obtain a biological specimen from the juvenile and submit it to the state crime laboratories as specified in rules promulgated by the department of justice under
s. 165.76 (4). If the court requires the juvenile to provide a specimen under this subsection or if a biological specimen has already been obtained from the juvenile, the court shall inform the juvenile that he or she may request expungement under
s. 165.77 (4).
938.21(2)
(2) Proceedings concerning delinquent juveniles. 938.21(2)(ag)(ag) Proceedings concerning a juvenile who comes within the jurisdiction of the court under
s. 938.12 or
938.13 (12) or
(14) shall be conducted according to this subsection.
938.21(2)(am)
(am) A juvenile held in a nonsecure place of custody may waive in writing his or her right to participate in the hearing under this section. After any waiver, a rehearing shall be granted upon the request of the juvenile or any other interested party for good cause shown. Any juvenile transferred to a juvenile detention facility shall thereafter have a rehearing under this section.
938.21(2)(b)
(b) A copy of the petition or request shall be given to the juvenile at or prior to the time of the hearing. Prior notice of the hearing shall be given to the juvenile's parent, guardian, and legal custodian and to the juvenile under
s. 938.20 (8).
938.21(2)(c)
(c) Prior to the commencement of the hearing, the court shall inform the juvenile of the allegations that have been or may be made, the nature and possible consequences of this hearing as compared to possible future hearings, the provisions of
s. 938.18 if applicable, the right to counsel under
s. 938.23 regardless of ability to pay if the juvenile is not yet represented by counsel, the right to remain silent, the fact that the silence may not be adversely considered by the court, the right to confront and cross-examine witnesses, and the right to present witnesses.
938.21(2)(d)
(d) If the juvenile is not represented by counsel at the hearing and the juvenile is continued in custody as a result of the hearing, the juvenile may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold in custody be reheard. If the request is made, a rehearing shall take place as soon as possible. An order to hold the juvenile in custody shall be reheard for good cause whether or not counsel was present.
938.21(2)(e)
(e) If present at the hearing, the parent 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. If the parent does not provide that information at the hearing, the county department or agency primarily responsible for providing services to the juvenile under the custody order shall permit the parent to provide that information at a later date.
938.21(3)
(3) Proceedings concerning juveniles in need of protection or services. 938.21(3)(ag)(ag) Proceedings concerning a juvenile who comes within the jurisdiction of the court under
s. 938.13 (4),
(6),
(6m), or
(7) shall be conducted according to this subsection.
938.21(3)(am)
(am) The parent, guardian, legal custodian, or Indian custodian may waive his or her right to participate in the hearing under this section. After any waiver, a rehearing shall be granted at the request of the parent, guardian, legal custodian, Indian custodian, or any other interested party for good cause shown.
938.21(3)(b)
(b) If present at the hearing, a copy of the petition or request shall be given to the parent, guardian, legal custodian, or Indian custodian, and to the juvenile if he or she is 12 years of age or older, before the hearing begins. Prior notice of the hearing shall be given to the juvenile's parent, guardian, legal custodian, and Indian custodian and to the juvenile if he or she is 12 years of age or older under
s. 938.20 (8).
938.21(3)(d)
(d) Prior to the commencement of the hearing, the court shall inform the parent, guardian, legal custodian, or Indian custodian of the allegations that have been made or may be made, the nature and possible consequences of this hearing as compared to possible future hearings, the right to present, confront, and cross-examine witnesses and, in the case of a parent or Indian custodian of an Indian juvenile who is the subject of an Indian juvenile custody proceeding, as defined in
s. 938.028 (2) (b), the right to counsel under
s. 938.028 (4) (b).
938.21(3)(e)
(e) If the parent, guardian, legal custodian, Indian custodian, or juvenile is not represented by counsel at the hearing and if the juvenile is continued in custody as a result of the hearing, the parent, guardian, legal custodian, Indian custodian, or juvenile may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold the juvenile in custody be reheard. If the request is made, a rehearing shall take place as soon as possible. An order to hold the juvenile in custody shall be reheard for good cause, whether or not counsel was present.
938.21(3)(f)
(f) If present at the hearing, the parent 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. If the parent does not provide that information at the hearing, the county department or agency primarily responsible for providing services to the juvenile under the custody order shall permit the parent to provide that information at a later date.
938.21(3m)
(3m) Parental notice required. If the juvenile has been taken into custody because he or she committed an act which resulted in personal injury or damage to or loss of the property of another, the court, prior to the commencement of any hearing under this section, shall attempt to notify the juvenile's parents of the possibility of disclosure of the identity of the juvenile and the parents, of the juvenile's police records and of the outcome of proceedings against the juvenile for use in civil actions for damages against the juvenile or the parents and of the parents' potential liability for acts of their juveniles. If the court is unable to provide the notice before commencement of the hearing, it shall provide the juvenile's parents with the specified information in writing as soon as possible after the hearing.
938.21(4)
(4) Order to continue in custody. If the court finds that the juvenile should be continued in custody under the criteria of
s. 938.205, the court shall enter one of the following orders:
938.21(4)(a)
(a) Place the juvenile with a parent, guardian, legal custodian, or other responsible person and may impose reasonable restrictions on the juvenile's travel, association with other persons, or places of abode during the period of placement, including a condition requiring the juvenile to return to other custody as requested; or subject the juvenile to the supervision of an agency agreeing to supervise the juvenile. Reasonable restrictions may be placed upon the conduct of the parent, guardian, legal custodian, or other responsible person which may be necessary to ensure the safety of the juvenile.
938.21(4m)
(4m) Electronic monitoring. An order under
sub. (4) (a) or
(b) may include a condition that the juvenile be monitored by an electronic monitoring system.
938.21(5)(a)(a) All orders to hold in custody shall be in writing, listing the reasons and criteria forming the basis for the decision.
938.21(5)(b)
(b) An order relating to a juvenile held in custody outside of his or her home shall also include all of the following:
938.21(5)(b)1.a.a. A finding that continued placement of the juvenile in his or her home would be contrary to the welfare of the juvenile.
938.21(5)(b)1.b.
b. A finding as to whether the person who took the juvenile into custody and the intake worker have 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, unless the court finds that any of the circumstances specified in
s. 938.355 (2d) (b) 1. to
4. applies.
938.21(5)(b)1.c.
c. A finding as to whether the person who took the juvenile into custody and the intake worker have made reasonable efforts to make it possible for the juvenile to return safely home.
938.21(5)(b)1.d.
d. If the juvenile is under the supervision of the county department, an order ordering the juvenile into the placement and care responsibility of the county department as required under
42 USC 672 (a) (2) and assigning the county department primary responsibility for providing services to the juvenile.
938.21(5)(b)1m.
1m. If for good cause shown sufficient information is not available for the court to make a finding as to whether reasonable efforts were made to prevent the removal of the juvenile from the home, while assuring that the juvenile's health and safety are the paramount concerns, a finding as to whether reasonable efforts were made to make it possible for the juvenile to return safely home and an order for the county department or agency primarily responsible for providing services to the juvenile under the custody order to file with the court sufficient information for the court to make a finding as to whether those reasonable efforts were made to prevent the removal of the juvenile from the home by no later than 5 days, excluding Saturdays, Sundays, and legal holidays, after the date on which the order is granted.
938.21(5)(b)2.
2. If the juvenile is held in custody outside the home in a placement recommended by the intake worker, a statement that the court approves the placement recommended by the intake worker or, if the juvenile is placed outside the home in a placement other than a placement recommended by the intake worker, a statement that the court has given bona fide consideration to the recommendations made by the intake worker and all parties relating to the placement of the juvenile.
938.21(5)(b)2m.
2m. 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, a finding as to whether the intake worker 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 primarily responsible for providing services to the juvenile under the custody order 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.
938.21(5)(b)3.
3. If the court finds that any of the circumstances specified in
s. 938.355 (2d) (b) 1. to
4. applies with respect to a parent, a determination that the county department or agency primarily responsible for providing services under the custody order is not required to make reasonable efforts with respect to the parent to make it possible for the juvenile to return safely to his or her home.
938.21(5)(c)
(c) The court shall make the findings specified in
par. (b) 1.,
1m., and
3. on a case-by-case basis based on circumstances specific to the juvenile and shall document or reference the specific information on which those findings are based in the custody order. A custody order that merely references
par. (b) 1.,
1m., or
3. without documenting or referencing that specific information in the custody order or an amended custody order that retroactively corrects an earlier custody order that does not comply with this paragraph is not sufficient to comply with this paragraph.
938.21(5)(d)
(d) If the court finds that any of the circumstances specified in
s. 938.355 (2d) (b) 1. to
4. applies with respect to a parent, the court shall hold a hearing under
s. 938.38 (4m) within 30 days after the date of that finding to determine the permanency goal and, if applicable, any concurrent permanency goals for the juvenile.
938.21(5)(e)1.1. In this paragraph, “
adult relative" means a grandparent, great-grandparent, aunt, uncle, brother, sister, half brother, or half sister of a juvenile or a parent of a sibling of the juvenile who has legal custody of that sibling, whether by blood, marriage, or legal adoption, who has attained 18 years of age.
938.21(5)(e)2.
2. The court shall order the county department or agency primarily responsible for providing services to the juvenile under the custody order to conduct a diligent search in order to locate and provide notice of the information specified in this subdivision to all relatives of the juvenile named under
sub. (2) (e) or
(3) (f) and to all adult relatives of the juvenile within 30 days after the juvenile is removed from the custody of the juvenile's parent unless the juvenile is returned to his or her home within that period. The court may also order the county department or agency to conduct a diligent search in order to locate and provide notice of the information specified in this subdivision to all other adult individuals named under
sub. (2) (e) or
(3) (f) within 30 days after the juvenile is removed from the custody of the juvenile's parent unless the juvenile is returned to his or her home within that period. The county department or agency may not provide that notice to a person named under
sub. (2) (e) or
(3) (f) or to an adult relative if the county department or agency has reason to believe that it would be dangerous to the juvenile or to the parent if the juvenile were placed with that person or adult relative. The notice shall include all of the following:
938.21(5)(e)2.a.
a. A statement that the juvenile has been removed from the custody of the juvenile's parent.
938.21(5)(e)2.b.
b. A statement that explains the options that the person provided with the notice has under state or federal law to participate in the care and placement of the juvenile, including any options that may be lost by failing to respond to the notice.
938.21(5)(e)2.c.
c. A description of the requirements to obtain a foster home license under
s. 48.62 or to receive kinship care or long-term kinship care payments under
s. 48.57 (3m) or
(3n) and of the additional services and supports that are available for juveniles placed in a foster home or in the home of a person receiving those payments.
938.21(5)(e)2.d.
d. A statement advising the person provided with the notice that he or she may incur additional expenses if the juvenile is placed in his or her home and that reimbursement for some of those expenses may be available.
938.21(5)(e)2.e.
e. The name and contact information of the agency that removed the juvenile from the custody of the juvenile's parent.
938.21(5m)
(5m) Effective period of order. An order to hold a juvenile in custody remains in effect until a dispositional order is granted or a consent decree is entered into, the petition under
s. 938.25 is withdrawn or dismissed, or the order is modified or terminated by further order of the court.
938.21(6)
(6) Amendment of order. An order under
sub. (4) (a) may be amended at any time, with notice, so as to place the juvenile in another form of custody for failure to conform to the conditions originally imposed. A juvenile may be transferred to secure custody if he or she meets the criteria of
s. 938.208.
938.21(7)
(7) Deferred prosecution. If the court determines that the best interests of the juvenile and the public are served, the court may enter a consent decree under
s. 938.32 or dismiss the petition and refer the matter to the intake worker for deferred prosecution in accordance with
s. 938.245.
938.21 History
History: 1995 a. 77,
275;
1997 a. 35,
237,
296;
2001 a. 16,
61,
109;
2005 a. 344;
2007 a. 20,
97;
2009 a. 28,
79,
94,
180;
2011 a. 181;
2013 a. 20,
214;
2015 a. 101,
373.
938.21 Annotation
When a district attorney receives notice of a deferred prosecution agreement from an intake worker under s. 938.24 (5), the 20 days during which the district attorney may terminate the agreement under s. 938.245 (6) begins. When a court orders a deferred prosecution agreement under sub. (7), the intake worker need not notify the district attorney and nothing triggers a district attorney's authority to terminate the agreement under s. 938.245 (6). An order under sub. (7) dismissing a petition and referring for deferred prosecution does not require district attorney consent. The district attorney may not override the order by filing a new petition with the same charges and facts. State v. Lindsey A.F.
2002 WI App 223,
257 Wis. 2d 650,
653 N.W.2d 116,
01-0081.
938.217
938.217
Change in placement; juvenile held in custody. 938.217(1)(1)
Request by intake worker, agency responsible for custody order, or prosecutor. 938.217(1)(a)1.1. Except as provided in
subd. 2., the intake worker, the agency primarily responsible for providing services under a temporary physical custody order under
s. 938.21 (4), or the district attorney or corporation counsel may request a change in the placement of the juvenile who is the subject of the order as provided in this subsection, whether or not the change requested is authorized in the order.
938.217(1)(a)2.
2. A change in the placement of a juvenile from a placement in the home to a placement outside the home may only be made as provided in
s. 938.21 (6).
938.217(1)(b)1.1. The intake worker, the agency primarily responsible for providing services under a temporary physical custody order, or the district attorney or corporation counsel may request a change in placement under this subsection by causing written notice of the proposed change in placement to be sent to the juvenile, the juvenile's counsel or guardian ad litem, the parent, guardian, and legal custodian or Indian custodian of the juvenile, and any foster parent or other physical custodian described in
s. 48.62 (2) of the juvenile.
938.217(1)(b)2.
2. The notice shall contain the name and address of the new placement, the reasons for the change in placement, and a statement describing why the new placement is preferable to the present placement. The person sending the notice shall file the notice with the court on the same day that the notice is sent.
938.217(1)(c)
(c)
Hearing; when required. Any person receiving the notice under
par. (b) may obtain a hearing on the matter by filing an objection with the court within 10 days after the notice is sent to that person and filed with the court. Except as provided in
par. (d), if an objection is filed within 10 days after that notice is sent and filed with the court, the court shall hold a hearing prior to ordering any change in placement. At least 3 days before the hearing, the court shall provide notice of the hearing to all persons who are required to receive notice under
par. (b). If all parties consent, the court may proceed immediately with the hearing. Except as provided in
par. (d), if no objection is filed within 10 days after that notice is sent and filed with the court, the court shall enter an order changing the juvenile's placement as proposed in that notice. Except as provided in
par. (d), placements may not be changed until 10 days after that notice is sent and filed with the court unless written waivers of objection are signed by the parent, guardian, legal custodian, or Indian custodian of the juvenile and the juvenile, if 12 years of age or over.
938.217(1)(d)
(d)
When hearing not required. Changes in placement that were authorized in the temporary physical custody order may be made immediately if notice is given as required under
par. (b). A hearing is not required for changes in placement authorized in the temporary physical custody order except when an objection filed by a person who received notice alleges that new information is available that affects the advisability of the order.
938.217(1)(e)
(e)
Contents of order. If the court changes a 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), the applicable statement under
sub. (2v) (b), and the finding under
sub. (2v) (c).
938.217(2)
(2) Emergency change in placement. If emergency conditions necessitate an immediate change in the placement of a juvenile placed outside the home under a temporary physical custody order under
s. 938.21 (4), the intake worker or agency primarily responsible for providing services under the temporary physical custody order may remove the juvenile to a new placement, whether or not authorized by the existing order, without the prior notice under
sub. (1) (b). Notice of the emergency change in placement shall be sent to the persons specified in
sub. (1) (b) 1. within 48 hours after the emergency change in placement. Any party receiving notice may demand a hearing under
sub. (1) (c). 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 other placement authorized under
s. 938.207,
938.208, or
938.209.
938.217(2m)(a)1.1. Except as provided in
subd. 2., the juvenile, the juvenile's counsel or guardian ad litem, or the parent, guardian, legal custodian, or Indian custodian of the juvenile may request a change in the placement of the juvenile who is the subject of the order as provided in this subsection. 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. The request shall be submitted to the court. The court may also propose a change in placement on its own motion.
938.217(2m)(a)2.
2. A change in the placement of a juvenile from a placement in the home to a placement outside the home may only be made as provided in
s. 938.21 (6).
938.217(2m)(b)1.1. The court shall hold a hearing prior to ordering any change in placement requested or proposed under
par. (a) if the request or proposal states that new information is available that affects the advisability of the current placement. A hearing is not required if written waivers of objection to the proposed change in placement are signed by all persons entitled to receive notice under
subd. 2. and the court approves.
