48.205
48.205
Criteria for holding a child or expectant mother in physical custody. 48.205(1)(1)
A child may be held under s.
48.207 (1),
48.208 or
48.209 if the intake worker determines that there is probable cause to believe the child is within the jurisdiction of the court and:
48.205(1)(a)
(a) Probable cause exists to believe that if the child is not held he or she will cause injury to himself or herself or be subject to injury by others.
48.205(1)(am)
(am) Probable cause exists to believe that if the child is not held he or she will be subject to injury by others, based on a determination under par.
(a) or a finding under s.
48.21 (4) that if another child in the home is not held that child will be subject to injury by others.
48.205(1)(b)
(b) Probable cause exists to believe that the parent, guardian or legal custodian of the child or other responsible adult is neglecting, refusing, unable or unavailable to provide adequate supervision and care and that services to ensure the child's safety and well-being are not available or would be inadequate.
48.205(1)(bm)
(bm) Probable cause exists to believe that the child meets the criteria specified in par.
(b), based on a determination under par.
(b) or a finding under s.
48.21 (4) that another child in the home meets those criteria.
48.205(1)(c)
(c) Probable cause exists to believe that the child will run away or be taken away so as to be unavailable for proceedings of the court or its officers.
48.205(1)(d)
(d) Probable cause exists to believe that the child is an expectant mother, that if the child expectant mother is not held, there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered by the child expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, and that the child expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her.
48.205(1m)
(1m) An adult expectant mother of an unborn child may be held under s.
48.207 (1m) if the intake worker determines that there is probable cause to believe that the adult expectant mother is within the jurisdiction of the court, to believe that if the adult expectant mother is not held, there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered by the adult expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, and to believe that the adult expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her.
48.205(2)
(2) The criteria for holding a child or the expectant mother of an unborn child in custody specified in this section shall govern the decision of all persons responsible for determining whether the action is appropriate.
48.205 Note
NOTE: 1993 Wis. Act 395, which creates sub. (1) (am) and (bm), contains extensive explanatory notes.
48.205 Annotation
Courts may hold juveniles in contempt of court, but only under the criteria under this section and s. 48.208. 70 Atty. Gen. 98.
48.207
48.207
Places where a child or expectant mother may be held in nonsecure custody. 48.207(1)(1)
A child held in physical custody under s.
48.205 (1) may be held in any of the following places:
48.207(1)(a)
(a) The home of a parent or guardian, except that a child may not be held in the home of a parent or guardian if the parent or guardian has been convicted under s.
940.01 of the first-degree intentional homicide, or under s.
940.05 of the 2nd-degree intentional homicide, of a parent of the child, and the conviction has not been reversed, set aside or vacated, unless the person making the custody decision determines by clear and convincing evidence that the placement would be in the best interests of the child. The person making the custody decision shall consider the wishes of the child in making that determination.
48.207(1)(b)
(b) The home of a relative, except that a child may not be held in the home of a relative if the relative has been convicted under s.
940.01 of the first-degree intentional homicide, or under s.
940.05 of the 2nd-degree intentional homicide, of a parent of the child, and the conviction has not been reversed, set aside or vacated, unless the person making the custody decision determines by clear and convincing evidence that the placement would be in the best interests of the child. The person making the custody decision shall consider the wishes of the child in making that determination.
48.207(1)(c)
(c) A licensed foster home if the placement does not violate the conditions of the license.
48.207(1)(cm)
(cm) A licensed group home provided that the placement does not violate the conditions of the license.
48.207(1)(d)
(d) A nonsecure facility operated by a licensed child welfare agency.
48.207(1)(e)
(e) A licensed private or public shelter care facility.
48.207(1)(f)
(f) The home of a person not a relative, if the placement does not exceed 30 days, though the placement may be extended for an additional 30 days for cause by the court, and if the person has not had a license under s.
48.62 refused, revoked, or suspended within the last 2 years.
48.207(1)(i)
(i) An approved public treatment facility for emergency treatment if the child is held under s.
48.20 (6).
48.207(1g)
(1g) An Indian child held in physical custody under s.
48.205 (1) shall be placed in compliance with s.
48.028 (7) (b) or, if applicable, s.
48.028 (7) (c), unless the person responsible for determining the placement finds good cause, as described in s.
48.028 (7) (e), for departing from the order of placement preference under s.
48.028 (7) (b) or finds that emergency conditions necessitate departing from that order. When the reason for departing from that order is resolved, the Indian child shall be placed in compliance with the order of placement preference under s.
48.028 (7) (b) or, if applicable, s.
48.028 (7) (c).
48.207(1m)
(1m) An adult expectant mother of an unborn child held in physical custody under s.
48.205 (1m) may be held in any of the following places:
48.207(1m)(a)
(a) The home of an adult relative or friend of the adult expectant mother.
48.207(1m)(b)
(b) A licensed community-based residential facility, as defined in s.
50.01 (1g), if the placement does not violate the conditions of the license.
48.207(1m)(e)
(e) An approved public treatment facility for emergency treatment if the adult expectant mother is held under s.
48.203 (5).
48.207(2)(a)(a) If a facility listed in sub.
(1) (b) to
(k) is used to hold a child in custody, or if supervisory services of a home detention program are provided to a child held under sub.
(1) (a), the authorized rate of the facility for the care of the child or the authorized rate for those supervisory services shall be paid by the county in a county having a population of less than 750,000 or by the department in a county having a population of 750,000 or more. If no authorized rate has been established, a reasonable sum to be fixed by the court shall be paid by the county in a county having a population of less than 750,000 or by the department in a county having a population of 750,000 or more for the supervision or care of the child.
48.207(2)(b)
(b) If a facility listed in sub.
(1m) (b) to
(e) is used to hold an expectant mother of an unborn child in custody, or if supervisory services of a home detention program are provided to an expectant mother held under sub.
(1m) (a), the authorized rate of the facility for the care of the expectant mother or the authorized rate for those supervisory services shall be paid by the county in a county having a population of less than 750,000 or by the department in a county having a population of 750,000 or more. If no authorized rate has been established, a reasonable sum to be fixed by the court shall be paid by the county in a county having a population of less than 750,000 or by the department in a county having a population of 750,000 or more for the supervision or care of the expectant mother.
48.207(3)
(3) A child taken into custody under s.
48.981 may be held in a hospital, foster home, relative's home, or other appropriate medical or child welfare facility that is not used primarily for the detention of delinquent children.
48.208
48.208
Criteria for holding a child in a juvenile detention facility. A child may be held in a juvenile detention facility if the intake worker determines that one of the following conditions applies:
48.208(3)
(3) The child consents in writing to being held in order to protect him or her from an imminent physical threat from another and such secure custody is ordered by the judge in a protective order.
48.208(4)
(4) Probable cause exists to believe that the child, having been placed in nonsecure custody by an intake worker under s.
48.207 (1) or by the judge or a circuit court commissioner under s.
48.21 (4), has run away or committed a delinquent act and no other suitable alternative exists.
48.208 Annotation
Courts may hold juveniles in contempt of court, but only under the criteria under s. 48.205 and this section. 70 Atty. Gen. 98.
48.209
48.209
Criteria for holding a child in a county jail. Subject to the provisions of s.
48.208, a county jail may be used as a juvenile detention facility if the criteria under either sub.
(1) or
(2) are met:
48.209(1)
(1) There is no other juvenile detention facility approved by the department of corrections or a county which is available and:
48.209(1)(a)
(a) The jail meets the standards for juvenile detention facilities established by the department of corrections;
48.209(1)(b)
(b) The child is held in a room separated and removed from incarcerated adults;
48.209(1)(c)
(c) The child is not held in a cell designed for the administrative or disciplinary segregation of adults;
48.209(1)(e)
(e) The judge reviews the status of the child every 3 days.
48.209(2)
(2) The child 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 sub.
(1) (a) to
(e) shall be met. The child shall be given a hearing and transferred only upon order of the judge.
48.209 Cross-reference
Cross-reference: See also s.
DOC 346.01, Wis. adm. code.
48.21
48.21
Hearing for child in custody. 48.21(1)(a)(a) If a child who has been taken into custody is not released under s.
48.20, a hearing to determine whether the child shall continue to be held in custody under the criteria of ss.
48.205 to
48.209 shall be conducted by the judge or a circuit court commissioner within 48 hours of the time the decision to hold the child was made, excluding Saturdays, Sundays, and legal holidays. By the time of the hearing a petition under s.
48.25 shall be filed, except that no petition need be filed when the child is taken into custody under s.
48.19 (1) (b) or
(d) 2. or
7. or when the child is a runaway from another state, in which case a written statement of the reasons for holding the child in custody shall be substituted if the petition is not filed. If no hearing has been held within 48 hours, excluding Saturdays, Sundays, and legal holidays, or if no petition or statement has been filed at the time of the hearing, the child shall be released except as provided in pars.
(b) and
(bm). A parent not present at the hearing shall be granted a rehearing upon request for good cause shown.
48.21(1)(b)
(b) If no petition has been filed by the time of the hearing, a child may be held in custody with approval of the judge or circuit court commissioner for an additional 72 hours from the time of the hearing, excluding Saturdays, Sundays, and legal holidays, only if, as a result of the facts brought forth at the hearing, the judge or circuit court commissioner determines that probable cause exists to believe any of the following:
48.21(1)(b)1.
1. That additional time is required to determine whether the filing of a petition initiating proceedings under this chapter is necessary.
48.21(1)(b)2.
2. That the child is an imminent danger to himself or herself or to others.
48.21(1)(b)3.
3. That probable cause exists to believe that the parent, guardian, or legal custodian of the child or other responsible adult is neglecting, refusing, unable, or unavailable to provide adequate supervision and care.
48.21(1)(b)4.
4. That, if the child is an expectant mother who was taken into custody under s.
48.19 (1) (cm) or
(d) 8., probable cause exists to believe that there is a substantial risk that if the child expectant mother is not held, the physical health of the unborn child, and of the child when born, will be seriously affected or endangered by the child expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances, or controlled substance analogs, exhibited to a severe degree, and to believe that the child expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her.
48.21(1)(bm)
(bm) An extension under par.
(b) may be granted only once for any petition. In the event of failure to file a petition within the extension period provided for in par.
(b), the judge or circuit court commissioner shall order the child's immediate release from custody.
48.21(3)
(3) Proceedings concerning children in need of protection or services and unborn children in need of protection or services and their child expectant mothers. 48.21(3)(ag)
(ag) Proceedings concerning a child who comes within the jurisdiction of the court under s.
48.13 or an unborn child and a child expectant mother of the unborn child who come within the jurisdiction of the court under s.
48.133 shall be conducted according to this subsection.
48.21(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.
48.21(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 child if he or she is 12 years of age or older, before the hearing begins. If the child is an expectant mother who has been taken into custody under s.
48.19 (1) (cm) or
(d) 8., a copy of the petition shall also be given to the unborn child's guardian ad litem before the hearing begins. Prior notice of the hearing shall be given to the child's parent, guardian, legal custodian, and Indian custodian, to the child if he or she is 12 years of age or older and, if the child is an expectant mother who has been taken into custody under s.
48.19 (1) (cm) or
(d) 8., to the unborn child's guardian ad litem under s.
48.20 (8).
48.21(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 counsel under s.
48.23, the right to present, confront, and cross-examine witnesses, and, in the case of a parent or Indian custodian of an Indian child who is the subject of an Indian child custody proceeding under s.
48.028 (2) (d) 2., the right to counsel under s.
48.028 (4) (b).
48.21(3)(e)
(e) If the parent, guardian, legal custodian, Indian custodian, or child is not represented by counsel at the hearing and the child is continued in custody as a result of the hearing, the parent, guardian, legal custodian, Indian custodian, or child may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold the child in custody be reheard. If the request is made, a rehearing shall take place as soon as possible. An order to hold the child in custody shall be reheard for good cause, whether or not counsel was present.
48.21(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 child or other individuals 18 years of age or over whose homes the parent requests the court to consider as placements for the child. If the parent does not provide that information at the hearing, the county department, the department in a county having a population of 750,000 or more, or the agency primarily responsible for providing services to the child under the custody order shall permit the parent to provide the information at a later date.
48.21(3m)
(3m) Parental notice required. If the child 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 child's parents of the possibility of disclosure of the identity of the child and the parents, of the child's police records and of the outcome of proceedings against the child for use in civil actions for damages against the child or the parents and of the parents' potential liability for acts of their children. If the court is unable to provide the notice before commencement of the hearing, it shall provide the child's parents with the specified information in writing as soon as possible after the hearing.
48.21(4)
(4) Continuation of custody. If the judge or circuit court commissioner finds that the child should be continued in custody under the criteria of s.
48.205, he or she shall enter one of the following orders:
48.21(4)(a)
(a) Place the child with a parent, guardian, legal custodian or other responsible person and may impose reasonable restrictions on the child's travel, association with other persons or places of abode during the period of placement, including a condition requiring the child to return to other custody as requested; or subject the child to the supervision of an agency agreeing to supervise the child. 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 child.
48.21(5)(a)
(a) All orders to hold in custody shall be in writing, listing the reasons and criteria forming the basis for the decision.
48.21(5)(b)
(b) An order relating to a child held in custody outside of his or her home shall also include all of the following:
48.21(5)(b)1.a.a. A finding that continued placement of the child in his or her home would be contrary to the welfare of the child.
48.21(5)(b)1.b.
b. A finding as to whether the person who took the child into custody and the intake worker have made reasonable efforts to prevent the removal of the child from the home, while assuring that the child's health and safety are the paramount concerns, unless the judge or circuit court commissioner finds that any of the circumstances specified in s.
48.355 (2d) (b) 1. to
5. applies.
48.21(5)(b)1.c.
c. A finding as to whether the person who took the child into custody and the intake worker have made reasonable efforts to make it possible for the child to return safely home.
48.21(5)(b)1.d.
d. If the child is under the supervision of the county department or, in a county having a population of 750,000 or more, the department, an order ordering the child into the placement and care responsibility of the county department or department as required under
42 USC 672 (a) (2) and assigning the county department or department primary responsibility for providing services to the child.
48.21(5)(b)1m.
1m. If for good cause shown sufficient information is not available for the judge or circuit court commissioner to make a finding as to whether reasonable efforts were made to prevent the removal of the child from the home, while assuring that the child's health and safety are the paramount concerns, a finding as to whether reasonable efforts were made to make it possible for the child to return safely home and an order for the county department, department, in a county having a population of 750,000 or more, or agency primarily responsible for providing services to the child under the custody order to file with the court sufficient information for the judge or circuit court commissioner to make a finding as to whether those reasonable efforts were made to prevent the removal of the child from the home by no later than 5 days, excluding Saturdays, Sundays, and legal holidays, after the date on which the order is granted.
48.21(5)(b)2.
2. If the child 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 child 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 child.
48.21(5)(b)2m.
2m. If the child has one or more siblings, as defined in s.
48.38 (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 child in a placement that enables the sibling group to remain together, unless the judge or circuit court commissioner determines that a joint placement would be contrary to the safety or well-being of the child or any of those siblings, in which case the judge or circuit court commissioner shall order the county department, department in a county having a population of 750,000 or more, or agency primarily responsible for providing services to the child under the custody order to make reasonable efforts to provide for frequent visitation or other ongoing interaction between the child and the siblings, unless the judge or circuit court commissioner determines that such visitation or interaction would be contrary to the safety or well-being of the child or any of those siblings.
48.21(5)(b)3.
3. If the judge or circuit court commissioner finds that any of the circumstances specified in s.
48.355 (2d) (b) 1. to
5. applies with respect to a parent, a determination that the county department, department, in a county having a population of 750,000 or more, 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 child to return safely to his or her home.
48.21(5)(c)
(c) The judge or circuit court commissioner shall make the findings specified in par.
(b) 1.,
1m., and
3. on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which those findings are based in the 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.
48.21(5)(d)
(d) If the judge or circuit court commissioner finds that any of the circumstances specified in s.
48.355 (2d) (b) 1. to
5. applies with respect to a parent, the judge or circuit court commissioner shall hold a hearing under s.
48.38 (4m) within 30 days after the date of that finding to determine the permanency goal and, if applicable, any concurrent permanency goals for the child.
