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; juvenile subject to dispositional order. 938.357(1)(1)
Request by person or agency responsible for order or prosecutor. 938.357(1)(a)
(a)
Applicable procedures. The person or agency primarily responsible for implementing the dispositional order, the district attorney, or the corporation counsel may request a change in the placement of the juvenile who is the subject of the dispositional order, 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. Except as provided in par.
(c), the person or agency primarily responsible for implementing the dispositional order, the district attorney, or the 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 of the juvenile, and any foster parent or other physical custodian described in s.
48.62 (2) of the juvenile. If the request is for a change in placement under sub.
(3), notice shall be sent to the entity that operates the secured residential care center for children and youth or Type 1 juvenile correctional facility where placement is proposed. 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 or permanency plan ordered by the court. The person sending the notice shall file the notice with the court on the same day that the notice is sent.
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 the notice is sent to that person and filed with the court. Except as provided in subds.
2m. and
2r., 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 subd.
1. or s.
938.355 (2) (b) 2. If all parties consent, the court may proceed immediately with the hearing. Except as provided in subds.
2m. and
2r., 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 subds.
2m. and
2r., placements may not be changed until 10 days after that notice is sent and filed with 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. A hearing is not required for changes in placement 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 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., the applicable statement under sub.
(2v) (a) 2., and the finding under sub.
(2v) (a) 2m. 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, the district attorney, or the corporation counsel 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 the objectives of the treatment plan or permanency 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 before 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 juvenile's counsel or guardian ad litem, the parent, guardian, and legal custodian of the juvenile, the person or agency primarily responsible for implementing the dispositional order, the district attorney or corporation counsel, any foster parent or other physical custodian described in s.
48.62 (2), 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., the finding under sub.
(2v) (a) 2m., 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)(a)
(a)
Emergency changes in placement generally. Except as provided in par.
(b), if emergency conditions necessitate an immediate change in the placement of a juvenile, 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. Notice of the emergency change in placement shall be sent to the persons specified in sub.
(1) (am) 1. within 48 hours after the emergency change in placement. Any party receiving notice may demand a hearing under sub.
(1) (am) 2. 938.357(2)(b)1.
1. If emergency conditions necessitate an immediate change in 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 may remove the juvenile to a new placement, whether or not authorized by the existing dispositional order, without first requesting a change in placement under sub.
(1) (c) 1. 938.357(2)(b)2.
2. Except as provided in subd.
3., a hearing on an emergency change in placement under subd.
1. shall be held within 48 hours after the emergency change in placement is made, excluding Saturdays, Sundays, and legal holidays. When a juvenile is removed to a new placement under subd.
1., the person or agency that removed the juvenile shall immediately notify the court by the most practical means. As soon as possible after receiving that notice, the court shall schedule the hearing and the person or agency that removed the juvenile, by the most practical means, shall provide notice of the hearing to the juvenile, the juvenile's counsel or guardian ad litem, the parent, guardian, and legal custodian of the juvenile, the person or agency primarily responsible for implementing the dispositional order, the district attorney or corporation counsel, any foster parent or other physical custodian described in s.
48.62 (2), 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.
938.357(2)(b)3.
3. By the time of the hearing under subd.
2., a request for a change in placement under sub.
(1) (c) 1. shall be filed with the court. The court shall hold a hearing on the request as provided in sub.
(1) (c) 2., except that, subject to sub.
(1) (c) 2r., if all parties consent, the court may proceed immediately with the hearing under sub.
(1) (c) 2. in lieu of the hearing under subd.
2. 938.357(2)(b)4.
4. If the court orders an emergency change in placement under subd.
2., 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., the finding under sub.
(2v) (a) 2m. 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. 938.357(2)(c)
(c)
Placements permitted in emergency. 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 juvenile's counsel or guardian ad litem, the parent, guardian, or legal custodian of the juvenile, 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 the placement of the juvenile 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. 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)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. 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 subd.
2., and the court approves.
938.357(2m)(b)2.
2. If a hearing is scheduled, at least 3 days before the hearing the court shall notify the juvenile, the juvenile's counsel or guardian ad litem, the parent, guardian, and legal custodian of the juvenile, the person or agency primarily responsible for implementing the dispositional order, the district attorney or corporation counsel, any foster parent or other physical custodian described in s.
48.62 (2) of the juvenile, 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 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) 2. to the Indian juvenile's parent, Indian custodian, and tribe shall be provided in the manner specified in s.
938.028 (4) (a). Notwithstanding par.
(b) 2., 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) Juvenile placed in extended out-of-homecare. 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., the finding under sub.
(2v) (a) 2m., 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., the applicable statement under sub.
(2v) (a) 2., and the finding under sub.
(2v) (a) 2m. 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) 1. 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) 2. 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 county department or 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 changes 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 or, if the change-in-placement order changes 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 change-in-placement order changes the placement of the juvenile to a placement outside the home and 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.
938.357(2v)(b)
(b)
Documentation of basis of findings. The court shall make the findings under par.
(a) 1. 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 change in placement order. A change in placement order that merely references par.
(a) 1. or
3. without documenting or referencing that specific information in the change in placement order or an amended change in placement order that retroactively corrects an earlier change in placement order that does not comply with this paragraph is not sufficient to comply with this paragraph.
938.357(2v)(c)
(c)
Reasonable efforts not required; permanency hearing. If the court finds under par.
(a) 3. that any of the circumstances under 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.
938.357(2v)(d)1.1. Subject to subd.
2., the court shall order the county department or the agency primarily responsible for implementing the dispositional order to conduct a diligent search in order to locate and provide notice of the information specified in s.
938.21 (5) (e) 2. a. to
e. to all relatives of the juvenile named under sub.
(1) (c) 2m. or
(2m) (bm) and to all adult relatives, as defined in s.
938.21 (5) (e) 1., 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 that information to all other adult individuals named under sub.
(1) (c) 2m. or
(2m) (bm) 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.
(1) (c) 2m. or
(2m) (bm) 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.
938.357(3)
(3)
Placement in juvenile correctional facility. 938.357(3)(a)
(a) Subject to subs.
(4) (b),
(c), and
(d) and
(5) (e), if the proposed change in placement would involve placing a juvenile in a juvenile correctional facility or a secured residential care center for children and youth, notice shall be given as provided in sub.
(1) (am) 1. A hearing shall be held, unless waived by the juvenile, parent, guardian, and legal custodian, before the court makes a decision on the request. The juvenile is entitled to counsel at the hearing, and any party opposing or favoring the proposed new placement may present relevant evidence and cross-examine witnesses. The department of corrections shall have the opportunity to object to a change of placement of a juvenile from a secured residential care center for children and youth to a Type 1 juvenile correctional facility under par.
(b). The proposed new placement may be approved only if the court finds, on the record, that the conditions set forth in s.
938.34 (4m) (a) and
(b) have been met.
938.357(3)(b)
(b) Notwithstanding s.
938.34 (4m) and subject to par.
(c), the court may order placement in a Type 1 juvenile correctional facility under supervision of the department of corrections for a juvenile who was adjudicated delinquent under s.
938.34 (4m) if the court finds, after a hearing under this section, that any of the following apply:
938.357(3)(b)1.
1. The juvenile is placed at a secured residential care center for children and youth and all of the following apply:
938.357(3)(b)1.a.
a. The secured residential care center for children and youth where the juvenile is placed is not able to meet the juvenile's treatment needs.
938.357(3)(b)1.b.
b. The programming available at the proposed Type 1 juvenile correctional facility as of the date of the hearing is able to meet the treatment needs of the juvenile.
938.357(3)(b)1.c.
c. No other secured residential care center for children and youth is willing and able to meet the juvenile's treatment needs.
938.357(3)(b)2.
2. The county department does not have space for the juvenile in its secured residential care center for children and youth and no other secured residential care center for children and youth is willing and able to meet the juvenile's treatment needs.
938.357(3)(c)
(c) Upon the recommendation of the department of health services, the court may order the placement of a juvenile under par.
(b) at the Mendota juvenile treatment center.
938.357(3)(d)
(d) A juvenile who is placed in a Type 1 juvenile correctional facility under par.
(b) or
(c) is the financial responsibility of the county department of the county where the juvenile was adjudicated delinquent and that county department shall reimburse the department of corrections at the rate specified under s.
301.26 (4) (d) 2. or
3., whichever is applicable, for the cost of the juvenile's care while placed in a Type 1 juvenile correctional facility.
938.357(4)
(4)
Change in placement without a hearing. 938.357(4)(ab)
(ab) In this subsection, “operating entity” means the county department, the Indian tribe, or the child welfare agency, whichever entity operates a secured residential care center for children and youth.
938.357(4)(am)
(am) When the juvenile is placed with the department of corrections, that department may, after an examination under s.
938.50, place the juvenile in a juvenile correctional facility or, with the consent of the operating entity, a secured residential care center for children and youth or on community supervision or aftercare supervision, either immediately or after a period of placement in a juvenile correctional facility or a secured residential care center for children and youth. The department of corrections shall send written notice of the change in placement to the parent, guardian, legal custodian, county department designated under s.
938.34 (4n), if any, and committing court. If the department of corrections places a juvenile in a Type 2 juvenile correctional facility operated by a child welfare agency, that department shall reimburse the child welfare agency at the rate established under s.
49.343 that is applicable to the type of placement that the child welfare agency is providing for the juvenile. If the department of corrections places a juvenile in a secured residential care center for children and youth under this paragraph, the department of corrections shall contract with the operating entity for the care and services provided under s.
301.08. A juvenile who is placed in a Type 2 juvenile correctional facility or a secured residential care center for children and youth under this paragraph remains under the supervision of the department of corrections, remains subject to the rules and discipline of that department, and is considered to be in custody, as defined in s.
946.42 (1) (a).
938.357 Note
NOTE: Par. (am) is amended by
2017 Wis. Act 185 effective on the date specified in the department of corrections notice published in the Wisconsin Administrative Register under
2017 Wis. Act 185, section
110 (2) (b), or 1-1-21, whichever is earlier, to read:
Effective date text
(am) When the juvenile is placed with the department of corrections, that department may, after an examination under s. 938.50, place the juvenile in a juvenile correctional facility or, with the consent of the operating entity, a secured residential care center for children and youth or on community supervision, either immediately or after a period of placement in a juvenile correctional facility or a secured residential care center for children and youth. The department of corrections shall send written notice of the change in placement to the parent, guardian, legal custodian, county department designated under s. 938.34 (4n), if any, and committing court. If the department of corrections places a juvenile in a Type 2 juvenile correctional facility operated by a child welfare agency, that department shall reimburse the child welfare agency at the rate established under s. 49.343 that is applicable to the type of placement that the child welfare agency is providing for the juvenile. If the department of corrections places a juvenile in a secured residential care center for children and youth under this paragraph, the department of corrections shall contract with the operating entity for the care and services provided under s. 301.08. A juvenile who is placed in a Type 2 juvenile correctional facility or a secured residential care center for children and youth under this paragraph remains under the supervision of the department of corrections, remains subject to the rules and discipline of that department, and is considered to be in custody, as defined in s. 946.42 (1) (a).
938.357(4)(b)1.1. If a juvenile whom the department of corrections has placed in a Type 2 juvenile correctional facility operated by a child welfare agency violates a condition of his or her placement in the Type 2 juvenile correctional facility, the child welfare agency operating the Type 2 juvenile correctional facility shall notify the department of corrections and that department, after consulting with the child welfare agency, may place the juvenile in a Type 1 juvenile correctional facility or, with the consent of the operating entity, a secured residential care center for children and youth, a under the supervision of the department, without a hearing under sub.
(1) (am) 2. 938.357(4)(b)2.
2. If a juvenile whom the court has placed in a Type 2 residential care center for children and youth under s.
938.34 (4d) violates a condition of his or her placement in the Type 2 residential care center for children and youth, the child welfare agency operating the Type 2 residential care center for children and youth shall notify the county department that has supervision over the juvenile. The county department, after consulting with the child welfare agency, may place the juvenile in a secured residential care center for children and youth, without a hearing under sub.
(1) (am) 2., for not more than 10 days.
938.357(4)(b)3.
3. The child welfare agency operating the Type 2 juvenile correctional facility or Type 2 residential care center for children and youth shall send written notice of a change in placement under subd.
1. or
2. to the parent, guardian, legal custodian, county department, and committing court.
938.357(4)(b)4.
4. A juvenile may seek review of a decision of the department of corrections or the county department under subd.
1. or
2. only by the common law writ of certiorari.
