48.31 Annotation
A child's need for protection or services should be determined as of the date the petition is filed. Children can be adjudicated in need of protection or services when divorced parents have joint custody, one parent committed acts proscribed by s. 48.13 (10), and at the time of the hearing the other can provide the necessary care for the children. State v. Gregory L.S.,
2002 WI App 101,
253 Wis. 2d 563,
643 N.W.2d 890,
01-2325.
48.31 Annotation
Contrary to the Child's Best Interest: Jury Trials in Children's Court Proceedings. Sowinski & Wiensch. Wis. Law. Apr. 2013.
48.315
48.315
Delays, continuances and extensions. 48.315(1)(1)
The following time periods shall be excluded in computing time periods under this chapter:
48.315(1)(a)
(a) Any period of delay resulting from other legal actions concerning the child or the unborn child and the unborn child's expectant mother, including an examination under s.
48.295 or a hearing related to the mental condition of the child, the child's parent, guardian or legal custodian or the expectant mother, prehearing motions, waiver motions and hearings on other matters.
48.315(1)(b)
(b) Any period of delay resulting from a continuance granted at the request of or with the consent of the child and his or her counsel or of the unborn child's guardian ad litem.
48.315(1)(c)
(c) Any period of delay caused by the disqualification of a judge.
48.315(1)(d)
(d) Any period of delay resulting from a continuance granted at the request of the representative of the public under s.
48.09 if the continuance is granted because of the unavailability of evidence material to the case when he or she has exercised due diligence to obtain the evidence and there are reasonable grounds to believe that the evidence will be available at the later date, or to allow him or her additional time to prepare the case and additional time is justified because of the exceptional circumstances of the case.
48.315(1)(e)
(e) Any period of delay resulting from the imposition of a consent decree.
48.315(1)(f)
(f) Any period of delay resulting from the absence or unavailability of the child or expectant mother.
48.315(1)(fm)
(fm) Any period of delay resulting from the inability of the court to provide the child with notice of an extension hearing under s.
48.365 due to the child having run away or otherwise having made himself or herself unavailable to receive that notice.
48.315(1)(g)
(g) A reasonable period of delay when the child is joined in a hearing with another child as to whom the time for a hearing has not expired under this section if there is good cause for not hearing the cases separately.
48.315(1)(h)
(h) Any period of delay resulting from the need to appoint a qualified interpreter.
48.315(1)(j)
(j) A reasonable period of delay, not to exceed 20 days, in a proceeding involving the out-of-home care placement of or termination of parental rights to a child whom the court knows or has reason to know is an Indian child, resulting from a continuance granted at the request of the child's parent, Indian custodian, or tribe to enable the requester to prepare for the proceeding.
48.315(2)
(2) A continuance shall be granted by the court only upon a showing of good cause in open court or during a telephone conference under s.
807.13 on the record and only for so long as is necessary, taking into account the request or consent of the district attorney or the parties and the interest of the public in the prompt disposition of cases.
48.315(2m)
(2m) No continuance or extension of a time period specified in this chapter may be granted and no period of delay specified in sub.
(1) may be excluded in computing a time period under this chapter if the continuance, extension, or exclusion would result in any of the following:
48.315(2m)(b)
(b) The court making an initial finding under s.
48.38 (5m) that the agency primarily responsible for providing services to the child has made reasonable efforts to achieve the permanency goal of the child's permanency plan more than 12 months after the date on which the child was removed from the home or making any subsequent findings under s.
48.38 (5m) as to those reasonable efforts more than 12 months after the date of a previous finding as to those reasonable efforts.
48.315(2m)(c)
(c) The court making a finding under s.
48.366 (3) (am) 3. that a person's placement in out-of-home care under a transition-to-independent-living agreement is in the best interests of the person more than 180 days after the date on which the agreement is entered into.
48.315(3)
(3) Failure by the court or a party to act within any time period specified in this chapter does not deprive the court of personal or subject matter jurisdiction or of competency to exercise that jurisdiction. Failure to object to a period of delay or a continuance waives any challenge to the court's competency to act during the period of delay or continuance. If the court or a party does not act within a time period specified in this chapter, the court, while assuring the safety of the child, may grant a continuance under sub.
(2), dismiss the proceeding without prejudice, release the child from secure or nonsecure custody or from the terms of a custody order, or grant any other relief that the court considers appropriate.
48.315 Annotation
A trial court's sua sponte adjournment of a fact-finding hearing beyond the 30-day limit due to a congested calendar constituted good cause under sub. (2) when the adjournment order was entered within the 30-day period. In Matter of J.R.,
152 Wis. 2d 598,
449 N.W.2d 52 (Ct. App. 1989).
48.315 Annotation
The period under sub. (1) (c) includes the time required to assign the new judge, send any required notices, notify the parties, and arrange for time on the court's calendar; applicable time limits for plea hearings apply after the assignment of the new judge. In Interest of Joshua M.W.,
179 Wis. 2d 335,
507 N.W.2d 141 (Ct. App. 1993).
48.315 Annotation
Under sub. (2), “on the record" does not require reporting by a court reporter. A clerk's minutes satisfy the requirement. Waukesha County v. Darlene R.,
201 Wis. 2d 633,
549 N.W.2d 489 (Ct. App. 1996),
95-1697.
48.315 Annotation
The benefits of a pretrial are universally recognized by bench and bar such that a court need not specify the factors supporting “good cause" for a continuance of the time limits under sub. (2). Waukesha County v. Darlene R.,
201 Wis. 2d 633,
549 N.W.2d 489 (Ct. App. 1996),
95-1697.
48.315 Annotation
Under sub. (1) (a), the time limits are tolled for an examination of a parent under s. 48.295. Waukesha County v. Darlene R.,
201 Wis. 2d 633,
549 N.W.2d 489 (Ct. App. 1996),
95-1697.
48.315 Annotation
The word “continuance" in sub. (2) is sufficiently broad to encompass situations in which the fact-finding hearing is originally scheduled beyond the statutory 45-day time period. A circuit court's schedule or lawyers' or litigants' difficulties in scheduling court dates may amount to good cause for extension, delay, or continuance under sub. (2). State v. Robert K.,
2005 WI 152,
286 Wis. 2d 143,
706 N.W.2d 257,
04-2330.
48.315 Annotation
Reassignment of a case to a different judge because of docket congestion does not constitute disqualification of a judge under sub. (1) (c). Brown County v. Shannon R.,
2005 WI 160,
286 Wis. 2d 278,
706 N.W.2d 269,
04-1305.
48.317
48.317
Jeopardy. Jeopardy attaches:
48.317(1)
(1) In a trial to the court, when a witness is sworn.
48.317(2)
(2) In a jury trial, when the jury selection is completed and the jury sworn.
48.317 History
History: 1977 c. 354.
48.32
48.32
Consent decree. 48.32(1)(a)
(a) At any time after the filing of a petition for a proceeding relating to s.
48.13 or
48.133 and before the entry of judgment, the judge or a circuit court commissioner may suspend the proceedings and place the child or expectant mother under supervision in the home or present placement of the child or expectant mother. The court may establish terms and conditions applicable to the child and the child's parent, guardian, or legal custodian, to the child expectant mother and her parent, guardian or legal custodian, or to the adult expectant mother, including the condition specified in sub.
(1b). The order under this section shall be known as a consent decree and must be agreed to by the child if 12 years of age or older, the parent, guardian, or legal custodian, and the person filing the petition under s.
48.25; by the child expectant mother, her parent, guardian, or legal custodian, the unborn child's guardian ad litem, and the person filing the petition under s.
48.25; or by the adult expectant mother, the unborn child's guardian ad litem, and the person filing the petition under s.
48.25. The consent decree shall be reduced to writing and given to the parties.
48.32(1)(am)
(am) Using the procedures specified in par.
(a) for the entry of an original consent decree, the parties to a consent decree may agree to, and the judge or circuit court commissioner may enter, an amended consent decree. An amended consent decree may change the placement of the child or expectant mother who is the subject of the original consent decree or revise any other term or condition of the original consent decree. An amended consent decree that changes the placement of a child from a placement in the child's home to a placement outside the child's home shall include the findings, orders, and determinations specified in par.
(b), as applicable. An amended consent decree that changes the placement of an Indian child from a placement in the Indian child's home to a placement outside the Indian child's home shall include the findings specified in par.
(d). An amended consent decree may not extend the expiration date of the original consent decree.
48.32(1)(ar)
(ar) If the consent decree places a child in a residential care center for children and youth, group home, or shelter care facility certified under s.
48.675, the qualified individual shall conduct a standardized assessment and the agency primarily responsible for providing services to the child shall submit it and the recommendation of the qualified individual who completed the assessment, including all of the following, to the court and to all persons who are parties to the consent decree, no later than the time the consent decree is entered or, if not available by that time, no later than 30 days after the date on which the placement is made:
48.32(1)(ar)1.
1.
Whether the proposed placement will provide the child with the most effective and appropriate level of care in the least restrictive environment.
48.32(1)(ar)2.
2.
How the placement is consistent with the short-term and long-term goals for the child, as specified in the permanency plan.
48.32(1)(ar)3.
3.
The reasons why the child's needs can or cannot be met by the child's family or in a foster home. A shortage or lack of foster homes is not an acceptable reason for determining that the child's needs cannot be met in a foster home.
48.32(1)(ar)4.
4.
The placement preference of the family permanency team under s. 48.38 (3m) and, if that preference is not the placement recommended by the qualified individual, why that recommended placement is not preferred.
48.32(1)(b)1.1. If at the time the consent decree is entered into the child is placed outside the home under a voluntary agreement under s.
48.63 or is otherwise living outside the home without a court order and if the consent decree maintains the child in that placement or other living arrangement, or if an amended consent decree changes the placement of the child from a placement in the child's home to a placement outside the child's home, the consent decree shall include all of the following:
48.32(1)(b)1.a.
a. A finding that placement of the child in his or her home would be contrary to the welfare of the child.
48.32(1)(b)1.b.
b. A finding as to whether 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 has 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.
48.32(1)(b)1.c.
c. If a permanency plan has previously been prepared for the child, a finding as to whether the county department, department, or agency has made reasonable efforts to achieve the permanency goal of the child's permanency plan, including, if appropriate, through an out-of-state placement.
48.32(1)(b)1.d.
d. If the child's placement or other living arrangement 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.
48.32(1)(b)1m.
1m. 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, the consent decree shall include a finding as to whether 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 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, or agency 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.
48.32(1)(b)1r.
1r. Except as provided in par.
(cd), if the child is placed in a residential care center for children and youth, group home, or shelter care facility certified under s.
48.675, a finding as to each of the following, the answers to which do not affect whether the placement may be made, after considering the standardized assessment and the recommendation of the qualified individual who conducted the standardized assessment under par.
(ar):
48.32(1)(b)1r.a.
a.
Whether the needs of the child can be met through placement in a foster home.
48.32(1)(b)1r.b.
b.
Whether placement of the child in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675 provides the most effective and appropriate level of care for the child in the least restrictive environment.
48.32(1)(b)1r.c.
c.
Whether the placement is consistent with the short-term and long-term goals for the child, as specified in the permanency plan.
48.32(1)(b)2.
2. 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 consent decree shall include 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 consent decree 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.
48.32(1)(b)3.
3. The judge or circuit court commissioner shall make the findings specified in subds.
1. and
2. 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 consent decree. A consent decree that merely references subd.
1. or
2. without documenting or referencing that specific information in the consent decree or an amended consent decree that retroactively corrects an earlier consent decree that does not comply with this subdivision is not sufficient to comply with this subdivision.
48.32(1)(c)
(c) 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.
48.32(1)(cd)
(cd) If the results of the standardized assessment and recommendation of the qualified individual who conducted the standardized assessment are required but not available at the time of the order, the court shall defer making the findings under par.
(b) 1r. as provided in this paragraph. No later than 60 days after the date on which the placement was made, the court shall issue an order making the findings under par.
(b) 1r. 48.32(1)(d)1.1. In the case of an Indian child, if at the time the consent decree is entered into the Indian child is placed outside the home of his or her parent or Indian custodian under a voluntary agreement under s.
48.63 or is otherwise living outside that home without a court order and if the consent decree maintains the Indian child in that placement or other living arrangement, or if an amended consent decree changes the placement of the Indian child from a placement in the Indian child's home to a placement outside the Indian child's home, the consent decree shall include a finding supported by clear and convincing evidence, including the testimony of one or more qualified expert witnesses, that continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child under s.
48.028 (4) (d) 1. and a finding that active efforts under s.
48.028 (4) (d) 2. have been made to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful. The findings under this subdivision shall be in addition to the findings under par.
(b) 1., except that for the sole purpose of determining whether the cost of providing care for an Indian child is eligible for reimbursement under
42 USC 670 to
679b, the findings under this subdivision and the findings under par.
(b) 1. shall be considered to be the same findings.
48.32(1)(d)2.
2. If the placement or other living arrangement under subd.
1. departs from the order of placement preference under s.
48.028 (7) (b) or, if applicable, s.
48.028 (7) (c), the court shall also find good cause, as described in s.
48.028 (7) (e), for departing from that order.
48.32(1b)
(1b) The judge or a circuit court commissioner may, as a condition under sub.
(1), request a court-appointed special advocate program to designate a court-appointed special advocate for the child to perform the activities specified in s.
48.236 (3) that are authorized in the memorandum of understanding under s.
48.07 (5) (a). A court-appointed special advocate designated under this subsection shall have the authority specified in s.
48.236 (4) that is authorized in the memorandum of understanding under s.
48.07 (5) (a).
48.32(2)(a)(a) A consent decree shall remain in effect up to 6 months unless the child, parent, guardian, legal custodian or expectant mother is discharged sooner by the judge or circuit court commissioner.
48.32(2)(c)
(c) Upon the motion of the court or the application of the child, parent, guardian, legal custodian, expectant mother, unborn child's guardian ad litem, intake worker, or any agency supervising the child or expectant mother under the consent decree, the court may, after giving notice to the parties to the consent decree, their counsel or guardian ad litem, and the court-appointed special advocate for the child, if any, extend the decree for up to an additional 6 months in the absence of objection to extension by the parties to the initial consent decree. If the child, parent, guardian, legal custodian, expectant mother, or unborn child's guardian ad litem objects to the extension, the judge shall schedule a hearing and make a determination on the issue of extension. An extension under this paragraph of a consent decree relating to an unborn child who is alleged to be in need of protection or services may be granted after the child is born.
48.32(3)
(3) If, prior to discharge by the court, or the expiration of the consent decree, the court finds that the child, parent, guardian, legal custodian or expectant mother has failed to fulfill the express terms and conditions of the consent decree or that the child or expectant mother objects to the continuation of the consent decree, the hearing under which the child or expectant mother was placed on supervision may be continued to conclusion as if the consent decree had never been entered.
48.32(5)
(5) A court which, under this section, elicits or examines information or material about a child or an expectant mother which would be inadmissible in a hearing on the allegations of the petition may not, over objections of one of the parties, participate in any subsequent proceedings if any of the following applies:
48.32(5)(a)
(a) The court refuses to enter into a consent decree and the allegations in the petition remain to be decided in a hearing at which one of the parties denies the allegations forming the basis for a child or unborn child in need of protection or services petition.
48.32(5)(b)
(b) A consent decree is granted but the petition under s.
48.13 or
48.133 is subsequently reinstated.
48.32(6)
(6) The judge or circuit court commissioner shall inform the child and the child's parent, guardian or legal custodian, or the adult expectant mother, in writing, of the right of the child or expectant mother to object to the continuation of the consent decree under sub.
(3) and the fact that the hearing under which the child or expectant mother was placed on supervision may be continued to conclusion as if the consent decree had never been entered.
48.32 History
History: 1977 c. 354;
1985 a. 311;
1987 a. 27,
285,
339;
1991 a. 213,
253,
315;
1993 a. 98;
1995 a. 24,
77,
448;
1997 a. 292;
1999 a. 149;
2001 a. 61,
109;
2007 a. 20;
2009 a. 28,
79,
94,
185;
2011 a. 181,
258;
2013 a. 165,
170;
2015 a. 172,
373;
2021 a. 42.
48.32 Annotation
A finding that a consent decree has been violated must be made before the consent decree expires. Filing a motion to vacate the consent decree prior to its expiration does not extend the term of the decree and does not prevent the automatic dismissal of the original petition upon the expiration of the decree. Interest of Leif E.N. & Nora M.S.,
189 Wis. 2d 480,
526 N.W.2d 275 (Ct. App. 1994).
DISPOSITION
48.33
48.33
Court reports. 48.33(1)(1)
Report required. Before the disposition of a child or unborn child adjudged to be in need of protection or services the court shall designate an agency, as defined in s.
48.38 (1) (a), to submit a report which shall contain all of the following:
48.33(1)(a)
(a) The social history of the child or of the expectant mother of the unborn child.
48.33(1)(b)
(b) A recommended plan of rehabilitation or treatment and care for the child or expectant mother which is based on the investigation conducted by the agency and any report resulting from an examination or assessment under s.
48.295, which employs the least restrictive means available to accomplish the objectives of the plan, and, in cases of child abuse or neglect or unborn child abuse, which also includes an assessment of risks to the physical safety and physical health of the child or unborn child and a description of a plan for controlling the risks.
48.33(1)(c)
(c) A description of the specific services or continuum of services which the agency is recommending that the court order for the child or family or for the expectant mother of the unborn child, the persons or agencies that would be primarily responsible for providing those services, the identity of the person or agency that would provide case management or coordination of services, if any, and, in the case of a child adjudged to be in need of protection or services, whether or not the child should receive a coordinated services plan of care.
48.33(1)(d)
(d) A statement of the objectives of the plan, including any behavior changes desired of the child or expectant mother and the academic, social and vocational skills needed by the child or the expectant mother.
48.33(1)(e)
(e) A plan for the provision of educational services to the child, prepared after consultation with the staff of the school in which the child is enrolled or the last school in which the child was enrolled.
48.33(1)(f)
(f) If the agency is recommending that the court order the child's parent, guardian or legal custodian or the expectant mother to participate in mental health treatment, anger management, individual or family counseling or parent or prenatal development training and education, a statement as to the availability of those services and as to the availability of funding for those services.
48.33(2)
(2)
Home placement reports. A report recommending that the child remain in his or her home or that the expectant mother remain in her home may be presented orally at the dispositional hearing if all parties consent. A report that is presented orally shall be transcribed and made a part of the court record.
48.33(4)
(4)
Other out-of-home placements. A report recommending placement of an adult expectant mother outside of her home shall be in writing. A report recommending placement of a child in a foster home, group home, or residential care center for children and youth, in the home of a relative other than a parent, in the home of a guardian under s.
48.977 (2), or in a supervised independent living arrangement shall be in writing and shall include all of the following:
48.33(4)(b)
(b) A recommendation for an amount of child support to be paid by either or both of the child's parents or for referral to the county child support agency under s.
59.53 (5) for the establishment of child support.
48.33(4)(c)
(c) Specific information showing that continued placement of the child in his or her home would be contrary to the welfare of the child, specific information showing that 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 has 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 any of the circumstances specified in s.
48.355 (2d) (b) 1. to
5. applies, and, if a permanency plan has previously been prepared for the child, specific information showing that the county department, department, or agency has made reasonable efforts to achieve the permanency goal of the child's permanency plan, including, if appropriate, through an out-of-state placement.
48.33(4)(cm)
(cm) A statement indicating whether the recommended placement is certified under s.
48.675.
