Tribe: Menominee Indian Tribe of Wisconsin
§ 278-187 Sanctions.
[Amended 12-21-2021 by Ord. No. 21-88]
A.
Failure to appear. In all delinquency proceedings conducted pursuant to the provision of this article:
(1)
If a child 16 years of age or older fails to appear before the Court after being so ordered:
(a)
Upon a first or subsequent failure to appear, the Court may:
[1]
Issue a new summons; and
[2]
Issue a warning to the child regarding the potential consequences of subsequent failure to appear;
(b)
Upon a second or subsequent failure to appear, the Court may:
[1]
Issue a capias order; and
[2]
Following a hearing on the matter, impose additional or modified conditions of release;
(c)
Upon a third or subsequent failure to appear, the Court may conduct a hearing to review the need for detention;
(2)
If a child under 16 years of age fails to appear before the Court after being so ordered:
(a)
If the Court finds, based on the sworn testimony of the child’s parent, guardian or caretaker, that the child has willfully refused to appear, the Court may proceed by:
[1]
Issuance of a new summons; and
[2]
Issuance of a warning to the child regarding the potential consequences of a subsequent failure to appear;
[3]
Issuance of a warning to the parent(s), guardian(s) or caretaker(s) of the potential consequences of a subsequent failure to appear;
(3)
If the child’s parent, guardian or caretaker fails to appear before the Court after being so ordered, or fails to bring the child before the Court after being so ordered:
(a)
Upon a first or subsequent failure to appear, the Court may:
[1]
Issue a new summons; and
[2]
Issue a warning to the child’s parent, guardian or caretaker regarding the potential consequences of a subsequent failure to appear;
(b)
Upon a second or subsequent failure to appear, the Court may:
[1]
Issue a bench warrant directing that the child’s parent, guardian or caretaker be brought before the Court to show cause why they should not be subject to sanctions; and
[2]
Absent a showing of good cause for the failure to appear, impose upon the child’s parent, guardian or caretaker a fine of up to $100 and/or referral to additional services;
(c)
Upon a third or subsequent failure to appear, the Court may initiate proceedings for contempt against the child’s parent, guardian or caretaker.
(4)
The Court shall consider the ability of the child’s parent, guardian or caretaker to pay any fine to be imposed, and shall not impose a fine that would cause undue hardship for the child’s parent, guardian, caretaker or family.
(5)
Whenever it appears from a field affidavit or sworn testimony before the Court that the child has failed to appear as the result of circumstances posing a substantial risk to the health, welfare, person or property of the child or others, the Court may:
(a)
Issue a capias;
(b)
Following a hearing on the matter, impose additional or modified conditions of release; and
(c)
Conduct a hearing to review the need for detention.
(6)
No sanctions other than those authorized by this article shall be sought or imposed for a failure to appear before the Court in any proceedings.
B.
Violations of conditions.
(1)
If it appears by a preponderance of the evidence that the child has violated conditions of release or disposition order imposed by the Court, the Department may:
(a)
Take into custody pursuant to the article; and/or
(b)
Offer an informal alternative to taking the child into custody through a condition violation agreement; or
(c)
Request a hearing and additional conditions of release.
(d)
The Department shall provide written notice to the Prosecutor and the Court of any violations of conditions of release.
(e)
The Prosecutor has five business days to object to informal alternatives and may file a motion for sanctions or request more formal sanctions at the detention hearing. This timeline does not prohibit the Prosecutor from filing a new delinquency petition if the violated conditions of release is a new delinquent act.
(2)
If it appears from a filed affidavit or sworn testimony before the Court that the child has violated conditions of release or disposition order imposed by the Court, the Court may:
(a)
Issue a custody order;
(b)
Following a hearing on the matter, impose additional or modified conditions of release; and
(c)
Conduct a hearing to review the need for detention and/or amendment of previous orders.
(d)
Nothing in this subsection prohibits the Prosecutor from filing a new delinquency petition if the violated conditions of release or disposition order is a new delinquent act.
C.
Sanctions for violation of order.
(1)
Netaenawemakanak services. All actions shall follow the principles of Netaenawemakanak by providing a comprehensive, strength-based youth and family drive way of response when children and families are experiencing challenges. One of the purposes of this section is to consider alternatives for violations of orders other than purely punitive sanctions such as fines and detention and to encourage, when appropriate, rehabilitative and restorative measures. Work towards this effort should favor close in time informal and community-based responses rather than formal proceedings.
(2)
Derivative proceedings.
(a)
Except as provided in Subsection C(2)(b) and (c), and other provisions of this chapter notwithstanding, the fact that a child has violated an order of the Court shall not be the basis for subjecting the child to:
[1]
Punitive sanctions unless good cause exists for such sanctions;
[2]
Charges of delinquency; or
[3]
A finding of contempt.
(b)
Where the violation consists of an alleged act which would constitute a delinquent act in the absence of the order violated, the alleged act may be the basis for a delinquency petition.
(c)
Where the child is alleged to have violated a no-contact or protection order, and the violation of such order would constitute a delinquent act, the alleged violation may be the basis for a delinquency petition.
(3)
Sanctions permitted.
(a)
The Department, with agreement from the Prosecutor, may offer the following alternatives to formal sanctions pursuant to a written, informal agreement. The agreement may include, but is not limited to, the following:
[1]
Rehabilitative measures;
[2]
Restorative measures;
[3]
Community-based responses;
[4]
Electronic monitoring; and
[5]
Participation in traditional or cultural activities.
[6]
Failure to comply with the informal measures can result in formal sanctions or modifications of the dispositional orders.
(b)
If the Court finds by a preponderance of the evidence that the child has violated a condition of his or her dispositional order, the Court may order the following sanctions as a consequence for any incident in which the child has violated one or more conditions of his or her dispositional order:
[1]
Rehabilitative, restorative, and/or community-based response measures;
[2]
Electronic monitoring;
[3]
Detention in the child’s home or current residence for a period of not more than 30 days first violations and not more than 60 days for second or subsequent violations, for which the juvenile may be monitored by an electronic monitoring system;
[4]
Suspension or limitation on the use of the child’s driver’s license or operating privileges for cars, ATVs, UTVs, or snowmobiles;
[5]
Suspension or limitation on the hunting or fishing privileges on the Menominee Reservation;
[6]
Not more than 30 hours of uncompensated participation in supervised work programs or other community service work;
[7]
Participation after school, in the evening, on weekends, or other non-school days, or at any other time the child is not under immediate adult supervision, in the social, behavioral, academic, community service, and other programming of a youth center or program;
[8]
Placement in a non-secure custody facility;
[9]
Placement in a treatment facility; and/or
[10]
Placement in a juvenile detention facility or juvenile portion of a county jail.
[11]
The child shall be given credit against the detention in non-secure custody or juvenile detention facility for all time spent in custody in connection with the course of conduct for which the custody was imposed.
(4)
Motion to impose sanction. A motion for imposition of formal sanctions may be brought by the person or department primarily responsible for the provision of dispositional services, the Prosecutor, or the court that entered the dispositional order.
(a)
If the Court initiates the motion, that court is disqualified from holding a hearing on the motion.
(b)
Notice of the motion shall be given to the child, guardian ad litem, counsel, parent, guardian, legal custodian, and all parties present at the original dispositional hearing.
(c)
The motion shall contain a statement of whether the child is a non-Menominee Indian child.
(5)
Sanction hearing. Before imposing formal sanctions, the Court shall hold a hearing, at which the child is entitled to be represented by legal counsel and present evidence.
(6)
Contempt of court. This section does not preclude a contempt of court finding.
D.
Short-term detention. If a child who has been adjudged delinquent violates a condition of the dispositional order for which the child is required to comply, the child’s caseworker or any other person who provides intake or dispositional services for child delinquencies may, without a hearing, take the child into custody and place the juvenile into juvenile detention facility for not more than 72 hours while the alleged violation and the appropriateness of the sanction(s) is or are being investigated. The person taking the child into custody pursuant to this section shall:
(1)
Permit the child to make a written or oral statement concerning the possible placement and the course of conduct for the which the child was taken into custody;
(2)
Provide notice of this action to their supervisor, who shall review the statement and either approve the placement, modify the terms of the placement or order the juvenile released from custody.
(3)
General written policies shall be developed with the Court and the Department relating to taking into custody and placement pursuant to this subsection.
(4)
This short-term detention may be imposed only if at the dispositional hearing the Court explained the conditions of short-term detention and of such possible placement or if before such violation that child has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and this possible placement and that he or she understands those conditions and this possible placement.
E.
Reasonable and active efforts finding. The Court may not order the sanction of placement in a place of non-secure or secure custody unless the Court finds that the agency primarily responsible for providing services has made reasonable and active efforts to prevent the removal of the child from his or her home and that continued placement of the child in his or her home is contrary to the welfare of the child.
(1)
The findings are not required if they were made in the dispositional order under which the child is being sanctioned.
(2)
The Court shall make the findings on a case-by-case basis based on the circumstances specific to the child and shall document or reference the specific information on which that finding is based in the sanction order.
(3)
A sanction that merely references this section without documenting or referencing that specific information in the sanction order or an amended sanction order that retroactively corrects an earlier sanction order that does not comply with this subsection is not sufficient to comply with this subsection.