WI Stat § 938.357 (2021)
2021 Wisconsin Statutes & Annotations|Chapter 938 - Juvenile justice code.|938.357 - Change in placement; juvenile subject to dispositional order.

938.357  Change in placement; juvenile subject to dispositional order. (1) Request by person or agency responsible for order or prosecutor.  (a)  Applicable procedures. The person or agency primarily responsible for implementing the dispositional order, the district attorney, or the corporation counsel may request a change in the placement of the juvenile who is the subject of the dispositional order, whether or not the change requested is authorized in the dispositional order, as provided in par. (am) or (c), whichever is applicable.(am)  Changes in placement generally. 1. Except as provided in par. (c), the person or agency primarily responsible for implementing the dispositional order, the district attorney, or the corporation counsel may request a change in placement under this subsection by causing written notice of the proposed change in placement to be sent to the juvenile, the juvenile's counsel or guardian ad litem, the parent, guardian, and legal custodian of the juvenile, and any foster parent or other physical custodian described in s. 48.62 (2) of the juvenile. If the request is for a change in placement under sub. (3), notice shall be sent to the entity that operates the secured residential care center for children and youth or Type 1 juvenile correctional facility where placement is proposed. If the juvenile is an Indian juvenile who has been removed from the home of his or her parent or Indian custodian under s. 938.13 (4), (6), (6m), or (7), written notice shall also be sent to the Indian juvenile's Indian custodian and tribe. The notice shall contain the name and address of the new placement, the reasons for the change in placement, whether the new placement is certified under s. 48.675, a statement describing why the new placement is preferable to the present placement, and a statement of how the new placement satisfies objectives of the treatment plan or permanency plan ordered by the court. The person sending the notice shall file the notice with the court on the same day that the notice is sent.1g. If the juvenile is an Indian juvenile who has been removed from the home of his or her parent or Indian custodian under s. 938.13 (4), (6), (6m), or (7), and if the proposed change in placement would change the Indian juvenile's placement from a placement outside that home to another placement outside that home, a notice under subd. 1. shall also contain a statement as to whether the new placement is in compliance with the order of placement preference under s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b) and, if the new placement is not in compliance with that order, specific information showing good cause, as described in s. 938.028 (6) (d), for departing from that order.1m. If the proposed change in placement would place the juvenile in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675, the qualified individual shall conduct a standardized assessment and the person or agency primarily responsible for implementing the dispositional order shall submit it and the recommendation of the qualified individual who conducted the standardized assessment, including all of the following, to the court and all persons who are required to receive the notice under subd. 1. no later than the filing of that notice or, if not available by that time, and except as provided under subd. 1r., no later than 10 days after the notice is filed: a. Whether the proposed placement will provide the juvenile with the most effective and appropriate level of care in the least restrictive environment. b. How the placement is consistent with the short-term and long-term goals for the juvenile, as specified in the permanency plan. c. The reasons why the juvenile's needs can or cannot be met by the juvenile's family or in a foster home. A shortage or lack of foster homes is not an acceptable reason for determining that the juvenile's needs cannot be met in a foster home. d. The placement preference of the family permanency team under s. 938.38 (3m) and, if that preference is not the placement recommended by the qualified individual, why that recommended placement is not preferred. 1r. If, for good cause shown, the information required to be submitted under subd. 1m. is not available by the deadline under that subdivision, the person or agency primarily responsible for implementing the dispositional order shall submit it no later than 30 days after the date on which the placement is made.2. Except as provided in subd. 2r., any person receiving the notice under subd. 1. or notice of a specific placement under s. 938.355 (2) (b) 2. may obtain a hearing on the matter by filing an objection with the court within 10 days after the notice is sent to that person and filed with the court. Except as provided in subds. 2m. and 2r., if an objection is filed within 10 days after that notice is sent and filed with the court, the court shall hold a hearing prior to ordering any change in placement. At least 3 days before the hearing, the court shall provide notice of the hearing to all persons who are required to receive notice under subd. 1. or s. 938.355 (2) (b) 2. If all parties consent, the court may proceed immediately with the hearing. Except as provided in subds. 2m. and 2r., if no objection is filed within 10 days after that notice is sent and filed with the court, the court shall enter an order changing the juvenile's placement as proposed in that notice. Except as provided in subds. 2m. and 2r., placements may not be changed until 10 days after that notice is sent and filed with the court unless the parent, guardian, legal custodian, or Indian custodian, the juvenile, if 12 or more years of age, and the juvenile's tribe, if the juvenile is an Indian juvenile who has been removed from the home of his or her parent or Indian custodian under s. 938.13 (4), (6), (6m), or (7), sign written waivers of objection.2m. Changes in placement that were authorized in the dispositional order may be made immediately if notice is given as required under subd. 1. A hearing is not required for changes in placement authorized in the dispositional order except when an objection filed by a person who received notice alleges that new information is available that affects the advisability of the dispositional order.2r. If the proposed change in placement involves a juvenile who is subject to a dispositional order that terminates as provided in sub. (6) (a) 4. or s. 938.355 (4) (am) 4. or 938.365 (5) (b) 4., the person or agency primarily responsible for implementing the dispositional order or the district attorney may request a change in placement under this paragraph only if the juvenile or the juvenile's guardian on behalf of the juvenile consents to the change in placement. That person or agency or the district attorney shall cause written notice of the proposed change in placement to be sent to the juvenile, the guardian of the juvenile, and any foster parent or other physical custodian described in s. 48.62 (2) of the juvenile. No hearing is required for a change in placement described in this subdivision, and the juvenile's placement may be changed at any time after notice of the proposed change in placement is sent to the court.3. If the court changes the juvenile's placement from a placement outside the home to another placement outside the home, the change-in-placement order shall contain the applicable order under sub. (2v) (a) 1m., the applicable statement under sub. (2v) (a) 2., and the finding under sub. (2v) (a) 2m. If the court changes the placement of an Indian juvenile who has been removed from the home of his or her parent or Indian custodian under s. 938.13 (4), (6), (6m), or (7) from a placement outside that home to another placement outside that home, the change-in-placement order shall, in addition, comply with the order of placement preference under s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b), unless the court finds good cause, as described in s. 938.028 (6) (d), for departing from that order.(c)  In-home to out-of-home placement. 1. If the proposed change in placement would change the placement of a juvenile placed in the home to a placement outside the home, the person or agency primarily responsible for implementing the dispositional order, the district attorney, or the corporation counsel shall submit a request for the change in placement to the court. The request shall contain the name and address of the new placement, the reasons for the change in placement, a statement describing why the new placement is preferable to the present placement, and a statement of how the new placement satisfies the objectives of the treatment plan or permanency plan ordered by the court. The request shall also contain specific information showing that continued placement of the juvenile in his or her home would be contrary to the welfare of the juvenile and, unless any of the circumstances under s. 938.355 (2d) (b) 1. to 4. applies, specific information showing that the agency primarily responsible for implementing the dispositional order has made reasonable efforts to prevent the removal of the juvenile from the home, while assuring that the juvenile's health and safety are the paramount concerns.1m. If the juvenile is an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7), and if the proposed change in placement would change the placement of the juvenile from a placement in the home of his or her parent or Indian custodian to a placement outside that home, a request under subd. 1. shall also contain specific information showing that continued custody of the Indian juvenile by the parent or Indian custodian is likely to result in serious emotional or physical damage to the juvenile under s. 938.028 (4) (d) 1., specific information showing that active efforts under s. 938.028 (4) (d) 2. have been made to prevent the breakup of the Indian juvenile's family and that those efforts have proved unsuccessful, a statement as to whether the new placement is in compliance with the order of placement preference under s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b) and, if the new placement is not in compliance with that order, specific information showing good cause, as described in s. 938.028 (6) (d), for departing from that order.1r. If the proposed change in placement would place the juvenile in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675, the qualified individual shall conduct a standardized assessment and the person or agency primarily responsible for implementing the dispositional order shall submit it and the recommendation of the qualified individual who conducted the standardized assessment, including the information specified in sub. (1) (am) 1m., to the court and to the party that requested the change in placement under subd. 1. no later than the filing of that request or, if not available by that time, no later than 30 days after the date on which the placement was made.2. The court shall hold a hearing prior to ordering a change in placement requested under subd. 1. At least 3 days before the hearing, the court shall provide notice of the hearing, together with a copy of the request for the change in placement, to the juvenile, the juvenile's counsel or guardian ad litem, the parent, guardian, and legal custodian of the juvenile, the person or agency primarily responsible for implementing the dispositional order, the district attorney or corporation counsel, any foster parent or other physical custodian described in s. 48.62 (2), and, if the juvenile is an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7), the Indian juvenile's Indian custodian and tribe. Subject to subd. 2r., if all parties consent, the court may proceed immediately with the hearing. 2m. If the court changes the juvenile's placement from a placement in the juvenile's home to a placement outside the juvenile's home, the parent, if present at the hearing, shall be requested to provide the names and other identifying information of 3 relatives of the juvenile or other individuals 18 years of age or over whose homes the parent requests the court to consider as placements for the juvenile, unless that information has previously been provided under this subdivision, sub. (2m) (bm), or s. 938.21 (2) (e) or (3) (f) or 938.335 (6). If the parent does not provide that information at the hearing, the county department or the agency primarily responsible for implementing the dispositional order shall permit the parent to provide the information at a later date. 2r. In a proceeding involving an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7), if the proposed change in placement would change the placement of the juvenile from a placement in the home of his or her parent or Indian custodian to a placement outside that home notice under subd. 2. to the Indian juvenile's parent, Indian custodian, and tribe shall be provided in the manner specified in s. 938.028 (4) (a). No hearing on the request may be held until at least 10 days after receipt of the notice by the Indian juvenile's parent, Indian custodian, and tribe or, if the identity or location of the Indian juvenile's parent, Indian custodian, or tribe cannot be determined, until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the Indian juvenile's parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for the hearing.3. If the court changes the juvenile's placement from a placement in the juvenile's home to a placement outside the juvenile's home, the change-in-placement order shall contain the findings under sub. (2v) (a) 1., the applicable order under sub. (2v) (a) 1m., the applicable statement under sub. (2v) (a) 2., the finding under sub. (2v) (a) 2m., and, if in addition the court finds that any of the circumstances under s. 938.355 (2d) (b) 1. to 4. applies with respect to a parent, the determination under sub. (2v) (a) 3. If the court changes the placement of an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7) from a placement in the home of his or her parent or Indian custodian to a placement outside that home, the change-in-placement order shall contain the findings under sub. (2v) (a) 4. and comply with the order of placement preference under s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b), unless the court finds good cause, as described in s. 938.028 (6) (d), for departing from that order. (2)  Emergency change in placement.  (a)  Emergency changes in placement generally.  1. Except as provided in par. (b), if emergency conditions necessitate an immediate change in the placement of a juvenile, the person or agency primarily responsible for implementing the dispositional order may remove the juvenile to a new placement, whether or not authorized by the existing dispositional order, without the prior notice under sub. (1) (am) 1. or the consent required under sub. (1) (am) 2r. Notice of the emergency change in placement shall be sent to the persons specified in sub. (1) (am) 1. within 48 hours after the emergency change in placement. Any party receiving notice may demand a hearing under sub. (1) (am) 2.2. If the emergency change in placement under subd. 1. results in a juvenile being placed in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675, the qualified individual shall conduct a standardized assessment and the person or agency primarily responsible for implementing the dispositional order shall submit it and the recommendation of the qualified individual who conducted the standardized assessment, including the information specified under sub. (1) (am) 1m., with the notice under subd. 1. or, if not available at that time, and except as provided under subd. 3., no later than 10 days after the filing of that notice. 3. If, for good cause shown, the information required to be submitted under subd. 2. is not available by the deadline under that subdivision, the person or agency primarily responsible for implementing the dispositional order shall submit it no later than 30 days after the date on which the placement was made.  4. If the emergency change in placement under subd. 1. results in a juvenile being placed in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675, the court shall, no later than 60 days after the placement is made, issue an order making the findings under sub. (2v) (a) 5., the answers to which do not affect whether the placement may be made, after considering the standardized assessment and the recommendation of the qualified individual who conducted the standardized assessment. (b)  Emergency in-home to out-of-home placements.  1. If emergency conditions necessitate an immediate change in placement of a juvenile placed in the home to a placement outside the home, the person or agency primarily responsible for implementing the dispositional order may remove the juvenile to a new placement, whether or not authorized by the existing dispositional order, without first requesting a change in placement under sub. (1) (c) 1.2. Except as provided in subd. 3., a hearing on an emergency change in placement under subd. 1. shall be held within 48 hours after the emergency change in placement is made, excluding Saturdays, Sundays, and legal holidays. When a juvenile is removed to a new placement under subd. 1., the person or agency that removed the juvenile shall immediately notify the court by the most practical means. As soon as possible after receiving that notice, the court shall schedule the hearing and the person or agency that removed the juvenile, by the most practical means, shall provide notice of the hearing to the juvenile, the juvenile's counsel or guardian ad litem, the parent, guardian, and legal custodian of the juvenile, the person or agency primarily responsible for implementing the dispositional order, the district attorney or corporation counsel, any foster parent or other physical custodian described in s. 48.62 (2), and, if the juvenile is an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7), the Indian juvenile's Indian custodian and tribe.3. By the time of the hearing under subd. 2., a request for a change in placement under sub. (1) (c) 1. shall be filed with the court. The court shall hold a hearing on the request as provided in sub. (1) (c) 2., except that, subject to sub. (1) (c) 2r., if all parties consent, the court may proceed immediately with the hearing under sub. (1) (c) 2. in lieu of the hearing under subd. 2.4. If the court orders an emergency change in placement under subd. 2., the change-in-placement order shall contain the findings under sub. (2v) (a) 1., the applicable order under sub. (2v) (a) 1m., the applicable statement under sub. (2v) (a) 2., the finding under sub. (2v) (a) 2m. and, if in addition the court finds that any of the circumstances under s. 938.355 (2d) (b) 1. to 4. applies with respect to a parent, the determination under sub. (2v) (a) 3.5. If the emergency change in placement under this paragraph results in a juvenile being placed in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675, the qualified individual shall conduct a standardized assessment and the person or agency primarily responsible for implementing the dispositional order shall submit it and the recommendation of the qualified individual who conducted the standardized assessment, including the information specified in sub. (1) (am) 1m., to the court and all persons who are required to receive the notice under subd. 2. that requested the change in placement no later than the filing of that request or, if not available by that time, no later than 30 days after the date on which the placement was made. 6. If the emergency change in placement this paragraph results in a juvenile being placed in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675, the court shall, no later than 60 days after the placement is made, issue an order making the findings under sub. (2v) (a) 5., the answers to which do not affect whether the placement may be made, after considering the standardized assessment and the recommendation of the qualified individual who conducted the standardized assessment.(c)  Placements permitted in emergency. In emergency situations, a juvenile may be placed in a licensed public or private shelter care facility as a transitional placement for not more than 20 days or in any placement authorized under s. 938.34 (3). (2m)  Requests by others. (a)  Request; information required. 1. Except as provided in par. (bv), the juvenile, the juvenile's counsel or guardian ad litem, the parent, guardian, or legal custodian of the juvenile, or, if the juvenile is an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7), the Indian juvenile's Indian custodian may request a change in the placement of the juvenile as provided in this subsection. The request shall contain the name and address of the new placement requested and shall state what new information is available that affects the advisability of the current placement. If the proposed change in placement would change the placement of a juvenile placed in the juvenile's home to a placement outside the home, the request shall also contain specific information showing that continued placement of the juvenile in the juvenile's home would be contrary to the welfare of the juvenile and, unless any of the circumstances under s. 938.355 (2d) (b) 1. to 4. applies, specific information showing that the agency primarily responsible for implementing the dispositional order has made reasonable efforts to prevent the removal of the juvenile from the home, while assuring that the juvenile's health and safety are the paramount concerns. The request shall be submitted to the court. The court may also propose a change in placement on its own motion.2. If the change in placement results in the juvenile being placed in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675, the qualified individual shall conduct a standardized assessment and the person or agency primarily responsible for implementing the dispositional order shall submit it and the recommendation of the qualified individual who conducted the standardized assessment, including the information under sub. (1) (am) 1m., to the court and to the party that requested the change in placement under subd. 1. no later than the filing of that request or, if not available by that time, no later than 30 days after the date on which the placement was made.(am)  Indian juvenile; additional information required.  1. If the proposed change of placement would change the placement of an Indian juvenile placed in the home of his or her parent or Indian custodian under s. 938.13 (4), (6), (6m), or (7) to a placement outside that home, a request under par. (a) shall also contain specific information showing that continued custody of the Indian juvenile by the parent or Indian custodian is likely to result in serious emotional or physical damage to the juvenile under s. 938.028 (4) (d) 1., specific information showing that active efforts under s. 938.028 (4) (d) 2. have been made to prevent the breakup of the Indian juvenile's family and that those efforts have proved unsuccessful, a statement as to whether the new placement is in compliance with the order of placement preference under s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b) and, if the new placement is not in compliance with that order, specific information showing good cause, as described in s. 938.028 (6) (d), for departing from that order.2. If the proposed change in placement would change the placement of an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7) from a placement outside the home of his or her parent or Indian custodian to another placement outside that home, a request under par. (a) shall also contain a statement as to whether the new placement is in compliance with the order of placement preference under s. 938.028 (6) (a) or if applicable, s. 938.028 (6) (b) and, if the new placement is not in compliance with that order, specific information showing good cause, as described in s. 938.028 (6) (d), for departing from that order.(b)  Hearing; when required. 1. The court shall hold a hearing prior to ordering any change in placement requested or proposed under par. (a) if the request or proposal states that new information is available that affects the advisability of the current placement. Except as provided in par. (bv), a hearing is not required if the requested or proposed change in placement does not involve a change in placement of a juvenile placed in the juvenile's home to a placement outside the juvenile's home, written waivers of objection to the proposed change in placement are signed by all parties entitled to receive notice under subd. 2., and the court approves.2. If a hearing is scheduled, at least 3 days before the hearing the court shall notify the juvenile, the juvenile's counsel or guardian ad litem, the parent, guardian, and legal custodian of the juvenile, the person or agency primarily responsible for implementing the dispositional order, the district attorney or corporation counsel, any foster parent or other physical custodian described in s. 48.62 (2) of the juvenile, and, if the juvenile is an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7), the Indian juvenile's Indian custodian and tribe. A copy of the request or proposal for the change in placement shall be attached to the notice. Subject to par. (br), if all parties consent, the court may proceed immediately with the hearing.(bm)  Juvenile placed outside the home. If the court changes the juvenile's placement from a placement in the juvenile's home to a placement outside the juvenile's home, the parent, if present at the hearing, shall be requested to provide the names and other identifying information of 3 relatives of the juvenile or other individuals 18 years of age or over whose homes the parent requests the court to consider as placements for the juvenile, unless that information has previously been provided under this paragraph, sub. (1) (c) 2m., or s. 938.21 (2) (e) or (3) (f) or 938.335 (6). If the parent does not provide that information at the hearing, the county department or the agency primarily responsible for implementing the dispositional order shall permit the parent to provide the information at a later date. (br)  Indian juvenile; notice. If the juvenile is an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7), and if the proposed change in placement would change the placement of the Indian juvenile from a placement in the home of his or her parent or Indian custodian to a placement outside that home, notice under par. (b) 2. to the Indian juvenile's parent, Indian custodian, and tribe shall be provided in the manner specified in s. 938.028 (4) (a). Notwithstanding par. (b) 2., no hearing on the request or proposal may be held until at least 10 days after receipt of the notice by the Indian juvenile's parent, Indian custodian, and tribe or, if the identity or location of the Indian juvenile's parent, Indian custodian, or tribe cannot be determined, until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the Indian juvenile's parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for the hearing.(bv) Juvenile placed in extended out-of-home care. If the proposed change in placement involves a juvenile who is subject to a dispositional order that terminates as provided in sub. (6) (a) 4. or s. 938.355 (4) (am) 4. or 938.365 (5) (b) 4., only the juvenile or the juvenile's guardian on behalf of the juvenile or a person or agency primarily bound by the dispositional order may request a change in placement under par. (a). No hearing is required for a change in placement described in this paragraph if written waivers of objection to the proposed change in placement are signed by the juvenile, the guardian of the juvenile, and all parties that are bound by the dispositional order. If a hearing is scheduled, the court may proceed immediately with the hearing on the consent of the person who requested the change in placement, the juvenile, the guardian of the juvenile, and all parties who are bound by the dispositional order.(c)  Contents of order. 1. If the court changes the juvenile's placement from a placement in the juvenile's home to a placement outside the juvenile's home, the change-in-placement order shall contain the findings under sub. (2v) (a) 1., the applicable order under sub. (2v) (a) 1m., the applicable statement under sub. (2v) (a) 2., the finding under sub. (2v) (a) 2m., and, if in addition the court finds that any of the circumstances under s. 938.355 (2d) (b) 1. to 4. applies with respect to a parent, the determination under sub. (2v) (a) 3. If the court changes the placement of an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7) from a placement in the home of his or her parent or Indian custodian to a placement outside that home, the change-in-placement order shall, in addition, contain the findings under sub. (2v) (a) 4. and comply with the order of placement preference under s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b), unless the court finds good cause, as described in s. 938.028 (6) (d), for departing from that order.2. If the court changes the juvenile's placement from a placement outside the home to another placement outside the home, the change-in-placement order shall contain the applicable order under sub. (2v) (a) 1m., the applicable statement under sub. (2v) (a) 2., and the finding under sub. (2v) (a) 2m. If the court changes the placement of an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7) from a placement outside the home of his or her parent or Indian custodian to another placement outside that home, the change-in-placement order shall, in addition, comply with the order of placement preference under s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b), unless the court finds good cause, as described in s. 938.028 (6) (d), for departing from the order. (2r)  Removal from foster home or physical custodian. If a hearing is held under sub. (1) (am) 2. or (2m) (b) 1. and the change in placement would remove a juvenile from a foster home or other placement with a physical custodian described in s. 48.62 (2), the court shall give the foster parent or other physical custodian a right to be heard at the hearing by permitting the foster parent or other physical custodian to make a written or oral statement during the hearing or to submit a written statement prior to the hearing relating to the juvenile and the requested change in placement. A foster parent or other physical custodian who receives notice of a hearing under sub. (1) (am) 1. or (2m) (b) 2. and a right to be heard under this subsection does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and right to be heard.  (2v)  Change-in-placement order. (a)  Contents of order. A change in placement order under sub. (1) or (2m) shall contain all of the following:1. If the court changes the juvenile's placement from a placement in the juvenile's home to a placement outside the juvenile's home, a finding that continued placement of the juvenile in his or her home would be contrary to the welfare of the juvenile and, unless a circumstance under s. 938.355 (2d) (b) 1. to 4. applies, a finding that the county department or the agency primarily responsible for implementing the dispositional order has made reasonable efforts to prevent the removal of the juvenile from the home, while assuring that the juvenile's health and safety are the paramount concerns. 1m. If the change in placement order changes the placement of a juvenile who is under the supervision of the county department to a placement outside the juvenile's home, whether from a placement in the home or from another placement outside the home, an order ordering the juvenile into, or to be continued in, the placement and care responsibility of the county department as required under 42 USC 672 (a) (2) and assigning the county department primary responsibility, or continued primary responsibility, for providing services to the juvenile.2. If the change-in-placement order changes the placement of the juvenile to a placement outside the home recommended by the person or agency primarily responsible for implementing the dispositional order, whether from a placement in the home or from another placement outside the home, a statement that the court approves the placement recommended by the person or agency or, if the change-in-placement order changes the placement of the juvenile to a placement outside the home that is not a placement recommended by that person or agency, whether from a placement in the home or from another placement outside the home, a statement that the court has given bona fide consideration to the recommendations made by that person or agency and all parties relating to the juvenile's placement.2m. If the change-in-placement order changes the placement of the juvenile to a placement outside the home and if the juvenile has one or more siblings, as defined in s. 938.38 (4) (br) 1., who have been placed outside the home or for whom a change in placement to a placement outside the home is requested, a finding as to whether the county department or the agency primarily responsible for implementing the dispositional order has made reasonable efforts to place the juvenile in a placement that enables the sibling group to remain together, unless the court determines that a joint placement would be contrary to the safety or well-being of the juvenile or any of those siblings, in which case the court shall order the county department or agency to make reasonable efforts to provide for frequent visitation or other ongoing interaction between the juvenile and the siblings, unless the court determines that such visitation or interaction would be contrary to the safety or well-being of the juvenile or any of those siblings.3. If the court finds that any of the circumstances under s. 938.355 (2d) (b) 1. to 4. applies with respect to a parent, a determination that the agency primarily responsible for providing services under the change in placement order is not required to make reasonable efforts with respect to the parent to make it possible for the juvenile to return safely to his or her home. This subdivision does not apply to a juvenile who is subject to a dispositional order that terminates as provided in s. 938.355 (4) (am) 4., 938.357 (6) (a) 4., or 938.365 (5) (b) 4.4. If the change in placement order changes the placement of an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7) from a placement in the home of his or her parent or Indian custodian to a placement outside that home, a finding supported by clear and convincing evidence, including the testimony of one or more qualified expert witnesses, that continued custody of the Indian juvenile by the parent or Indian custodian is likely to result in serious emotional or physical damage to the juvenile under s. 938.028 (4) (d) 1. and a finding that active efforts under s. 938.028 (4) (d) 2. have been made to prevent the breakup of the Indian juvenile's family and that those efforts have proved unsuccessful. The findings under this subdivision shall be in addition to the findings under subd. 1., except that for the sole purpose of determining whether the cost of providing care for an Indian juvenile is eligible for reimbursement under 42 USC 670 to 679b, the findings under this subdivision and the findings under subd. 1. shall be considered to be the same findings. The findings under this subdivision are not required if they were made in a previous order in the proceeding unless a change in circumstances warrants new findings.5. Except as provided in subd. 6., if the court changes the placement to a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675, the change-in-placement order shall contain a finding as to each of the following, the answers to which do not affect whether the placement may be made, after considering the standardized assessment and the recommendation of the qualified individual who conducted the standardized assessment: a. Whether the needs of the juvenile can be met through placement in a foster home. b. Whether placement of the juvenile in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675 provides the most effective and appropriate level of care for the juvenile in the least restrictive environment. c. Whether the placement is consistent with the short-term and long-term goals for the juvenile, as specified in the permanency plan. d. Whether the court approves or disapproves the placement. 6. 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. 5. 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. 5.(b)  Documentation of basis of findings. The court shall make the findings under par. (a) 1. and 3. on a case-by-case basis based on circumstances specific to the juvenile and shall document or reference the specific information on which those findings are based in the change in placement order. A change in placement order that merely references par. (a) 1. or 3. without documenting or referencing that specific information in the change in placement order or an amended change in placement order that retroactively corrects an earlier change in placement order that does not comply with this paragraph is not sufficient to comply with this paragraph.(c)  Reasonable efforts not required; permanency hearing. If the court finds under par. (a) 3. that any of the circumstances under s. 938.355 (2d) (b) 1. to 4. applies with respect to a parent, the court shall hold a hearing under s. 938.38 (4m) within 30 days after the date of that finding to determine the permanency goal and, if applicable, any concurrent permanency goals for the juvenile.(d)  Search for relatives. 1. Subject to subd. 2., the court shall order the county department or the agency primarily responsible for implementing the dispositional order to conduct a diligent search in order to locate and provide notice of the information specified in s. 938.21 (5) (e) 2. a. to e. to all relatives of the juvenile named under sub. (1) (c) 2m. or (2m) (bm) and to all adult relatives, as defined in s. 938.21 (5) (e) 1., of the juvenile within 30 days after the juvenile is removed from the custody of the juvenile's parent unless the juvenile is returned to his or her home within that period. The court may also order the county department or agency to conduct a diligent search in order to locate and provide notice of that information to all other adult individuals named under sub. (1) (c) 2m. or (2m) (bm) within 30 days after the juvenile is removed from the custody of the juvenile's parent unless the juvenile is returned to his or her home within that period. The county department or agency may not provide that notice to a person named under sub. (1) (c) 2m. or (2m) (bm) or to an adult relative if the county department or agency has reason to believe that it would be dangerous to the juvenile or to the parent if the juvenile were placed with that person or adult relative.2. Subdivision 1. does not apply if the search required under subd. 1. was previously conducted and the notice required under subd. 1. was previously provided under s. 938.21 (5) (e) 2. or 938.355 (2) (cm) 1. (3)  Placement in juvenile correctional facility.  (a) Subject to subs. (4) (b), (c), and (d) and (5) (e), if the proposed change in placement would involve placing a juvenile in a juvenile correctional facility or a secured residential care center for children and youth, notice shall be given as provided in sub. (1) (am) 1. A hearing shall be held, unless waived by the juvenile, parent, guardian, and legal custodian, before the court makes a decision on the request. The juvenile is entitled to counsel at the hearing, and any party opposing or favoring the proposed new placement may present relevant evidence and cross-examine witnesses. The department of corrections shall have the opportunity to object to a change of placement of a juvenile from a secured residential care center for children and youth to a Type 1 juvenile correctional facility under par. (b). The proposed new placement may be approved only if the court finds, on the record, that the conditions set forth in s. 938.34 (4m) (a) and (b) have been met.(b) Notwithstanding s. 938.34 (4m) and subject to par. (c), the court may order placement in a Type 1 juvenile correctional facility operated by the department of corrections for a juvenile who was adjudicated delinquent under s. 938.34 (4m) if the court finds, after a hearing under this section, that any of the following apply:1. The juvenile is placed at a secured residential care center for children and youth and all of the following apply:a. The secured residential care center for children and youth where the juvenile is placed is not able to meet the juvenile's treatment needs.b. The programming available at the proposed Type 1 juvenile correctional facility as of the date of the hearing is able to meet the treatment needs of the juvenile.c. No other secured residential care center for children and youth is willing and able to meet the juvenile's treatment needs.2. The county department does not have space for the juvenile in its secured residential care center for children and youth and no other secured residential care center for children and youth is willing and able to meet the juvenile's treatment needs.(c) Notwithstanding s. 938.34 (4m), upon the recommendation of the department of health services, the court may order the placement of a juvenile who was adjudicated delinquent under s. 938.34 (4m) at the Mendota juvenile treatment center if par. (b) 1. a. to c. are met. A court may not order a placement under this paragraph at the Mendota juvenile treatment center that the department of health services has not approved. A juvenile under the supervision of a county in a secured residential care center for children and youth who is transferred to Mendota juvenile treatment center under this paragraph remains under the supervision of that county. The department of health services shall determine the date for the actual transfer of the juvenile to the Mendota juvenile treatment center, and no change of placement to the Mendota juvenile treatment center may be ordered without the prior agreement of the department of health services to admit the juvenile. No further hearing or court order is necessary for the department of health services to transfer the juvenile back to the custody of the county department.(d) A juvenile who is placed in a Type 1 juvenile correctional facility under par. (b) or (c) is the financial responsibility of the county department of the county where the juvenile was adjudicated delinquent. The county department shall reimburse the department of corrections at the rate specified under s. 301.26 (4) (d) 2. or 3., whichever is applicable, for the cost of a juvenile's care while placed in a Type 1 juvenile correctional facility other than the Mendota juvenile treatment center. The county department shall reimburse the department of health services at a rate specified by that department for the cost of a juvenile's care while placed at the Mendota juvenile treatment center and these payments shall be deposited in the appropriation account under s. 20.435 (2) (gk).(e) A juvenile who is placed in a Type 1 juvenile correctional facility under par. (b) is under the supervision of the department of corrections. The change of placement order shall designate the department of corrections to provide community supervision or the county department to provide aftercare supervision for the juvenile following the juvenile's release from the Type 1 juvenile correctional facility. (4)  Change in placement without a hearing.  (ab) In this subsection, “operating entity” means the county department, the Indian tribe, or the child welfare agency, whichever entity operates a secured residential care center for children and youth.(am) When the juvenile is placed with the department of corrections, that department may, after an examination under s. 938.50, place the juvenile in a juvenile correctional facility or, with the consent of the operating entity, a secured residential care center for children and youth or on community supervision or aftercare supervision, either immediately or after a period of placement in a juvenile correctional facility or a secured residential care center for children and youth. The department of corrections shall send written notice of the change in placement to the parent, guardian, legal custodian, county department designated under s. 938.34 (4n), if any, and committing court. If the department of corrections places a juvenile in a Type 2 juvenile correctional facility operated by a child welfare agency, that department shall reimburse the child welfare agency at the rate established under s. 49.343 that is applicable to the type of placement that the child welfare agency is providing for the juvenile. If the department of corrections places a juvenile in a secured residential care center for children and youth under this paragraph, the department of corrections shall contract with the operating entity for the care and services provided under s. 301.08. A juvenile who is placed in a Type 2 juvenile correctional facility or a secured residential care center for children and youth under this paragraph remains under the supervision of the department of corrections, remains subject to the rules and discipline of that department, and is considered to be in custody, as defined in s. 946.42 (1) (a).(as) When a juvenile is placed under the supervision of a county department, that department may place the juvenile in a secured residential care center for children and youth or on aftercare supervision, either immediately or after a period of placement in a secured residential care center for children and youth. The county department shall send written notice of any change in placement to the parent, guardian, legal custodian, if any, and the court. The county department shall be responsible for decisions regarding the release of a juvenile who is under its supervision.(b)1. If a juvenile whom the department of corrections has placed in a Type 2 juvenile correctional facility operated by a child welfare agency violates a condition of his or her placement in the Type 2 juvenile correctional facility, the child welfare agency operating the Type 2 juvenile correctional facility shall notify the department of corrections and that department, after consulting with the child welfare agency, may place the juvenile in a Type 1 juvenile correctional facility or, with the consent of the operating entity, a secured residential care center for children and youth, a under the supervision of the department, without a hearing under sub. (1) (am) 2.2. If a juvenile whom the court has placed in a Type 2 residential care center for children and youth under s. 938.34 (4d) violates a condition of his or her placement in the Type 2 residential care center for children and youth, the child welfare agency operating the Type 2 residential care center for children and youth shall notify the county department that has supervision over the juvenile. The county department, after consulting with the child welfare agency, may place the juvenile in a secured residential care center for children and youth, without a hearing under sub. (1) (am) 2., for not more than 10 days.3. The child welfare agency operating the Type 2 juvenile correctional facility or Type 2 residential care center for children and youth shall send written notice of a change in placement under subd. 1. or 2. to the parent, guardian, legal custodian, county department, and committing court.4. A juvenile may seek review of a decision of the department of corrections or the county department under subd. 1. or 2. only by the common law writ of certiorari.(c)1. If a juvenile is placed in a Type 2 juvenile correctional facility operated by a child welfare agency under par. (am) and it appears that a less restrictive placement would be appropriate for the juvenile, the department of corrections, after consulting with the child welfare agency that is operating the Type 2 juvenile correctional facility, may place the juvenile in a less restrictive placement, and may return the juvenile to the Type 2 juvenile correctional facility without a hearing under sub. (1) (am) 2. The rate for each type of placement shall be established by the department of children and families, in consultation with the department of corrections, in the manner provided in s. 49.343.2. If a juvenile is placed in a Type 2 residential care center for children and youth under s. 938.34 (4d) and it appears that a less restrictive placement would be appropriate for the juvenile, the child welfare agency operating the Type 2 residential care center for children and youth shall notify the county department that has supervision over the juvenile and, if the county department agrees to a change in placement under this subdivision, the child welfare agency may place the juvenile in a less restrictive placement. A child welfare agency may also, with the agreement of the county department that has supervision over a juvenile who is placed in a less restrictive placement under this subdivision, return the juvenile to the Type 2 residential care center for children and youth without a hearing under sub. (1) (am) 2. The rate for each type of placement shall be established by the department of children and families, in consultation with the department of corrections, in the manner provided in s. 49.343.3. The child welfare agency operating the Type 2 juvenile correctional facility or Type 2 residential care center for children and youth shall send written notice of a change in placement under subd. 1. or 2. to the parent, guardian, legal custodian, county department, and committing court.4. A juvenile may seek review of a decision of the department of corrections or county department under subd. 1. or 2. only by the common law writ of certiorari.(d)1. If a juvenile under the supervision of the department of corrections is placed in a secured residential care center for children and youth and that secured residential care center for children and youth is unable to meet the treatment needs of the juvenile, the operating entity shall notify the department of corrections and the department of corrections, after consulting with the operating entity, may place the juvenile in a secured residential care center for children and youth that is able to meet the treatment needs of the juvenile without a hearing under sub. (1) (am) 2. if the receiving operating entity agrees. The department of corrections shall send written notice of the change in placement to the parent, guardian, legal custodian, county department designated under s. 938.34 (4n), if any, and committing court. If the department of corrections places a juvenile in a secured residential care center for children and youth under this subdivision, the department of corrections shall contract with the operating entity for the care and services provided under s. 301.08. A juvenile who is placed in a secured residential care center for children and youth under this subdivision remains under the supervision of the department of corrections, remains subject to the rules and discipline of that department, and is considered to be in custody, as defined in s. 946.42 (1) (a).2. If a juvenile under the supervision of a county department is placed in a secured residential care center for children and youth and that secured residential care center for children and youth is unable to meet the treatment needs of the juvenile, the supervising county department, after consulting with the operating entity, may transfer the juvenile to a different secured residential care center for children and youth that is able to meet the treatment needs of the juvenile and offers more appropriate care and services without a hearing under sub. (1) (am) 2. if the receiving operating entity agrees. The supervising county department shall send written notice of the change in placement to the parent, guardian, legal custodian, county department designated under s. 938.34 (4n), if any, and committing court. If a county department places a juvenile in a secured residential care center for children and youth under this subdivision, the county department shall contract with the operating entity for the care and services provided. If a county department places a juvenile in a secured residential care center for children and youth under this subdivision, the juvenile remains under the supervision of the placing county department, remains subject to the rules and discipline of that county department, and is considered to be in custody, as defined in s. 946.42 (1) (a).3. A juvenile may seek review of a decision by the department of corrections or county department under subd. 1. or 2. only by the common law writ of certiorari. (4d)  Prohibited placements based on homicide of parent. (a)  Prohibition. Except as provided in par. (b), 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.(am)  Change in placement required. Except as provided in par. (b), 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 person or agency primarily responsible for implementing the dispositional order, or the district attorney or corporation counsel of the county in which the dispositional order was entered, or on the court's own motion with notice to the parent.(b)  Exception. Paragraphs (a) and (am) 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. (4g)  Community supervision or aftercare plan.  (a) Not later than 120 days after the date on which the juvenile is placed in a juvenile correctional facility or a secured residential care center for children and youth, or within 30 days after the date on which the department of corrections requests the community supervision or aftercare plan, whichever is earlier, the community supervision provider or the aftercare provider designated under s. 938.34 (4n) shall prepare a community supervision or aftercare plan for the juvenile. If the juvenile is to be placed on aftercare supervision, the county department designated as the aftercare provider shall submit the aftercare plan to the department of corrections within the applicable period specified in this paragraph, unless the department of corrections waives the period under par. (b).(b) The department of corrections may waive the period within which a community supervision plan or aftercare plan must be prepared and submitted under par. (a) if that department anticipates that the juvenile will remain in the juvenile correctional facility or secured residential care center for children and youth for a period exceeding 8 months or if the juvenile is subject to s. 938.183. If the department of corrections waives that period, the designated community supervision or aftercare provider shall prepare the community supervision or aftercare plan within 30 days after the date on which the department of corrections requests the community supervision or aftercare plan.(c) A community supervision or aftercare plan shall include all of the following:1. The minimum number of supervisory contacts per week.2. The conditions, if any, under which the juvenile's community supervision or aftercare status may be revoked.3. Services or programming to be provided to the juvenile while on community supervision or aftercare supervision.4. The estimated length of time that community supervision and services or aftercare supervision and services shall be provided to the juvenile.(d) A juvenile may be released from a juvenile correctional facility or a secured residential care center for children and youth whether or not a community supervision or aftercare plan has been prepared under this subsection. (4m)  Release to community supervision or aftercare supervision. The department of corrections shall try to release a juvenile to community supervision and the county department with supervision of a juvenile shall try to release the juvenile to aftercare supervision under sub. (4) within 30 days after the date on which the department of corrections or county department determines the juvenile is eligible for the release. (5)  Revocation of community supervision or aftercare supervision. (a) If a juvenile has been placed on community supervision, the department of corrections may revoke the community supervision status of that juvenile as provided in this subsection. If a juvenile has been placed on aftercare supervision, the county department that has been designated as a juvenile's aftercare provider may revoke the aftercare status of that juvenile as provided in this subsection. Prior notice of a change in placement under sub. (1) (am) 1. is not required. (b) A juvenile on community supervision status may be taken into custody only as provided in ss. 938.19 to 938.21 or 938.533 (3) (a). A juvenile on aftercare status may be taken into custody only as provided in ss. 938.19 to 938.21 or 938.355 (6d) (b).(c) The juvenile is entitled to representation by counsel at all stages of the revocation proceeding.(d) A hearing on the revocation shall be conducted by the division of hearings and appeals in the department of administration within 30 days after the juvenile is taken into custody for an alleged violation of a condition of the juvenile's community supervision or aftercare supervision. This period may be waived only upon the agreement of the community supervision or aftercare provider, the juvenile, and the juvenile's counsel.(e) If the hearing examiner finds that the juvenile has violated a condition of community supervision or aftercare supervision, the hearing examiner shall determine whether confinement in a juvenile correctional facility or a secured residential care center for children and youth is necessary to protect the public, to provide for the juvenile's rehabilitation, or to not depreciate the seriousness of the violation.(f) Review of a revocation decision shall be by certiorari to the court that placed the juvenile in the juvenile correctional facility or secured residential care center for children and youth.(g) The department of corrections shall promulgate rules setting standards to be used by a hearing examiner to determine whether to revoke a juvenile's community supervision or aftercare status. The standards shall specify that the burden is on the department of corrections or county department seeking revocation to show by a preponderance of the evidence that the juvenile violated a condition of community supervision or aftercare supervision. (5m)  Child support. (a) If a proposed change in placement would change a juvenile's placement from a placement in the juvenile's home to a placement outside the juvenile's home, the court shall order the juvenile's parent to provide a statement of the income, assets, debts, and living expenses of the juvenile and the juvenile's parent to the court or the person or agency primarily responsible for implementing the dispositional order by a date specified by the court. The clerk of court shall provide, without charge, to any parent ordered to provide that statement a document setting forth the percentage standard established by the department of children and families under s. 49.22 (9) and the manner of its application established by the department of corrections under s. 301.12 (14) (g) and listing the factors under s. 301.12 (14) (c). If the juvenile is placed outside the juvenile's home, the court shall determine the liability of the parent in the manner provided in s. 301.12 (14).(b) If the court orders the juvenile's parent to provide a statement of the income, assets, debts, and living expenses of the juvenile and juvenile's parent to the court or if the court orders the juvenile's parent to provide that statement to the person or agency primarily responsible for implementing the dispositional order and that person or agency is not the county department, the court shall also order the juvenile's parent to provide that statement to the county department by a date specified by the court. The county department shall provide, without charge, to the parent a form on which to provide that statement, and the parent shall provide that statement on that form. The county department shall use the information provided in the statement to determine whether the department may claim federal foster care and adoption assistance reimbursement under 42 USC 670 to 679a for the cost of providing care for the juvenile. (6)  Duration of order. (a) No change in placement may extend the expiration date of the original dispositional order, except that if the change in placement is from a placement in the juvenile's home to a placement in a foster home, group home, or residential care center for children and youth, in the home of a relative who is not a parent, or in a supervised independent living arrangement, the court may extend the expiration date of the original dispositional order to the latest of the following dates, unless the court specifies a shorter period:1. The date on which the juvenile attains 18 years of age.2. The date that is one year after the date on which the change-in-placement order is granted. 3. The date on which the juvenile is granted a high school or high school equivalency diploma or the date on which the juvenile attains 19 years of age, whichever occurs first, if the juvenile is a full-time student at a secondary school or its vocational or technical equivalent and is reasonably expected to complete the program before attaining 19 years of age.4. The date on which the juvenile is granted a high school or high school equivalency diploma or the date on which the juvenile attains 21 years of age, whichever occurs first, if the juvenile is a full-time student at a secondary school or its vocational or technical equivalent and if an individualized education program under s. 115.787 is in effect for the juvenile. The court may not grant an order that terminates as provided in this subdivision unless the juvenile is 17 years of age or older when the order is granted and the juvenile, or the juvenile's guardian on behalf of the juvenile, agrees to the order. At any time after the juvenile attains 18 years of age, the juvenile, or the juvenile's guardian on behalf of the juvenile, may request the court in writing to terminate the order and, on receipt of such a request, the court, without a hearing, shall terminate the order.(b) If the change in placement is from a placement in a foster home, group home, or residential care center for children and youth or in the home of a relative to a placement in the juvenile's home and if the expiration date of the original dispositional order is more than one year after the date on which the change-in-placement order is granted, the court shall shorten the expiration date of the original dispositional order to the date that is one year after the date on which the change-in-placement order is granted or to an earlier date as specified by the court.History:  1995 a. 27 s. 9126 (19); 1995 a. 77, 275, 352; 1997 a. 27, 35, 80, 205, 237; 1999 a. 9, 103; 2001 a. 16, 103, 109; 2005 a. 344; 2007 a. 20, 199; 2009 a. 28, 79, 94; 2011 a. 181, 258; 2013 a. 334; 2015 a. 55, 197, 373; 2017 a. 185; 2019 a. 8 ss. 40 to 43, 59; 2019 a. 9; 2021 a. 42; s. 35.17 correction in (1) (am) 1m. (intro.), (2) (a) 2., (2m) (bv) (title), (2v) (a) 6., (3) (a).Section 938.355 provides a variety of sanctions for juveniles who have violated their dispositional orders. Section 938.357 enumerates the ways in which a juvenile's placement may be changed. Nothing in either statute indicates that it is to be the exclusive mechanism for violation of a disposition order. Section 938.34 (16) specifically allows an alternative procedure for dealing with violations of a disposition order when part of the disposition is imposed and stayed. State v. Richard J.D., 2006 WI App 242, 297 Wis. 2d 20, 724 N.W.2d 665, 06-0555.