The Child Welfare and Juvenile Justice Systems and Children with Complex and Enduring Needs

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1 The Child Welfare and Juvenile Justice Systems and Children with Complex and Enduring Needs John Franz, Attorney and Private Consultant Introduction The goal of this chapter is to describe the basic procedures, services and agencies in the child welfare and juvenile justice systems and explain how they operate when children have special needs. Children with exceptional needs and their families come into the child welfare and juvenile justice systems for many reasons. Sometimes the family or their advocates have started the process to get services they need. Sometimes a county agency has intervened because of the conduct of the child or his/her parents. Regardless of the reason, effective advocacy for the child and family requires knowing both how these systems work in general, and how they apply in special circumstances. Being in The System A child and family is in the formal child welfare and juvenile justice systems when they or someone else has started a process that could lead to a juvenile court order. Being in the system can feel overwhelming. Various people tell you things, often contradicting one another. You go to court hearings where lawyers talk but don t make much sense to you. You receive documents that look important but are hard to understand. Even when you haven t done anything wrong, the process can make you feel like a criminal. Who made the systems? Each county has its own approach State law created the child welfare and juvenile justice systems. Chapter 48 of the Wisconsin Statutes defines the child welfare system. Chapter 938 defines the juvenile justice system. Most of the provisions in the two statutes are the same. The laws were separated so that courts and agencies could treat juvenile delinquents differently from children who are abused and neglected. However, the same agencies carry out both statutes. Although Chapters 48 and 938 are very detailed, each county in Wisconsin has developed its own variations on how to operate its child welfare and juvenile justice systems. In some counties, staff who work in child welfare and juvenile justice are different. In other counties, one social worker does both things. Each county has a different array of services and each varies in the percentage of children served in their own homes and those placed in foster care or other residential programs. Child Welfare System - 149

2 WISCONSIN COALITION FOR ADVOCACY Counties also vary in the amount of services provided directly by staff of the county and that provided by private, non-profit agencies operating under contract with the county. For example, even though a county social worker may have been responsible for managing the initial entry into the system, a staff person from a private agency may have ongoing responsibility for coordination of the services and support the child and family receive. Because every county is different, the information in this chapter is just an introduction. Families and advocates must learn the details of how the general principles in the law are interpreted in their own communities. Difference between the child welfare and juvenile justice systems Child welfare system concentrates on family situations and child safety Juvenile justice system focuses on child misconduct and community safety The main differences between the two systems are in the kinds of situations they deal with, the age of the children involved, the focus of attention, and the kinds of interventions that can be used. The child welfare system is designed to protect children who are at risk of harm because of their family situation or because of their own behavior or condition. Thus, the focus in the child welfare system is on the family, often with an emphasis on the conduct and condition of the parents. The juvenile justice system is designed to protect the community from children who violate the law, misbehave or pose a threat to others because of their conduct or condition. Therefore, the juvenile justice system concentrates on children in trouble and offers only a limited role for parents and family members. All of the service options described in Chapter 48 can be accessed through Chapter 938. But Chapter 938 also includes many punitive dispositions that are not in the child welfare laws. While Chapter 48 applies to children of any age, in practice the focus is on younger children. Chapter 938 applies to children from age 10 through age 17, except that when charged with criminal offenses, 17 year olds are treated as adults. Youth in the juvenile justice system can be ordered to pay fines and restitution, can be placed in secure correctional facilities and sent to adult criminal court for confinement in adult jails and prisons. Informal alternatives to court-ordered services may be available While this chapter will focus on the formal or court-based aspects of the child welfare and juvenile justice systems, there are also voluntary, less formal options. Informal services and the agencies that provide them vary even more from county to county than the formal systems. In some counties, services are only provided for children and families who are under court order or being diverted from court-ordered services. Other counties place a strong emphasis on prevention and early intervention and try to serve as many children and families as possible without involving courts and lawyers. Each county government makes the decision on the balance between formal and informal services Child Welfare System

3 Additional sources of informal assistance may, depending on the county, include services offered by a county s human services system (see Overview of County Human Services chapter, pg. 188), and those provided by private non-profit agencies, such as the ARC, United Cerebral Palsy, or the Autism Society of Wisconsin. Court order required to access certain services When resources are scarce, one way that some counties control access is by requiring that certain services be court-ordered. One problem with this approach is that a child and family s situation has to get bad before court intervention can take place. A second problem is that when court orders are made, they are usually directed at children and families, not at agencies. Except in rare situations, the juvenile court only decides whether to permit access to, or mandate participation in, a service made available through the county budget it can t order the county to buy more or different services. Unfortunately, the juvenile court wasn t designed to be a means for controlling access to services. Its basic purpose is to resolve conflicts and to ensure fair treatment when the county intervenes in a family s life or when a child has been accused of a crime. For this reason, using the court to get special services may make the family involved feel like they ve done something wrong, even when they haven t. Provisions for children with special needs A unique aspect of Wisconsin s child welfare and juvenile justice codes are provisions in both statutes specifically directed at providing innovative and comprehensive services for children with special needs and their families. As noted above, having a service mentioned in the law doesn t mean that a county will actually have that service available, but the provisions offer options to advocates and families in Wisconsin that are rarely available in other states. Procedural Steps in the Child Welfare and Juvenile Justice Systems Because the procedural steps in both systems are nearly identical, they will be described together. Any differences between the two systems will be noted. Jurisdiction means the power to act Before a child and family can be involved in the formal aspects of either the child welfare or the juvenile justice system, the system must have jurisdiction to act. To have jurisdiction the facts of the child and family s situation must fit within certain criteria which describe actions, conditions or situations. The biggest differences between Chapters 48 and 938 are in their lists of jurisdictional criteria. Jurisdiction in the Juvenile Justice System Chapter 938 has three basic types of jurisdictional criteria: delinquent conduct, violation of civil ordinances and being a juvenile in need of Child Welfare System - 151

4 WISCONSIN COALITION FOR ADVOCACY protection and services. Chapter 938 also deals with situations in which a child s jurisdiction can be transferred to adult criminal court. Delinquency jurisdiction Sec , Wis. Stats. Civil violations Secs and.17, Wis. Stats. In need of services Sec , Wis. Stats. To be found delinquent, a child must be between the ages of 10 and 16 (i.e., at least 10 and under age 17) and must have violated a state or federal criminal law, with a few exceptions, or have been found in contempt of court. Children who are 17 when they are alleged to have committed a crime are treated as adults regardless of their cognitive development. Civil violations include city, county or state laws that are punished by fines rather than jail. Common examples of civil violations by juveniles include underage drinking citations and some forms of truancy violations. A juvenile between the ages of 10 and 18 can be found to be in need of protection and services (sometimes referred to as JIPS) under several circumstances: If a parent signs a petition to the court stating that the parent is unable to or needs assistance in controlling the child; If a child is habitually truant from school or a school dropout; If the child is a habitual runaway from home, and informal efforts to reconcile the child in the home have failed; If the child is under 10 years of age and is alleged to have violated a criminal law; or, If the child has been charged with violating a criminal law, but has been found incompetent to stand trial or not guilty due to mental disease or defect. Note: Youths 10 and over can also be found to be in need of protection or services under the child welfare jurisdictional standards below, and a child can be under both juvenile justice and child welfare jurisdiction at the same time. A juvenile can be charged in adult criminal court Secs and.183, Wis. Stats. When children are charged with serious criminal offenses, their cases may be brought to the adult justice system. This can happen in two ways. First, a prosecutor may ask the juvenile court to waive its jurisdiction over the child and allow the case to be filed in criminal court. This can be done for certain serious crimes if the child was over 14 at the time the act occurred, and for the violation of any state criminal law if the child was 15 years old at the time the alleged criminal act occurred. Second, for a few heinous crimes, such as murder or attempted murder, or when a child is charged as a repeat offender, the child is automatically charged as an adult. Usually the child must be at least 10 years old for this to happen. There are no Child Welfare System

5 limitations on automatic waiver based on a child s developmental status. When a child has been automatically waived to adult court, there is a procedure for sending the case back to juvenile court, if the presiding judge approves. Waiver to adult court, whether initiated by a prosecuting attorney or occurring automatically, is a complicated procedure beyond the scope of this chapter. Anyone involved with a child at risk of having this happen must work with an attorney who has a thorough knowledge of this area of the law. Child welfare jurisdiction Sec , Wis. Stats. Jurisdiction in the Child Welfare System Chapter 48 has a longer list of criteria. A child can be found to be in need of protection and services, often referred to as CHIPS, if s/he is a child: who is without a parent or guardian; who has been abandoned; who has been the victim of abuse (including self-inflicted injuries); who is at risk of becoming the victim of abuse; whose parent or guardian has signed a petition requesting court jurisdiction because they are unable or need special assistance to care for or provide necessary special treatment or care for the child; who has been placed for care or adoption in violation of the law; who is receiving inadequate care during the time that a parent is missing, incarcerated, hospitalized or institutionalized; who is at least age 12 and has signed a petition requesting court jurisdiction because s/he is in need of special treatment or care which the child s parent or guardian or legal custodian is unwilling, neglecting, unable or needs assistance to provide; whose parent, guardian or legal custodian neglects, refuses or is unable for reasons other than poverty to provide necessary care, food, clothing, medical or dental care so as to seriously endanger the physical health of the child; whose parent, guardian or legal custodian is a substantial risk of neglecting, refusing, or being unable to provide necessary care for the child; who is suffering emotional damage for which the parent, guardian or legal custodian has neglected, refused or been unable to obtain necessary treatment or to take necessary steps to ameliorate the symptoms; Child Welfare System - 153

6 WISCONSIN COALITION FOR ADVOCACY who is suffering from an alcohol or other drug abuse impairment, exhibited to a severe degree, for which the parent, guardian or legal custodian is neglecting, refusing or unable to provide treatment; or who has not been immunized as required under the public health laws, if there has not been an exemption granted. Jurisdiction must be proved for the systems to get involved The four basic steps Some proof of the existence of jurisdiction is required for any of the procedural steps in Chapters 48 and 938 to occur. Until adjudication, those who act must have reasonable grounds to assume that there is jurisdiction. For formal adjudication to occur under Chapter 48, the court must find clear and convincing evidence that grounds for jurisdiction exist. Under Chapter 938, proof of delinquency jurisdiction must be beyond a reasonable doubt. If there is jurisdiction, Chapters 48 and 938 both follow four basic procedural steps: temporary custody, adjudication, disposition and post-dispositional review. The agency responsible for carrying out the provisions of either chapter must follow these steps when it intervenes with a family. A few differences exist between the two chapters in the rules that apply at each stage and each system has some post-dispositional review procedures that don t exist in the other. STEP 1: Temporary Custody Temporary custody is the process used to protect or control children during the remainder of the court process. Thus, the temporary custody process operates parallel to the other court procedures. Usually this is no more than a month or two, but in complex situations, the court process, and a child s stay in a temporary custody arrangement may last for six months or longer. Agencies can bring a family into the formal system without taking custody of their child, but they can t take a child into custody without bringing the family into the system. The main reasons for temporary custody are to protect a child, to keep a child from running away or being taken away, or to keep a child from doing further harm to others or him/herself. Temporary custody usually initiated by police officer or social worker When a police officer or child protection worker intervenes with a child or family they may decide to take the child into temporary custody while the rest of the procedural steps are followed. Chapters 48 and 938 give detailed instructions about when children can be taken into custody, who can do it, where they can be placed while things are being figured out and how the decision to take the child into custody is to be reviewed by the court. The process doesn t have to start with temporary custody. In fact, the statutes favor keeping a child at home pending further action if Child Welfare System

7 Temporary custody not necessary for formal court action to proceed possible. A social worker might interview a child and family and identify some temporary services to help stabilize the situation, pending further court action. If a child isn t taken into custody, the agency can proceed directly to the steps involved in obtaining adjudication. If a child is taken into custody, the court must review the situation to make sure that the right standards were followed, that the child is in an appropriate temporary placement and that the child s immediate needs are being attended to. Grounds for taking custody in the juvenile justice system Secs , Wis. Stats. Grounds for taking custody in the child welfare system Secs , Wis. Stats. Temporary custody of expectant mothers Sec , Wis. Stats. Continuation of temporary custody in the juvenile justice system Sec , Wis. Stats. Temporary custody options The juvenile justice code outlines a variety of situations where a police officer can take a child into custody. The most common are that the officer believes the child has committed an offense or has a court order to pick up the child. It may also be because the child has violated the terms of an earlier court order or is a runaway or truant or is in a dangerous situation. In the child welfare system, the grounds for taking a child into custody are that there is a court order for taking custody, that the child has run away, that the child has violated the terms of a temporary custody order, or that the child is suffering from illness or injury or is in immediate danger from his/her surroundings and removal from those surroundings is necessary. Chapter 48 now also has a provision that allows expectant mothers to be taken into custody to protect their unborn children if there is a substantial risk that the physical health of an unborn child will be seriously affected or endangered due to the mother s habitual lack of self-control in the use of alcohol or drugs. When a child has been picked up by a police officer, unless the officer releases the child immediately to his/her parent or legal custodian, the officer must take the child to an intake worker who is responsible for figuring out where the child will stay while the process continues. The intake worker must apply certain criteria for deciding whether there is a sufficient basis for holding the child (usually risk of harm to others or self, risk of further misconduct, or risk of running away). If the intake worker decides to keep the child in temporary custody, the statute provides for a variety of non-secure (unlocked), as well as secure custody options. Non-secure options can include a foster home or group home, a home of a friend or relative, a hospital, a residential treatment center, a hospital or a shelter care facility. (Shelter care facilities are specially licensed group homes or residential facilities that can provide care usually for up to 30 days.) Juveniles can be kept in locked detention centers and adult jails if certain conditions are met. The statute requires that a judge review the status of the juvenile every 3 days while the child is in an adult jail. In all cases, the intake worker s initial decision to hold a child in temporary custody must be reviewed by a judge or court commissioner within 48 hours. Child Welfare System - 155

8 WISCONSIN COALITION FOR ADVOCACY Continuation of temporary custody in the child welfare system Secs , Wis. Stats. Process the court uses to make sure that it has jurisdiction to act Intake inquiry Secs and 48.24, Wis. Stats. Informal disposition and deferred prosecution Secs and , Wis. Stats. Essentially the same processes must be followed for children taken into custody under Chapter 48 and the same places can be used to hold the child. Under Wisconsin law, children in the child welfare system can even be held in secure detention facilities and county jails. The criteria for using a secure facility or jail are either that the child consents in writing in order to be protected from an imminent physical threat, or that the child has either run from a non-secure placement or has committed a delinquent act, or no other suitable alternative exists. As in the juvenile justice system, a judge must review the status of the child placed in jail every three days. STEP 2: Adjudication The adjudication stage includes the initial intake inquiry, the decision to file a petition starting the court action, and the determination by a judge that there are grounds to take jurisdiction in the case. If everyone agrees to have the court involved, adjudication takes place at a short hearing. If people disagree, there may be a trial to determine whether there are sufficient facts to give the court jurisdiction under the standards in the law. A trial is only necessary if people disagree about whether the child or family should be in the system. If the question is what to do once the child or family is in the formal system, the question should be resolved during the dispositional stage. In both the child welfare and juvenile justice systems, the intake worker has two jobs. If the child has been taken into custody, the first job is to decide whether to continue the child in temporary custody pending a review by the judge. The second job is to decide whether to refer the case for formal action in the court. The intake worker looks at the facts and at the child and family s situation and applies criteria from the statute and from guidelines established by the juvenile court judge. If the intake worker believes the matter should be handled in court, s/he sends the file to a juvenile court prosecutor who then drafts and signs a petition and that starts the court process. The petition has to contain sufficient allegations that if proved, would give the court jurisdiction over the child. The intake worker is also responsible for meeting with the child and his/her parents and telling them about their rights under the law and how the court operates. The intake worker has three options when s/he reviews a case. One is to simply dismiss it. The second is to send it on for formal action in the court. The third is to set up an informal arrangement so that the matter doesn t have to go any further. In the child welfare system, this informal agreement is called informal disposition. In the juvenile justice system, it is called deferred prosecution. Some in-home services may be provided without a court order if they are available. If the child and parents agree to comply with rules of the intake worker, the matter is closed at the end of the period of review and the action is dismissed. On the juvenile justice side an informal Child Welfare System

9 agreement might include doing some community service work, making restitution, going to school, attending a treatment program and abiding with the parent s rules in the home. On the child welfare side, the parents might be expected to participate in a family counseling or parent training program and to take certain steps to assure the intake worker that the child is safe and well cared for. Informal disposition agreements can last for up to 6 months and can be renewed one time for another six months. Deferred prosecution agreements can last for up to one year. If the child or family fail to comply with the requirements in the informal disposition or deferred prosecution, the intake worker can take the matter back to the prosecutor to have a formal action filed in juvenile court. Consent decrees Secs and , Wis. Stats. There is a second option for an informal agreement in both child welfare and juvenile justice proceedings. Even after the matter has gone to court, the child and his/her parents and the district attorney can agree to a consent decree. The difference between an informal disposition or deferred prosecution and a consent decree is that consent decrees are arranged with the judge after a petition has been filed. The consent decree will list the rules that the child and family agree to abide by and any services that will be made available. Consent decrees in the child welfare system can last for 6 months with a 6 month extension. In the juvenile justice system, consent decrees can last for 1 year with no extensions. If the child or family fail to comply with the terms of the consent decree, the judge reopens the case and proceeds with the formal adjudication and disposition process. If the consent decree is successfully completed, the underlying case is dismissed. Consent decrees can sometimes provide an opportunity for families to avoid an out-of-home placement and obtain the in-home services they need. The petition Secs and , Wis. Stats. Plea hearings and trials Secs and.31 and and , Wis. Stats. In both the child welfare and juvenile justice systems, a written document, called a petition, must be filed with the court to start formal proceedings. The petition has to state specifically who is being brought to court, the grounds for jurisdiction, and the facts that give the court jurisdiction. If the matter does proceed formally, there may be several court hearings. The first one will be called a plea hearing. In child welfare proceedings, the parents and the child or the child s legal representative are asked whether they agree with the allegations in the petition. (In the juvenile justice system, the parents only have a right to agree or disagree if the child is alleged to be a juvenile in need of supervision otherwise only the child enters a plea.) If everyone agrees, the judge will enter an order, called an adjudication, stating that the child and family are now under the jurisdiction of the court, and schedule the case for disposition. If there is disagreement, the judge will schedule a trial, called a factfinding hearing. This trial will be the same as a trial in adult criminal Child Welfare System - 157

10 WISCONSIN COALITION FOR ADVOCACY court, except that current law does not give a child in the juvenile justice system the right to a jury trial. Depending on the results of the fact-finding hearing, the judge will either dismiss the case or enter an adjudication. In a complicated case, there are likely to be several hearings between the plea hearing and the fact-finding hearing where lawyers will argue motions and questions of evidence and procedure. Role of the Social Worker Neither the juvenile justice nor the child welfare system could run without social workers. Essentially, everything else in the two systems was created or added on over time to enhance, structure, limit or direct the actions of the men and women whose profession is assisting children and families with complex social and human needs. General powers and duties of social workers in child welfare matters Sec , Wis. Stats. General powers and duties of social workers in juvenile justice matters Sec , Wis. Stats. The role of the social worker in child welfare matters always includes a combination of coercion and compassion. That means they have to intervene to protect children, and then help the parent and child get the services they need to make things better. Both tradition and the law direct social workers to combine assistance and intervention in their interactions with children and families. They have to investigate to see if children are at risk of harm because of their circumstances or the conduct of their caregivers. They have to intervene and take custody of children when the level of risk is so high that they are unsafe in their current surroundings. They have to prove to the court that there was sufficient risk to justify their actions. They have to form a positive relationship with the child and parent in whose lives they have just intervened and help them connect with the services and supports needed to eliminate the risk, repair any harm done, improve the skills of the parent and child to prevent the risk from reoccurring and help the parent and child establish or reestablish connections in the community and with their extended family so that they will have natural sources of support when the social worker leaves. When children must be placed outside the home for their protection, social workers have to find foster homes, license them and place the right children in the right homes. In Wisconsin, social workers also act as probation officers in the juvenile justice system. Unlike most other states, social workers from the county human services department also work with most juvenile offenders. The only exception is that in many counties, when a juvenile has been placed in a correctional facility, a state parole officer is responsible for supervising the juvenile upon release. Social workers acting as probation officers do not have to investigate allegations of crimes. That is the job of law enforcement. But once a youth has been charged and taken into custody, the social worker has to investigate the youth and his/her family s background and prepare a dispositional plan for the court. The worker has to decide what to recommend for punishment and treatment and arrange for the services if the court orders them. Then the social worker has to Child Welfare System

11 monitor the youth s participation to see if s/he is following the orders of the court and making progress in their treatment or supervision program. Some counties are beginning to take over the task of supervising youth returning to the community from a correctional placement. This is called aftercare. Some counties also have separated the social workers in child welfare cases from those in juvenile justice, creating de facto probation departments. This is primarily in larger counties, like Milwaukee. Powers and duties of social workers in court-related services Secs and , Wis. Stats. Dispositional Secs and , Wis. Stats. General services Secs and , Wis. Stats. Advocacy with social workers must recognize their limitations and their strengths Besides their duties in the community, social workers must also provide services to the juvenile court. Intake workers have to screen children taken into temporary custody to see whether the child can be released, or if the child must still be held, where the child s continued placement should be. Intake workers also help decide whether or not a child s case should be handled formally in court, or through an informal agreement. The intake worker is also responsible for making sure that the immediate needs of a child in temporary custody are addressed, such as crisis counseling and health care referrals. Similarly, at the dispositional stage, social workers are responsible for developing a plan of care and delivering needed services personally or arranging for needed services. They also have to prepare reports for the court and, in sweeping language found in both the intake and dispositional sections, basically do anything else the court tells them to do. Under the statutes, the duties of social workers are nearly unlimited. But the statutes don t give social workers the resources to carry out all of their duties, nor do they give social service agencies the resources to hire enough social workers or to ensure that those workers are well trained, supported and supervised. But courts sometimes operate as if there are sufficient resources and social workers to do everything in the statute. As a result, parents and children may be ordered to attend services that don t exist, or have long waiting lists, and social workers are expected to have a service to fix every need. Rather than assuming that the social worker can do everything, it may be more effective to agree on a common goal with the worker and then advocate for a reasonable balance of tasks and responsibilities in addressing the community s resource limitations. The prosecuting attorney Legal Representation Attorneys can fill three roles during a juvenile court proceeding: prosecuting attorneys, defense counsel, and guardians ad litem. The prosecuting attorney is responsible for starting the court action and presenting sufficient evidence to the court to prove the allegations in the petition. Prosecuting attorneys in juvenile justice matters must come from the county district attorney s office. Prosecuting attorneys in child welfare matters can either come from the district attorney s office or the office of the county s corporation counsel. District attorneys are state employees, corporation counsel are county employees, but either way Child Welfare System - 159

12 WISCONSIN COALITION FOR ADVOCACY when they act as prosecuting attorneys they are required to represent the interests of the state. This means they can t represent parents or children. Defense counsel Juveniles charged through a petition in the juvenile justice system have a right to legal representation by a defense lawyer. The defense counsel is charged with representing the position and preferences of the child. This means the lawyer must affirmatively and aggressively advocate for the choices the juvenile makes, although the lawyer is also responsible for carefully informing the juvenile of the risks, options and ramifications of those choices. When juveniles with emotional and cognitive disabilities are charged in the juvenile justice system, the defense counsel role can be especially difficult. The degree to which the youth understands the nature of the proceeding and can make informed decisions about the choices that are presented varies dramatically. Only in the most serious situations will the court find that a child is not competent to stand trial or enter a plea in a court action. The rest of the time the defense counsel has to do whatever s/he can to ensure the juvenile s effective participation. When courts are unsure of the ability of a juvenile to participate, they will sometimes appoint a guardian ad litem (described below) to investigate the situation and report back with a recommendation. Sometimes the guardian ad litem will ask the court to order a psychological evaluation of the juvenile s competency. Defense counsel also represents children over the age of 12 who are named in petitions in the child welfare system. Those under 12 in the child welfare system are represented by guardians ad litem. Most juveniles are represented by public defenders. Public defenders can be attorneys who work for the state s Public Defender s Office or private attorneys appointed by the office who are reimbursed by the state for their time. Attorneys employed by the Public Defender s Office are required to maintain high case loads to stay within budgetary limitations. Appointed attorneys are reimbursed at a low rate and the hours that they can apply to a case are limited. This means that when youth with complex needs are in the juvenile justice or child welfare system, the defense attorney may not be able to participate actively in much of the investigation, negotiation and planning related to that child and family. Some public defender s offices do employ investigative social workers who may be able to participate more actively in certain cases. Parents need to find own attorney Wisconsin s Child Welfare Code contains a provision stating that parents are not allowed to be represented by defense counsel. This was quickly ruled unconstitutional, but remains in the statute. However, the legislature did continue to prevent public defenders from representing parents. This means that either parents have to find and pay for their own lawyers or that the juvenile court judge has to Child Welfare System

13 appoint an attorney for them and pay for the attorney out of county funds. Each county judicial district is different in the standards they apply in deciding whether to appoint counsel for indigent parents in child welfare actions. Guardians ad litem Secs and , Wis. Stats. Courts can appoint a GAL for children or adults with special needs The court is required to appoint an attorney called a guardian ad litem for any child under the age of 12 in a child welfare action when there is a possibility that the child might be placed outside the home. This attorney is called a guardian ad litem (GAL), but does not act as a guardian. The difference between a GAL and a defense counsel is that while a GAL must learn about the position and preferences of a child, s/he is not obligated to act on the child s choices. Instead, the GAL must investigate all of the aspects of the case and take a position in the matter that the GAL finds to be most aligned with the best interests of the child. The GAL has all the rights of any other attorney in the case to admit or deny allegations in the petition, to advance or refute motions, to call witnesses and make objections to evidence at trial, to file appeals and even to file additional petitions on behalf of the child, such as petitions for guardianship, termination of parental rights and adoption. Youth who come into the juvenile justice system under petitions alleging them to be juveniles in need of protection or services are also entitled to GALs if there is a possibility that they will be placed outside their homes. Courts can also appoint GALs to represent the interests of parents in child welfare actions when the parents have mental or cognitive impairments. Some individuals may have both a defense attorney representing their choices and a GAL reporting to the court on what the attorney finds to be in the individual s best interests. GALs can be critical advocates when a child with special needs comes into the child welfare or juvenile justice system. However, to do so they must have adequate information about the nature and impact of the child s condition. GALs have the power to request additional evaluations and can hire trained assistants to help in gathering and assessing information about the person they represent. Advocates will find that courts tend to give a great deal of weight to the positions taken by GALs. Court decides what to do to help a child and family STEP 3: Dispositional Stage Once the court has taken jurisdiction, it must decide what to do. This is the dispositional stage. It begins with any evaluations or assessments that are required. Then the social worker responsible for supervising the case must prepare a report and recommendation to the judge. As was the case for adjudication, if people agree with the social worker s recommendation, the dispositional plan is approved at a short hearing. If people disagree, a longer hearing where each side presents its point of view may be necessary. (This is called a contested dispositional hearing.) The final decision by the judge is contained in a written document Child Welfare System - 161

14 WISCONSIN COALITION FOR ADVOCACY called a dispositional order. The key elements of the dispositional phase of a juvenile court proceeding are any evaluations ordered by the court, the dispositional report presented by the social worker and the dispositional order entered by the judge. Evaluations Secs and , Wis. Stats. The dispositional report Secs and , Wis. Stats. Even before a final adjudication, the judge has the power to order a variety of evaluations, including physical, mental, developmental and drug and alcohol assessments. This is the opportunity for the court to learn from an impartial examiner more about the underlying needs of the child and family. In the case of a child with a developmental disability, this would be how the judge would learn about the limits of the child s understanding of right and wrong, driving forces behind the behavior, and special treatment needs that the child might present. Usually the results of the evaluation are submitted to the court in written reports. The judge must decide whether parents can have direct access to these reports, but counsel for parents must be given copies of any reports sent to the court. The social worker assigned to the child and family must research the family s situation and submit a report containing: a social history of the child, a recommended plan of rehabilitation or treatment, a description of the specific services to be offered, the objectives of the plan, the educational components of the plan, and any conditions that will apply to the child s parent or guardian. If the recommendation is for placement outside the home, including placement in a correctional facility, the report has to document that the criteria for those placements have been met. The dispositional report is presented to the court and the child and family at the dispositional hearing. If the child and family objects to the proposed dispositional plan, they have the right to present alternatives to the court and to question any witnesses, including the social worker regarding the reasons for the proposed plan. The dispositional order Sec , Wis. Stats. Conditions for return The judge s final decision about what should happen to the child and family and what services should be provided is contained in a written court order. If services are ordered, they will have to be mentioned in the order. If a child is placed outside of the home, the order will say what has to be done for the child to be able to come home again. There are two basic elements of what must be done: actions and services required of the agency responsible for services to the child and family, and actions and changes required of the child s parents. Actions and changes required of the parents are called the conditions for return. Parents must be told exactly what these conditions for return are and must be warned that their failure to meet these conditions could form the basis for an action to terminate their parental rights. (See pg. 172.) When the reasons for a child being placed outside the home primarily relate to the child s complex needs, these conditions for return may have little to do with changes the family has to Child Welfare System

15 make, but instead the nature of supports and services that would have to be put in place to help the family meet the child s needs. Nonetheless, the court will still be required to give the conditions for return warning to the parents. The written dispositional order must also document the services the agency is required to provide, the conditions for return and the warning to the parents. Dispositions in child welfare and juvenile justice matters Secs and , Wis. Stats. Dispositional options found in both Chapters 48 and 938 Dispositional Options Wisconsin s Child Welfare and Juvenile Justice Codes contain a variety of dispositional options. Not all of the options listed will be available in any given county. Some of the options are rare anywhere in the state. In most cases, the legislature creates the option; the county decides whether or not to put it in place. Occasionally, assertive judges may use their authority to push the county to make a given option available when it shows a clear possibility of helping a child or family and no other reliable alternative exists. Only one option, special treatment or care, includes a specific provision that gives the court the power to order the county to pay for a specific service. The child welfare and juvenile justice codes have several dispositional entries in common: counsel the child or parents; place the child under the supervision of an agency or a suitable adult, which may include a friend of the child, under conditions set by the judge to ensure that the child is well taken care of and behaves appropriately; place the child in his/her own home while ordering an agency or the department to provide specified services to the child and family that may include but are not limited to: individual, family or group counseling; homemaker or parent aide services; respite care; housing assistance; day care; parent skills training or prenatal development training or education; place the child outside the parental home in: the home of a relative, the home of a non-related person who need not be licensed as a foster parent if the placement is for less than 30 days, a foster home, group home or treatment foster home, or a residential treatment center; transfer legal custody of the child to a relative, county agency, the state or a licensed child welfare agency if it is shown that the care and treatment of the child cannot be accomplished by means of the voluntary consent of the parent or guardian of the child; Child Welfare System - 163

16 WISCONSIN COALITION FOR ADVOCACY Wisconsin distinguishes between legal and physical custody of children. Legal custody means the authority to make parental decisions on behalf of a child, such as approving school placements and consenting to medical care. Physical custody is the authority to keep a child in your home and provide ordinary discipline and care. This way most parents are able to retain decision-making authority even when their child is placed outside the home. Dispositional options for children with special needs Secs (6) and (6m) and (6) and (6m), Wis. Stats. order the parent, or if a parent is financially unable to do so, an appropriate agency to provide necessary special treatment or care for the child. Special treatment or care is defined as professional services which need to be provided to a child or his/her family to protect the well-being of the child, prevent placement of the child outside the home, or meet the special needs of the child. The statute goes on to state that the term includes, but is not limited to: medical, psychological or psychiatric treatment, alcohol or other drug abuse treatment or other services which the court finds to be necessary and appropriate ; order the child to attend any of a variety of alternative educational programs; and order the child to enter an outpatient clinic for drug and alcohol treatment. Payment for costs of court ordered special treatment and care Secs and , Wis. Stats. Special treatment or care provisions give parents and advocates unique opportunities The child welfare and juvenile codes have special provisions relating to payment of the costs for dispositional options under the special treatment or care sections noted above. Section of Wisconsin Statutes, and its identical counterpart in Chapter 938, give the court two important powers not generally available when entering dispositional orders. First, if the court orders the treatment, the parent consents to have their insurance pay for it and the insurance company or HMO refuses to pay for it, the statute gives the court the power to order the company to comply within the terms of its insurance contract. Second, if the court finds that the parent is unable to pay for the treatment, the statute gives the court the power to order the county to pay for it. Wisconsin s Child Welfare and Juvenile Justice Codes provide useful tools for developing individualized services for children and families with special needs. However, to use these opportunities advocates and parents may need to learn to be creative in order to overcome a hidden paradox in this provision. The court can t order a special service if it doesn t exist, but if it doesn t exist, the court may not know that the service should be ordered. Sometimes what s needed goes beyond the ordinary categories of services. Then the issue is not the lack of a standard service like foster care or day treatment, but the Child Welfare System

17 need for a unique option that may never have been used before. That s when the disposition of special treatment or care can be most useful. For the court to be able to order unique services, someone has to be able to provide them. This is where the creativity part comes in. If a child or family has complex needs, the advocate should look for a provider who is willing to develop a flexible, non-standard response specifically designed to address those unique needs. For example, if a child with a cognitive disability and limited ability to use words to converse has been sexually abused, a standard treatment program may be of limited benefit. An alternative response might be to bring together a team of people whose combined experience will help them adapt material and strategies from both the developmental disabilities and trauma therapy fields to fashion a creative treatment and support plan for the child. Sec provides opportunity for comprehensive and integrated support Another Wisconsin statute, often referred to as the Children Come First statute, gives counties the power to create integrated systems of care (sometimes called Integrated Services ) for families with children who have complex and enduring needs. Many counties in Wisconsin have implemented the provisions of the statute. (See Integrated Services for Youth with Mental Health Needs chapter, pg. 146.) Under Children Come First, a county designates a care coordinating agency that is responsible for developing and implementing a plan of care that integrates services from a variety of sources, including special education, mental health, child welfare, juvenile justice, developmental disabilities and other county agencies. This plan is called an integrated services plan. A child does not have to be under the jurisdiction of the juvenile court for his/ her family to have an integrated services plan. However, if the child is in court, the child welfare and juvenile justice codes allow that plan to be incorporated as part of the court s dispositional order. (See pg. 162.) Dispositions Only Available Under the Juvenile Justice Code The dispositions listed above are available under both the Child Welfare and Juvenile Justice Codes. Chapter 938 has several pages of options that aren t in Chapter 48. Most of these are related to punishment for specific offenses and are beyond the scope of this chapter. Some are common and may involve children with special needs. Those used more frequently are listed below. Intensive supervision Sec (2r), Wis. Stats. Sec , Wis. Stats. Counties have the option of developing intensive supervision programs that can be used instead of secure placements. For youth with special needs who often do poorly in conventional juvenile correctional facilities and who may need access to ongoing treatment that may not be available in placement facilities, intensive supervision provides a good alternative that protects the community while helping the child to develop needed social competencies. Intensive supervision involves regular monitoring of a child at a rate far higher than what is usually experienced in ordinary probation supervision. It also allows the super- Child Welfare System - 165

18 WISCONSIN COALITION FOR ADVOCACY visory staff to use short-term detention as a backup to enforce the rules of supervision. Electronic monitoring can be used in connection with intensive supervision, but it can also be a separate disposition. Type 2 Child Caring Facilities Sec (4d), Wis. Stats. When Wisconsin lowered the ages for which children can be found to be delinquent, children as young as 10 could be sent to correctional facilities. In addition, many of the youth being sent to corrections had a variety of emotional and developmental disabilities. Consequently, the legislature created the possibility of using Type 2 Child Caring Facilities. In essence, these are residential treatment centers for youth with special needs who are in the juvenile justice system. The statute does not contain a specific age limitation on who can be placed in these facilities. The criteria are that the child has been found to be delinquent for the violation of a law that carries a six month or greater sentence if committed by an adult, that the child is a danger to the public and in need of restrictive custodial placement, but that placement in a secure correctional facility or the serious juvenile offender program would not be appropriate. The statute creates the possibility of establishing several tiers of correctional placement options: Type1 and 2 correctional facilities, Type 2 Child Caring Facilities, secure child caring institutions and boot camps. Not all of these options have been put into operation, but depending on politics and budgets, they may be established in the future. The challenge for advocates, as always, will be to separate the promotional materials from the reality of the program. This can best be done by visiting the facilities and looking at the strategies and services used to respond when youth have complex needs. Serious Juvenile Offender program Secs (4h) and , Wis. Stats. Day treatment Sec (7w), Wis. Stats Child Welfare System For youth who have been found to have committed serious criminal offenses, a program for serious juvenile offenders has been created. The statute proposes a multi-component program that can include intensive, community-based treatment, including mental health services. Youth can also be placed in various types of secure facilities under this program. The difference between Type 2 facility placement and the serious juvenile offender (SJO) program is that with the SJO program a variety of components are included, and that more serious offenses are required for enrollment. However, as one component, the statutes would permit a youth in the SJO program to be placed in a Type 2 facility. Different sorts of SJO programs exist in each county, and not all counties have such programs. If the dispositional report indicates that the child has what the statute describes as specialized educational needs, the court can order the child to participate in a day treatment program. Specialized educational needs is not defined or differentiated from special education needs. Day treatment programs must be licensed by the state and are required to include both an educational and a therapeutic component.

19 Other dispositions: restitution, supervised work, community service and forfeitures Victim-offender conferencing Juvenile Justice Code is based on balanced and restorative justice approach Sec (2), Wis. Stats. Most juvenile court dispositions do not involve serious offenses. Many are for relatively minor property crimes. The dispositions of restitution, community service, supervised work and forfeitures are frequently included for offenses. Restitution may involve paying the victim directly or through the court or a victim compensation program. Supervised work usually is coordinated by community agencies. They arrange for jobs with private employers or sometimes bring in contract work. Youth get paid for their work and some goes to the victim for restitution and some the youth gets to keep. Community service is generally volunteer work, such as a youth corps camp, but may involve a stipend. Forfeiture means payment of a fine. Youth with disabilities may have difficulty with these options because most programs have few accommodations for children with special needs. However, to the degree advocates or other support persons can assist a youth in carrying out restorative activities like restitution or community service, both the youth and the community benefit. Note: With the passage of crime-victim legislation, district attorneys must send notice to victims and discuss the case with them. Most dispositions now include victim-offender conferences. When advocates for youth with special needs become involved with juvenile delinquency proceedings they sometimes have difficulty persuading the court and the prosecuting attorney of the merit of their recommendations. Understanding the basic elements of the balanced approach to restorative justice (BARJ) can help in making proposals that are more effective. Those elements are echoed in the statement of legislative intent in Chapter 938: It is the intent of the legislature to promote a juvenile justice system capable of dealing with the problem of juvenile delinquency, a system which will protect the community, impose accountability for violations of the law and equip juveniles with competencies to live responsibly and productively. BARJ recognizes that effective juvenile justice plans have to balance three elements: safety, accountability and competency development. Advocates may sometimes be perceived as pursuing treatment and ignoring safety and accountability. Winning proposals immediately confront those two issues before showing how treatment will increase the youth s basic competencies or ameliorate the driving forces behind the misbehavior. It is usually less effective to argue simply that a youth should not be held accountable because of his/her special needs. As an extreme example, imagine an advocate arguing that a juvenile should not be held accountable for robbing a convenience store because the youth had ADHD (attention deficit hyperactivity disorder). The judge s response will likely be to ask the advocate if that means that every kid with ADHD is entitled to a get out of jail free card. A better response is to show how the treatment plan will allow the youth to make reparation for the crime, provide supervision and services to ensure that no additional criminal acts will occur, and treatment to improve the youth s ability to control inappropriate impulses. Child Welfare System - 167

20 WISCONSIN COALITION FOR ADVOCACY In the last five years, more and more youth with special needs have been placed in facilities in the juvenile justice system. Many advocates argue that this is the result of inadequate services in the child welfare and other human service systems. In many counties, the juvenile justice system has become the primary conduit for services for youth with complex needs. A large majority of the youth in juvenile corrections would qualify for special educational services based on cognitive, learning or emotional disabilities. Many suffer from mental disorders and have co-occurring problems with drugs and alcohol. A surprising number also have physical health problems. Yet options for meeting these needs remain limited and the negative impact of punitive interventions may be exacerbated because of the youths vulnerabilities. For advocates to make changes in this situation, they will have to find ways of reducing the perceived level of threat to safety that these youth generate in the community while demonstrating that their proposed services can reliably produce positive outcomes. STEP 4: Post-dispositional Reviews After the judge enters the initial dispositional order, Chapters 48 and 938 provide for a variety of review hearings so that the court can keep track of the case. There are four basic kinds of post-dispositional hearings: permanency plan reviews, change of placement reviews, dispositional reviews and extension hearings. In juvenile justice cases, a fifth kind of hearing, called a sanctions hearing can be held to see if a child should be punished for violating the terms of his/her court order. Permanency plan reviews Secs and , Wis. Stats. Permanency Planning Reviews Both the child welfare and the juvenile justice systems are required to do everything possible to ensure that children placed outside their homes do not remain in temporary situations like foster care for long periods of time. This effort must be documented in a permanency plan that describes the agency s goal for the child s permanent placement and the steps the agency will take to reach that goal. Every six months the statutes require a hearing to review the progress being made toward the goal. This hearing can occur with a judge in court or in front of an administrative review panel. The administrative review panel consists of three people approved by the court, at least two of whom do not work for the agency responsible for implementing the dispositional plan. At the hearing, the judge or the administrative review panel must examine: the continuing necessity for placing the child outside the home; the extent of compliance with the permanency plan by the agency, other service providers, the child and the child s parents; Child Welfare System