938.25 Note
NOTE: The above annotations cite to s. 48.25, the predecessor statute to s. 938.25.
938.25 Annotation
To the extent that sub. (1) prohibits the admission of delinquency adjudications in ch. 980 proceedings, it is repealed by implication. State v. Matthew A.B.
231 Wis. 2d 688,
605 N.W.2d 598 (Ct. App. 1999)
938.255
938.255
Petition; form and content. 938.255(1)
(1) A petition initiating proceedings under this chapter, other than a petition initiating proceedings under
s. 938.12,
938.125 or
938.13 (12), shall be entitled, "In the interest of (juvenile's name), a person under the age of 18". A petition initiating proceedings under
s. 938.12,
938.125 or
938.13 (12) shall be entitled, "In the interest of (juvenile's name), a person under the age of 17". A petition initiating proceedings under this chapter shall set forth with specificity all of the following:
938.255(1)(a)
(a) The name, birth date and address of the juvenile.
938.255(1)(b)
(b) The names and addresses of the juvenile's parent, guardian, legal custodian or spouse, if any; or if no such person can be identified, the name and address of the nearest relative.
938.255(1)(c)
(c) Whether the juvenile is in custody, and, if so, the place where the juvenile is being held and the time he or she was taken into custody unless there is reasonable cause to believe that such disclosure would result in imminent danger to the juvenile or physical custodian.
938.255(1)(cr)1.1. If the petition is initiating proceedings under
s. 938.12 or
938.13 (12) and all of the following circumstances apply, a statement to that effect:
938.255(1)(cr)1.b.
b. At the time of the alleged delinquent act, the juvenile was under an order of a tribe's court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile's parent, or permanent guardianship.
938.255(1)(cr)1.c.
c. At the time of the delinquent act the juvenile was physically outside the boundaries of that tribe's reservation and any off-reservation trust land of either that tribe or a member of that tribe as a direct consequence of a tribal court order under
subd. 1. b., including a tribal court order placing the juvenile in the home of a relative of the juvenile who on or after the date of the tribal court order resides physically outside the boundaries of a reservation and off-reservation trust land.
938.255(1)(cr)2.
2. If the statement under
subd. 1. is included in the petition and if the intake worker, district attorney, or corporation counsel has been notified by an official of the tribe that a petition relating to the delinquent act has been or may be filed in tribal court with respect to the alleged delinquent act, a statement to that effect.
938.255(1)(d)
(d) If violation of a criminal statute, an ordinance or another law is alleged, the citation to the appropriate law or ordinance as well as facts sufficient to establish probable cause that an offense has been committed and that the juvenile named in the petition committed the offense.
938.255(1)(e)
(e) If the juvenile is alleged to come within the provisions of
s. 938.13 (4),
(6),
(6m),
(7) or
(14) or
938.14, reliable and credible information which forms the basis of the allegations necessary to invoke the jurisdiction of the court and to provide reasonable notice of the conduct or circumstances to be considered by the court together with a statement that the juvenile is in need of supervision, services, care or rehabilitation.
938.255(1)(f)
(f) If the juvenile is being held in custody outside of his or her home, reliable and credible information showing that continued placement of the juvenile in his or her home would be contrary to the welfare of the juvenile and, unless any of the circumstances specified in
s. 938.355 (2d) (b) 1. to
4. applies, reliable and credible information showing that the person who took the juvenile into custody and the intake worker have made reasonable efforts to prevent the removal of the juvenile from the home, while assuring that the juvenile's health and safety are the paramount concerns, and to make it possible for the juvenile to return safely home.
938.255(2)
(2) If any of the facts in
sub. (1) (a) to
(cr) and
(f) are not known or cannot be ascertained by the petitioner, the petition shall so state.
938.255(4)
(4) A copy of the petition shall be given to the juvenile and to the parents, guardian, legal custodian and physical custodian.
938.255 Note
NOTE: 2003 Wis. Act 284, which affected this section, contains extensive explanatory notes.
938.263
938.263
Amendment of petition. 938.263(1)
(1) Except as provided in
s. 938.255 (3), no petition, process or other proceeding may be dismissed or reversed for any error or mistake if the case and the identity of the juvenile named in the petition may be readily understood by the court; and the court may order an amendment curing the defects.
938.263(2)
(2) With reasonable notification to the interested parties and prior to the taking of a plea under
s. 938.30, the petition may be amended at the discretion of the court or person who filed the petition. After the taking of a plea, the court may allow amendment of the petition to conform to the proof if the amendment is not prejudicial to the juvenile.
938.263 History
History: 1995 a. 77.
938.263 Annotation
Sub. (2) did not authorize the trial court to sua sponte and without notice amend a juvenile petition charge to disorderly conduct and make a finding of guilt thereon after finding the juvenile not guilty of battery. The court's action unfairly prejudiced the juvenile's statutory and due process rights. State v. Tawanna H.
223 Wis. 2d 572,
590 N.W.2d 276 (Ct. App. 1998).
938.265
938.265
Consultation with victims. 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 the plea hearing under
s. 938.30, 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 possible outcomes of the proceeding against the juvenile, including potential plea agreements and recommendations that the district attorney or corporation counsel may make concerning dispositions under
s. 938.34 or
938.345. The duty to confer under this section 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.
938.265 History
History: 1997 a. 181.
938.27
938.27
Notice; summons. 938.27(1)(1) After a citation is issued or a petition has been filed relating to facts concerning a situation specified under
s. 938.12,
938.125 or
938.13, unless the parties under
sub. (3) voluntarily appear, the court may issue a summons requiring the parent, guardian and legal custodian of the juvenile to appear personally at any hearing involving the juvenile, and, if the court so orders, to bring the juvenile before the court at a time and place stated.
938.27(2)
(2) Summons may be issued requiring the appearance of any other person whose presence, in the opinion of the court, is necessary.
938.27(3)(a)1.1. The court shall also notify, under
s. 938.273, the juvenile, any parent, guardian and legal custodian of the juvenile, any foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) of the juvenile and any person specified in
par. (b), if applicable, of all hearings involving the juvenile under this subchapter, except hearings on motions for which notice need only be provided to the juvenile and his or her counsel. Where parents entitled to notice have the same place of residence, notice to one shall constitute notice to the other. The first notice to any interested party, foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) shall be written and may have a copy of the petition attached to it. Thereafter, notice of hearings may be given by telephone at least 72 hours before the time of the hearing. The person giving telephone notice shall place in the case file a signed statement of the time notice was given and the person to whom he or she spoke.
938.27(3)(a)1m.
1m. The court shall give a foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) who is notified of a hearing under
subd. 1. an opportunity to be heard at the hearing by permitting the foster parent, treatment foster parent or other physical custodian to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, relevant to the issues to be determined at the hearing. A foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) who receives a notice of a hearing under
subd. 1. and an opportunity to be heard under this subdivision does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and opportunity to be heard.
938.27(3)(a)2.
2. Failure to give notice under
subd. 1. to a foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) does not deprive the court of jurisdiction in the action or proceeding. If a foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) is not given notice of a hearing under
subd. 1., that person may request a rehearing on the matter during the pendency of an order resulting from the hearing. If the request is made, the court shall order a rehearing.
938.27(3)(b)1.1. Except as provided in
subd. 2., if the petition that was filed relates to facts concerning a situation under
s. 938.13 and if the juvenile is a nonmarital child who is not adopted or whose parents do not subsequently intermarry as provided under
s. 767.60 and if paternity has not been established, the court shall notify, under
s. 938.273, all of the following persons:
938.27(3)(b)1.b.
b. A person alleged to the court to be the father of the juvenile or who may, based on the statements of the mother or other information presented to the court, be the father of the juvenile.
938.27(3)(b)2.
2. A court is not required to provide notice, under
subd. 1., to any person who may be the father of a juvenile conceived as a result of a sexual assault if a physician attests to his or her belief that there was a sexual assault of the juvenile's mother that may have resulted in the juvenile's conception.
938.27(4)(a)
(a) Contain the name of the juvenile, and the nature, location, date and time of the hearing.
938.27(4)(b)
(b) Advise the juvenile of his or her right to legal counsel regardless of ability to pay.
938.27(4m)
(4m) The district attorney or corporation counsel shall make a reasonable attempt to contact any known victim or alleged victim of a juvenile's act or alleged act to inform them of the right to receive notice of any hearing under this chapter involving the juvenile. If a victim or alleged victim indicates that he or she wishes to receive notice of any hearing under this chapter involving the juvenile, the district attorney or corporation counsel shall make a reasonable attempt to notify, under
s. 938.273, that victim or alleged victim of any hearing under this chapter involving the juvenile. Any failure to comply with this subsection is not a ground for an appeal of a judgment or dispositional order or for any court to reverse or modify a judgment or dispositional order.
938.27(5)
(5) Subject to
sub. (3) (b), the court shall make every reasonable effort to identify and notify any person who has filed a declaration of interest under
s. 48.025 and any person who has been adjudged to be the biological father of the juvenile in a judicial proceeding unless the biological father's rights have been terminated.
938.27(6)
(6) When a proceeding is initiated under
s. 938.14, all interested parties shall receive notice and appropriate summons shall be issued in a manner specified by the court, consistent with applicable governing statutes. In addition, if the juvenile who is the subject of the proceeding is in the care of a foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2), the court shall give the foster parent, treatment foster parent or other physical custodian notice and an opportunity to be heard as provided in
sub. (3) (a).
938.27(7)
(7) When a citation has been issued under
s. 938.17 (2) and the juvenile's parent, guardian and legal custodian have been notified of the citation,
subs. (3) and
(4) do not apply.
938.27(8)
(8) When a petition is filed under
s. 938.12 or
938.13, the court shall notify, in writing, the juvenile's parents or guardian that they may be ordered to reimburse this state or the county for the costs of legal counsel provided for the juvenile, as provided under
s. 938.275 (2).
938.27 History
History: 1995 a. 77,
275;
1997 a. 80,
181,
237.
938.273
938.273
Service of summons or notice; expense. 938.273(1)(1) Service of summons or notice required by
s. 938.27 may be made by mailing a copy thereof to the persons summoned or notified. If the persons, other than a person specified in
s. 938.27 (4m), fail to appear at the hearing or otherwise to acknowledge service, a continuance shall be granted, except where the court determines otherwise because the juvenile is in secure custody, and service shall be made personally by delivering to the persons a copy of the summons or notice; except that if the court is satisfied that it is impracticable to serve the summons or notice personally, it may make an order providing for the service of the summons or notice by certified mail addressed to the last-known addresses of the persons. The court may refuse to grant a continuance when the juvenile is being held in secure custody, but in such a case the court shall order that service of notice of the next hearing be made personally or by certified mail to the last-known address of the person who failed to appear at the hearing. Personal service shall be made at least 72 hours before the time of the hearing. Mail shall be sent at least 7 days before the time of the hearing, except where the petition is filed under
s. 938.13 and the person to be notified lives outside the state, in which case the mail shall be sent at least 14 days before the time of the hearing.
938.273(2)
(2) Service of summons or notice required by this chapter may be made by any suitable person under the direction of the court. Notification of the victim or alleged victim of a juvenile's act under
s. 938.27 (4m) shall be made by the district attorney or corporation counsel.
938.273(3)
(3) The expenses of service of summons or notice or of the publication of summons or notice and the traveling expenses and fees as allowed in
ch. 885 incurred by any person summoned or required to appear at the hearing of any case coming within the jurisdiction of the court under
s. 938.12,
938.125,
938.13 or
938.14 shall be a charge on the county when approved by the court.
938.275
938.275
Parents' contribution to cost of custody, sanctions and court and legal services. 938.275(1)(a)(a) If a juvenile is held in custody under
ss. 938.20 to
938.21, the court shall order the parents of the juvenile to contribute toward the expense of holding the juvenile in custody the proportion of the total amount which the court finds the parents are able to pay.
938.275(1)(b)
(b) If the court finds a juvenile to be delinquent under
s. 938.12, in violation of a civil law or ordinance under
s. 938.125 or in need of protection or services under
s. 938.13, the court shall order the parents of the juvenile to contribute toward the expense of post-adjudication services to the juvenile, including any placement under
s. 938.34 (3) (f), the proportion of the total amount which the court finds the parents are able to pay.
938.275(1)(c)
(c) If the court imposes a sanction on a juvenile as specified in
s. 938.355 (6) (d) or
(6m) (a) or
(ag) or finds the juvenile in contempt under
s. 938.355 (6g) (b) and orders a disposition under
s. 938.34 or if the juvenile is placed in a secure detention facility or place of nonsecure custody under
s. 938.355 (6d) (a),
(b) or
(c) or
938.534 (1) (b) or
(c), the court shall order the parents of the juvenile to contribute toward the cost of the sanction, disposition or placement the proportion of the total amount which the court finds the parents are able to pay.
938.275(2)(a)(a) If this state or a county provides legal counsel to a juvenile subject to a proceeding under
s. 938.12 or
938.13, the court shall order the juvenile's parent to reimburse the state or county in accordance with
par. (b) or
(c). The court may not order reimbursement if a parent is the complaining or petitioning party or if the court finds that the interests of the parent and the interests of the juvenile in the proceeding are substantially and directly adverse and that reimbursement would be unfair to the parent. The court may not order reimbursement until the completion of the proceeding or until the state or county is no longer providing the juvenile with legal counsel in the proceeding.
938.275(2)(b)
(b) If this state provides the juvenile with legal counsel and the court orders reimbursement under
par. (a), the juvenile's parent may request the state public defender to determine whether the parent is indigent as provided under
s. 977.07 and to determine the amount of reimbursement. If the parent is found not to be indigent, the amount of reimbursement shall be the maximum amount established by the public defender board. If the parent is found to be indigent in part, the amount of reimbursement shall be the amount of partial payment determined in accordance with the rules of the public defender board under
s. 977.02 (3).
938.275(2)(c)
(c) If the county provides the juvenile with legal counsel and the court orders reimbursement under
par. (a), the court shall either make a determination of indigency or shall appoint the county department to make the determination. If the court or the county department finds that the parent is not indigent or is indigent in part, the court shall establish the amount of reimbursement and shall order the parent to pay it.
938.275(2)(cg)
(cg) The court shall, upon motion by a parent, hold a hearing to review any of the following:
938.275(2)(cg)3.
3. The court's finding, under
par. (a), that the interests of the parent and the juvenile are not substantially and directly adverse and that ordering the payment of reimbursement would not be unfair to the parent.
938.275(2)(cr)
(cr) Following a hearing under
par. (cg), the court may affirm, rescind or modify the reimbursement order.
938.275(2)(d)
(d) Reimbursement payments shall be made to the clerk of courts of the county where the proceedings took place. Each payment shall be transmitted to the county treasurer, who shall deposit 25% of the amount paid for state-provided counsel in the county treasury and transmit the remainder to the secretary of administration. Payments transmitted to the secretary of administration shall be deposited in the general fund and credited to the appropriation account under
s. 20.550 (1) (L). The county treasurer shall deposit 100% of the amount paid for county-provided counsel in the county treasury.
938.275(2)(dm)
(dm) Within 30 days after each calendar quarter, the clerk of court for each county shall report to the state public defender all of the following:
938.275(2)(dm)1.
1. The total amount of reimbursement determined or ordered under
par. (b) or
(cr) for state-provided counsel during the previous calendar quarter.
938.275(2)(dm)2.
2. The total amount collected under
par. (d) for state-provided counsel during the previous calendar quarter.
938.275(2)(e)
(e) A person who fails to comply with an order under
par. (b) or
(c) may be proceeded against for contempt of court under
ch. 785.
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 cites 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 cites 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.
