938.21 Hearing for juvenile in custody.

2,539 words·~12 min read·/wi/chapter-938/938-21-4

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(1)Hearing; when held.

(a)If a juvenile who has been taken into custody is not released under s. 938.20 , a hearing to determine whether to continue to hold the juvenile in custody under the criteria of ss. 938.205 to 938.209

(1)shall be conducted by the court within 24 hours after the end of the day on which the decision to hold the juvenile was made, excluding Saturdays, Sundays, and legal holidays. By the time of the hearing a petition under s. 938.25 or a request for a change in placement under s. 938.357 , a request for a revision of the dispositional order under s. 938.363 , or a request for an extension of a dispositional order under s. 938.365 shall be filed, except that no petition or request need be filed if a juvenile is taken into custody under s. 938.19

(b)or

(d)2. , 6. , or 7. or if the juvenile is a runaway from another state, in which case a written statement of the reasons for holding a juvenile in custody shall be substituted if the petition is not filed. If no hearing has been held within 24 hours or if no petition, request, or statement has been filed at the time of the hearing, the juvenile shall be released except as provided in par.

(b). The court shall grant a rehearing upon request of a parent not present at the hearing for good cause shown.

(b)If no petition or request has been filed by the time of the hearing, a juvenile may be held in custody with the approval of the court for an additional 48 hours from the time of the hearing only if, as a result of the facts brought forth at the hearing, the court determines that probable cause exists to believe that the juvenile is an imminent danger to himself or herself or to others, or that probable cause exists to believe that the parent, guardian, or legal custodian of the juvenile or other responsible adult is neglecting, refusing, unable, or unavailable to provide adequate supervision and care. The extension may be granted only once for any petition. If a petition or request is not filed within the 48-hour extension period under this paragraph, the court shall order the juvenile’s immediate release from custody.

(c)If the juvenile is held in custody 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 under the custody order shall submit it and the recommendation of the qualified individual who conducted the standardized assessment, including all of the following, to the court and all persons who are required to receive a copy of the petition or request under par.

(b)no later than the hearing or, if not available by that time, no later than 30 days after the date on which the placement is made:

1. Whether the proposed placement will provide the juvenile with the most effective and appropriate level of care in the least restrictive environment.

2. How the placement is consistent with the short-term and long-term goals for the juvenile, as specified in the permanency plan.

3. The reasons why the juvenile’s needs can or cannot be met by the juvenile’s family or in a foster home. A shortage or lack of foster homes is not an acceptable reason for determining that the juvenile’s needs cannot be met in a foster home.

4. The placement preference of the family permanency team under s. 938.38

(3m)and, if that preference is not the placement recommended by the qualified individual, why that recommended placement is not preferred.

(1m)Biological specimen. If the juvenile has been taken into custody on the basis of a violation that would be a violent crime, as defined in s. 165.84

(ab), if committed by an adult in this state, the court shall determine if a biological specimen has been obtained from the juvenile under s. 165.84

(7), and if not, the court shall direct that a law enforcement agency or tribal law enforcement agency obtain a biological specimen from the juvenile and submit it to the state crime laboratories as specified in rules promulgated by the department of justice under s. 165.76

(4). If the court requires the juvenile to provide a specimen under this subsection or if a biological specimen has already been obtained from the juvenile, the court shall inform the juvenile that he or she may request expungement under s. 165.77

(4).

(2)Proceedings concerning delinquent juveniles.

(ag)Proceedings concerning a juvenile who comes within the jurisdiction of the court under s. 938.12 or 938.13

(12)or

(14)shall be conducted according to this subsection.

(am)A juvenile held in a nonsecure place of custody may waive in writing his or her right to participate in the hearing under this section. After any waiver, a rehearing shall be granted upon the request of the juvenile or any other interested party for good cause shown. Any juvenile transferred to a juvenile detention facility shall thereafter have a rehearing under this section.

(b)A copy of the petition or request shall be given to the juvenile at or prior to the time of the hearing. Prior notice of the hearing shall be given to the juvenile’s parent, guardian, and legal custodian and to the juvenile under s. 938.20

(8).

(c)Prior to the commencement of the hearing, the court shall inform the juvenile of the allegations that have been or may be made, the nature and possible consequences of this hearing as compared to possible future hearings, the provisions of s. 938.18 if applicable, the right to counsel under s. 938.23 regardless of ability to pay if the juvenile is not yet represented by counsel, the right to remain silent, the fact that the silence may not be adversely considered by the court, the right to confront and cross-examine witnesses, and the right to present witnesses.

(d)If the juvenile is not represented by counsel at the hearing and the juvenile is continued in custody as a result of the hearing, the juvenile may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold in custody be reheard. If the request is made, a rehearing shall take place as soon as possible. An order to hold the juvenile in custody shall be reheard for good cause whether or not counsel was present.

(e)If present at the hearing, the parent shall be requested to provide the names and other identifying information of 3 relatives of the juvenile or other individuals 18 years of age or over whose homes the parent requests the court to consider as placements for the juvenile. If the parent does not provide that information at the hearing, the county department or agency primarily responsible for providing services to the juvenile under the custody order shall permit the parent to provide that information at a later date.

(3)Proceedings concerning juveniles in need of protection or services.

(ag)Proceedings concerning a juvenile who comes within the jurisdiction of the court under s. 938.13

(4),

(6),

(6m), or

(7)shall be conducted according to this subsection.

(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.

(b)If present at the hearing, a copy of the petition or request shall be given to the parent, guardian, legal custodian, or Indian custodian, and to the juvenile if he or she is 12 years of age or older, before the hearing begins. Prior notice of the hearing shall be given to the juvenile’s parent, guardian, legal custodian, and Indian custodian and to the juvenile if he or she is 12 years of age or older under s. 938.20

(8).

(d)Prior to the commencement of the hearing, the court shall inform the parent, guardian, legal custodian, or Indian custodian of the allegations that have been made or may be made, the nature and possible consequences of this hearing as compared to possible future hearings, the right to present, confront, and cross-examine witnesses and, in the case of a parent or Indian custodian of an Indian juvenile who is the subject of an Indian juvenile custody proceeding, as defined in s. 938.028

(b), the right to counsel under s. 938.028

(b).

(e)If the parent, guardian, legal custodian, Indian custodian, or juvenile is not represented by counsel at the hearing and if the juvenile is continued in custody as a result of the hearing, the parent, guardian, legal custodian, Indian custodian, or juvenile may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold the juvenile in custody be reheard. If the request is made, a rehearing shall take place as soon as possible. An order to hold the juvenile in custody shall be reheard for good cause, whether or not counsel was present.

(f)If present at the hearing, the parent shall be requested to provide the names and other identifying information of 3 relatives of the juvenile or other individuals 18 years of age or over whose homes the parent requests the court to consider as placements for the juvenile. If the parent does not provide that information at the hearing, the county department or agency primarily responsible for providing services to the juvenile under the custody order shall permit the parent to provide that information at a later date.

(3m)Parental notice required. If the juvenile has been taken into custody because he or she committed an act which resulted in personal injury or damage to or loss of the property of another, the court, prior to the commencement of any hearing under this section, shall attempt to notify the juvenile’s parents of the possibility of disclosure of the identity of the juvenile and the parents, of the juvenile’s police records and of the outcome of proceedings against the juvenile for use in civil actions for damages against the juvenile or the parents and of the parents’ potential liability for acts of their juveniles. If the court is unable to provide the notice before commencement of the hearing, it shall provide the juvenile’s parents with the specified information in writing as soon as possible after the hearing.

(4)Order to continue in custody. If the court finds that the juvenile should be continued in custody under the criteria of s. 938.205 , the court shall enter one of the following orders:

(a)Place the juvenile with a parent, guardian, legal custodian, or other responsible person and may impose reasonable restrictions on the juvenile’s travel, association with other persons, or places of abode during the period of placement, including a condition requiring the juvenile to return to other custody as requested; or subject the juvenile to the supervision of an agency agreeing to supervise the juvenile. Reasonable restrictions may be placed upon the conduct of the parent, guardian, legal custodian, or other responsible person which may be necessary to ensure the safety of the juvenile.

(b)Order the juvenile held in an appropriate manner under s. 938.207 , 938.208 or 938.209

(1).

(4m)Electronic monitoring. An order under sub.

(a)or

(b)may include a condition that the juvenile be monitored by an electronic monitoring system.

(5)Orders in writing.

(a)All orders to hold in custody shall be in writing, listing the reasons and criteria forming the basis for the decision.

(b)An order relating to a juvenile held in custody outside of his or her home shall also include all of the following:

a. A finding that continued placement of the juvenile in his or her home would be contrary to the welfare of the juvenile.

b. A finding as to whether the person who took the juvenile into custody and the intake worker have made reasonable efforts to prevent the removal of the juvenile from the home, while assuring that the juvenile’s health and safety are the paramount concerns, unless the court finds that any of the circumstances specified in s. 938.355

(b)1. to 4. applies.

c. A finding as to whether the person who took the juvenile into custody and the intake worker have made reasonable efforts to make it possible for the juvenile to return safely home.

d. If the juvenile is under the supervision of the county department, an order ordering the juvenile into the placement and care responsibility of the county department as required under 42 USC 672

(2)and assigning the county department primary responsibility for providing services to the juvenile.

1m. If for good cause shown sufficient information is not available for the court to make a finding as to whether reasonable efforts were made to prevent the removal of the juvenile from the home, while assuring that the juvenile’s health and safety are the paramount concerns, a finding as to whether reasonable efforts were made to make it possible for the juvenile to return safely home and an order for the county department or agency primarily responsible for providing services to the juvenile under the custody order to file with the court sufficient information for the court to make a finding as to whether those reasonable efforts were made to prevent the removal of the juvenile from the home by no later than 5 days, excluding Saturdays, Sundays, and legal holidays, after the date on which the order is granted.

2. If the juvenile is held in custody outside the home in a placement recommended by the intake worker, a statement that the court approves the placement recommended by the intake worker or, if the juvenile is placed outside the home in a placement other than a placement recommended by the intake worker, a statement that the court has given bona fide consideration to the recommendations made by the intake worker and all parties relating to the placement of the juvenile.

2g. Except as provided in par.

(cm), if the juvenile is held in custody 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 submitted by the qualified individual who conducted the standardized assessment under sub.

(c):

a. Whether the needs of the juvenile can be met through placement in a foster home.

b. Whether placement of the juvenile 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 juvenile in the least restrictive environment.