938.305 History History: 1995 a. 77.
938.31 938.31 Fact-finding hearing.
938.31(1) (1)Definition. In this section, "fact-finding hearing" means a hearing to determine if the allegations of a petition under s. 938.12 or 938.13 (12) are supported beyond a reasonable doubt or a hearing to determine if the allegations in a petition or citation under s. 938.125 or 938.13 (4), (6), (6m), (7) or (14) are proved by clear and convincing evidence.
938.31(2) (2)Hearing to the court; procedures. The hearing shall be to the court. If the hearing involves a child victim, as defined in s. 938.02 (20m) (a) 1., or a child witness, as defined in s. 950.02 (5), the court may order that a deposition be taken by audiovisual means and allow the use of a recorded deposition under s. 967.04 (7) to (10) and, with the district attorney, shall comply with s. 971.105. At the conclusion of the hearing, the court shall make a determination of the facts. If the court finds that the juvenile is not within the jurisdiction of the court or the court finds that the facts alleged in the petition or citation have not been proved, the court shall dismiss the petition or citation with prejudice.
938.31(3) (3)
938.31(3)(a)(a) In this subsection:
938.31(3)(a)1. 1. "Custodial interrogation" has the meaning given in 968.073 (1) (a).
938.31(3)(a)2. 2. "Law enforcement agency" has the meaning given in s. 165.83 (1) (b).
938.31(3)(a)3. 3. "Law enforcement officer" has the meaning given in s. 165.85 (2) (c).
938.31(3)(a)4. 4. "Statement" has the meaning given in s. 972.115 (1) (d).
938.31(3)(b) (b) Except as provided under par. (c), a statement made by the juvenile during a custodial interrogation is not admissible in evidence against the juvenile in any court proceeding alleging the juvenile to be delinquent unless an audio or audio and visual recording of the interrogation was made as required under s. 938.195 (2) and is available.
938.31(3)(c) (c) A juvenile's statement is not inadmissible in evidence under par. (b) if any of the following applies or if other good cause exists for not suppressing a juvenile's statement under par. (b):
938.31(3)(c)1. 1. The juvenile refused to respond or cooperate in the custodial interrogation if an audio or audio and visual recording was made of the interrogation so long as a law enforcement officer or agent of a law enforcement agency made a contemporaneous audio or audio and visual recording or written record of the juvenile's refusal.
938.31(3)(c)2. 2. The statement was made in response to a question asked as part of the routine processing after the juvenile was taken into custody.
938.31(3)(c)3. 3. The law enforcement officer or agent of a law enforcement agency conducting the interrogation in good faith failed to make an audio or audio and visual recording of the interrogation because the recording equipment did not function, the officer or agent inadvertently failed to operate the equipment properly, or, without the officer's or agent's knowledge, the equipment malfunctioned or stopped operating.
938.31(3)(c)4. 4. The statement was made spontaneously and not in response to a question by a law enforcement officer or agent of a law enforcement agency.
938.31(3)(c)5. 5. Exigent public safety circumstances existed that prevented the making of an audio or audio and visual recording or rendered the making of such a recording infeasible.
938.31(3)(d) (d) Notwithstanding ss. 968.28 to 968.37, a juvenile's lack of consent to having an audio or audio and visual recording made of a custodial interrogation does not affect the admissibility in evidence of an audio or audio and visual recording of a statement made by the juvenile during the interrogation.
938.31(4) (4)Findings by court. The court shall make findings of fact and conclusions of law relating to the allegations of a petition under s. 938.12, 938.125 or 938.13. In cases alleging a juvenile to be delinquent or in need of protection or services under s. 938.13 (12), the court shall make findings relating to the proof of the violation of law and to the proof that the juvenile named in the petition committed the violation alleged.
938.31(7) (7)Date for dispositional hearing.
938.31(7)(a)(a) At the close of the fact-finding hearing, the court shall set a date for the dispositional hearing that allows a reasonable time for the parties to prepare but is no more than 10 days after the fact-finding hearing for a juvenile in secure custody and no more than 30 days after the fact-finding hearing for a juvenile not held in secure custody. If all parties consent, the court may immediately proceed with a dispositional hearing.
938.31(7)(b) (b) If it appears to the court that disposition of the case may include placement of the juvenile 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 designated agency under s. 938.33 (1) at least 5 days before the scheduled date of the dispositional hearing or as otherwise ordered by the court. The clerk of court shall provide, without charge, to any parent ordered to provide the statement a document setting forth the percentage standard established by the department of workforce development under s. 49.22 (9) and listing the factors that a court may consider under s. 301.12 (14) (c).
938.31(7)(c) (c) 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 the statement to the designated agency under s. 938.33 (1) and the designated agency is not the county department, the court shall also order the juvenile's parent to provide the statement to the county department at least 5 days before the scheduled date of the dispositional hearing or as otherwise ordered by the court. The county department shall provide, without charge, to the parent a form on which to provide the statement, and the parent shall provide the statement on the 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.
938.31 Annotation A jury trial is not constitutionally required in the adjudicative phase of a state juvenile court delinquency proceeding. McKeiver v. Pennsylvania, 403 U.S. 528.
938.31 Annotation The Right to a Juvenile Jury Trial in Wisconsin: Rebalancing the Balanced Approach. Preciado. 1999 WLR 571.
938.312 938.312 Notice of dismissal. If a petition alleges that a juvenile is delinquent under s. 938.12 or in need of protection or services under s. 938.13 (12) and the petition is dismissed or does not otherwise result in a consent decree or dispositional order, the district attorney or corporation counsel shall make a reasonable attempt to inform each known victim of the juvenile's alleged act that the petition has been dismissed or will not result in a consent decree or dispositional order.
938.312 History History: 1997 a. 181.
938.315 938.315 Delays, continuances and extensions.
938.315(1)(1)Time periods to be excluded. The following time periods shall be excluded in computing time requirements under this chapter:
938.315(1)(a) (a) Any period of delay resulting from any of the following:
938.315(1)(a)1. 1. Other legal actions concerning the juvenile, including an examination under s. 938.295 or a hearing related to the juvenile's mental condition, prehearing motions, waiver motions, and hearings on other matters.
938.315(1)(a)2. 2. A continuance granted at the request of or with the consent of the juvenile and counsel.
938.315(1)(a)3. 3. The disqualification or substitution of a judge or by any other transfer of the case or intake inquiry to a different judge, intake worker or county.
938.315(1)(a)4. 4. A continuance granted at the request of the representative of the public under s. 938.09 if the continuance is granted because of the unavailability of evidence material to the case when he or she has exercised due diligence to obtain the evidence and there are reasonable grounds to believe that the evidence will be available at the later date, or to allow him or her additional time to prepare the case and additional time is justified because of the exceptional circumstances of the case.
938.315(1)(a)5. 5. Court congestion or scheduling.
938.315(1)(a)6. 6. The imposition of a consent decree.
938.315(1)(a)7. 7. The absence or unavailability of the juvenile.
938.315(1)(a)8. 8. The inability of the court to provide the juvenile with notice of an extension hearing under s. 938.365 due to the juvenile having run away or otherwise having made himself or herself unavailable to receive that notice.
938.315(1)(a)9. 9. The need to appoint a qualified interpreter.
938.315(1)(a)10. 10. Consultation under s. 938.24 (2r) or 938.25 (2g).
938.315(1)(g) (g) A reasonable period of delay when the juvenile is joined in a hearing with another juvenile as to whom the time for a hearing has not expired under this section if there is good cause for not hearing the cases separately.
938.315(2) (2)Continuance for good cause. A continuance may be granted by the court only upon a showing of good cause in open court or during a telephone conference under s. 807.13 on the record and only for so long as is necessary, taking into account the request or consent of the representative of the public under s. 938.09 or the parties, the interests of the victims and the interest of the public in the prompt disposition of cases.
938.315(2m) (2m)When no continuance, extension, or exclusion permitted. No continuance or extension of a time limit specified in this chapter may be granted and no period of delay specified in sub. (1) may be excluded in computing a time requirement under this chapter if the continuance, extension, or exclusion would result in any of the following:
938.315(2m)(a) (a) The court making an initial finding under s. 938.21 (5) (b) 1., 938.355 (2) (b) 6., or 938.357 (2v) (a) 1. that reasonable efforts have been made to prevent the removal of the juvenile from the home, while assuring that the juvenile's health and safety are the paramount concerns, or an initial finding under s. 938.21 (5) (b) 3., 938.355 (2) (b) 6r., or 938.357 (2v) (a) 3. that those efforts were not required to be made because a circumstance specified in s. 938.355 (2d) (b) 1. to 4. applies, more than 60 days after the date on which the juvenile was removed from the home.
938.315(2m)(b) (b) The court making an initial finding under s. 938.38 (5m) that the agency primarily responsible for providing services to the juvenile has made reasonable efforts to achieve the goals of the juvenile's permanency plan more than 12 months after the date on which the juvenile was removed from the home or making any subsequent findings under s. 938.38 (5m) as to those reasonable efforts more than 12 months after the date of a previous finding as to those reasonable efforts.
938.315(3) (3)Consequences of failure to comply with time limit. Failure to comply with any time limit specified in this chapter does not deprive the court of personal or subject matter jurisdiction or of competency to exercise that jurisdiction. Failure to object to a period of delay or a continuance waives the time limit that is the subject of the period of delay or continuance. If a party does not comply with a time limit specified in this chapter, the court, while assuring the safety of the juvenile, may grant a continuance under sub. (2), dismiss the petition with or without prejudice, release the juvenile from secure or nonsecure custody or from the terms of a custody order, or grant any other relief that the court considers appropriate.
938.315 Note NOTE: 2003 Wis. Act 284, which affected this section, contains extensive explanatory notes.
938.315 Annotation A consent decree provides for a period of supervision that terminates when the period concludes. Its expiration is not a "time limit" under sub. (3). State v. Sarah R.P. 2001 WI App 49, 241 Wis. 2d 530, 624 N.W.2d 872, 00-2127.
938.315 Annotation The expiration date of a dispositional order is not a time limit contemplated in sub. (3). The length of time a dispositional order can remain in effect, however, is not really a requirement or deadline by which something must be done to proceed to the next step. State v. Michael S., Jr. 2005 WI 82, 282 Wis. 2d 1, 698 N.W.2d 673, 03-2934.
938.317 938.317 Jeopardy. Jeopardy attaches when a witness is sworn.
938.317 History History: 1995 a. 77.
938.32 938.32 Consent decree.
938.32(1)(1)When ordered; terms; victims' rights; procedures.
938.32(1)(a)(a) At any time after the filing of a petition for a proceeding relating to s. 938.12 or 938.13 and before the entry of judgment, the court may suspend the proceedings and place the juvenile under supervision in the juvenile's own home or present placement. The court may establish terms and conditions applicable to the parent, guardian, or legal custodian, and to the juvenile, including any of the conditions specified in subs. (1d), (1g), (1m), (1p), (1t), (1v), and (1x). The order under this section shall be known as a consent decree and must be agreed to by the juvenile; the parent, guardian, or legal custodian; and the person filing the petition under s. 938.25. If the consent decree includes any conditions specified in sub. (1g), the consent decree shall include provisions for payment of the services as specified in s. 938.361. The consent decree shall be in writing and be given to the parties.
938.32(1)(am) (am) Before entering into a consent decree in a case in which the juvenile is alleged to be delinquent under s. 938.12 or to be in need of protection or services under s. 938.13 (12), the district attorney or corporation counsel shall, as soon as practicable but before agreeing to the consent decree, offer all of the victims of the juvenile's alleged act who have so requested an opportunity to confer with the district attorney or corporation counsel concerning the proposed consent decree. The duty to offer an opportunity to confer under this paragraph does not limit the obligation of the district attorney or corporation counsel to exercise his or her discretion concerning the handling of the proceeding against the juvenile.
938.32(1)(b) (b) Before entering into a consent decree in a proceeding in which a juvenile is alleged to be delinquent under s. 938.12 or to be in need of protection or services under s. 938.13 (12) all of the following shall occur:
938.32(1)(b)1g. 1g. The court shall determine whether a victim of the juvenile's act wants to make a statement to the court. If a victim wants to make a statement, the court shall allow the victim to make a statement in court or to submit a written statement to be read to the court. The court may allow any other person to make or submit a statement under this subdivision. Any statement made under this subdivision must be relevant to the consent decree.
938.32(1)(b)1m. 1m. The court shall inquire of the district attorney or corporation counsel whether he or she has complied with par. (am), whether he or she has complied with subd. 2. and s. 938.27 (4m), whether any of the known victims requested notice of the date, time, and place of any hearing to be held on the consent decree, and, if so, whether the district attorney provided to the victim notice of the date, time, and place of the hearing.
938.32(1)(b)2. 2. The district attorney or corporation counsel shall make a reasonable attempt to contact any known victim to inform that person of the right to make a statement under subd. 1g. Any failure to comply with this subdivision is not a ground for discharge of the juvenile, parent, guardian, or legal custodian from fulfilling the terms and conditions of the consent decree.
938.32(1)(c)1.1. If at the time the consent decree is entered into the juvenile is placed outside the home under a voluntary agreement under s. 48.63 or is otherwise living outside the home without a court order and if the consent decree maintains the juvenile in that placement or other living arrangement, the consent decree shall include all of the following:
938.32(1)(c)1.a. a. A finding that placement of the juvenile in his or her home would be contrary to the welfare of the juvenile.
938.32(1)(c)1.b. b. A finding as to whether the county department or the agency primarily responsible for providing services to the juvenile 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, unless the court finds that any of the circumstances specified in s. 938.355 (2d) (b) 1. to 4. applies.
938.32(1)(c)1.c. c. A finding as to whether the county department or agency has made reasonable efforts to achieve the goal of the juvenile's permanency plan, unless return of the juvenile to the home is the goal of the permanency plan and the court finds that any of the circumstances specified in s. 938.355 (2d) (b) 1. to 4. applies.
938.32(1)(c)2. 2. If the court finds that any of the circumstances specified in s. 938.355 (2d) (b) 1. to 4. applies with respect to a parent, the consent decree shall include a determination that the county department or agency primarily responsible for providing services under the consent decree 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.
938.32(1)(c)3. 3. The court shall make the findings specified in subds. 1. and 2. 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 consent decree. A consent decree that references subd. 1. or 2. without documenting or referencing that specific information in the consent decree or an amended consent decree that retroactively corrects an earlier consent decree that does not comply with this subdivision is not sufficient to comply with this subdivision.
938.32(1)(d)1.1. If the court finds that any of the circumstances specified in s. 938.355 (2d) (b) 1. to 4. applies with respect to a parent, the court shall hold a hearing within 30 days after the date of that finding to determine the permanency plan for the juvenile. The agency responsible for preparing the permanency plan shall file the permanency plan with the court not less than 5 days before the date of the hearing.
938.32(1)(d)2. 2. At least 10 days before the date of the hearing under subd. 1., the court shall notify the juvenile, any parent, guardian, and legal custodian of the juvenile, and any foster parent, treatment foster parent, or other physical custodian described in s. 48.62 (2) of the juvenile of the time, place, and purpose of the hearing.
938.32(1)(d)3. 3. The court shall give a foster parent, treatment foster parent, or other physical custodian described in s. 48.62 (2) who is notified of a hearing under subd. 2. an opportunity to be heard at the hearing by permitting the foster parent, treatment 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, relevant to the issues to be determined at the hearing. The foster parent, treatment foster parent, or other physical custodian does not become a party to the proceeding on which the hearing is held solely on the basis of receiving the notice and having the opportunity to be heard.
938.32(1d) (1d)Volunteers in probation program. If the petition alleges that the juvenile has committed an act that would constitute a misdemeanor if committed by an adult, if the chief judge of the judicial administrative district has approved under s. 973.11 (2) a volunteers in probation program established in the juvenile's county of residence, and if the court determines that volunteer supervision under that volunteers in probation program will likely benefit the juvenile and the community, the court may establish as a condition under sub. (1) that the juvenile be placed with that volunteers in probation program under conditions that the court determines are reasonable and appropriate. The conditions may include any of the following:
938.32(1d)(a) (a) A directive to a volunteer to be a role model for the juvenile, informal counseling, general monitoring, monitoring of the conditions established by the court, or any combination of these functions.
938.32(1d)(b) (b) Any other conditions that the court may establish under this section.
938.32(1g) (1g)Alcohol or other drug abuse treatment and education. If the petition alleges that the juvenile committed a violation specified under ch. 961 and if the multidisciplinary screen conducted under s. 938.24 (2) shows that the juvenile is at risk of having needs and problems related to the use of alcohol beverages, controlled substances, or controlled substance analogs and its medical, personal, family, and social effects, the court may establish as a condition under sub. (1) any of the following:
938.32(1g)(a) (a) That the juvenile participate in outpatient treatment from an approved treatment facility for alcohol and other drug abuse, if an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 938.547 (4) was completed under s. 938.295 (1).
938.32(1g)(b) (b) That the juvenile participate in a court-approved pupil assistance program provided by the juvenile's school board or a court-approved alcohol or other drug abuse education program. The juvenile's participation in a court-approved pupil assistance program is subject to the approval of the juvenile's school board.
938.32(1m) (1m)Teen court program. The court may establish as a condition under sub. (1) that the juvenile be placed in a teen court program if all of the following conditions apply:
938.32(1m)(a) (a) The chief judge of the judicial administrative district has approved a teen court program established in the juvenile's county of residence and the court determines that participation in the program will likely benefit the juvenile and the community.
938.32(1m)(b) (b) The juvenile is alleged to have committed a delinquent act that would be a misdemeanor if committed by an adult.
938.32(1m)(c) (c) The juvenile admits or pleads no contest in open court, in the presence of the juvenile's parent, guardian or legal custodian, to the allegations that the juvenile committed the delinquent act.
938.32(1m)(d) (d) The juvenile has not successfully completed participation in a teen court program during the 2 years before the date of the alleged delinquent act.
938.32(1p) (1p)Participation in youth report center. The court may establish as a condition under sub. (1) that the juvenile report to a youth report center after school, in the evening, on weekends, on other nonschool days, or at any other time that the juvenile is not under immediate adult supervision, for participation in the social, behavioral, academic, community service, and other programming of the center. Section 938.34 (5g) applies to any community service work performed by a juvenile under this subsection.
938.32(1r) (1r)Alcohol and other drug abuse treatment; informed consent. If the conditions of the consent decree provide for an alcohol and other drug abuse outpatient treatment program under sub. (1g) (a), the juvenile or, if the juvenile has not attained 12 years of age, the juvenile's parent, guardian, or legal custodian shall execute an informed consent form that indicates that they are voluntarily and knowingly entering into a consent decree for the provision of alcohol and other drug abuse outpatient treatment.
938.32(1t) (1t)Restitution.
938.32(1t)(a)1.1. Subject to subd. 3., if the petition alleges that the juvenile committed a delinquent act that has resulted in damage to the property of another, or in actual physical injury to another excluding pain and suffering, the court may require the juvenile as a condition of the consent decree, to repair the damage to property or to make reasonable restitution for the damage or injury, either in the form of cash payments or, if the victim agrees, the performance of services for the victim, or both, if the court, after taking into consideration the well-being and needs of the victim, considers it beneficial to the well-being and behavior of the juvenile. Any consent decree that includes a condition of restitution by a juvenile shall include a finding that the juvenile alone is financially able to pay or physically able to perform the services, may allow up to the date of the expiration of the consent decree for the payment or for the completion of the services, and may include a schedule for the performance and completion of the services. If the juvenile objects to the amount of damages claimed, a hearing shall be held to determine the amount of damages before an amount of restitution is made part of the consent decree. Any recovery under this subdivision shall be reduced by the amount recovered as restitution for the same act under subd. 1m.
938.32(1t)(a)1m. 1m. If the petition alleges that the juvenile has committed a delinquent act that has resulted in damage to the property of another, or in actual physical injury to another excluding pain and suffering, the court may require a parent who has custody, as defined in s. 895.035 (1), of the juvenile, as a condition of the consent decree, to make reasonable restitution for the damage or injury. Except for recovery for retail theft under s. 943.51, the maximum amount of any restitution ordered under this subdivision for damage or injury resulting from any one act of a juvenile or from the same act committed by 2 or more juveniles in the custody of the same parent may not exceed $5,000. Any consent decree that includes a condition of restitution by a parent under this subdivision shall include a finding that the parent is financially able to pay the amount ordered and may allow up to the date of the expiration of the consent decree for the payment. If the parent objects to the amount of damages claimed, a hearing shall be held to determine the amount of damages before an amount of restitution is made part of the consent decree. Any recovery under this subdivision shall be reduced by the amount recovered as restitution for the same act under subd. 1.
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