48.297
48.297
Motions before trial. 48.297(1)
(1) Any motion which is capable of determination without trial of the general issue may be made before trial.
48.297(2)
(2) Defenses and objections based on defects in the institution of proceedings, lack of probable cause on the face of the petition, insufficiency of the petition or invalidity in whole or in part of the statute on which the petition is founded shall be raised not later than 10 days after the plea hearing or be deemed waived. Other motions capable of determination without trial may be brought any time before trial.
48.297(3)
(3) Motions to suppress evidence as having been illegally seized or statements illegally obtained shall be made before fact-finding on the issues. The court may entertain the motion at the fact-finding hearing if it appears that a party is surprised by the attempt to introduce such evidence and that party waives jeopardy.
48.297(4)
(4) Although the taking of a child into custody is not an arrest, it shall be considered an arrest for the purpose of deciding motions which require a decision about the propriety of taking into custody, including but not limited to motions to suppress evidence as illegally seized, motions to suppress statements as illegally obtained and motions challenging the lawfulness of the taking into custody.
48.297(5)
(5) If the child is in custody and the court grants a motion to dismiss based upon a defect in the petition or in the institution of the proceedings, the court may order the child continued in custody for not more than 48 hours pending the filing of a new petition.
48.297(6)
(6) A motion required to be served on a child may be served upon his or her attorney of record.
48.297(7)
(7) Oral argument permitted on motions under this section may be heard by telephone under
s. 807.13 (1).
48.297 History
History: 1977 c. 354;
1979 c. 300,
331,
359; Sup. Ct. Order, 141 W (2d) xiii (1987);
1995 a. 77.
48.297 Annotation
The failure of police to notify parents or guardian does not per se render the confession inadmissible. Theriault v. State, 66 W (2d) 33, 223 NW (2d) 850.
48.299
48.299
Procedures at hearings. 48.299(1)(a)(a) The general public shall be excluded from hearings under this chapter and from hearings by courts exercising jurisdiction under
s. 48.16 unless a public fact-finding hearing is demanded by a child through his or her counsel. However, the court shall refuse to grant the public hearing in a proceeding other than a proceeding under
s. 48.375 (7), if a parent or guardian objects.
48.299(1)(ag)
(ag) In a proceeding other than a proceeding under
s. 48.375 (7), if a public hearing is not held, only the parties and their counsel, if any, the child's foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2), witnesses and other persons requested by a party and approved by the court may be present, except that the court may exclude a foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) from any portion of the hearing if that portion of the hearing deals with sensitive personal information of the child or the child's family or if the court determines that excluding the foster parent, treatment foster parent or other physical custodian would be in the best interests of the child. Except in a proceeding under
s. 48.375 (7), any other person the court finds to have a proper interest in the case or in the work of the court, including a member of the bar, may be admitted by the court.
48.299(1)(ar)
(ar) All hearings under
s. 48.375 (7) shall be held in chambers, unless a public fact-finding hearing is demanded by the child through her counsel. In a proceeding under
s. 48.375 (7), the child's foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) may be present if requested by a party and approved by the court.
48.299(1)(b)
(b) Except as provided in
ss. 48.375 (7) (e) and
48.396, any person who divulges any information which would identify the child or the family involved in any proceeding under this chapter shall be subject to
ch. 785. This paragraph does not preclude a victim of the child's act from commencing a civil action based upon the child's act.
48.299(3)
(3) If the court finds that it is in the best interest of the child, and if the child's counsel or guardian ad litem consents, the child may be temporarily excluded by the court from a hearing on a petition alleging that the child is in need of protection or services. If the court finds that a child under 7 years of age is too young to comprehend the hearing, and that it is in the best interest of the child, the child may be excluded from the entire hearing.
48.299(4)(b)
(b) Except as provided in
s. 901.05, neither common law nor statutory rules of evidence are binding at a hearing for a child held in custody under
s. 48.21, a runaway home hearing under
s. 48.227 (4), a dispositional hearing, or a hearing about changes in placement, revision of dispositional orders, extension of dispositional orders or termination of guardianship orders entered under
s. 48.977 (4) (h) 2. or
(6). At those hearings, the court shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant or unduly repetitious testimony or evidence that is inadmissible under
s. 901.05. Hearsay evidence may be admitted if it has demonstrable circumstantial guarantees of trustworthiness. The court shall give effect to the rules of privilege recognized by law. The court shall apply the basic principles of relevancy, materiality and probative value to proof of all questions of fact. Objections to evidentiary offers and offers of proof of evidence not admitted may be made and shall be noted in the record.
48.299(5)
(5) On request of any party, unless good cause to the contrary is shown, any hearing under
s. 48.209 (1) (e) or
48.21 (1) may be held on the record by telephone or live audio-visual means or testimony may be received by telephone or live audio-visual means as prescribed in
s. 807.13 (2). The request and the showing of good cause for not conducting the hearing or admitting testimony by telephone or live audio-visual means may be made by telephone.
48.299(6)
(6) If a man who has been given notice under
s. 48.27 (3) (b) 1. appears at any hearing for which he received the notice, alleges that he is the father of the child and states that he wishes to establish the paternity of the child, all of the following apply:
48.299(6)(a)
(a) The court shall refer the matter to the state or to the attorney responsible for support enforcement under
s. 59.53 (6) (a) for a determination, under
s. 767.45, of whether an action should be brought for the purpose of determining the paternity of the child.
48.299(6)(b)
(b) The state or the attorney responsible for support enforcement who receives a referral under
par. (a) shall perform the duties specified under
s. 767.45 (5) (c) and
(6r).
48.299(6)(c)
(c) The court having jurisdiction over actions affecting the family shall give priority under 767.475 (7m) to an action brought under
s. 767.45 whenever the petition filed under
s. 767.45 indicates that the matter was referred by the court under
par. (a).
48.299(6)(d)
(d) The court may stay the proceedings under this chapter pending the outcome of the paternity proceedings under
ss. 767.45 to
767.60 if the court determines that the paternity proceedings will not unduly delay the proceedings under this chapter and the determination of paternity is necessary to the court's disposition of the child if the child is found to be in need of protection or services.
48.299(6)(e)1.1. In this paragraph, "genetic test" means a test that examines genetic markers present on blood cells, skin cells, tissue cells, bodily fluid cells or cells of another body material for the purpose of determining the statistical probability that a man who is alleged to be a child's father is the child's biological father.
48.299(6)(e)2.
2. The court shall, at the hearing, orally inform any man specified in
sub. (6) (intro.) that he may be required to pay for any testing ordered by the court under this paragraph or under
s. 885.23.
48.299(6)(e)3.
3. In addition to ordering testing as provided under
s. 885.23, if the court determines that it would be in the best interests of the child, the court may order any man specified in
sub. (6) (intro.) to submit to one or more genetic tests which shall be performed by an expert qualified as an examiner of genetic markers present on the cells and of the specific body material to be used for the tests, as appointed by the court. A report completed and certified by the court-appointed expert stating genetic test results and the statistical probability that the man alleged to be the child's father is the child's biological father based upon the genetic tests is admissible as evidence without expert testimony and may be entered into the record at any hearing. The court, upon request by a party, may order that independent tests be performed by other experts qualified as examiners of genetic markers present on the cells of the specific body materials to be used for the tests.
48.299(6)(e)4.
4. If the genetic tests show that an alleged father is not excluded and that the statistical probability that the alleged father is the child's biological father is 99.0% or higher, the court may determine that for purposes of a proceeding under this chapter, other than a proceeding under
subch. VIII, the man is the child's biological parent.
48.299(6)(e)5.
5. A determination by the court under
subd. 4. is not a judgment of paternity under
ch. 767 or an adjudication of paternity under
subch. VIII.
48.299 Note
NOTE: Sub. (6) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
48.299(7)
(7) If a man who has been given notice under
s. 48.27 (3) (b) 1. appears at any hearing for which he received the notice but does not allege that he is the father of the child and state that he wishes to establish the paternity of the child or if no man to whom such notice was given appears at a hearing, the court may refer the matter to the state or to the attorney responsible for support enforcement under
s. 59.458 (1) [59.53 (6) (a)] for a determination, under
s. 767.45, of whether an action should be brought for the purpose of determining the paternity of the child.
48.299 Note
NOTE: The bracketed language indicates the correct cross-reference. Corrective legislation is pending.
48.299(8)
(8) As part of the proceedings under this chapter, the court may order that a record be made of any testimony of the child's mother relating to the child's paternity. A record made under this subsection is admissible in a proceeding to determine the child's paternity under
ss. 767.45 to
767.60.
48.299 History
History: 1979 c. 300;
1981 c. 353;
1985 a. 311;
1987 a. 27; Sup. Ct. Order, 141 W (2d) xiii (1987);
1991 a. 263,
269;
1993 a. 16,
32,
98,
227,
228,
395;
1995 a. 77,
201,
275; s. 13.93 (2) (c).
48.299 Note
Judicial Council Note, 1988: Sub. (5) allows a judicial review of the status of a child held in a county jail, or a continuation of custody hearing, to be held by telephone conference, or telephoned testimony to be admitted at such a hearing, on request of any party, unless good cause to the contrary is shown. [Re Order effective Jan. 1, 1988]
48.299 Annotation
See note to 48.18, citing In Interest of D.E.D. 101 W (2d) 193, 304 NW (2d) 133 (Ct. App. 1981).
48.299 Annotation
Sub. (1) (am) allows relatives of homicide victims to attend the fact- finding hearing but not the dispositional hearing. In Interest of Shawn B. N. 173 W (2d) 343, 497 NW (2d) 141 (Ct. App. 1992).
48.30
48.30
Plea hearing. 48.30(1)(1) Except as provided in this subsection, the hearing to determine whether any party wishes to contest an allegation that the child is in need of protection or services shall take place on a date which allows reasonable time for the parties to prepare but is within 30 days after the filing of a petition for a child who is not being held in secure custody or within 10 days after the filing of a petition for a child who is being held in secure custody.
48.30(2)
(2) At the commencement of the hearing under this section the child and the parent, guardian or legal custodian shall be advised of their rights as specified in
s. 48.243 and shall be informed that a request for a jury trial or for a substitution of judge under
s. 48.29 must be made before the end of the plea hearing or be waived. Nonpetitioning parties, including the child, shall be granted a continuance of the plea hearing if they wish to consult with an attorney on the request for a jury trial or substitution of a judge.
48.30(3)
(3) If a petition alleges that a child is in need of protection or services under
s. 48.13, the nonpetitioning parties and the child, if he or she is 12 years of age or older or is otherwise competent to do so, shall state whether they desire to contest the petition.
48.30(6)
(6) If a petition is not contested, the court shall set a date for the dispositional hearing which allows reasonable time for the parties to prepare but is no more than 10 days from the plea hearing for the child who is held in secure custody and no more than 30 days from the plea hearing for a child who is not held in secure custody. If it appears to the court that disposition of the case may include placement of the child outside the child's home, the court shall order the child's parent to provide a statement of income, assets, debts and living expenses to the court or the designated agency under
s. 48.33 (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 a statement of income, assets, debts and living expenses a document setting forth the percentage standard established by the department of industry, labor and job development under
s. 49.22 (9) and the manner of its application established by the department of health and family services under
s. 46.247 and listing the factors that a court may consider under
s. 46.10 (14) (c). If all parties consent the court may proceed immediately with the dispositional hearing.
48.30(7)
(7) If the petition is contested, the court shall set a date for the fact-finding hearing which allows reasonable time for the parties to prepare but is no more than 20 days from the plea hearing for a child who is held in secure custody and no more than 30 days from the plea hearing for a child who is not held in secure custody.
48.30(8)
(8) Before accepting an admission or plea of no contest of the alleged facts in a petition, the court shall:
48.30(8)(a)
(a) Address the parties present including the child personally and determine that the plea or admission is made voluntarily with understanding of the nature of the acts alleged in the petition and the potential dispositions.
48.30(8)(b)
(b) Establish whether any promises or threats were made to elicit the plea or admission and alert unrepresented parties to the possibility that a lawyer may discover defenses or mitigating circumstances which would not be apparent to them.
48.30(8)(c)
(c) Make such inquiries as satisfactorily establishes that there is a factual basis for the parent's and child's plea or admission.
48.30(9)
(9) If a court commissioner conducts the plea hearing and accepts an admission of the alleged facts in a petition brought under
s. 48.13, the judge shall review the admission at the beginning of the dispositional hearing by addressing the parties and making the inquiries set forth in
sub. (8).
48.30(10)
(10) The court may permit any party to participate in hearings under this section by telephone or live audio-visual means.
48.30 History
History: 1977 c. 354,
355,
447;
1979 c. 300,
331,
355,
359;
1985 a. 321,
332;
1987 a. 151;
1987 a. 403 s.
256; Sup. Ct. Order, 158 W (2d) xvii (1990);
1993 a. 163,
474,
481;
1995 a. 77,
225,
404,
417.
48.30 Annotation
The time limits under sub. (1) are mandatory; failure to comply results in the court's loss of competency and is properly remedied by dismissal without prejudice. In Interest of Jason B. 176 W (2d) 400, 500 NW (2d) 384 (Ct. App. 1993).
48.30 Annotation
A court's failure to inform a juvenile of the right to judicial substitution does not affect its competence and warrants reversal only if the juvenile suffers actual prejudice. State v. Kywanda F. 200 W (2d) 26, 546 NW (2d) 440 (1996).
48.305
48.305
Hearing upon the involuntary removal of a child. Notwithstanding other time periods for hearings under this chapter, if a child is removed from the physical custody of the child's parent or guardian under
s. 48.19 (1) (c) or
(d) 5. without the consent of the parent or guardian, the court shall schedule a plea hearing and fact-finding hearing within 30 days of a request from the parent or guardian from whom custody was removed. The plea hearing and fact-finding hearing may be combined. This time period may be extended only with the consent of the requesting parent or guardian.
48.305 History
History: 1977 c. 354;
1979 c. 300.
48.31
48.31
Fact-finding hearing. 48.31(1)
(1) In this section, "fact-finding hearing" means a hearing to determine if the allegations in a petition under
s. 48.13 or a petition to terminate parental rights are proved by clear and convincing evidence.
48.31(2)
(2) The hearing shall be to the court unless the child, parent, guardian or legal custodian exercises the right to a jury trial by demanding a jury trial at any time before or during the plea hearing. If a jury trial is demanded in a proceeding under
s. 48.13, the jury shall consist of 6 persons. If a jury trial is demanded in a proceeding under
s. 48.42, the jury shall consist of 12 persons unless the parties agree to a lesser number.
Chapters 756 and
805 shall govern the selection of jurors. If the hearing involves a child victim or witness, as defined in
s. 950.02, the court may order the taking and allow the use of a videotaped 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 or jury shall make a determination of the facts, except that in a case alleging a child to be in need of protection or services under
s. 48.13, the court shall make the determination under
s. 48.13 (intro.) relating to whether the child is in need of protection or services which can be ordered by the court. If the court finds that the child is not within the jurisdiction of the court or, in a case alleging a child to be in need of protection or services under
s. 48.13, that the child is not in need of protection or services which can be ordered by the court or if the court or jury finds that the facts alleged in the petition have not been proved, the court shall dismiss the petition with prejudice.
48.31(4)
(4) The court or jury shall make findings of fact and the court shall make conclusions of law relating to the allegations of a petition filed under
s. 48.13 or
48.42, except that the court shall make findings of fact relating to whether the child is in need of protection or services which can be ordered by the court. In cases alleging a child to be in need of protection or services under
s. 48.13 (11), the court shall not find that the child is suffering emotional damage unless a licensed physician specializing in psychiatry or a licensed psychologist appointed by the court to examine the child has testified at the hearing that in his or her opinion the condition exists, and adequate opportunity for the cross-examination of the physician or psychologist has been afforded. The judge may use the written reports if the right to have testimony presented is voluntarily, knowingly and intelligently waived by the guardian ad litem or legal counsel for the child and the parent or guardian. In cases alleging a child to be in need of protection or services under
s. 48.13 (11m), the court shall not find that the child is in need of treatment and education for needs and problems related to the use or abuse of alcohol beverages, controlled substances or controlled substance analogs and its medical, personal, family or social effects unless an assessment for alcohol and other drug abuse that conforms to the criteria specified under
s. 48.547 (4) has been conducted by an approved treatment facility.
48.31(7)
(7) At the close of the fact-finding hearing, the court shall set a date for the dispositional hearing which allows a reasonable time for the parties to prepare but is no more than 10 days from the fact-finding hearing for a child in secure custody and no more than 30 days from the fact-finding hearing for a child not held in secure custody. If it appears to the court that disposition of the case may include placement of the child outside the child's home, the court shall order the child's parent to provide a statement of income, assets, debts and living expenses to the court or the designated agency under
s. 48.33 (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 a statement of income, assets, debts and living expenses a document setting forth the percentage standard established by the department of industry, labor and job development under
s. 49.22 (9) and the manner of its application established by the department of health and family services under
s. 46.247 and listing the factors that a court may consider under
s. 46.10 (14) (c). If all parties consent, the court may immediately proceed with a dispositional hearing.
48.31 Annotation
As matter of judicial administration, supreme court mandates procedures for withdrawal of juvenile's jury demand. In Interest of N.E. 122 W (2d) 198, 361 NW (2d) 693 (1985).
48.31 Annotation
Fact-finding hearing under (1) was not closed until court ruled on motion to set aside verdict. In Interest of C.M.L. 157 W (2d) 152, 458 NW (2d) 573 (Ct. App. 1990).
48.31 Annotation
See note to Art. I, sec. 5, citing McKeiver v. Pennsylvania, 402 US 528.
48.315
48.315
Delays, continuances and extensions. 48.315(1)
(1) The following time periods shall be excluded in computing time requirements within this chapter:
48.315(1)(a)
(a) Any period of delay resulting from other legal actions concerning the child, including an examination under
s. 48.295 or a hearing related to the child's mental condition, prehearing motions, waiver motions and hearings on other matters.
48.315(1)(b)
(b) Any period of delay resulting from a continuance granted at the request of or with the consent of the child and counsel.
48.315(1)(c)
(c) Any period of delay caused by the disqualification of a judge.
48.315(1)(d)
(d) Any period of delay resulting from a continuance granted at the request of the representative of the public under
s. 48.09 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.
48.315(1)(e)
(e) Any period of delay resulting from the imposition of a consent decree.
48.315(1)(f)
(f) Any period of delay resulting from the absence or unavailability of the child.
48.315(1)(fm)
(fm) Any period of delay resulting from the inability of the court to provide the child with notice of an extension hearing under
s. 48.365 due to the child having run away or otherwise having made himself or herself unavailable to receive that notice.
48.315(1)(g)
(g) A reasonable period of delay when the child is joined in a hearing with another child 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.
48.315(2)
(2) A continuance shall 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 district attorney or the parties and the interest of the public in the prompt disposition of cases.
48.315 History
History: 1977 c. 354; Sup. Ct. Order, 141 W (2d) xiii (1987);
1987 a. 403;
1991 a. 263;
1993 a. 98.
48.315 Annotation
Trial court's sua sponte adjournment of fact-finding hearing beyond 30-day limit due to congested calendar constitutes good cause under (2) when adjournment order is entered within 30-day period. In Matter of J.R. 152 W (2d) 598, 449 NW (2d) 52 (Ct. App. 1989).
48.315 Annotation
See note to 48.365 citing In Interest of B.J.N. 162 W (2d) 635, 469 NW (2d) 845 (1991).
48.315 Annotation
The period under sub. (1) (c) includes the time required to assign the new judge, send any required notices, notify the parties and arrange for time on the court's calendar; applicable time limits for plea hearings apply after the assignment of the new judge. In Interest of Joshua M.W. 179 W (2d) 335, 507 NW (2d) 141 (Ct. App. 1993).
48.315 Annotation
Under sub. (2), "on the record" does not require reporting by a court reporter. A clerk's minutes satisfy the requirement. Waukesha County v. Darlene R. 201 W (2d) 633, 549 NW (2d) 489 (Ct. App. 1996).
48.315 Annotation
The benefits of a pretrial are universally recognized by bench and bar such that a court need not specify the factors supporting "good cause" for a continuance of the time limits under sub. (2). Waukesha County v. Darlene R. 201 W (2d) 633, 549 NW (2d) 489 (Ct. App. 1996).
48.315 Annotation
Under sub. (1) (a) the time limits are tolled for an examination of a parent under s. 48.295. Waukesha County v. Darlene R. 201 W (2d) 633, 549 NW (2d) 489 (Ct. App. 1996).
48.317
48.317
Jeopardy. Jeopardy attaches:
48.317(1)
(1) In a trial to the court, when a witness is sworn.
48.317(2)
(2) In a jury trial, when the jury selection is completed and the jury sworn.
