Chapter 938

938.217 938.217 Change in placement; juvenile held in custody.

938.217(1) (1) Request by intake worker, agency responsible for custody order, or prosecutor.

938.217(1)(a) (a) Applicable procedures.

938.217(1)(a)1. 1. Except as provided in subd. 2., the intake worker, the agency primarily responsible for providing services under a temporary physical custody order under s. 938.21 (4), or the district attorney or corporation counsel may request a change in the placement of the juvenile who is the subject of the order as provided in this subsection, whether or not the change requested is authorized in the order.

938.217(1)(a)2. 2. A change in the placement of a juvenile from a placement in the home to a placement outside the home may only be made as provided in s. 938.21 (6).

938.217(1)(b) (b) Notice; information required.

938.217(1)(b)1. 1. The intake worker, the agency primarily responsible for providing services under a temporary physical custody order, or the district attorney or corporation counsel may request a change in placement under this subsection by causing written notice of the proposed change in placement to be sent to the juvenile, the juvenile’s counsel or guardian ad litem, the parent, guardian, and legal custodian or Indian custodian of the juvenile, and any foster parent or other physical custodian described in s. 48.62 (2) of the juvenile.

938.217(1)(b)2. 2. The notice shall contain the name and address of the new placement, the reasons for the change in placement, whether the new placement is certified under s. 48.675, and a statement describing why the new placement is preferable to the present placement. The person sending the notice shall file the notice with the court on the same day that the notice is sent.

938.217(1)(b)3. 3. If the proposed change in placement would place the juvenile 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 intake worker or agency primarily responsible for providing services under a temporary physical 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 the notice under subd. 1. no later than the filing of that notice or, if not available by that time, and except as provided under subd. 4., no later than 10 days after the notice is filed:

938.217(1)(b)3.a. a. Whether the proposed placement will provide the juvenile with the most effective and appropriate level of care in the least restrictive environment.

938.217(1)(b)3.b. b. How the placement is consistent with the short-term and long-term goals for the juvenile, as specified in the permanency plan.

938.217(1)(b)3.c. c. 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.

938.217(1)(b)3.d. d. 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.

938.217(1)(b)4. 4. If, for good cause shown, the information required to be submitted under subd. 3. is not available by the deadline under that subdivision, the intake worker or agency primarily responsible for providing services under a temporary physical custody order shall submit it no later than 30 days after the date on which the placement is made.

938.217(1)(c) (c) Hearing; when required. Any person receiving the notice under par. (b) may obtain a hearing on the matter by filing an objection with the court within 10 days after the notice is sent to that person and filed with the court. Except as provided in par. (d), if an objection is filed within 10 days after that notice is sent and filed with the court, the court shall hold a hearing prior to ordering any change in placement. At least 3 days before the hearing, the court shall provide notice of the hearing to all persons who are required to receive notice under par. (b). If all parties consent, the court may proceed immediately with the hearing. Except as provided in par. (d), if no objection is filed within 10 days after that notice is sent and filed with the court, the court shall enter an order changing the juvenile’s placement as proposed in that notice. Except as provided in par. (d), placements may not be changed until 10 days after that notice is sent and filed with the court unless written waivers of objection are signed by the parent, guardian, legal custodian, or Indian custodian of the juvenile and the juvenile, if 12 years of age or over.

938.217(1)(d) (d) When hearing not required. Changes in placement that were authorized in the temporary physical custody order may be made immediately if notice is given as required under par. (b). A hearing is not required for changes in placement authorized in the temporary physical custody order except when an objection filed by a person who received notice alleges that new information is available that affects the advisability of the order.

938.217(1)(e) (e) Contents of order. If the court changes a juvenile’s placement from a placement outside the home to another placement outside the home, the change-in-placement order shall contain the applicable order under sub. (2v) (a), the applicable statement under sub. (2v) (b), and the finding under sub. (2v) (c).

938.217(2) (2) Emergency change in placement.

938.217(2)(a) (a) If emergency conditions necessitate an immediate change in the placement of a juvenile placed outside the home under a temporary physical custody order under s. 938.21 (4), the intake worker or agency primarily responsible for providing services under the temporary physical custody order may remove the juvenile to a new placement, whether or not authorized by the existing order, without the prior notice under sub. (1) (b). Notice of the emergency change in placement shall be sent to the persons specified in sub. (1) (b) 1. within 48 hours after the emergency change in placement. Any party receiving notice may demand a hearing under sub. (1) (c). In emergency situations, a juvenile may be placed in a licensed public or private shelter care facility as a transitional placement for not more than 20 days or in any other placement authorized under s. 938.207, 938.208, or 938.209.

938.217(2)(b) (b)

938.217(2)(b)1. 1. If the emergency change in placement under par. (a) results in a juvenile being placed 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 intake worker or agency primarily responsible for providing services under a temporary physical custody order shall submit it and the recommendation of the qualified individual who conducted the standardized assessment, including the information specified under sub. (1) (b) 3., with the notice under par. (a) or, if not available at that time, and except as provided under subd. 2., no later than 10 days after the filing of that notice.

938.217(2)(b)2. 2. If, for good cause shown, the information required to be submitted under subd. 1. is not available by the deadline under that subdivision, the intake worker or agency primarily responsible for providing services under a temporary physical custody order shall submit it no later than 30 days after the date on which the placement was made.

938.217(2)(c) (c) If the emergency change in placement under par. (a) results in a juvenile being placed in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675, the court shall, no later than 60 days after the placement is made, issue an order making all of the findings required under sub. (2v) (d) 1., 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.

938.217(2m) (2m) Request by others.

938.217(2m)(a) (a) Request; information required.

938.217(2m)(a)1. 1. Except as provided in subd. 2., the juvenile, the juvenile’s counsel or guardian ad litem, or the parent, guardian, legal custodian, or Indian custodian of the juvenile may request a change in the placement of the juvenile who is the subject of the order as provided in this subsection. The request shall contain the name and address of the new placement requested and shall state what new information is available that affects the advisability of the current placement. The request shall be submitted to the court. The court may also propose a change in placement on its own motion.

938.217(2m)(a)2. 2. A change in the placement of a juvenile from a placement in the home to a placement outside the home may only be made as provided in s. 938.21 (6).

938.217(2m)(b) (b) Hearing; when required.

938.217(2m)(b)1. 1. The court shall hold a hearing prior to ordering any change in placement requested or proposed under par. (a) if the request or proposal states that new information is available that affects the advisability of the current placement. A hearing is not required if written waivers of objection to the proposed change in placement are signed by all persons entitled to receive notice under subd. 2. and the court approves.

938.217(2m)(b)2. 2. If a hearing is scheduled, at least 3 days before the hearing the court shall notify the juvenile, the juvenile’s counsel or guardian ad litem, the parent, guardian, and legal custodian or Indian custodian of the juvenile, the agency primarily responsible for providing services under the temporary physical custody order, the district attorney or corporation counsel, and any foster parent or other physical custodian described in s. 48.62 (2) of the juvenile. A copy of the request or proposal for the change in placement shall be attached to the notice. If all parties consent, the court may proceed immediately with the hearing.

938.217(2m)(b)3. 3. If the change in placement results in a juvenile being placed 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 temporary physical custody order shall submit it and the recommendation of the qualified individual who conducted the standardized assessment, including the information under sub. (1) (b) 3., to the court and to all persons who are required to receive the notice under subd. 2., 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.

938.217(2m)(c) (c) Contents of order. If the court changes the juvenile’s placement from a placement outside the home to another placement outside the home, the change-in-placement order shall contain the applicable order under sub. (2v) (a), the applicable statement under sub. (2v) (b), and the finding under sub. (2v) (c).

938.217(2r) (2r) Removal from foster home or other physical custodian. If a hearing is held under sub. (1) (c) or (2m) (b) and the change in placement would remove a juvenile from a foster home or other placement with a physical custodian described in s. 48.62 (2), the court shall give the foster parent or other physical custodian a right to be heard at the hearing by permitting the foster parent or other physical custodian to make a written or oral statement during the hearing or to submit a written statement prior to the hearing relating to the juvenile and the requested change in placement. A foster parent or other physical custodian described in s. 48.62 (2) who receives notice of a hearing under sub. (1) (c) or (2m) (b) and a right to be heard under this subsection does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and right to be heard.

938.217(2v) (2v) Change-in-placement order. A change-in-placement order under sub. (1) or (2m) shall contain all of the following:

938.217(2v)(a) (a) If the change-in-placement order changes the placement of a juvenile who is under the supervision of the county department to a placement outside the home, an order ordering the juvenile to be continued in the placement and care responsibility of the county department as required under 42 USC 672 (a) (2) and assigning the county department continued primary responsibility for providing services to the juvenile.

938.217(2v)(b) (b) If the change-in-placement order changes the placement of the juvenile to a placement outside the home recommended by the agency primarily responsible for providing services under the temporary physical custody order, a statement that the court approves the placement recommended by that agency or, if the change-in-placement order changes the placement of the juvenile to a placement outside the home that is not a placement recommended by that agency, a statement that the court has given bona fide consideration to the recommendations made by that agency and all parties relating to the juvenile’s placement.

938.217(2v)(c) (c) If the change-in-placement order changes the placement of the juvenile to a placement outside the home and if the juvenile has one or more siblings, as defined in s. 938.38 (4) (br) 1., who have been placed outside the home or for whom a change in placement to a placement outside the home is requested, a finding as to whether the intake worker, the county department, or the agency primarily responsible for providing services under the temporary physical custody order has made reasonable efforts to place the juvenile in a placement that enables the sibling group to remain together, unless the court determines that a joint placement would be contrary to the safety or well-being of the juvenile or any of those siblings, in which case the court shall order the intake worker, county department, or agency to make reasonable efforts to provide for frequent visitation or other ongoing interaction between the juvenile and the siblings, unless the court determines that such visitation or interaction would be contrary to the safety or well-being of the juvenile or any of those siblings.

938.217(2v)(d) (d)

938.217(2v)(d)1. 1. Except as provided in subd. 2., if the court changes the placement to a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675, the change-in-placement order shall contain 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:

938.217(2v)(d)1.a. a. Whether the needs of the juvenile can be met through placement in a foster home.

938.217(2v)(d)1.b. 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.

938.217(2v)(d)1.c. c. Whether the placement is consistent with the short-term and long-term goals for the juvenile, as specified in the permanency plan.

938.217(2v)(d)1.d. d. Whether the court approves or disapproves the placement.

938.217(2v)(d)2. 2. If the results of the standardized assessment and recommendation of the qualified individual who conducted the standardized assessment are not available at the time of the order, the court shall defer making the findings under subd. 1. as provided in this subdivision. No later than 60 days after the date on which the placement was made, the court shall issue an order making the findings under subd. 1.

938.217(3) (3) Prohibited placement based on homicide of parent.

938.217(3)(a) (a) Prohibition. Except as provided in par. (c), the court may not change a juvenile’s placement to a placement in the home of a person who has been convicted of the homicide of a parent of the juvenile under s. 940.01 or 940.05, if the conviction has not been reversed, set aside, or vacated.

938.217(3)(b) (b) Change in placement required. Except as provided in par. (c), if a parent in whose home a juvenile is placed is convicted of the homicide of the juvenile’s other parent under s. 940.01 or 940.05, and the conviction has not been reversed, set aside, or vacated, the court shall change the juvenile’s placement to a placement outside the home of the parent on petition of the juvenile, the juvenile’s counsel or guardian ad litem, the guardian or legal custodian of the juvenile, the agency primarily responsible for providing services under the temporary physical custody order, or the district attorney or corporation counsel of the county in which that order was entered, or on the court’s own motion, and on notice to the parent.

938.217(3)(c) (c) Exception. Paragraphs (a) and (b) do not apply if the court determines by clear and convincing evidence that the placement would be in the best interests of the juvenile. The court shall consider the wishes of the juvenile in making that determination.

938.217(5) (5) Effective period of order. A change-in-placement order under this section remains in effect until a dispositional order is granted or a consent decree is entered into, the petition under s. 938.25 is withdrawn or dismissed, or the order is modified or terminated by further order of the court.

938.217 History History: 2015 a. 373; 2017 a. 365 s. 111; 2021 a. 42; 2021 a. 240 s. 30.

938.22 938.22 County and private juvenile facilities.

938.22(1) (1) Establishment and policies.

938.22(1)(a) (a) The county board of supervisors of a county may establish a juvenile detention facility or secured residential care center for children and youth in accordance with ss. 301.36 and 301.37 or the county boards of supervisors for 2 or more counties may jointly establish a juvenile detention facility or secured residential care center for children and youth in accordance with ss. 46.20, 59.53 (8m), 301.36, and 301.37. An Indian tribe may establish a secured residential care center for children and youth in accordance with ss. 301.36 and 301.37 or may contract with a county board of supervisors to hold juveniles who are adjudicated delinquent by the tribal court in that county’s secured residential care center for children and youth. The county board of supervisors of a county may establish a shelter care facility in accordance with ss. 48.576 and 48.578 or the county boards of supervisors for 2 or more counties may jointly establish a shelter care facility in accordance with ss. 46.20, 48.576, and 48.578. A private entity may establish a juvenile detention facility in accordance with ss. 301.36 and 301.37 and contract with one or more county boards of supervisors under s. 938.222 to hold juveniles in the private juvenile detention facility. Subject to ss. 48.66 (1) (b), 301.36, and 301.37, a child welfare agency may establish a secured residential care center for children and youth and contract with one or more county boards of supervisors or an Indian tribe to hold juveniles in the secured residential care center for children and youth.

938.22(1)(b) (b) Subject to sub. (3) (ar), in counties having a population of less than 750,000, the nonjudicial operational policies of a public juvenile detention facility or shelter care facility shall be determined by the county board of supervisors or, in the case of a public juvenile detention facility or shelter care facility established by 2 or more counties, by the county boards of supervisors for the 2 or more counties jointly. Those policies shall be executed by the superintendent appointed under sub. (3) (a).

938.22(1)(c) (c) In counties having a population of 750,000 or more, the nonjudicial operational policies of a public juvenile detention facility and the detention section of the children’s court center shall be established by the county board of supervisors, and the policies shall be executed by the director of the children’s court center.

938.22(1)(d) (d) The nonjudicial operational policies of a private juvenile detention facility shall be established by the private entity operating the juvenile detention facility. Those policies shall be executed by the superintendent appointed under sub. (3) (bm).

938.22(2) (2) Plans and requirements.

938.22(2)(a) (a) Counties shall submit plans for a juvenile detention facility, secured residential care center for children and youth, or juvenile portion of the county jail to the department of corrections and submit plans for a shelter care facility to the department of children and families. A private entity that proposes to establish a juvenile detention facility or an Indian tribe or a child welfare agency that proposes to establish a secured residential care center for children and youth shall submit plans for the facility to the department of corrections. The applicable department shall review the submitted plans. A county, Indian tribe, private entity, or child welfare agency may not implement a plan unless the applicable department has approved the plan. The department of corrections shall promulgate rules establishing minimum requirements for the approval and operation of juvenile detention facilities, secured residential care centers for children and youth, and the juvenile portion of county jails. The plans and rules shall be designed to protect the health, safety, and welfare of the juveniles placed in those facilities.

938.22(2)(b) (b) If the department of corrections approves, a juvenile detention facility or a holdover room may be located in a public building in which there is a jail or other facility for the detention of adults if the juvenile detention facility or holdover room is physically segregated from the jail or other facility so that juveniles may enter the juvenile detention facility or holdover room without passing through areas where adults are confined and juveniles detained in the juvenile detention facility or holdover room cannot communicate with or view adults confined in the jail or other facility.

938.22(2)(c) (c) A shelter care facility may be used for the temporary care of children taken into custody under s. 48.19, in need of transitional placements in emergency situations under s. 48.357 (2m), or placed in the shelter care facility by order of the court under ch. 48 and of juveniles taken into custody under s. 938.19, in need of transitional placements in emergency situations under s. 938.357 (2m), or placed in the shelter care facility by order of the court under this chapter, except that on the request of a person licensed to operate a shelter care facility the department may permit that shelter care facility to be used for voluntary placements under s. 48.63 (1) (b). The department shall review such a request based on the needs of children and juveniles in the area served by the shelter care facility and the services provided by the shelter care facility and may approve the request if it determines that the services provided by the shelter care facility would meet those needs. A shelter care facility, other than a holdover room, may not be in the same building as a facility for the detention of adults.

938.22(2)(d) (d)

938.22(2)(d)1. 1. Except as provided in subd. 2., a juvenile detention facility is authorized to accept juveniles for placement for more than 30 consecutive days under s. 938.34 (3) (f) 1. if all of the following apply:

938.22(2)(d)1.a. a. The juvenile detention facility is operated by a county, the county board of supervisors of which has adopted a resolution under s. 938.34 (3) (f) 3., prior to January 1, 2018, authorizing placement of juveniles at the juvenile detention facility under s. 938.34 (3) (f) for more than 30 consecutive days.

938.22(2)(d)1.b. b. The county that operates the juvenile detention facility is not awarded a grant under 2017 Wisconsin Act 185, section 110 (4).

938.22(2)(d)2. 2. After July 1, 2021, the number of juveniles that may be housed at a juvenile detention facility under subd. 1. is limited to the number that is equal to the average daily population of juveniles housed under subd. 1., rounded up to the nearest whole number, of the juvenile detention facility between July 1, 2018, and June 30, 2021, excluding any juveniles placed there under 2019 Wisconsin Act 8, section 72 (1), and the juvenile detention facility may not be altered or added to or repaired in excess of 50 percent of its assessed value. If a juvenile detention facility violates this subdivision, it is no longer authorized to accept juveniles for placement for more than 30 consecutive days.

938.22(3) (3) Supervision of facility.

938.22(3)(a) (a) In counties having a population of less than 750,000, public juvenile detention facilities and public shelter care facilities shall be in the charge of a superintendent. The county board of supervisors or, where 2 or more counties operate joint public juvenile detention facilities or shelter care facilities, the county boards of supervisors for the 2 or more counties jointly shall appoint the superintendent and other necessary personnel for the care and education of the juveniles placed in those facilities, subject to par. (am) and to civil service regulations in counties having civil service.

938.22(3)(am) (am) If a juvenile detention facility or holdover room is part of a public building in which there is a jail or other facility for the detention of adults, the sheriff or other keeper of the jail or other facility for the detention of adults may nominate persons for the position of superintendent of the juvenile detention facility or holdover room. Nominees under this paragraph shall have demonstrated administrative abilities and interest in juvenile justice and the welfare of juveniles.

938.22(3)(ar) (ar) Notwithstanding sub. (1) (b), if a juvenile detention facility or holdover room is located in a public building in which there is a jail or other facility for the detention of adults, the sheriff or other keeper of the jail or other facility for the detention of adults shall determine the security and emergency response policies of that juvenile detention facility or holdover room and the procedures for implementing those policies.

938.22(3)(b) (b) In counties having a population of 750,000 or more, the director of the children’s court center shall be in charge of and responsible for public juvenile detention facilities, the juvenile detention section of the center, and the personnel assigned to this section, including a detention supervisor or superintendent. The director of the children’s court center may also serve as superintendent of detention if the county board of supervisors so determines.

938.22(3)(bm) (bm) A private juvenile detention facility shall be in the charge of a superintendent appointed by the private entity operating the juvenile detention facility.

938.22(3)(c) (c) A superintendent appointed under par. (a), (b), or (bm) after May 1, 1992, shall, within one year after that appointment, successfully complete an administrative training program approved or provided by the department of justice.

938.22(5) (5) County contracts with private facilities. A county board of supervisors, or 2 or more county boards of supervisors jointly, may contract with privately operated juvenile detention facilities, shelter care facilities, or home detention programs for purchase of services. A county board of supervisors may delegate this authority to its county department.

938.22(7) (7) Licensing of shelter care facilities.

938.22(7)(a) (a) No person may establish a shelter care facility without first obtaining a license under s. 48.66 (1) (a). To obtain a license under s. 48.66 (1) (a) to operate a shelter care facility, a person must meet the minimum requirements for a license established by the department under s. 48.67, meet the requirements specified in s. 48.685, and pay the license fee under par. (b). A license issued under s. 48.66 (1) (a) to operate a shelter care facility is valid until revoked or suspended, but shall be reviewed every 2 years as provided in s. 48.66 (5).

938.22(7)(b) (b) Except as provided in par. (d), before the department may issue a license under s. 48.66 (1) (a) to operate a shelter care facility, the shelter care facility shall pay to that department a biennial fee of $60.50, plus a biennial fee of $18.15 per juvenile, based on the number of juveniles that the shelter care facility is licensed to serve. A shelter care facility that wishes to continue a license issued under s. 48.66 (1) (a) shall pay the fee by the continuation date of the license. A new shelter care facility shall pay the fee by no later than 30 days before the opening of the shelter care facility.

938.22(7)(c) (c) A shelter care facility that wishes to continue a license issued under s. 48.66 (1) (a) and that fails to pay the fee under par. (b) by the continuation date of the license or a new shelter care facility that fails to pay the fee under par. (b) by 30 days before the opening of the shelter care facility shall pay an additional fee of $5 per day for every day after the deadline that the facility fails to pay the fee.

938.22(7)(d) (d) An individual who is eligible for a fee waiver under the veterans fee waiver program under s. 45.44 is not required to pay the fee under par. (b) for a license to operate a shelter care facility.

938.22 History History: 1995 a. 27 s. 9126 (19); 1995 a. 77, 352; 1997 a. 27, 35, 252; 1999 a. 9; 2005 a. 344; 2007 a. 20, 97; 2011 a. 209; 2013 a. 335; 2015 a. 55; 2017 a. 185; 2017 a. 207 s. 5; 2019 a. 8; 2021 a. 239 s. 74.

938.222 938.222 Contracts with private entities for juvenile detention facility services.

938.222(1) (1) Uses of facilities. The county board of supervisors of a county may contract with a private entity that operates a juvenile detention facility for the use of the facility to hold juveniles who meet the criteria under s. 48.208, 938.17 (1), 938.183 (1m) (a), or 938.208 or who are subject to a disposition under s. 938.17 (1) (b) or 938.34 (3) (f), a sanction under s. 938.355 (6) (d) 1., or short-term detention under s. 938.355 (6d) or 938.534 (1).

938.222(2) (2) Contract requirements.

938.222(2)(a) (a) A contract under sub. (1) shall require all of the following:

938.222(2)(a)1. 1. That the private juvenile detention facility meet or exceed the minimum requirements for the approval and operation of a juvenile detention facility established by the department of corrections by rule under s. 938.22 (2) (a) and that the private juvenile detention facility be approved by the department under s. 301.36.

938.222(2)(a)2. 2. That the private juvenile detention facility provide educational programming, health care, and other care that is equivalent to that which a juvenile would receive in a public juvenile detention facility.

938.222(2)(b) (b) In addition to the requirements under par. (a), a contract under sub. (1) shall include all of the following:

938.222(2)(b)1. 1. The rates to be paid by the county for holding a juvenile in the private juvenile detention facility and the charges to be paid by the county for any extraordinary medical and dental expenses and any programming provided for a juvenile who is held in the private juvenile detention facility.

938.222(2)(b)2. 2. An agreement that the county retains jurisdiction over a juvenile who is held in the private juvenile detention facility.

938.222(2)(b)3. 3. An agreement that the private juvenile detention facility is subject to investigation and inspection by the department of corrections under s. 301.36.