938.275 History
History: 1995 a. 77,
352;
1997 a. 205,
239.
938.275 Annotation
Guardian ad litem fees are not reimbursable under sub. (2) (a). In Interest of G. & L.P.
119 Wis. 2d 349,
349 N.W.2d 743 (Ct. App. 1984).
938.275 Note
NOTE: The above annotation cite to s. 48.275, the predecessor statute to s. 938.275.
938.28
938.28
Failure to obey summons; capias. If any person summoned under this chapter fails without reasonable cause to appear, he or she may be proceeded against for contempt of court. In case the summons cannot be served or the parties served fail to obey the same, or in any case when it appears to the court that the service will be ineffectual a capias may be issued for the parent, guardian and legal custodian or for the juvenile.
Subchapter IV governs the taking and holding of a juvenile in custody.
938.28 History
History: 1995 a. 77;
1997 a. 35.
938.28 Annotation
The issuance of a capias to secure the physical attendance of a juvenile prior to the service of the summons and petition on the juvenile was error but did not deny the court personal jurisdiction. Interest of Jermaine T.J.
181 Wis. 2d 82,
510 N.W.2d 735 (Ct. App. 1993).
938.28 Note
NOTE: The above annotation cite to s. 48.275, the predecessor statute to s. 938.275.
938.29
938.29
Substitution of judge. 938.29(1)
(1) Except as provided in
sub. (1g), the juvenile, either before or during the plea hearing, may file a written request with the clerk of the court or other person acting as the clerk for a substitution of the judge assigned to the proceeding. Upon filing the written request, the juvenile shall immediately mail or deliver a copy of the request to the judge named therein. In a proceeding under
s. 938.12 or
938.13 (12), only the juvenile may request a substitution of the judge. Whenever the juvenile has the right to request a substitution of judge, the juvenile's counsel or guardian ad litem may file the request. Not more than one such written request may be filed in any one proceeding, nor may any single request name more than one judge. This section shall not apply to proceedings under
s. 938.21.
938.29(1g)
(1g) The juvenile may not request the substitution of a judge in a proceeding under
s. 938.12 or
938.13 (12), and the juvenile and the juvenile's parent, guardian or legal custodian may not request the substitution of a judge in a proceeding under
s. 938.13 (4),
(6),
(6m) or
(7), if the judge assigned to the proceeding has entered a dispositional order with respect to the juvenile in a previous proceeding under
s. 48.12, 1993 stats.,
s. 48.13 (4),
(6),
(6m),
(7) or
(12), 1993 stats.,
s. 938.12 or
938.13 (4),
(6),
(6m),
(7) or
(12) or the juvenile or the juvenile's parent, guardian or legal custodian has requested the substitution of a judge in a previous proceeding under
s. 48.12, 1993 stats.,
s. 48.13 (4),
(6),
(6m),
(7) or
(12), 1993 stats.,
s. 938.12 or
938.13 (4),
(6),
(6m),
(7) or
(12).
938.29(1m)
(1m) When the clerk receives a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. Except as provided in
sub. (2), if the request is found to be timely and in proper form, the judge named in the request has no further jurisdiction and the clerk shall request the assignment of another judge under
s. 751.03. If no determination is made within 7 days, the clerk shall refer the matter to the chief judge of the judicial administrative district for determination of whether the request was made timely and in proper form and reassignment as necessary.
938.29(2)
(2) If the request for substitution of a judge is made for the judge scheduled to conduct a waiver hearing under
s. 938.18, the request shall be filed before the close of the working day preceding the day that the waiver hearing is scheduled. Except as provided in
sub. (1g), the judge may allow an authorized party to make a request for substitution on the day of the waiver hearing. If the request for substitution is made subsequent to the waiver hearing, the judge who conducted the waiver hearing may also conduct the plea hearing.
938.29 History
History: 1995 a. 77,
352.
938.293(1)(1) Copies of all law enforcement officer reports, including but not limited to the officer's memorandum and witnesses' statements, shall be made available upon request to counsel or guardian ad litem prior to a plea hearing. The reports shall be available through the representative of the public designated under
s. 938.09. The juvenile, through counsel or guardian ad litem, is the only party who shall have access to the reports in proceedings under
s. 938.12,
938.125 or
938.13 (12). The identity of a confidential informant may be withheld pursuant to
s. 905.10.
938.293(2)
(2) All records relating to a juvenile which are relevant to the subject matter of a proceeding under this chapter shall be open to inspection by a guardian ad litem or counsel for any party, upon demand and upon presentation of releases where necessary, at least 48 hours before the proceeding. Persons entitled to inspect the records may obtain copies of the records with the permission of the custodian of the records or with the permission of the court. The court may instruct counsel not to disclose specified items in the materials to the juvenile or the parent if the court reasonably believes that the disclosure would be harmful to the interests of the juvenile.
Sections 971.23 and
972.11 (5) shall be applicable in all delinquency proceedings under this chapter, except that the court shall establish the timetable for the disclosures required under
ss. 971.23 (1),
(2m) and
(8) and
972.11 (5).
938.293(3)
(3) Upon request prior to the fact-finding hearing, the district attorney shall disclose to the juvenile, and to the juvenile's counsel or guardian ad litem, the existence of any videotaped oral statement of a juvenile under
s. 908.08 which is within the possession, custody or control of the state and shall make reasonable arrangements for the requesting person to view the videotaped oral statement. If, subsequent to compliance with this subsection, the state obtains possession, custody or control of such a videotaped statement, the district attorney shall promptly notify the requesting person of that fact and make reasonable arrangements for the requesting person to view the videotaped oral statement.
938.293 History
History: 1995 a. 77,
387;
1997 a. 35.
938.295
938.295
Physical, psychological, mental or developmental examination. 938.295(1)(1) After the filing of a petition and upon a finding by the court that reasonable cause exists to warrant an examination or an alcohol and other drug abuse assessment that conforms to the criteria specified under
s. 938.547 (4), the court may order any juvenile coming within its jurisdiction to be examined as an outpatient by personnel in an approved treatment facility for alcohol and other drug abuse, by a physician, psychiatrist or licensed psychologist, or by another expert appointed by the court holding at least a master's degree in social work or another related field of child development, in order that the juvenile's physical, psychological, alcohol or other drug dependency, mental or developmental condition may be considered. The court may also order an examination or an alcohol and other drug abuse assessment that conforms to the criteria specified under
s. 938.547 (4) of a parent, guardian or legal custodian whose ability to care for a juvenile is at issue before the court. The court shall hear any objections by the juvenile and the juvenile's parents, guardian or legal custodian to the request for such an examination or assessment before ordering the examination or assessment. The expenses of an examination, if approved by the court, shall be paid by the county of the court ordering the examination. The payment for an alcohol and other drug abuse assessment shall be in accordance with
s. 938.361.
938.295(1c)
(1c) Reasonable cause is considered to exist to warrant an alcohol and other drug abuse assessment under
sub. (1) if any of the following applies:
938.295(1c)(a)
(a) The multidisciplinary screen procedure conducted under
s. 938.24 (2) indicates that the juvenile is at risk of having needs and problems related to alcohol or other drug abuse.
938.295(1c)(b)
(b) The juvenile was adjudicated delinquent on the basis of an offense specified in
ch. 961.
938.295(1c)(c)
(c) The greater weight of the evidence at the fact-finding hearing indicates that any offense which formed the basis for the adjudication was motivated by the juvenile's need to purchase or otherwise obtain alcohol beverages, controlled substances or controlled substance analogs.
938.295(1g)
(1g) If the court orders an alcohol or other drug abuse assessment under
sub. (1), the approved treatment facility shall, within 14 days after the court order, report the results of the assessment to the court, except that, upon request by the approved treatment facility and if the juvenile is not held in secure or nonsecure custody, the court may extend the period for assessment for not more than 20 additional working days. The report shall include a recommendation as to whether the juvenile is in need of treatment, intervention or education relating to the use or abuse of alcohol beverages, controlled substances or controlled substance analogs and, if so, shall recommend a service plan and appropriate treatment from an approved treatment facility, intervention from a court-approved pupil assistance program or education from a court-approved alcohol or other drug abuse education program.
938.295(2)(a)(a) If there is probable cause to believe that the juvenile has committed the alleged offense and if there is reason to doubt the juvenile's competency to proceed, or upon entry of a plea under
s. 938.30 (4) (c) the court shall order the juvenile to be examined by a psychiatrist or licensed psychologist. The expenses of an examination, if approved by the court, shall be paid by the county of the court ordering the examination. Evaluation shall be made on an outpatient basis unless the juvenile presents a substantial risk of physical harm to the juvenile or others; or the juvenile, parent or guardian, and legal counsel or guardian ad litem consent to an inpatient evaluation. Any inpatient evaluation shall be for a specified period that is no longer than is necessary to complete the evaluation.
938.295(2)(b)
(b) The examiner shall file a report of the examination with the court by the date specified in the order. The court shall cause copies to be transmitted to the district attorney or corporation counsel and to the juvenile's counsel or guardian ad litem. The report shall describe the nature of the examination and identify the persons interviewed, the particular records reviewed and any tests administered to the juvenile. If the examination is ordered following a plea under
s. 938.30 (4) (c), the report shall also contain an opinion regarding whether the juvenile suffered from mental disease or defect at the time of the commission of the act alleged in the petition and, if so, whether this caused the juvenile to lack substantial capacity to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law. If the examination is ordered following a finding that there is probable cause to believe that the juvenile has committed the alleged offense and that there is reason to doubt the juvenile's competency to proceed, the report shall also contain an opinion regarding the juvenile's present mental capacity to understand the proceedings and assist in his or her defense and, if the examiner reports that the juvenile lacks competency to proceed, the examiner's opinion regarding the likelihood that the juvenile, if provided treatment, may be restored to competency within the time specified in
s. 938.30 (5) (e) 1. The report shall also state in reasonable detail the facts and reasoning upon which the examiner's opinions are based.
938.295(3)
(3) If the juvenile or a parent objects to a particular physician, psychiatrist, licensed psychologist or other expert as required under this section, the court shall appoint a different physician, psychiatrist, psychologist or other expert as required under this section.
938.295(4)
(4) Motions or objections under this section may be heard under
s. 807.13.
938.295 History
History: 1995 a. 77,
448.
938.296
938.296
Testing for HIV infection and certain diseases. 938.296(2)
(2) In a proceeding under
s. 938.12 or
938.13 (12) in which the juvenile is alleged to have violated
s. 940.225,
948.02,
948.025,
948.05 or
948.06, the district attorney or corporation counsel shall apply to the court for an order requiring the juvenile to submit to a test or a series of tests administered by a health care professional to detect the presence of HIV, antigen or nonantigenic products of HIV, an antibody to HIV or a sexually transmitted disease and to disclose the results of that test or series of tests as specified in
sub. (4) (a) to
(e), if all of the following apply:
938.296(2)(a)
(a) The victim or alleged victim, if an adult, or the parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child, requests the district attorney or corporation counsel to apply for that order.
938.296(2)(b)
(b) The district attorney or corporation counsel has probable cause to believe that the juvenile has significantly exposed the victim or alleged victim. If the juvenile is adjudicated delinquent, is found to be in need of protection or services or is found not responsible by reason of mental disease or defect under
s. 938.30 (5), this paragraph does not apply.
938.296(2m)
(2m) In a proceeding under
s. 938.12 or
938.13 (12) in which the juvenile is alleged to have violated
s. 946.43 (2m), the district attorney or corporation counsel shall apply to the court for an order requiring the juvenile to submit to a test or a series of tests administered by a health care professional to detect the presence of communicable diseases and to disclose the results of the test or tests as specified in
sub. (5) (a) to
(e), if all of the following apply:
938.296(2m)(a)
(a) The victim or alleged victim, if an adult, or the parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child, requests the district attorney or corporation counsel to apply for the order.
938.296(2m)(b)
(b) The district attorney or corporation counsel has probable cause to believe that the act or alleged act of the juvenile that constitutes a violation of
s. 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the juvenile's blood, semen, vomit, saliva, urine or feces or other bodily substance of the juvenile.
938.296(3)
(3) The district attorney or corporation counsel may apply for an order under
sub. (2) or
(2m) at any of the following times:
938.296(3)(a)
(a) At or after the plea hearing and before a dispositional order is entered.
938.296(3)(b)
(b) At any time after the juvenile is adjudicated delinquent or found to be in need of protection or services.
938.296(3)(c)
(c) At any time after the juvenile is found not responsible by reason of mental disease or defect under
s. 938.30 (5).
938.296(3)(d)
(d) If the court has determined that the juvenile is not competent to proceed under
s. 938.30 (5) and has suspended proceedings on the petition, at any time after the determination that the juvenile is not competent to proceed.
938.296(4)
(4) On receipt of an application for an order under
sub. (2), the court shall set a time for a hearing on the application. If the juvenile has been found not competent to proceed under
s. 938.30 (5), the court may hold a hearing under this subsection only if the court first determines that the probable cause finding can be fairly made without the personal participation of the juvenile. If, after hearing, the court finds probable cause to believe that the juvenile has significantly exposed the victim or alleged victim, the court shall order the juvenile to submit to a test or a series of tests administered by a health care professional to detect the presence of HIV, antigen or nonantigenic products of HIV, an antibody to HIV or a sexually transmitted disease. The court shall require the health care professional who performs the test or series of tests to refrain, notwithstanding
s. 252.15 (4) (c), from making the test results part of the juvenile's permanent medical record and to disclose the results of the test to any of the following:
938.296(4)(a)
(a) The parent, guardian or legal custodian of the juvenile.
938.296(4)(b)
(b) The victim or alleged victim, if the victim or alleged victim is an adult.
938.296(4)(c)
(c) The parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child.
938.296(4)(d)
(d) The health care professional that provides care for the juvenile, upon request by the parent, guardian or legal custodian of the juvenile.
938.296(4)(e)
(e) The health care professional that provides care for the victim or alleged victim, upon request by the victim or alleged victim or, if the victim or alleged victim is a child, upon request by the parent, guardian or legal custodian of the victim or alleged victim.
938.296(5)
(5) On receipt of an application for an order under
sub. (2m), the court shall set a time for a hearing on the application. If the juvenile has been found not competent to proceed under
s. 938.30 (5), the court may hold a hearing under this subsection only if the court first determines that the probable cause finding can be fairly made without the personal participation of the juvenile. If, after hearing, the court finds probable cause to believe that the act or alleged act of the juvenile that constitutes a violation of
s. 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the juvenile's blood, semen, vomit, saliva, urine or feces or other bodily substance of the juvenile, the court shall order the juvenile to submit to a test or a series of tests administered by a health care professional to detect the presence of any communicable disease that was potentially transmitted by the act or alleged act of the juvenile. The court shall require the health care professional who performs the test or series of tests to refrain, notwithstanding
s. 252.15 (4) (c), if applicable, from making the test results part of the juvenile's permanent medical record and to disclose the results of the test to any of the following:
938.296(5)(a)
(a) The parent, guardian or legal custodian of the juvenile.
938.296(5)(b)
(b) The victim or alleged victim, if the victim or alleged victim is an adult.
938.296(5)(c)
(c) The parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child.
938.296(5)(d)
(d) The health care professional that provides care for the juvenile, upon request by the parent, guardian or legal custodian of the juvenile.
938.296(5)(e)
(e) The health care professional that provides care for the victim or alleged victim, upon request by the victim or alleged victim or, if the victim or alleged victim is a child, upon request by the parent, guardian or legal custodian of the victim or alleged victim.
938.296(6)
(6) The court may order the county to pay for the cost of a test or series of tests ordered under
sub. (4) or
(5). This subsection does not prevent recovery of reasonable contribution toward the cost of that test or series of tests from the parent or guardian of the juvenile as the court may order based on the ability of the parent or guardian to pay. This subsection is subject to
s. 301.03 (18).
938.2965
938.2965
Waiting area for victims and witnesses. 938.2965(2)
(2) If an area is available and use of the area is practical, a county shall provide a waiting area for a victim or witness to use during hearings under this chapter that if separate from any area used by the juvenile, the juvenile's relatives and witnesses for the juvenile. If a separate waiting area is not available or its use is not practical, a county shall provide other means to minimize the contact between the victim or witness and the juvenile, the juvenile's relatives and witnesses for the juvenile during hearings under this chapter.
938.2965 History
History: 1997 a. 181.
938.297
938.297
Motions before trial. 938.297(1)
(1) Any motion which is capable of determination without trial of the general issue may be made before trial.
938.297(2)
(2) Defenses and objections based on defects in the institution of proceedings, lack of probable cause on the face of the petition or citation, insufficiency of the petition or citation or invalidity in whole or in part of the statute on which the petition or citation 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.
938.297(3)
(3) Motions to suppress evidence as having been illegally seized or statements as having been 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. Only the juvenile may waive jeopardy in cases under
s. 938.12,
938.125 or
938.13 (12).
938.297(4)
(4) Although the taking of a juvenile 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 the 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.
938.297(5)
(5) If the juvenile is in custody and the court grants a motion to dismiss based upon a defect in the petition or citation or in the institution of the proceedings, the court may order the juvenile continued in custody for not more than 48 hours pending the filing of a new petition or citation.
938.297(6)
(6) A motion required to be served on a juvenile may be served upon his or her attorney of record.
938.297(7)
(7) Oral argument permitted on motions under this section may be heard by telephone under
s. 807.13 (1).
938.297 History
History: 1995 a. 77;
1997 a. 35.
938.299
938.299
Procedures at hearings. 938.299(1)(a)(a) Except as provided in
par. (ar), the general public shall be excluded from hearings under this chapter unless a public fact-finding hearing is demanded by a juvenile through his or her counsel. The court shall refuse to grant the public hearing, however, if the victim of an alleged sexual assault objects or, in a nondelinquency proceeding, if a parent or guardian objects. If a public hearing is not held, only the parties, their counsel, witnesses, a representative of the news media who wishes to attend the hearing for the purpose of reporting news without revealing the identity of the juvenile involved and other persons requested by a party and approved by the court may be present. 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.
938.299(1)(ag)
(ag) If a public hearing is not held, in addition to persons permitted to attend under
par. (a), the juvenile's foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) 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 juvenile or the juvenile'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 juvenile.
938.299(1)(am)
(am) Subject to
s. 906.15, if a public hearing is not held, in addition to persons permitted to attend under
par. (a), a victim of a juvenile's act or alleged act may attend any hearing under this chapter based upon the act or alleged act, except that a judge may exclude a victim from any portion of a hearing which deals with sensitive personal matters of the juvenile or the juvenile's family and which does not directly relate to the act or alleged act committed against the victim. A member of the victim's family and, at the request of the victim, a representative of an organization providing support services to the victim, may attend the hearing under this subsection.
938.299(1)(ar)
(ar) Notwithstanding
par. (a), the general public may attend any hearing under this chapter relating to a juvenile who has been alleged to be delinquent for committing a violation that would be a felony if committed by an adult if the juvenile has been adjudicated delinquent previously and that previous adjudication remains of record and unreversed or relating to a juvenile who has been alleged to be delinquent for committing a violation specified in
s. 938.34 (4h) (a), except that the court shall exclude the general public from a hearing if the victim of a sexual assault objects and may, in its discretion, exclude the general public from any portion of a hearing which deals with sensitive personal matters of the juvenile or the juvenile's family and which does not relate to the act or alleged act committed by the juvenile or from any other hearing described in this paragraph. If the court excludes the general public from a hearing described in this paragraph, only those persons who are permitted under
par. (a) or
(am) to attend a hearing from which the general public is excluded may attend.
938.299(1)(av)
(av) If a public hearing is held under
par. (a) or
(ar), any person may disclose to anyone any information obtained as a result of that hearing.
938.299(1)(b)
(b) Except as provided in
par. (av) and
s. 938.396, any person who divulges any information which would identify the juvenile or the family involved in any proceeding under this chapter is subject to
ch. 785. This paragraph does not preclude a victim of the juvenile's act from commencing a civil action based upon the juvenile's act.
938.299(4)(a)(a) Chapters 901 to
911 govern the presentation of evidence at the fact-finding hearing under
s. 938.31.
Section 972.11 (5) applies at fact-finding proceedings in all delinquency proceedings under this chapter.
938.299(4)(b)
(b) Except as provided in
s. 901.05, neither common law nor statutory rules of evidence are binding at a waiver hearing under
s. 938.18, a hearing for a juvenile held in custody under
s. 938.21, a hearing under
s. 938.296 (4) for a juvenile who is alleged to have violated
s. 940.225,
948.02,
948.025,
948.05 or
948.06, a hearing under
s. 938.296 (5) for a juvenile who is alleged to have violated
s. 946.43 (2m), a dispositional hearing, or any postdispositional hearing under this chapter. 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.
938.299(5)
(5) On request of any party, unless good cause to the contrary is shown, any hearing under
s. 938.209 (1) (a) 5. or
938.21 (1) may be held on the record by telephone or live audiovisual means or testimony may be received by telephone or live audiovisual 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 audiovisual means may be made by telephone.
938.299(6)
(6) If a man who has been given notice under
s. 938.27 (3) (b) 1. appears at any hearing for which he received the notice, alleges that he is the father of the juvenile and states that he wishes to establish the paternity of the juvenile, all of the following apply:
