938.30 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 Wis. 2d 400,
500 N.W.2d 384 (Ct. App. 1993).
938.30 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 Wis. 2d 26,
546 N.W.2d 440 (1996).
938.30 Note
NOTE: The above annotation cite to s. 48.30, the predecessor statute to s. 938.30.
938.305
938.305
Hearing upon the involuntary removal of a juvenile. Notwithstanding other time periods for hearings under this chapter, if a juvenile is removed from the physical custody of the juvenile's parent or guardian under
s. 938.19 (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 after 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.
938.305 History
History: 1995 a. 77.
938.31
938.31
Fact-finding hearing. 938.31(1)
(1) 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) 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 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 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(4)
(4) 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)(a)(a) 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 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 income, assets, debts and living expenses 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 a statement of income, assets, debts and living expenses 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 income, assets, debts and living expenses to the court or if the court orders the juvenile's parent to provide that statement to the designated agency under
s. 938.33 (1) and that designated agency is not the county department, the court shall also order the child's parent to provide that 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 that statement, and the parent shall provide that statement on that 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) The following time periods shall be excluded in computing time requirements within this chapter:
938.315(1)(a)
(a) Any period of delay resulting from 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)(b)
(b) Any period of delay resulting from a continuance granted at the request of or with the consent of the juvenile and counsel.
938.315(1)(c)
(c) Any period of delay caused by 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)(d)
(d) Any period of delay resulting from 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)(dm)
(dm) Any period of delay resulting from court congestion or scheduling.
938.315(1)(e)
(e) Any period of delay resulting from the imposition of a consent decree.
938.315(1)(f)
(f) Any period of delay resulting from the absence or unavailability of the juvenile.
938.315(1)(fm)
(fm) Any period of delay resulting from 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)(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) 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(3)
(3) 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 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 History
History: 1995 a. 77,
352;
1997 a. 181.
938.317
938.317
Jeopardy. Jeopardy attaches when a witness is sworn.
938.317 History
History: 1995 a. 77.
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 judge or juvenile court commissioner 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),
(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 reduced to writing and 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 in any event before agreeing to the consent decree, offer all of the victims of the juvenile's alleged act who have requested the opportunity an opportunity to confer with the district attorney or corporation counsel concerning the proposed consent decree. The duty 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)1.1. 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), 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. 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), 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 whether he or she has complied with
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. 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), 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. 1. 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(1d)
(1d) 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 judge or juvenile court commissioner determines that volunteer supervision under that volunteers in probation program will likely benefit the juvenile and the community, the judge or juvenile court commissioner may establish as a condition under
sub. (1) that the juvenile be placed with that volunteers in probation program under such conditions as the judge or juvenile court commissioner determines are reasonable and appropriate. These conditions may include, but need not be limited to, any of the following:
938.32(1d)(a)
(a) A directive to a volunteer to provide for the juvenile a role model, informal counseling, general monitoring and monitoring of the conditions established by the judge or juvenile court commissioner, or any combination of these functions.
938.32(1d)(b)
(b) Any other conditions that the judge or juvenile court commissioner may establish under this section.
938.32(1g)
(1g) 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 judge or juvenile court commissioner 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 under this paragraph is subject to the approval of the juvenile's school board.
938.32(1m)
(1m) The judge or juvenile court commissioner 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 judge or juvenile court commissioner determines that participation in the teen court 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, with the juvenile's parent, guardian or legal custodian present, 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(1r)
(1r) 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 the age of 12, 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)(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 judge or juvenile court commissioner 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 judge or juvenile court commissioner, 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. Objection by the juvenile to the amount of damages claimed shall entitle the juvenile to a hearing on the question of damages before the 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 judge or juvenile court commissioner 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 the amount specified in
s. 799.01 (1) (d). Any consent decree that includes a condition of restitution by a parent who has custody of the juvenile 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 consent decree for the payment. Objection by the parent to the amount of damages claimed shall entitle the parent to a hearing on the question of damages before the 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.
938.32(1t)(a)2.
2. In addition to any other employment or duties permitted under
ch. 103 or any rule or order under
ch. 103, a juvenile under 14 years of age who is participating in a restitution project provided by the county or who is performing services for the victim as restitution may, for the purpose of making restitution under the consent decree, be employed or perform any duties under any circumstances in which a juvenile 14 or 15 years of age is permitted to be employed or to perform duties under
ch. 103 or any rule or order under
ch. 103. A juvenile who is participating in a restitution project provided by the county or who is performing services for the victim as restitution is exempt from the permit requirement under
s. 103.70 (1).
938.32(1t)(a)3.
3. Under this paragraph, a judge or juvenile court commissioner may not order a juvenile who is under 14 years of age to make more than $250 in restitution or to perform more than 40 total hours of services for the victim as restitution.
938.32(1t)(b)
(b) The judge may require the juvenile to participate in a supervised work program or other community service work under
s. 938.34 (5g) as a condition of the consent decree.
938.32(1v)
(1v) If the petition alleges that the juvenile is in need of protection or services under
s. 938.13 (6), the judge or juvenile court commissioner may establish as a condition under
sub. (1) that the juvenile's parent, guardian or legal custodian attend school with the juvenile.
938.32(1x)
(1x) If the petition alleges that the juvenile violated
s. 943.017 and the juvenile has attained the minimum age at which a juvenile may be adjudicated delinquent, the judge or juvenile court commissioner may require, as a condition of the consent decree, that the juvenile participate for not less than 10 hours nor more than 100 hours in a supervised work program under
s. 938.34 (5g) or perform not less than 10 hours nor more than 100 hours of other community service work, except that if the juvenile has not attained 14 years of age the maximum number of hours is 40.
938.32(2)(a)(a) A consent decree shall remain in effect for up to one year unless the juvenile, parent, guardian or legal custodian is discharged sooner by the judge or juvenile court commissioner.
938.32(2)(c)
(c) Upon the motion of the court or the application of the juvenile, parent, guardian, legal custodian, intake worker or any agency supervising the juvenile under the consent decree, the court may, after giving notice to the parties to the consent decree and their counsel, if any, extend the decree for up to an additional 6 months in the absence of objection to extension by the parties to the initial consent decree. If the parent, guardian or legal custodian objects to the extension, the court shall schedule a hearing and make a determination on the issue of extension.
938.32(3)
(3) If, prior to discharge by the court, or the expiration of the consent decree, the court finds that the juvenile or parent, legal guardian or legal custodian has failed to fulfill the express terms and conditions of the consent decree or that the juvenile objects to the continuation of the consent decree, the hearing under which the juvenile was placed on supervision may be continued to conclusion as if the consent decree had never been entered.
938.32(4)
(4) No juvenile who is discharged by the court or who completes the period of supervision without reinstatement of the original petition may again be proceeded against in any court for the same offense alleged in the petition or an offense based on the same conduct, and the original petition shall be dismissed with prejudice. Nothing in this subsection precludes a civil suit against the juvenile or parent for damages arising from the juvenile's conduct.
938.32(5)
(5) A court which, under this section, elicits or examines information or material about a juvenile which would be inadmissible in a hearing on the allegations of the petition may not, over objections of one of the parties, participate in any subsequent proceedings if any of the following applies:
938.32(5)(a)
(a) The court refuses to enter into a consent decree and the allegations in the petition remain to be decided in a hearing where the juvenile denies the allegations of delinquency.
938.32(6)
(6) The judge or juvenile court commissioner shall inform the juvenile and the juvenile's parent, guardian or legal custodian, in writing, of the juvenile's right to object to the continuation of the consent decree under
sub. (3) and of the fact that the hearing under which the juvenile was placed on supervision may be continued to conclusion as if the consent decree had never been entered.
DISPOSITION
938.33(1)(1)
Report required. Before the disposition of a juvenile adjudged to be delinquent or in need of protection or services, the court shall designate an agency, as defined in
s. 938.38 (1) (a), to submit a report which shall contain all of the following:
938.33(1)(b)
(b) A recommended plan of rehabilitation or treatment and care for the juvenile which is based on the investigation conducted by the agency and any report resulting from an examination or assessment under
s. 938.295, which employs the most effective means available to accomplish the objectives of the plan.
938.33(1)(c)
(c) A description of the specific services or continuum of services which the agency is recommending that the court order for the juvenile or family, the persons or agencies that would be primarily responsible for providing those services, and the identity of the person or agency that would provide case management or coordination of services if any or whether or not the juvenile should receive an integrated service plan.
938.33(1)(d)
(d) A statement of the objectives of the plan, including any desired behavior changes and the academic, social and vocational skills needed by the juvenile.
938.33(1)(e)
(e) A plan for the provision of educational services to the juvenile, prepared after consultation with the staff of the school in which the juvenile is enrolled or the last school in which the juvenile was enrolled.
938.33(1)(f)
(f) If the agency is recommending that the court order the juvenile's parent, guardian or legal custodian to participate in mental health treatment, anger management, individual or family counseling or parent training and education, a statement as to the availability of those services and as to the availability of funding for those services.
938.33(2)
(2) Home placement reports. A report recommending that the juvenile remain in his or her home may be presented orally at the dispositional hearing if all parties consent. A report that is presented orally shall be transcribed and made a part of the court record.
938.33(3)
(3) Correctional placement reports. A report recommending placement of a juvenile in a secured correctional facility, a secured child caring institution or a secured group home shall be in writing, except that the report may be presented orally at the dispositional hearing if the juvenile and the juvenile's counsel consent. A report that is presented orally shall be transcribed and made a part of the court record. In addition to the information specified under
sub. (1) (a) to
(d), the report shall include all of the following:
938.33(3)(a)
(a) A description of any less restrictive alternatives that are available and that have been considered, and why they have been determined to be inappropriate. If the judge has found that any of the conditions specified in
s. 938.34 (4m) (b) 1.,
2. or
3. applies, the report shall indicate that a less restrictive alternative than placement in a secured correctional facility, a secured child caring institution or a secured group home is not appropriate.
938.33(3)(b)
(b) A recommendation for an amount of child support to be paid by either or both of the juvenile's parents or for referral to the county child support agency under
s. 59.53 (5) for the establishment of child support.
938.33(3r)
(3r) Serious juvenile offender report. If a juvenile has been adjudicated delinquent for committing a violation for which the juvenile may be placed in the serious juvenile offender program under
s. 938.34 (4h) (a), the report shall be in writing and, in addition to the information specified in
sub. (1) and in
sub. (3) or
(4), if applicable, shall include an analysis of the juvenile's suitability for placement in the serious juvenile offender program under
s. 938.34 (4h) or in a secured correctional facility or a secured group home under
s. 938.34 (4m), a placement specified in
s. 938.34 (3) or placement in the juvenile's home with supervision and community-based programming and a recommendation as to the type of placement for which the juvenile is best suited.
938.33(4)
(4) Other out-of-home placements. A report recommending placement in a foster home, treatment foster home, group home or nonsecured child caring institution shall be in writing, except that the report may be presented orally at the dispositional hearing if all parties consent. A report that is presented orally shall be transcribed and made a part of the court record. The report shall include all of the following:
