Wisconsin Statutes & Annotations
Chapter 48 - Children's code.
48.21 - Hearing for child in custody.

48.21 Hearing for child in custody.
(1) Hearing; when held.
(a) If a child who has been taken into custody is not released under s. 48.20, a hearing to determine whether the child shall continue to be held in custody under the criteria of ss. 48.205 to 48.209 shall be conducted by the judge or a circuit court commissioner within 48 hours of the time the decision to hold the child was made, excluding Saturdays, Sundays, and legal holidays. By the time of the hearing a petition under s. 48.25 shall be filed, except that no petition need be filed when the child is taken into custody under s. 48.19 (1) (b) or (d) 2. or 7. or when the child is a runaway from another state, in which case a written statement of the reasons for holding the child in custody shall be substituted if the petition is not filed. If no hearing has been held within 48 hours, excluding Saturdays, Sundays, and legal holidays, or if no petition or statement has been filed at the time of the hearing, the child shall be released except as provided in pars. (b) and (bm). A parent not present at the hearing shall be granted a rehearing upon request for good cause shown.
(b) If no petition has been filed by the time of the hearing, a child may be held in custody with approval of the judge or circuit court commissioner for an additional 72 hours from the time of the hearing, excluding Saturdays, Sundays, and legal holidays, only if, as a result of the facts brought forth at the hearing, the judge or circuit court commissioner determines that probable cause exists to believe any of the following:
1. That additional time is required to determine whether the filing of a petition initiating proceedings under this chapter is necessary.
2. That the child is an imminent danger to himself or herself or to others.
3. That probable cause exists to believe that the parent, guardian, or legal custodian of the child or other responsible adult is neglecting, refusing, unable, or unavailable to provide adequate supervision and care.
4. That, if the child is an expectant mother who was taken into custody under s. 48.19 (1) (cm) or (d) 8., probable cause exists to believe that there is a substantial risk that if the child expectant mother is not held, the physical health of the unborn child, and of the child when born, will be seriously affected or endangered by the child expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances, or controlled substance analogs, exhibited to a severe degree, and to believe that the child expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her.
(bm) An extension under par. (b) may be granted only once for any petition. In the event of failure to file a petition within the extension period provided for in par. (b), the judge or circuit court commissioner shall order the child's immediate release from custody.
(c) If the child 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 intake worker or agency primarily responsible for providing services under the custody order shall submit it and the recommendation of the qualified individual who conducted the standardized assessment, including all of the following, to the court and all persons who are required to receive a copy of the petition or request under par. (b) no later than the hearing or, if not available by that time, no later than 30 days after the date on which the placement is made:
1. Whether the proposed placement will provide the child with the most effective and appropriate level of care in the least restrictive environment.
2. How the placement is consistent with the short-term and long-term goals for the child, as specified in the permanency plan.
3. The reasons why the child's needs can or cannot be met by the child's family or in a foster home. A shortage or lack of foster homes is not an acceptable reason for determining that the child's needs cannot be met in a foster home.
4. The placement preference of the family permanency team under s. 48.38 (3m) and, if that preference is not the placement recommended by the qualified individual, why that recommended placement is not preferred.
(3) Proceedings concerning children in need of protection or services and unborn children in need of protection or services and their child expectant mothers.
(ag) Proceedings concerning a child who comes within the jurisdiction of the court under s. 48.13 or an unborn child and a child expectant mother of the unborn child who come within the jurisdiction of the court under s. 48.133 shall be conducted according to this subsection.
(am) The parent, guardian, legal custodian, or Indian custodian may waive his or her right to participate in the hearing under this section. After any waiver, a rehearing shall be granted at the request of the parent, guardian, legal custodian, Indian custodian, or any other interested party for good cause shown.
(b) If present at the hearing, a copy of the petition or request shall be given to the parent, guardian, legal custodian, or Indian custodian, and to the child if he or she is 12 years of age or older, before the hearing begins. If the child is an expectant mother who has been taken into custody under s. 48.19 (1) (cm) or (d) 8., a copy of the petition shall also be given to the unborn child's guardian ad litem before the hearing begins. Prior notice of the hearing shall be given to the child's parent, guardian, legal custodian, and Indian custodian, to the child if he or she is 12 years of age or older and, if the child is an expectant mother who has been taken into custody under s. 48.19 (1) (cm) or (d) 8., to the unborn child's guardian ad litem under s. 48.20 (8).
(d) Prior to the commencement of the hearing, the court shall inform the parent, guardian, legal custodian, or Indian custodian of the allegations that have been made or may be made, the nature and possible consequences of this hearing as compared to possible future hearings, the right to counsel under s. 48.23, the right to present, confront, and cross-examine witnesses, and, in the case of a parent or Indian custodian of an Indian child who is the subject of an Indian child custody proceeding under s. 48.028 (2) (d) 2., the right to counsel under s. 48.028 (4) (b).
(e) If the parent, guardian, legal custodian, Indian custodian, or child is not represented by counsel at the hearing and the child is continued in custody as a result of the hearing, the parent, guardian, legal custodian, Indian custodian, or child may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold the child in custody be reheard. If the request is made, a rehearing shall take place as soon as possible. An order to hold the child in custody shall be reheard for good cause, whether or not counsel was present.
(f) If present at the hearing, the parent shall be requested to provide the names and other identifying information of 3 relatives of the child or other individuals 18 years of age or over whose homes the parent requests the court to consider as placements for the child. If the parent does not provide that information at the hearing, the county department, the department in a county having a population of 750,000 or more, or the agency primarily responsible for providing services to the child under the custody order shall permit the parent to provide the information at a later date.
(3m) Parental notice required. If the child has been taken into custody because he or she committed an act which resulted in personal injury or damage to or loss of the property of another, the court, prior to the commencement of any hearing under this section, shall attempt to notify the child's parents of the possibility of disclosure of the identity of the child and the parents, of the child's police records and of the outcome of proceedings against the child for use in civil actions for damages against the child or the parents and of the parents' potential liability for acts of their children. If the court is unable to provide the notice before commencement of the hearing, it shall provide the child's parents with the specified information in writing as soon as possible after the hearing.
(4) Continuation of custody. If the judge or circuit court commissioner finds that the child should be continued in custody under the criteria of s. 48.205, he or she shall enter one of the following orders:
(a) Place the child with a parent, guardian, legal custodian or other responsible person and may impose reasonable restrictions on the child's travel, association with other persons or places of abode during the period of placement, including a condition requiring the child to return to other custody as requested; or subject the child to the supervision of an agency agreeing to supervise the child. Reasonable restrictions may be placed upon the conduct of the parent, guardian, legal custodian or other responsible person which may be necessary to ensure the safety of the child.
(b) Order the child held in an appropriate manner under s. 48.207, 48.208 or 48.209.
(5) Orders in writing.
(a) All orders to hold in custody shall be in writing, listing the reasons and criteria forming the basis for the decision.
(b) An order relating to a child held in custody outside of his or her home shall also include all of the following:
1.
a. A finding that continued placement of the child in his or her home would be contrary to the welfare of the child.
b. A finding as to whether the person who took the child into custody and the intake worker have made reasonable efforts to prevent the removal of the child from the home, while assuring that the child's health and safety are the paramount concerns, unless the judge or circuit court commissioner finds that any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies.
c. A finding as to whether the person who took the child into custody and the intake worker have made reasonable efforts to make it possible for the child to return safely home.
d. If the child is under the supervision of the county department or, in a county having a population of 750,000 or more, the department, an order ordering the child into the placement and care responsibility of the county department or department as required under 42 USC 672 (a) (2) and assigning the county department or department primary responsibility for providing services to the child.
1m. If for good cause shown sufficient information is not available for the judge or circuit court commissioner to make a finding as to whether reasonable efforts were made to prevent the removal of the child from the home, while assuring that the child's health and safety are the paramount concerns, a finding as to whether reasonable efforts were made to make it possible for the child to return safely home and an order for the county department, department, in a county having a population of 750,000 or more, or agency primarily responsible for providing services to the child under the custody order to file with the court sufficient information for the judge or circuit court commissioner to make a finding as to whether those reasonable efforts were made to prevent the removal of the child from the home by no later than 5 days, excluding Saturdays, Sundays, and legal holidays, after the date on which the order is granted.
2. If the child is held in custody outside the home in a placement recommended by the intake worker, a statement that the court approves the placement recommended by the intake worker or, if the child is placed outside the home in a placement other than a placement recommended by the intake worker, a statement that the court has given bona fide consideration to the recommendations made by the intake worker and all parties relating to the placement of the child.
2g. Except as provided in par. (cm), if the child is held in custody in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675, a finding as to each of the following, the answers to which do not affect whether the placement may be made, after considering the standardized assessment and the recommendation of the qualified individual under sub. (1) (c):
a. Whether the needs of the child can be met through placement in a foster home.
b. Whether placement of the child 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 child in the least restrictive environment.
c. Whether the placement is consistent with the short-term and long-term goals for the child, as identified in the permanency planning.
d. Whether the judge or court commissioner approves or disapproves the placement.
2m. If the child has one or more siblings, as defined in s. 48.38 (4) (br) 1., who have also been removed from the home, a finding as to whether the intake worker has made reasonable efforts to place the child in a placement that enables the sibling group to remain together, unless the judge or circuit court commissioner determines that a joint placement would be contrary to the safety or well-being of the child or any of those siblings, in which case the judge or circuit court commissioner shall order the county department, department in a county having a population of 750,000 or more, or agency primarily responsible for providing services to the child under the custody order to make reasonable efforts to provide for frequent visitation or other ongoing interaction between the child and the siblings, unless the judge or circuit court commissioner determines that such visitation or interaction would be contrary to the safety or well-being of the child or any of those siblings.
3. If the judge or circuit court commissioner finds that any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies with respect to a parent, a determination that the county department, department, in a county having a population of 750,000 or more, or agency primarily responsible for providing services under the custody order is not required to make reasonable efforts with respect to the parent to make it possible for the child to return safely to his or her home.
(c) The judge or circuit court commissioner shall make the findings specified in par. (b) 1., 1m., and 3. on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which those findings are based in the custody order. A custody order that merely references par. (b) 1., 1m., or 3. without documenting or referencing that specific information in the custody order or an amended custody order that retroactively corrects an earlier custody order that does not comply with this paragraph is not sufficient to comply with this paragraph.
(cm) If the results of the standardized assessment and recommendation of the qualified individual who conducted the standardized assessment are required under sub. (1) (c) but not available at the time of the custody order, the judge or court commissioner shall defer making the findings under par. (b) 2g. as provided in this paragraph. No later than 60 days after the date on which the placement is made, the judge or court commissioner shall issue an order making the findings under par. (b) 2g.
(d) If the judge or circuit court commissioner finds that any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies with respect to a parent, the judge or circuit court commissioner shall hold a hearing under s. 48.38 (4m) within 30 days after the date of that finding to determine the permanency goal and, if applicable, any concurrent permanency goals for the child.
(e)
1. In this paragraph, “ adult relative" means a grandparent, great-grandparent, aunt, uncle, brother, sister, half brother, or half sister of a child or a parent of a sibling of the child who has legal custody of that sibling, whether by blood, marriage, or legal adoption, who has attained 18 years of age.
2. The court shall order the county department, the department in a county having a population of 750,000 or more, or the agency primarily responsible for providing services to the child under the custody order to conduct a diligent search in order to locate and provide notice of the information specified in this subdivision to all relatives of the child named under sub. (3) (f) and to all adult relatives of the child within 30 days after the child is removed from the custody of the child's parent unless the child is returned to his or her home within that period. The court may also order the county department, department, or agency to conduct a diligent search in order to locate and provide notice of the information specified in this subdivision to all other adult individuals named under sub. (3) (f) within 30 days after the child is removed from the custody of the child's parent unless the child is returned to his or her home within that period. The county department, department, or agency may not provide that notice to a person named under sub. (3) (f) or to an adult relative if the county department, department, or agency has reason to believe that it would be dangerous to the child or to the parent if the child were placed with that person or adult relative. The notice shall include all of the following:
a. A statement that the child has been removed from the custody of the child's parent.
b. A statement that explains the options that the person provided with the notice has under state or federal law to participate in the care and placement of the child, including any options that may be lost by failing to respond to the notice.
c. A description of the requirements to obtain a foster home license under s. 48.62 or to receive kinship care or long-term kinship care payments under s. 48.57 (3m) or (3n) and of the additional services and supports that are available for children placed in a foster home or in the home of a person receiving those payments.
d. A statement advising the person provided with the notice that he or she may incur additional expenses if the child is placed in his or her home and that reimbursement for some of those expenses may be available.
e. The name and contact information of the agency that removed the child from the custody of the child's parent.
(5m) Effective period of order. An order to hold a child in custody remains in effect until a dispositional order is granted or a consent decree is entered into, the petition under s. 48.25 is withdrawn or dismissed, or the order is modified or terminated by further order of the court.
(6) Amendment of order.
(a) An order placing a child under sub. (4) (a) on conditions specified in this section may at any time be amended, with notice, so as to place the child in another form of custody for failure to conform to the conditions originally imposed. A child may be transferred to secure custody if he or she meets the criteria of s. 48.208.
(b) If under par. (a) a child is transferred to 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 the custody order shall include it and the recommendation of the qualified individual who conducted the standardized assessment, including all of the information specified under sub. (1) (c), with the notice under par. (a) or, if not available at that time, submit it to the court and all persons who received the notice no later than 30 days after the date on which the transfer is made. No later than 60 days after the date on which the transfer is made the judge or court commissioner shall issue an order making the findings under sub. (5) (b) 2g.
(7) Informal disposition. If the judge or circuit court commissioner determines that the best interests of the child and the public are served or, in the case of a child expectant mother who has been taken into custody under s. 48.19 (1) (cm) or (d) 8., that the best interests of the unborn child and the public are served, he or she may enter a consent decree under s. 48.32 or order the petition dismissed and refer the matter to the intake worker for informal disposition in accordance with s. 48.245.
History: 1977 c. 354, 447; 1979 c. 300; 1983 a. 399; 1985 a. 311; 1993 a. 98; 1995 a. 27, 77, 275; 1997 a. 35, 237, 292; 2001 a. 16, 61, 109; 2005 a. 232; 2007 a. 20; 2009 a. 28, 79, 94; 2011 a. 181; 2013 a. 170; 2015 a. 101, 172, 373; 2017 a. 253; 2021 a. 42; 2021 a. 240 s. 30.
The period under sub. (1) (a) runs from the time the intake worker decides to hold the child. Curtis W. v. State, 192 Wis. 2d 719, 531 N.W.2d 633 (Ct. App. 1995).

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