Chapter 938

938.028(4)(e) (e) Qualified expert witness; order of preference.

938.028(4)(e)1. 1. Any party to a proceeding under s. 938.13 (4), (6), (6m), or (7) involving the out-of-home placement of an Indian juvenile may call a qualified expert witness. Subject to subd. 2., a qualified expert witness shall be chosen in the following order of preference:

938.028(4)(e)1.a. a. A member of the Indian juvenile’s tribe described in sub. (2) (d) 1.

938.028(4)(e)1.b. b. A member of another tribe described in sub. (2) (d) 2.

938.028(4)(e)1.c. c. A professional person described in sub. (2) (d) 3.

938.028(4)(e)1.d. d. A layperson described in sub. (2) (d) 4.

938.028(4)(e)2. 2. A qualified expert witness from a lower order of preference may be chosen only if the party calling the qualified expert witness shows that it has made a diligent effort to secure the attendance of a qualified expert witness from a higher order of preference. A qualified expert witness from a lower order of preference may not be chosen solely because a qualified expert witness from a higher order of preference is able to participate in the Indian juvenile custody proceeding only by telephone or live audiovisual means as prescribed in s. 807.13 (2). The fact that a qualified expert witness called by one party is from a lower order of preference under subd. 1. than a qualified expert witness called by another party may not be the sole consideration in weighing the testimony and opinions of the qualified expert witnesses. In weighing the testimony of all witnesses, the court shall consider as paramount the best interests of the Indian juvenile as provided in s. 938.01 (3). The court shall determine the qualifications of a qualified expert witness as provided in ch. 907.

938.028(4)(f) (f) Active efforts standard.

938.028(4)(f)1. 1. The court may not order an Indian juvenile to be removed from the home of the Indian juvenile’s parent or Indian custodian and placed in an out-of-home care placement unless the evidence of active efforts under par. (d) 2. shows that there has been an ongoing, vigorous, and concerted level of case work and that the active efforts were made in a manner that takes into account the prevailing social and cultural values, conditions, and way of life of the Indian juvenile’s tribe and that utilizes the available resources of the Indian juvenile’s tribe, tribal and other Indian child welfare agencies, extended family members of the Indian juvenile, other individual Indian caregivers, and other culturally appropriate service providers. The court’s consideration of whether active efforts were made under par. (d) 2. shall include whether all of the following activities were conducted:

938.028(4)(f)1.a. a. Representatives designated by the Indian juvenile’s tribe with substantial knowledge of the prevailing social and cultural standards and child-rearing practices within the tribal community were requested to evaluate the circumstances of the Indian juvenile’s family and to assist in developing a case plan that uses the resources of the tribe and of the Indian community, including traditional and customary support, actions, and services, to address those circumstances.

938.028(4)(f)1.am. am. A comprehensive assessment of the situation of the Indian juvenile’s family was completed, including a determination of the likelihood of protecting the Indian juvenile’s health, safety, and welfare effectively in the Indian juvenile’s home.

938.028(4)(f)1.b. b. Representatives of the Indian juvenile’s tribe were identified, notified, and invited to participate in all aspects of the Indian juvenile custody proceeding at the earliest possible point in the proceeding and their advice was actively solicited throughout the proceeding.

938.028(4)(f)1.c. c. Extended family members of the Indian juvenile, including extended family members who were identified by the Indian juvenile’s tribe or parents, were notified and consulted with to identify and provide family structure and support for the Indian juvenile, to assure cultural connections, and to serve as placement resources for the Indian juvenile.

938.028(4)(f)1.d. d. Arrangements were made to provide natural and unsupervised family interaction in the most natural setting that can ensure the Indian juvenile’s safety, as appropriate to the goals of the Indian juvenile’s permanency plan, including arrangements for transportation and other assistance to enable family members to participate in that interaction.

938.028(4)(f)1.e. e. All available family preservation strategies were offered or employed and the involvement of the Indian juvenile’s tribe was requested to identify those strategies and to ensure that those strategies are culturally appropriate to the Indian juvenile’s tribe.

938.028(4)(f)1.f. f. Community resources offering housing, financial, and transportation assistance and in-home support services, in-home intensive treatment services, community support services, and specialized services for members of the Indian juvenile’s family with special needs were identified, information about those resources was provided to the Indian juvenile’s family, and the Indian juvenile’s family was actively assisted or offered active assistance in accessing those resources.

938.028(4)(f)1.g. g. Monitoring of client progress and client participation in services was provided.

938.028(4)(f)1.h. h. A consideration of alternative ways of addressing the needs of the Indian juvenile’s family was provided, if services did not exist or if existing services were not available to the family.

938.028(4)(f)2. 2. If any of the activities specified in subd. 1. a. to h. were not conducted, the person seeking the out-of-home care placement shall submit documentation to the court explaining why the activity was not conducted.

938.028(5) (5) Invalidation of action. Any Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is the subject of an out-of-home care placement, any parent or Indian custodian from whose custody that Indian juvenile was removed, or the Indian juvenile’s tribe may move the court to invalidate that out-of-home care placement on the grounds that the out-of-home care placement was made in violation of 25 USC 1911 or 1912. If the court finds that those grounds exist, the court shall invalidate the out-of-home care placement.

938.028(6) (6) Placement of Indian juvenile.

938.028(6)(a) (a) Out-of-home care placement; preferences. Any Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is placed in an out-of-home care placement shall be placed in the least restrictive setting that most approximates a family, that meets the Indian juvenile’s special needs, if any, and that is within reasonable proximity to the Indian juvenile’s home, taking into account those special needs. Subject to pars. (b) to (d), in placing such an Indian juvenile in an out-of-home care placement, preference shall be given, in the absence of good cause, as described in par. (d), to the contrary, to a placement in one of the following, in the order of preference listed:

938.028(6)(a)1. 1. The home of an extended family member of the Indian juvenile.

938.028(6)(a)2. 2. A foster home licensed, approved, or specified by the Indian juvenile’s tribe.

938.028(6)(a)3. 3. An Indian foster home licensed or approved by the department, a county department, or a child welfare agency.

938.028(6)(a)4. 4. A group home or residential care center for children and youth approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the needs of the Indian juvenile.

938.028(6)(am) (am) Temporary physical custody; preferences. Any Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is being held in temporary physical custody under s. 938.205 (1) shall be placed in compliance with par. (a) or, if applicable, par. (b), unless the person responsible for determining the placement finds good cause, as described in par. (d), for departing from the order of placement preference under par. (a) or finds that emergency conditions necessitate departing from that order. When the reason for departing from that order is resolved, the Indian juvenile shall be placed in compliance with the order of placement preference under par. (a) or, if applicable, par. (b).

938.028(6)(b) (b) Tribal or personal preferences. In placing an Indian juvenile under par. (a) or (am), if the Indian juvenile’s tribe has established, by resolution, an order of preference that is different from the order specified in par. (a), the order of preference established by that tribe shall be followed, in the absence of good cause, as described in par. (d), to the contrary, so long as the placement is the least restrictive setting appropriate for the Indian juvenile’s needs as specified in par. (a). When appropriate, the preference of the Indian juvenile or parent shall be considered, and, when a parent who has consented to the placement evidences a desire for anonymity, that desire shall be given weight, in determining the placement.

938.028(6)(c) (c) Social and cultural standards. The standards to be applied in meeting the placement preference requirements of this subsection shall be the prevailing social and cultural standards of the Indian community in which the Indian juvenile’s parents or extended family members reside or with which the Indian juvenile’s parents or extended family members maintain social and cultural ties.

938.028(6)(d) (d) Good cause.

938.028(6)(d)1. 1. Whether there is good cause to depart from the order of placement preference under par. (a) or (b) shall be determined based on any one or more of the following considerations:

938.028(6)(d)1.a. a. When appropriate, the request of the Indian juvenile’s parent or, if the Indian juvenile is of sufficient age and developmental level to make an informed decision, the Indian juvenile, unless the request is made for the purpose of avoiding the application of this section and the federal Indian Child Welfare Act, 25 USC 1901 to 1963.

938.028(6)(d)1.b. b. Any extraordinary physical, mental, or emotional health needs of the Indian juvenile requiring highly specialized treatment services as established by the testimony of an expert witness, including a qualified expert witness. The length of time that an Indian juvenile has been in a placement does not, in itself, constitute an extraordinary emotional health need.

938.028(6)(d)1.c. c. The unavailability of a suitable placement for the Indian juvenile after diligent efforts have been made to place the Indian juvenile in the order of preference under par. (a) or (b).

938.028(6)(d)2. 2. The burden of establishing good cause to depart from the order of placement preference under par. (a) or (b) shall be on the party requesting that departure.

938.028(6)(e) (e) Report of placement. A county department or a child welfare agency shall maintain a record of each out-of-home care placement made of an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7), evidencing the efforts made to comply with the placement preference requirements specified in this subsection, and shall make that record available at any time on the request of the U.S. secretary of the interior or the Indian juvenile’s tribe.

938.028(7) (7) Removal from out-of-home care placement. If an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7) is removed from an out-of-home care placement for the purpose of placing the Indian juvenile in another out-of-home care placement, a preadoptive placement, as defined in s. 48.028 (2) (f), or an adoptive placement, as defined in s. 48.028 (2) (a), the placement shall be made in accordance with this section and s. 48.028. Removal of such an Indian juvenile from an out-of-home care placement for the purpose of returning the Indian juvenile to the home of the parent or Indian custodian from whose custody the Indian juvenile was originally removed is not subject to this section.

938.028(8) (8) Higher state or federal standard applicable. The federal Indian Child Welfare Act, 25 USC 1901 to 1963, supersedes this chapter in any Indian juvenile custody proceeding governed by that act, except that in any case in which this chapter provides a higher standard of protection for the rights of an Indian juvenile’s parent or Indian custodian than the rights provided under that act, the court shall apply the standard under this chapter.

938.028 History History: 1995 a. 352; 2005 a. 344; 2009 a. 94; 2015 a. 373; 2023 a. 119.

subch. II of ch. 938 SUBCHAPTER II

ORGANIZATION OF COURT

938.03 938.03 Time and place of court; absence or disability of judge.

938.03(1) (1) Time and place of court. The court shall set apart a time and place to hold court on juvenile matters.

938.03(2) (2) Absence or disability of judge. In the case of the absence or disability of the judge of a court assigned to exercise jurisdiction under this chapter and ch. 48, another judge shall be assigned under s. 751.03 to act temporarily in the judge’s place. If the judge assigned temporarily is from a circuit other than the one for which elected, the judge shall receive expenses under s. 753.073.

938.03 History History: 1995 a. 77; 2005 a. 344.

938.06 938.06 Services for court.

938.06(1) (1) Counties with a population of 750,000 or more.

938.06(1)(a) (a)

938.06(1)(a)1. 1. In counties with a population of 750,000 or more, the county board of supervisors shall provide the court with the services necessary for investigating and supervising cases under this chapter by operating a children’s court center under the supervision of a director who is appointed as provided in s. 46.21 (1m) (a). Except as otherwise provided in this subsection, the director is the chief administrative officer of the center and of the intake and probation sections and juvenile detention facilities of the center. The director is responsible for managing the personnel of, and administering the services of, the sections and the juvenile detention facilities, and for supervising operation of the physical plant and maintenance and improvement of the buildings and grounds of the center.

938.06(1)(a)1m. 1m. The center under subd. 1. shall include investigative services, provided by the county department, for juveniles alleged to be in need of protection or services and the services of an assistant district attorney or assistant corporation counsel, or both, who shall be assigned to the center to provide investigative and legal work in cases under this chapter and ch. 48.

938.06(1)(a)2. 2. The chief judge of the judicial administrative district shall establish written judicial policies governing intake and court services for juvenile matters under this chapter and the director of the center shall execute the policies. The chief judge shall direct and supervise the work of all personnel of the court, except the work of the district attorney or corporation counsel assigned to the court, and may delegate his or her supervisory functions.

938.06(1)(a)3. 3. The county board of supervisors shall establish policies and rules for the management and administration of the nonjudicial operations of the children’s court center. The director of the center shall report to, and is responsible to, the director of the county department relating to the center director’s duty to execute the policies and rules governing the center, including activities of probation officers whenever they are not performing services for the court. The director of the center is responsible for preparing and submitting to the county board of supervisors of the annual budget for the center except for the judicial functions or responsibilities which are delegated by law to the court and clerk of circuit court. The county board of supervisors, in organizing the office of director, shall provide for the devolution of the director’s authority in the case of temporary absence, illness, disability to act, or a vacancy in position and shall establish the general qualifications for the position. The county board of supervisors has the authority to investigate, arbitrate, and resolve any conflict in the administration of the center between judicial and nonjudicial operational policy and rules. The county board of supervisors does not have authority over, and may not assert jurisdiction over, the disposition of any case or juvenile after a written order is made under s. 938.21 or if a petition is filed under s. 938.25.

938.06(1)(a)4. 4. All personnel of the intake and probation sections and of the juvenile detention facilities shall be appointed under civil service by the director, except that existing court service personnel having permanent civil service status may be reassigned to any of the sections within the center specified in this subdivision.

938.06(1)(am) (am)

938.06(1)(am)1. 1. All intake workers providing services under this chapter who begin employment after May 15, 1980, shall have the qualifications required to perform entry level case work in a county department and shall have successfully completed 30 hours of intake training, approved or provided by the department, prior to the completion of the first 6 months of employment in the position. The department shall monitor compliance with this subdivision according to rules promulgated by the department.

938.06(1)(am)2. 2. The department shall make training programs available annually that permit intake workers providing services under this chapter to satisfy the requirements under subd. 1.

938.06(1)(b) (b) Notwithstanding par. (a), the county board of supervisors may make changes in the administration of services to the children’s court center in order to qualify for the maximum amount of federal and state aid as provided in sub. (4) and ss. 46.495 and 48.569.

938.06(2) (2) Counties with a population under 750,000.

938.06(2)(a) (a) In counties having less than 750,000 population, the county board of supervisors shall authorize the county department or the court, or both, to provide intake services under s. 938.067 and the staff needed to provide dispositional services under s. 938.069. Intake services shall be provided by employees of the court or the county department and may not be subcontracted to other individuals or agencies, except as provided in par. (am). Intake workers shall be governed in their intake work, including their responsibilities for requesting the filing of a petition and entering into a deferred prosecution agreement, by general written policies established by the circuit judges for the county, subject to the approval of the chief judge of the judicial administrative district.

938.06(2)(am) (am)

938.06(2)(am)1. 1. A county that had intake services under this chapter subcontracted from the county sheriff’s department on April 1, 1980, may continue to subcontract those intake services from the county sheriff’s department.

938.06(2)(am)2. 2. A county in which the county sheriff’s department operates a juvenile detention facility may subcontract intake services under this chapter from the county sheriff’s department as provided in this subdivision. If a county subcontracts intake services under this subdivision, employees of the county sheriff’s department who staff the juvenile detention facility may make secure custody determinations under s. 938.208 between the hours of 6 p.m. and 6 a.m. Such a determination shall be reviewed by an intake worker employed by the court or county department within 24 hours after it is made.

938.06(2)(b) (b)

938.06(2)(b)1. 1. All intake workers providing services under this chapter who begin employment after May 15, 1980, excluding county sheriff’s department employees who provide intake services under par. (am) 2., shall have the qualifications required to perform entry level case work in a county department. All intake workers providing services under this chapter who begin employment after May 15, 1980, including county sheriff’s department employees who provide intake services under par. (am) 2., shall have successfully completed 30 hours of intake training approved or provided by the department prior to the completion of the first 6 months of employment in the position. The department shall monitor compliance with this subdivision according to rules promulgated by the department.

938.06(2)(b)2. 2. The department shall make training programs available annually that permit intake workers providing services under this chapter to satisfy the requirements under subd. 1.

938.06(3) (3) Intake services. The court or county department responsible for providing intake services under s. 938.067 shall specify one or more persons to provide intake services. If there is more than one person, one of the persons shall be designated as chief and shall supervise the other persons.

938.06(4) (4) State aid. State aid to any county for juvenile delinquency-related court services under this section shall be at the same net effective rate that each county is reimbursed for county administration under s. 48.569, except as provided in s. 48.526. Counties having a population of less than 750,000 may use funds received under ss. 48.569 (1) (d) and 48.526, including county or federal revenue sharing funds allocated to match funds received under s. 48.569 (1) (d), for the cost of providing court attached intake services in amounts not to exceed 50 percent of the cost of providing court attached intake services or $30,000 per county per calendar year, whichever is less.

938.06(5) (5) Short-term detention as a disposition or sanction or for violation of order.

938.06(5)(a) (a) The county board of supervisors of any county may, by resolution, authorize the court to do any of the following:

938.06(5)(a)1. 1. Use placement in a juvenile detention facility or juvenile portion of the county jail as a disposition under s. 938.34 (3) (f), as a sanction under s. 938.355 (6m) (a) 1g., or as a place of short-term detention under s. 938.355 (6d) (a) 1. or 2. or (b) 1. or 2. or 938.534 (1) (b) 1. or 2.

938.06(5)(a)2. 2. Use commitment to a county department under s. 51.42 or 51.437 for special treatment or care in an inpatient facility, as defined in s. 51.01 (10), as a disposition under s. 938.34 (6) (am).

938.06(5)(b) (b) The use by the court of a disposition under s. 938.34 (3) (f) or (6) (am), a sanction under s. 938.355 (6m) (a) 1g., or short-term detention under s. 938.355 (6d) (a) 1. or 2. or (b) 1. or 2. or 938.534 (1) (b) 1. or 2. is subject to any resolution adopted under par. (a).

938.06 History History: 1995 a. 77; 1997 a. 27, 205, 239; 2001 a. 61; 2005 a. 344; 2007 a. 20; 2013 a. 20; 2015 a. 55.

938.06 Cross-reference Cross-reference: See also ch. DCF 82, Wis. adm. code.

938.067 938.067 Powers and duties of intake workers. To carry out the objectives of this chapter, intake workers shall do all of the following:

938.067(1) (1) Screening. Provide intake services 24 hours a day, 7 days a week, for the purpose of screening juveniles taken into custody and not released under s. 938.20 (2).

938.067(2) (2) Interviewing. Interview, if possible, any juvenile who is taken into physical custody and not released, and, if appropriate, other available concerned parties. If the juvenile cannot be interviewed, the intake worker shall consult with the juvenile’s parent or a responsible adult. No juvenile may be placed in a juvenile detention facility unless the juvenile has been interviewed in person by an intake worker, except that if the intake worker is in a place which is distant from the place where the juvenile is or the hour is unreasonable, as defined by written court intake rules, and if the juvenile meets the criteria under s. 938.208, the intake worker, after consulting by telephone with the law enforcement officer who took the juvenile into custody, may authorize the secure holding of the juvenile while the intake worker is en route to the in-person interview or until 8 a.m. of the morning after the night on which the juvenile was taken into custody.

938.067(3) (3) Whether juvenile should be held. Determine whether the juvenile shall be held under s. 938.205 and policies promulgated under s. 938.06 (1) or (2).

938.067(4) (4) Where juvenile should be held. If the juvenile is not released, determine where the juvenile shall be held.

938.067(5) (5) Crisis counseling. Provide any necessary crisis counseling during the intake process.

938.067(6) (6) Request for petition; deferred prosecution. Receive referral information, conduct intake inquiries, request that a petition be filed, and enter into deferred prosecution agreements under policies promulgated under s. 938.06 (1) or (2).

938.067(6g) (6g) Victims’ rights. Provide information and notices to and confer with victims as required under s. 938.346 (1m).

938.067(6m) (6m) Multidisciplinary screen. Conduct the multidisciplinary screen in counties that have a pilot program under s. 938.547.

938.067(7) (7) Referrals. Make referrals of cases to other agencies if their assistance is needed or desirable.

938.067(8) (8) Interim recommendations. Make interim recommendations to the court concerning juveniles awaiting final disposition under s. 938.355.

938.067(8m) (8m) Taking juveniles into custody. Take juveniles into custody under ss. 938.355 (6d) (a), (b) and (c) and 938.534 (1) (b) and (c).

938.067(9) (9) Other functions. Perform any other functions ordered by the court, and, when the court or chief judge requests, assist the court or chief judge of the judicial administrative district in developing written policies or carrying out its other duties.

938.067 History History: 1995 a. 77; 1997 a. 80, 181, 205; 2005 a. 344.

938.069 938.069 Powers and duties of disposition staff.