Chapter 938

938.20(2)(f)3. 3. Provide the juvenile and his or her parent or guardian with an opportunity for educational counseling to determine whether a change in the juvenile’s program or curriculum, including any of the modifications specified in s. 118.15 (1) (d), would resolve the juvenile’s truancy problem, unless the juvenile and his or her parent or guardian have been provided with an opportunity for educational counseling within the current school semester.

938.20(2)(g) (g) If a juvenile is taken into custody under s. 938.19 (1) (d) 10. and is not released under par. (ag), (b) or (e) or if a juvenile is taken into custody under s. 938.19 (1m) and is not released under par. (ag), (b), (e) or (f), the person who took the juvenile into custody shall release the juvenile without immediate adult supervision after counseling or warning the juvenile as may be appropriate.

938.20(3) (3) Notification to parent, guardian, legal custodian, Indian custodian of release. If the juvenile is released under sub. (2) (b) to (d) or (g), the person who took the juvenile into custody shall immediately notify the juvenile’s parent, guardian, legal custodian, and Indian custodian of the time and circumstances of the release and the person, if any, to whom the juvenile was released. If the juvenile is not released under sub. (2), the person who took the juvenile into custody shall arrange in a manner determined by the court and law enforcement agencies for the juvenile to be interviewed by the intake worker under s. 938.067 (2). The person who took the juvenile into custody shall make a statement in writing with supporting facts of the reasons why the juvenile was taken into physical custody and shall give a copy of the statement to the intake worker and to any juvenile 10 years of age or older. If the intake interview is not done in person, the report may be read to the intake worker.

938.20(4) (4) Delivery to hospital or physician. If the juvenile is believed to be suffering from a serious physical condition which requires either prompt diagnosis or prompt treatment, the person taking the juvenile into physical custody, the intake worker or other appropriate person shall deliver the juvenile to a hospital as defined in s. 50.33 (2) (a) and (c) or physician’s office.

938.20(5) (5) Emergency detention of juvenile. If the juvenile is believed to have a mental illness or developmental disability or to be drug dependent and exhibits conduct that constitutes a substantial probability of physical harm to the juvenile or to others, or a very substantial probability of physical impairment or injury to the juvenile exists due to the impaired judgment of the juvenile and if the standards of s. 51.15 are met, the person taking the juvenile into physical custody, the intake worker, or other appropriate person shall proceed under s. 51.15.

938.20(6) (6) Delivery of intoxicated juvenile. If the juvenile is believed to be an intoxicated person who has threatened, attempted or inflicted physical harm on himself or herself or on another and is likely to inflict such physical harm unless committed, or is incapacitated by alcohol or another drug, the person taking the juvenile into physical custody, the intake worker or other appropriate person shall proceed under s. 51.45 (11).

938.20(7) (7) Duties of intake worker.

938.20(7)(a) (a) When a juvenile who is possibly involved in a delinquent act is interviewed by an intake worker, the intake worker shall inform the juvenile of his or her right to counsel and the right against self-incrimination.

938.20(7)(b) (b) The intake worker shall review the need to hold the juvenile in custody and shall make every effort to release the juvenile from custody as provided in par. (c). The intake worker shall base his or her decision as to whether to release the juvenile or to continue to hold the juvenile in custody on the criteria under s. 938.205 and criteria established under s. 938.06 (1) or (2).

938.20(7)(c) (c) The intake worker may release the juvenile as follows:

938.20(7)(c)1. 1. To a parent, guardian, legal custodian, or Indian custodian, or to a responsible adult if the parent, guardian, legal custodian, or Indian custodian is unavailable, unwilling, or unable to provide supervision for the juvenile, counseling or warning the juvenile as may be appropriate; or, if the juvenile is 15 years of age or older, without immediate adult supervision, counseling or warning the juvenile as may be appropriate.

938.20(7)(c)1m. 1m. In the case of a juvenile who has violated a condition of community supervision or aftercare supervision, a condition of the juvenile’s placement in a Type 2 juvenile correctional facility or a Type 2 residential care center for children and youth, or a condition of the juvenile’s participation in the intensive supervision program under s. 938.534, to the department of corrections or county department, whichever has supervision of the juvenile.

938.20(7)(c)2. 2. In the case of a runaway juvenile, to a home under s. 48.227.

938.20(7)(d) (d) If the juvenile is released from custody, the intake worker shall immediately notify the juvenile’s parent, guardian, legal custodian, and Indian custodian of the time and circumstances of the release and the person, if any, to whom the juvenile was released.

938.20(8) (8) Notification that held in custody.

938.20(8)(a) (a) If a juvenile is held in custody, the intake worker shall notify the juvenile’s parent, guardian, legal custodian, and Indian custodian of the reasons for holding the juvenile in custody and of the juvenile’s whereabouts unless there is reason to believe that notice would present imminent danger to the juvenile. The parent, guardian, legal custodian, and Indian custodian shall also be notified of the time and place of the detention hearing required under s. 938.21, the nature and possible consequences of the hearing, the right to present and cross-examine witnesses at the hearing, 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 (2) (b), the right to counsel under s. 938.028 (4) (b). If the parent, guardian, legal custodian, or Indian custodian is not immediately available, the intake worker or another person designated by the court shall provide notice as soon as possible.

938.20(8)(b) (b) If the juvenile is alleged to have committed a delinquent act, the juvenile shall receive the same notice about the detention hearing as the parent, guardian, or legal custodian. The intake worker shall notify both the juvenile and the juvenile’s parent, guardian, or legal custodian.

938.20(8)(c) (c) If a juvenile who has violated a condition of community supervision or aftercare supervision, a condition of the juvenile’s placement in a Type 2 juvenile correctional facility or a Type 2 residential care center for children and youth, or a condition of the juvenile’s participation in the intensive supervision program under s. 938.534 is held in custody, the intake worker shall also notify the department of corrections or county department, whichever has supervision over the juvenile, of the reasons for holding the juvenile in custody, of the juvenile’s whereabouts, and of the time and place of the detention hearing required under s. 938.21.

938.20 History History: 1995 a. 77; 1997 a. 35; 2001 a. 16; 2005 a. 344; 2009 a. 94; 2015 a. 55; 2017 a. 34.

938.205 938.205 Criteria for holding a juvenile in physical custody.

938.205(1) (1) Criteria. A juvenile may be held under s. 938.207, 938.208, or 938.209 (1) if the intake worker determines that there is probable cause to believe the juvenile is within the jurisdiction of the court and if probable cause exists to believe any of the following:

938.205(1)(a) (a) That the juvenile will commit injury to the person or property of others if not held.

938.205(1)(b) (b) 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 and that services to ensure the juvenile’s safety and well-being are not available or would be inadequate.

938.205(1)(c) (c) That the juvenile will run away or be taken away so as to be unavailable for proceedings of the court or its officers, proceedings of the division of hearings and appeals in the department of administration for revocation of community supervision or aftercare supervision, or action by the department of corrections or county department relating to a violation of a condition of the juvenile’s placement in a Type 2 juvenile correctional facility or a Type 2 residential care center for children and youth or a condition of the juvenile’s participation in the intensive supervision program under s. 938.534.

938.205(2) (2) Applicability. The criteria for holding a juvenile in custody under this section govern the decision of all persons responsible for determining whether the action is appropriate.

938.205 History History: 1995 a. 77, 275; 1997 a. 35, 296; 1999 a. 32; 2001 a. 16; 2005 a. 344; 2015 a. 55.

938.207 938.207 Places where a juvenile may be held in nonsecure custody.

938.207(1) (1) Where may be held. A juvenile held in physical custody under s. 938.205 may be held in any of the following places:

938.207(1)(a) (a) The home of a parent or guardian, except that a juvenile may not be held in the home of a parent or guardian if the parent or guardian has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of a parent of the juvenile, and the conviction has not been reversed, set aside or vacated, unless the person making the custody decision determines by clear and convincing evidence that the placement would be in the best interests of the juvenile. The person making the custody decision shall consider the wishes of the juvenile in making that determination.

938.207(1)(b) (b) The home of a relative or like-kin, except that a juvenile may not be held in the home of a person who has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of a parent of the juvenile, and the conviction has not been reversed, set aside or vacated, unless the person making the custody decision determines by clear and convincing evidence that the placement would be in the best interests of the juvenile. The person making the custody decision shall consider the wishes of the juvenile in making that determination.

Effective date note NOTE: Par. (b) is shown as amended by 2023 Wis. Act 119 eff. 7-1-25 or on the date specified in the Department of Children and Families notice published in the Wisconsin Administrative Register under 2023 Wis. Act 119, section 122 (1), whichever is earlier. Prior to that date par. (b) reads:

Effective date text (b) The home of a relative, except that a juvenile may not be held in the home of a relative if the relative has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of a parent of the juvenile, and the conviction has not been reversed, set aside or vacated, unless the person making the custody decision determines by clear and convincing evidence that the placement would be in the best interests of the juvenile. The person making the custody decision shall consider the wishes of the juvenile in making that determination.

938.207(1)(c) (c) A licensed foster home if the placement does not violate the conditions of the license.

938.207(1)(cm) (cm) A licensed group home if the placement does not violate the conditions of the license.

938.207(1)(d) (d) A nonsecure facility operated by a licensed child welfare agency.

938.207(1)(e) (e) A licensed private or public shelter care facility.

938.207(1)(f) (f) The home of a person not a relative or like-kin if the person has not had a license under s. 48.62 refused, revoked, or suspended within the previous 2 years. A placement under this paragraph may not exceed 30 days, unless the placement is extended by the court for cause for an additional 30 days.

Effective date note NOTE: Par. (f) is shown as amended by 2023 Wis. Act 119 eff. 7-1-25 or on the date specified in the Department of Children and Families notice published in the Wisconsin Administrative Register under 2023 Wis. Act 119, section 122 (1), whichever is earlier. Prior to that date par. (f) reads:

Effective date text (f) The home of a person not a relative if the person has not had a license under s. 48.62 refused, revoked, or suspended within the previous 2 years. A placement under this paragraph may not exceed 30 days, unless the placement is extended by the court for cause for an additional 30 days.

938.207(1)(g) (g) A hospital as defined in s. 50.33 (2) (a) and (c) or physician’s office if the juvenile is held under s. 938.20 (4).

938.207(1)(h) (h) A place specified in s. 51.15 (2) (d) if the juvenile is held under s. 938.20 (5).

938.207(1)(i) (i) An approved public treatment facility for emergency treatment if the juvenile is held under s. 938.20 (6).

938.207(1)(k) (k) A facility under s. 48.58.

938.207(1g) (1g) Indian juvenile; placement preferences. An Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is held in physical custody under s. 938.205 (1) shall be placed in compliance with s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b), unless the person responsible for determining the placement finds good cause, as described in s. 938.028 (6) (d), for departing from the order of placement preference under s. 938.028 (6) (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 s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b).

938.207(2) (2) Payment. If a facility listed in sub. (1) (b) to (k) is used to hold a juvenile in custody, or if supervisory services of a home detention program are provided to a juvenile held under sub. (1) (a), the county shall pay the facility’s authorized rate for the care of the juvenile. If no authorized rate has been established, the court shall fix a reasonable sum to be paid by the county for the supervision or care of the juvenile.

938.207 History History: 1995 a. 77; 1999 a. 9; 2005 a. 344; 2009 a. 28, 94; 2017 a. 140; 2023 a. 119.

938.208 938.208 Criteria for holding a juvenile in a juvenile detention facility. A juvenile may be held in a juvenile detention facility if the intake worker determines that any of the following conditions applies:

938.208(1) (1) Delinquent act and risk of harm or running away. Probable cause exists to believe that the juvenile has committed a delinquent act and either presents a substantial risk of physical harm to another person or a substantial risk of running away so as to be unavailable for a court hearing, a revocation of community supervision or aftercare supervision hearing, or action by the department of corrections or county department relating to a violation of a condition of the juvenile’s placement in a Type 2 juvenile correctional facility or a Type 2 residential care center for children and youth or a condition of the juvenile’s participation in the intensive supervision program under s. 938.534. For juveniles who have been adjudged delinquent, the delinquent act referred to in this section may be the act for which the juvenile was adjudged delinquent. If the intake worker determines that any of the following conditions applies, the juvenile is considered to present a substantial risk of physical harm to another person:

938.208(1)(a) (a) Probable cause exists to believe that the juvenile has committed a delinquent act that would be a felony under s. 940.01, 940.02, 940.03, 940.05, 940.19 (2) to (6), 940.198, 940.21, 940.225 (1), 940.31, 941.20 (3), 943.02 (1), 943.231 (1), 943.32 (2), 947.013 (1t), (1v), or (1x), 948.02 (1) or (2), 948.025, 948.03, or 948.085 (2), if committed by an adult.

938.208(1)(b) (b) Probable cause exists to believe that the juvenile possessed, used or threatened to use a handgun, as defined in s. 175.35 (1) (b), short-barreled rifle, as defined in s. 941.28 (1) (b), or short-barreled shotgun, as defined in s. 941.28 (1) (c), while committing a delinquent act that would be a felony under ch. 940 if committed by an adult.

938.208(1)(c) (c) Probable cause exists to believe that the juvenile has possessed or gone armed with a short-barreled rifle or a short-barreled shotgun in violation of s. 941.28, or has possessed or gone armed with a handgun in violation of s. 948.60.

938.208(2) (2) Runaway from another state or secure custody. Probable cause exists to believe that the juvenile is a fugitive from another state or has run away from a juvenile correctional facility or a secured residential care center for children and youth and there has been no reasonable opportunity to return the juvenile.

938.208(3) (3) Protective custody. The juvenile consents in writing to being held in order to protect him or her from an imminent physical threat from another and such secure custody is ordered by the court in a protective order.

938.208(4) (4) Runaway from nonsecure custody. Probable cause exists to believe that the juvenile, having been placed in nonsecure custody by an intake worker under s. 938.207 or by the court under s. 938.21 (4), has run away or committed a delinquent act and no other suitable alternative exists.

938.208(5) (5) Runaway from another county. Probable cause exists to believe that the juvenile has been adjudged or alleged to be delinquent and has run away from another county and would run away from nonsecure custody pending his or her return. A juvenile may be held in secure custody under this subsection for no more than 24 hours after the end of the day that the decision to hold the juvenile was made unless an extension of those 24 hours is ordered by the court for good cause shown. Only one extension may be ordered.

938.208(6) (6) Subject to jurisdiction of adult court. Probable cause exists to believe that the juvenile is subject to the jurisdiction of the court of criminal jurisdiction under s. 938.183 (1) and is under 15 years of age.

938.208 History History: 1995 a. 77, 352; 1999 a. 9; 2001 a. 16, 61, 109; 2005 a. 277, 344; 2007 a. 97; 2015 a. 55; 2021 a. 76; 2023 a. 10.

938.209 938.209 Criteria for holding a juvenile in a county jail or a municipal lockup facility.

938.209(1) (1) County jail. Subject to s. 938.208, a county jail may be used as a juvenile detention facility if the criteria under either par. (a) or (b) are met:

938.209(1)(a) (a) No other juvenile detention facility approved by the department of corrections or a county is available and all of the following conditions are met:

938.209(1)(a)1. 1. The jail meets the standards for juvenile detention facilities established by the department of corrections.

938.209(1)(a)2. 2. The juvenile is held in a room separated and removed from incarcerated adults.

938.209(1)(a)3. 3. The juvenile is not held in a cell designed for the administrative or disciplinary segregation of adults.

938.209(1)(a)4. 4. Adequate supervision is provided.

938.209(1)(a)5. 5. The court reviews the status of the juvenile every 3 days.

938.209(1)(b) (b) The juvenile presents a substantial risk of physical harm to other persons in the juvenile detention facility, as evidenced by previous acts or attempts, which can only be avoided by transfer to the jail. The conditions of par. (a) 1. to 5. shall be met. The juvenile shall be given a hearing and may be transferred only upon a court order.

938.209(2m) (2m) Municipal lockup.

938.209(2m)(a) (a) A juvenile who is alleged to have committed a delinquent act may be held in a municipal lockup facility if all of the following criteria are met:

938.209(2m)(a)1. 1. The department of corrections has approved the municipal lockup facility as a suitable place for holding juveniles in custody.

938.209(2m)(a)2. 2. The juvenile is held in the municipal lockup facility for not more than 6 hours while awaiting his or her hearing under s. 938.21 (1) (a).

938.209(2m)(a)3. 3. There is sight and sound separation between the juvenile and any adult who is being held in the municipal lockup facility.

938.209(2m)(a)4. 4. The juvenile is held for investigative purposes only.

938.209(2m)(b) (b) The department of corrections shall promulgate rules establishing minimum requirements for the approval of a municipal lockup facility as a suitable place for holding juveniles in custody and for the operation of such a facility. The rules shall be designed to protect the health, safety, and welfare of the juveniles held in those facilities.

938.209(3) (3) Juveniles under adult court jurisdiction. The restrictions of this section do not apply to the use of jail for a juvenile who has been waived to adult court under s. 938.18 or who is under the jurisdiction of an adult court under s. 938.183, unless the juvenile is under the jurisdiction of an adult court under s. 938.183 (1) and is under 15 years of age.

938.209 History History: 1995 a. 77, 352; 1997 a. 35, 296; 2005 a. 344; 2007 a. 97; 2015 a. 55.

938.21 938.21 Hearing for juvenile in custody.

938.21(1) (1) Hearing; when held.

938.21(1)(a) (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 (1) (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.

938.21(1)(b) (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.

938.21(1)(c) (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:

938.21(1)(c)1. 1. Whether the proposed placement will provide the juvenile with the most effective and appropriate level of care in the least restrictive environment.

938.21(1)(c)2. 2. How the placement is consistent with the short-term and long-term goals for the juvenile, as specified in the permanency plan.

938.21(1)(c)3. 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.

938.21(1)(c)4. 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.

938.21(1m) (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 (7) (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).

938.21(2) (2) Proceedings concerning delinquent juveniles.

938.21(2)(ag) (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.

938.21(2)(am) (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.

938.21(2)(b) (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).