Chapter 938

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in effect until a dispositional order is granted or a consent decree is entered into, the petition under s. 938.25 is withdrawn or dismissed, or the order is modified or terminated by further order of the court.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.

938.222(2)(b)4. 4. Any other matters that are necessary and appropriate concerning the obligations, responsibilities, and rights of the contracting counties and the department of corrections.

938.222 History History: 1997 a. 27; 2005 a. 344; 2007 a. 97; 2015 a. 55.

938.223 938.223 Contracts with Minnesota counties for juvenile detention facility services.

938.223(1) (1) Uses of facilities. The county board of supervisors of any county may contract with one or more counties in Minnesota that operate a juvenile detention facility for the use of one or more Minnesota juvenile detention facilities for the holding of 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).

938.223(2) (2) Contract requirements.

938.223(2)(a) (a) A contract under sub. (1) shall require all of the following:

938.223(2)(a)1. 1. That the Minnesota juvenile detention facility meet or exceed the minimum requirements for the approval and operation of a Wisconsin juvenile detention facility established by the department of corrections by rule under s. 938.22 (2) (a) and that the Minnesota juvenile detention facility be approved by the department under s. 301.36.

938.223(2)(a)2. 2. That the Minnesota juvenile detention facility provide educational programming, health care, and other care that is equivalent to that which a juvenile would receive in a Wisconsin juvenile detention facility.

938.223(2)(b) (b) In addition to the requirements under par. (a), a contract under sub. (1) shall include all of the following:

938.223(2)(b)1. 1. The rates to be paid by the Wisconsin county for holding a juvenile in the Minnesota juvenile detention facility and the charges to be paid by the Wisconsin county for any extraordinary medical and dental expenses and any programming provided for a juvenile who is held in the Minnesota juvenile detention facility.

938.223(2)(b)2. 2. An agreement that the Wisconsin county retains jurisdiction over a juvenile who is held in the Minnesota juvenile detention facility.

938.223(2)(b)3. 3. An agreement that the Minnesota juvenile detention facility is subject to investigation and inspection by the department of corrections under s. 301.36.

938.223(2)(b)4. 4. Any other matters that are necessary and appropriate concerning the obligations, responsibilities, and rights of the contracting counties and the department of corrections.

938.223(3) (3) Minnesota juveniles in Wisconsin facilities. The county board of supervisors of a county that operates a juvenile detention facility may contract with one or more counties in Minnesota for the use of the juvenile detention facility operated by the Wisconsin county for the holding of juveniles transferred to that juvenile detention facility by the Minnesota county.

938.223 History History: 1995 a. 352; 1997 a. 27; 2005 a. 344; 2007 a. 97; 2015 a. 55.

938.224 938.224 Contracts with department for juvenile detention facility services.

938.224(1) (1) Uses of facilities. The county board of supervisors of a county may contract with the department of corrections for the use of a juvenile correctional facility operated by that department for the holding of 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).

938.224(2) (2) Contract requirements. A contract under sub. (1) shall require all of the following:

938.224(2)(a) (a) That the county may use a juvenile correctional facility for holding a juvenile under sub. (1) only if any of the following criteria are met:

938.224(2)(a)1. 1. There is no county-operated juvenile detention facility approved by the department of corrections within 40 miles of the county seat of the county.

938.224(2)(a)2. 2. There is no bed space available in a county-operated juvenile detention facility approved by the department of corrections within 40 miles of the county seat of the county.

938.224(2)(b) (b) That the county may use a juvenile correctional facility for holding a juvenile under sub. (1) only if the department of corrections approves that use based on the availability of beds in the juvenile correctional facility and on the programming needs of the juvenile.

938.224(3) (3) Additional requirements. In addition to the requirements under sub. (2), a contract under sub. (1) shall include all of the following:

938.224(3)(a) (a) The per person daily rate to be paid by the county for holding a juvenile under sub. (1) and the charges to be paid by the county for any extraordinary medical and dental expenses and any programming provided for the juvenile by the department of corrections.

938.224(3)(b) (b) Any other matters that are necessary and appropriate concerning the obligations, responsibilities, and rights of the contracting county and the department of corrections.

938.224(4) (4) Supervision and control of juveniles. A juvenile held in custody under sub. (1) is under the supervision and control of the department of corrections and is subject to the rules and discipline of that department.

938.224 History History: 1997 a. 27; 2005 a. 344; 2007 a. 97; 2015 a. 55.

938.225 938.225 Statewide plan for juvenile detention and correctional facilities. The department of corrections shall assist counties in establishing juvenile detention facilities and secured residential care centers for children and youth under s. 938.22 by developing and promulgating a statewide plan for the establishment and maintenance of suitable juvenile detention facilities reasonably accessible to each court and secured residential care centers for children and youth reasonably accessible to each county.

938.225 History History: 1995 a. 77; 2007 a. 97; 2015 a. 55; 2017 a. 185.

938.23 938.23 Right to counsel.

938.23(1g) (1g) Definition. In this section, “counsel” means an attorney acting as adversary counsel.

938.23(1j) (1j) Duties of Counsel. Counsel shall advance and protect the legal rights of the party represented. Counsel may not act as guardian ad litem for any party in the same proceeding.

938.23(1m) (1m) Right of juveniles to legal representation. Juveniles subject to proceedings under this chapter shall be afforded legal representation as follows:

938.23(1m)(a) (a) A juvenile alleged to be delinquent under s. 938.12 or held in a juvenile detention facility shall be represented by counsel at all stages of the proceedings. A juvenile 15 years of age or older may waive counsel if the court is satisfied that the waiver is knowingly and voluntarily made and the court accepts the waiver. If the waiver is accepted, the court may not place the juvenile in a juvenile correctional facility or a secured residential care center for children and youth, transfer supervision of the juvenile to the department of corrections for participation in the serious juvenile offender program, or transfer jurisdiction over the juvenile to adult court.

938.23(1m)(am) (am) A juvenile subject to a sanction under s. 938.355 (6) (a) is entitled to representation by counsel at the hearing under s. 938.355 (6) (c).

938.23(1m)(ar) (ar) A juvenile subject to proceedings under s. 938.357 (3) or (5) shall be afforded legal representation as provided in those subsections.

938.23(1m)(b) (b)

938.23(1m)(b)1. 1. If a juvenile is alleged to be in need of protection or services under s. 938.13, the juvenile may be represented by counsel at the discretion of the court. Except as provided in subd. 2., a juvenile 15 years of age or older may waive counsel if the court is satisfied such waiver is knowingly and voluntarily made and the court accepts the waiver.

938.23(1m)(b)2. 2. If the petition is contested, the court may not place the juvenile outside his or her home unless the juvenile is represented by counsel at the fact-finding hearing and subsequent proceedings. If the petition is not contested, the court may not place the juvenile outside his or her home unless the juvenile is represented by counsel at the hearing at which the placement is made. For a juvenile under 12 years of age, the court may appoint a guardian ad litem instead of counsel.

938.23(2g) (2g) Right of Indian juvenile’s parent or Indian custodian to counsel. Whenever an Indian juvenile is the subject of a proceeding under s. 938.13 (4), (6), (6m), or (7) involving the removal of the Indian juvenile from the home of his or her parent or Indian custodian or the placement of the Indian juvenile in an out-of-home care placement, the Indian juvenile’s parent or Indian custodian shall have the right to be represented by counsel as provided in sub. (4).

938.23(3) (3) Power of the court to appoint counsel. Except as provided in this subsection, at any time, upon request or on its own motion, the court may appoint counsel for the juvenile or any party, unless the juvenile or the party has or wishes to retain counsel of his or her own choosing. Except as provided in sub. (2g), the court may not appoint counsel for any party other than the juvenile in a proceeding under s. 938.13.

938.23(4) (4) Providing counsel. If a juvenile has a right to be represented by counsel or is provided counsel at the discretion of the court under this section and counsel is not knowingly and voluntarily waived, the court shall refer the juvenile to the state public defender and counsel shall be appointed by the state public defender under s. 977.08 without a determination of indigency. In any situation under sub. (2g) in which a parent 18 years of age or over is entitled to representation by counsel; counsel is not knowingly and voluntarily waived; and it appears that the parent is unable to afford counsel in full, or the parent so indicates; the court shall refer the parent to the authority for indigency determinations specified under s. 977.07 (1). In any other situation under this section in which a person has a right to be represented by counsel or is provided counsel at the discretion of the court, competent and independent counsel shall be provided and reimbursed in any manner suitable to the court regardless of the person’s ability to pay, except that the court may not order a person who files a petition under s. 813.122 or 813.125 to reimburse counsel for the juvenile who is named as the respondent in that petition.

938.23(5) (5) Counsel of own choosing. Notwithstanding subs. (3) and (4), any party is entitled to retain counsel of his or her own choosing at his or her own expense in any proceeding under this chapter.