2005 Wisconsin Act 344

(am) A juvenile subject to a sanction under s. 938.355 (6) (a) shall be is entitled to representation by counsel at the hearing under s. 938.355 (6) (c).

(b) 2. If the petition is contested, the court may not place the juvenile outside his or her home unless the juvenile is represented by counsel at the fact-finding hearing and subsequent proceedings. If the petition is not contested, the court may not place the juvenile outside his or her home unless the juvenile is represented by counsel at the hearing at which the placement is made. For a juvenile under 12 years of age, the judge court may appoint a guardian ad litem instead of counsel.

344,226 Section 226. 938.23 (3), (4) and (5) of the statutes are amended to read:

938.23 (3) Power of the court to appoint counsel. Except in proceedings under s. 938.13 as provided in this subsection, at any time, upon request or on its own motion, the court may appoint counsel for the juvenile or any party, unless the juvenile or the party has or wishes to retain counsel of his or her own choosing. The court may not appoint counsel for any party other than the juvenile in a proceeding under s. 938.13.

(4) Providing counsel. In any situation under this section in which If a juvenile has a right to be represented by counsel or is provided counsel at the discretion of the court under this section and counsel is not knowingly and voluntarily waived, the court shall refer the juvenile to the state public defender and counsel shall be appointed by the state public defender under s. 977.08 without a determination of indigency. In any other situation under this section in which a person has a right to be represented by counsel or is provided counsel at the discretion of the court, competent and independent counsel shall be provided and reimbursed in any manner suitable to the court regardless of the person's ability to pay, except that the court may not order a person who files a petition under s. 813.122 or 813.125 to reimburse counsel for the juvenile who is named as the respondent in that petition.

(5) Counsel of own choosing. Regardless of any provision of this section Notwithstanding subs. (3) and (4), any party is entitled to retain counsel of his or her own choosing at his or her own expense in any proceeding under this chapter.

344,227 Section 227. 938.235 (3) (a) and (b) (intro.) of the statutes are amended to read:

938.235 (3) (a) The guardian ad litem shall be an advocate for the best interests of the person for whom the appointment is made. The guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but shall not be bound by, the wishes of such the person or the positions of others as to the best interests of such the person. If the guardian ad litem determines that the best interests of the person are substantially inconsistent with the person's wishes of such person, the guardian ad litem shall so inform the court and the court may appoint counsel to represent that the person. The guardian ad litem has none of the rights or duties of a general guardian.

(b) (intro.) In addition to any other duties and responsibilities required of a guardian ad litem, a guardian ad litem appointed for a juvenile who is the subject of a proceeding under s. 938.13 shall do all of the following:

344,228 Section 228. 938.235 (7) and (8) (b) of the statutes are amended to read:

938.235 (7) Termination and extension of appointment. The appointment of a guardian ad litem under sub. (1) terminates upon the entry of the court's final order or upon the termination of any appeal in which the guardian ad litem participates. The guardian ad litem may appeal, may participate in an appeal, or may do neither. If an appeal is taken by any party and the guardian ad litem chooses not to participate in that the appeal, he or she shall file with the appellate court a statement of reasons for not participating. Irrespective of the guardian ad litem's decision not to participate in an appeal, the appellate court may order the guardian ad litem to participate in the appeal. At any time, the guardian ad litem, any party, or the person for whom the appointment is made may request in writing or on the record that the court extend or terminate the appointment or reappointment. The court may extend that appointment, or reappoint a guardian ad litem appointed under this section, after the entry of the final order or after the termination of the appeal, but the court shall specifically state the scope of the responsibilities of the guardian ad litem during the period of that the extension or reappointment.

(8) (b) The court may order either or both of the parents of a juvenile for whom a guardian ad litem is appointed under this chapter to pay all or any part of the compensation of the guardian ad litem. In addition, upon Upon motion by the guardian ad litem, the court may order either or both of the parents of the juvenile to pay the fee for an expert witness used by the guardian ad litem, if the guardian ad litem shows that the use of the expert is necessary to assist the guardian ad litem in performing his or her functions or duties under this chapter. If one or both of the parents are indigent or if the court determines that it would be unfair to a parent to require him or her to pay, the court may order the county of venue to pay the compensation and fees, in whole or in part. If the court orders the county of venue to pay because a parent is indigent, the court may also order either or both of the parents to reimburse the county, in whole or in part, for the payment.

344,229 Section 229. 938.237 (1) (title), (2) (title) and (3) (title) of the statutes are created to read:

938.237 (1) (title) Citation form.

(2) (title) Procedures.

(3) (title) Disposition.

344,230 Section 230. 938.24 (1) of the statutes is amended to read:

938.24 (1) Referral of information to intake worker; inquiry. Except when a citation has been issued under s. 938.17 (2), information indicating that a juvenile should be referred to the court as delinquent, in need of protection or services, or in violation of a civil law or a county, town, or municipal ordinance shall be referred to the an intake worker, who. The intake worker shall conduct an intake inquiry on behalf of the court to determine whether the available facts establish prima facie jurisdiction and to determine the best interests of the juvenile and of the public with regard to any action to be taken.

344,231 Section 231. 938.24 (1m) (title) of the statutes is created to read:

938.24 (1m) (title) Counseling.

344,232 Section 232. 938.24 (2) and (2m) of the statutes are amended to read:

938.24 (2) Multidisciplinary screens; intake conferences. (a) As part of the intake inquiry the intake worker, after providing notice to the juvenile, parent, guardian, and legal custodian, may conduct multidisciplinary screens and intake conferences with notice to the juvenile, parent, guardian and legal custodian. If sub. (2m) applies and if the juvenile has not refused to participate under par. (b), the intake worker shall conduct a multidisciplinary screen under s. 938.547 if the juvenile has not refused to participate under par. (b).

(b) No juvenile or other person may be compelled by an intake worker to appear at any conference, participate in a multidisciplinary screen, produce any papers, or visit any place by an intake worker.

(2m) Multidisciplinary screen; pilot program. (a) In counties that have a pilot program under s. 938.547, a multidisciplinary screen shall be conducted for a juvenile who is or does any of the following:

1. Any juvenile alleged Alleged to have committed a violation specified under ch. 961.

2. Any juvenile alleged Alleged to be delinquent or in need of protection and services who and has at least 2 prior adjudications for a violation of s. 125.07 (4) (a) or (b), 125.085 (3) (b), or 125.09 (2) or a local ordinance that strictly conforms to any of those sections.

3. Any juvenile alleged Alleged to have committed any offense which that appears to the intake worker to be directly motivated by the juvenile's need to purchase or otherwise obtain alcohol beverages, controlled substances, or controlled substance analogs.

4. Any juvenile 12 Twelve years of age or older who and requests and consents to a multidisciplinary screen.

5. Any juvenile who consents Consents to a multidisciplinary screen requested by his or her parents.

(b) The multidisciplinary screen may be conducted by an intake worker for any reason other than those specified in the criteria under in par. (a).

344,233 Section 233. 938.24 (2r) (title) and (3) (title) of the statutes are created to read:

938.24 (2r) (title) American Indian juvenile; notification of tribal court.

(3) (title) Request for petition.

344,234 Section 234. 938.24 (4) and (5) of the statutes are amended to read:

938.24 (4) Deferred prosecution agreement or case closure. If the intake worker determines as a result of the intake inquiry that the case should be subject to a deferred prosecution agreement, or should be closed, the intake worker shall so proceed. If a petition has been filed, a deferred prosecution agreement may not be entered into or a case may not be closed unless the petition is withdrawn by the district attorney, corporation counsel or other official specified in s. 938.09, or is dismissed by the judge court.

(5) Request for petition, deferred prosecution, or case closure; time periods. The intake worker shall request that a petition be filed, enter into a deferred prosecution agreement, or close the case within 40 days or sooner of receipt of referral information. Before entering into a deferred prosecution agreement, the intake worker shall comply with s. 938.245 (1m), if applicable. If the case is closed or a deferred prosecution agreement is entered into, the district attorney, corporation counsel, or other official under s. 938.09 shall receive written notice of such that action. If the case is closed, the known victims of the juvenile's alleged act shall receive notice as provided under sub. (5m), if applicable. A notice of deferred prosecution of an alleged delinquency case shall include a summary of the facts surrounding the allegation and a list of the juvenile's prior intake referrals and dispositions. If a law enforcement officer has made a recommendation concerning the juvenile, the intake worker shall forward this the recommendation to the district attorney under s. 938.09. Notwithstanding the requirements of this section, the district attorney may initiate a delinquency petition under s. 938.25 within 20 days after notice that the case has been closed or that a deferred prosecution agreement has been entered into. The judge court shall grant appropriate relief as provided in s. 938.315 (3) with respect to any such petition which that is not referred or filed within the time limits specified within in this subsection. Failure to object if to the fact that a petition is not referred or filed within a time limit specified in this subsection waives that time limit.

344,235 Section 235. 938.24 (5m) (title) of the statutes is created to read:

938.24 (5m) (title) Case closure; information to victims.

344,236 Section 236. 938.24 (6) and (7) of the statutes are amended to read:

938.24 (6) Written policies. The intake worker shall perform his or her responsibilities under this section under general written policies which the judge shall promulgate promulgated under s. 938.06 (1) or (2).

(7) No intake inquiry or review for citations. If a citation is issued to a juvenile, the citation shall is not be the subject of an intake to an inquiry or a review by an intake worker for the purpose of recommending deferred prosecution.

344,237 Section 237. 938.243 (1) (intro.), (am), (c) and (h) of the statutes are amended to read:

938.243 (1) Information to juvenile and parents; basic rights. (intro.) Before conferring with the parent or juvenile during the intake inquiry, the intake worker shall personally inform a juvenile alleged to have committed a delinquent act, and parents and juveniles a juvenile 10 years of age or over older who are is the focus of an inquiry regarding the need for protection or services under s. 938.13 (4), (6), (6m), or (7), and the parents of those juveniles of all of the following:

(am) What allegations could may be in the petition to the court.

(c) The right to remain silent and, the fact that in a delinquency proceeding the silence of the juvenile shall is not to be adversely considered by the court although, and the fact that in a nondelinquency proceeding the silence of any party may be relevant in any nondelinquency the proceeding.

(h) The right to have the allegations of the petition proved by clear and convincing evidence unless the juvenile comes is within the court's jurisdiction under s. 938.12 or 938.13 (12), in which case the standard of proof shall be is beyond a reasonable doubt.

344,238 Section 238. 938.243 (1m) of the statutes is renumbered 938.243 (1m) (intro.) and amended to read:

938.243 (1m) Disclosure of information for use in civil damages action. (intro.) If the juvenile who is the subject of the intake inquiry is alleged to have committed an act which that resulted in personal injury or damage to or loss of the property of another, the intake worker shall inform the juvenile's parents in writing of the all of the following:

(a) The possibility of disclosure of the identity of the juvenile and the parents, of the juvenile's police records, and of the outcome of proceedings against the juvenile for use in civil actions for damages against the juvenile or the parents and of the.

(b) The parents' potential liability for acts of their juveniles.

344,239 Section 239. 938.243 (3) of the statutes is amended to read:

938.243 (3) Information when juvenile not at intake conference or has not had custody hearing. If the juvenile has not had a hearing under s. 938.21 and was not present at an intake conference under s. 938.24, the intake worker shall inform notify the juvenile, parent, guardian, and legal custodian as appropriate of their basic rights under this section. This The notice shall be given verbally, either in person or by telephone, and in writing. This The notice shall be given so as in sufficient time to allow the juvenile, parent, guardian, or legal custodian sufficient time to prepare for the plea hearing. This subsection does not apply to cases of deferred prosecution under s. 938.245.

344,240 Section 240. 938.243 (4) (title) of the statutes is created to read:

938.243 (4) (title) Applicability.

344,241 Section 241. 938.245 (1) of the statutes is renumbered 938.245 (1) (intro.) and is amended to read:

938.245 (1) When available. (intro.) The An intake worker may enter into a written deferred prosecution agreement with all parties as provided in this section if the all of the following apply:

(a) The intake worker has determined that neither the interests of the juvenile nor of the public require filing of a petition for circumstances relating to s. 938.12, 938.125, 938.13, or 938.14. Deferred prosecution shall be available only if the

(b) The facts persuade the intake worker that the jurisdiction of the court, if sought, would exist and upon consent of the.

(c) The juvenile, parent, guardian and legal custodian consent.

344,242 Section 242. 938.245 (1m) of the statutes is amended to read:

938.245 (1m) Victims; right to confer with intake worker. If 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), an intake worker shall, as soon as practicable but in any event before entering into a deferred prosecution agreement under sub. (1), offer all of the victims of the juvenile's alleged act who have so requested the opportunity an opportunity to confer with the intake worker concerning the proposed deferred prosecution agreement. The duty to offer an opportunity to confer under this subsection does not limit the obligation of the intake worker to perform his or her responsibilities under this section.

344,243 Section 243. 938.245 (2) (title) of the statutes is created to read:

938.245 (2) (title) Contents of agreement.

344,244 Section 244. 938.245 (2) (a) (title) of the statutes is created to read:

938.245 (2) (a) (title) Specific conditions.

344,245 Section 245. 938.245 (2) (a) 1. (title) of the statutes is created to read:

938.245 (2) (a) 1. (title) `Counseling.'

344,246 Section 246. 938.245 (2) (a) 2., 3. and 4. of the statutes are amended to read:

938.245 (2) (a) 2. `Compliance with obligations.' That the juvenile and a parent, guardian and, or legal custodian abide by such obligations, including supervision, curfews, and school attendance requirements, as will tend to ensure the juvenile's rehabilitation, protection, or care.

3. `Alcohol and other drug abuse assessment.' That the juvenile submit to an alcohol and other drug abuse assessment that conforms to meets the criteria specified under s. 938.547 (4) and that is conducted by an approved treatment facility for an examination of the juvenile's use of alcohol beverages, controlled substances, or controlled substance analogs and any medical, personal, family, or social effects caused by its use, 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, or social effects.

4. `Alcohol and other drug abuse treatment and education.' That the juvenile participate in an alcohol and other drug abuse outpatient treatment program, a court-approved pupil assistance program provided by the juvenile's school board, or a court-approved alcohol or other drug abuse education program, if an alcohol and other drug abuse assessment conducted under subd. 3. recommends outpatient treatment, intervention, or education. The juvenile's participation in a court-approved pupil assistance program under this subdivision is subject to the approval of the juvenile's school board.

344,247 Section 247. 938.245 (2) (a) 5. (title) of the statutes is created to read:

938.245 (2) (a) 5. (title) `Restitution.'

344,248 Section 248. 938.245 (2) (a) 5. a., am. and c. of the statutes are amended to read:

938.245 (2) (a) 5. a. That the juvenile participate in a restitution project if the act for which the deferred prosecution agreement is being entered into has resulted in damage to the property of another, or in actual physical injury to another excluding pain and suffering. Subject to subd. 5. c., the deferred prosecution agreement may require the juvenile 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 intake worker, 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 such deferred prosecution The agreement shall include a determination 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 deferred prosecution agreement for the payment or for the completion of the services, and may include a schedule for the performance and completion of the services. Any recovery under this subd. 5. a. shall be reduced by the amount recovered as restitution for the same act under subd. 5. am.

am. That the parent who has custody, as defined in s. 895.035 (1), of the juvenile make reasonable restitution for any damage to the property of another, or for any actual physical injury to another excluding pain and suffering, resulting from the act for which the deferred prosecution agreement is being entered into. Except for recovery for retail theft under s. 943.51, the maximum amount of any restitution ordered under this subd. 5. am. 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 order under this subd. 5. am. shall include a finding that the parent who has custody of the juvenile is financially able to pay the amount ordered and may allow up to the date of the expiration of the deferred prosecution agreement for the payment. Any recovery under this subd. 5. am. shall be reduced by the amount recovered as restitution for the same act under subd. 5. a.

c. Under An agreement under this subdivision, a deferred prosecution agreement may not require a juvenile who is under 14 years of age to make not more than $250 in restitution or to perform not more than 40 total hours of services for the victim as total restitution.

Note: Revises s. 948.245 (2) (a) 5. c., stats., to clarify that the maximum amount of restitution in terms of monetary amount or services applies to all of the damage or injuries from the act (or acts) that are the basis for the deferred prosecution agreement (i.e., the amount does not apply per charge or per petition, but is the total amount that can be required under the agreement).

The same change is made in ss. 938.32 (1t) (a) 3. and 938.34 (5) (c), stats.

344,249 Section 249. 938.245 (2) (a) 6. (title) of the statutes is created to read:

938.245 (2) (a) 6. (title) `Supervised work program.'

344,250 Section 250. 938.245 (2) (a) 7. of the statutes is amended to read:

938.245 (2) (a) 7. `Volunteers in probation.' That the juvenile be placed with a volunteers in probation program under such conditions as the intake worker determines are reasonable and appropriate, if the juvenile is alleged to have 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 intake worker determines that volunteer supervision under that volunteers in probation program will likely benefit the juvenile and the community. The conditions that the an intake worker may establish under this subdivision may include, but need not be limited to, a request to a volunteer to provide be a role model for the juvenile a role model, informal counseling, general monitoring and, monitoring of the conditions established by the intake worker, or any combination of these functions, and any other deferred prosecution condition that the intake worker may establish under this paragraph.

344,251 Section 251. 938.245 (2) (a) 8. (title) of the statutes is created to read:

938.245 (2) (a) 8. (title) `Teen court program.'

344,252 Section 252. 938.245 (2) (a) 8. c. of the statutes is amended to read:

938.245 (2) (a) 8. c. The juvenile admits to the intake worker, with in the presence of the juvenile's parent, guardian, or legal custodian present, that the juvenile committed the alleged delinquent act or civil law or ordinance violation.

344,253 Section 253. 938.245 (2) (a) 9m. (title), (b) (title) and (c) (title) of the statutes are created to read:

938.245 (2) (a) 9m. (title) `Youth report center.'