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)(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:
938.299(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 juvenile.
938.299(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).
938.299(6)(c)
(c) The court having jurisdiction over actions affecting the family shall give priority under
s. 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).
938.299(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 juvenile if the juvenile is found to be in need of protection or services.
938.299(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 juvenile's father is the juvenile's biological father.
938.299(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.
938.299(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 juvenile, 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 juvenile's father is the juvenile'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.
938.299(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 juvenile's biological father is 99.0% or higher, the court may determine that for purposes of a proceeding under this chapter or
ch. 48, other than a proceeding under
subch. VIII of ch. 48, the man is the juvenile's biological parent.
938.299(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 of ch. 48.
938.299(7)
(7) 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 but does not allege that he is the father of the juvenile and state that he wishes to establish the paternity of the juvenile 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. 59.53 (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 juvenile.
938.299(8)
(8) As part of the proceedings under this chapter, the court may order that a record be made of any testimony of the juvenile's mother relating to the juvenile's paternity. A record made under this subsection is admissible in a proceeding to determine the juvenile's paternity under
ss. 767.45 to
767.60.
938.299(9)(a)(a) If a petition under
s. 938.12 or
938.13 (12) includes the statement in
s. 938.255 (1) (cr) 2. or if the court is informed during a proceeding under
s. 938.12 or
938.13 (12) that a petition relating to the delinquent act has been filed in a tribe's court with respect to a juvenile to whom the circumstances specified in
s. 938.255 (1) (cr) 1. apply, the court shall stay the proceeding and communicate with the tribal court in which the other proceeding is or may be pending to discuss which court may be the more appropriate forum.
938.299(9)(b)
(b) If the court and tribal court either mutually agree or agree under the terms of an established judicial protocol applicable to the court that the tribal court would be the more appropriate forum, the court shall dismiss the petition without prejudice or stay the proceeding. The court's decision shall be based on the best interests of the juvenile and of the public.
938.299(9)(c)
(c) If a stay is ordered under
par. (b), jurisdiction of the court continues over the juvenile until one year has elapsed since the last order affecting the stay was entered in the court. At any time during which jurisdiction of the court continues over the juvenile, the court may, on motion and notice to the parties, subsequently lift the stay order and take any further action in the proceeding as the interests of the juvenile and of the public require. When jurisdiction of the court over the juvenile terminates by reason of the lapse of the one year following the last order affecting the stay, the clerk of the court shall, without notice, enter an order dismissing the petition.
938.299 Note
NOTE: 2003 Wis. Act 284, which affected this section, contains extensive explanatory notes.
938.299 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 Wis. 2d 343,
497 N.W.2d 141 (Ct. App. 1992).
938.299 Note
NOTE: The above annotation cites to s. 48.299, the predecessor statute to s. 938.299.
938.30(1)(1) Except as provided in this subsection, the hearing to determine the juvenile's plea to a citation or a petition under
s. 938.12,
938.125 or
938.13 (12), or to determine whether any party wishes to contest an allegation that the juvenile is in need of protection or services under
s. 938.13 (4),
(6),
(6m),
(7) or
(14) 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 or issuance of a citation for a juvenile who is not being held in secure custody or within 10 days after the filing of a petition or issuance of a citation for a juvenile who is being held in secure custody. In a municipal court operated jointly by 2 or more cities, towns or villages under
s. 755.01 (4), the hearing to determine the juvenile's plea shall take place within 45 days after the filing of a petition or issuance of a citation for a juvenile who is not being held in secure custody.
938.30(2)
(2) At or before the commencement of the hearing under this section the juvenile and the parent, guardian or legal custodian shall be advised of their rights as specified in
s. 938.243 and shall be informed that the hearing shall be to the court and that a request for a substitution of judge under
s. 938.29 must be made before the end of the plea hearing or be waived. Nonpetitioning parties, including the juvenile, shall be granted a continuance of the plea hearing if they wish to consult with an attorney on the request for a substitution of a judge.
938.30(3)
(3) If a petition alleges that a juvenile is in need of protection or services under
s. 938.13 (4),
(6),
(6m),
(7) or
(14), the nonpetitioning parties and the juvenile, 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.
938.30(4)
(4) If a delinquency petition under
s. 938.12, a civil law or ordinance violation petition or citation under
s. 938.125, or a petition alleging that the juvenile is in need of protection or services under
s. 938.13 (12) is filed, the juvenile may submit any of the following pleas:
938.30(4)(a)
(a) Admit some or all of the facts alleged in the petition or citation, however, such a plea is an admission only of the commission of the acts and does not constitute an admission of delinquency.
938.30(4)(b)
(b) Deny the facts alleged in the petition or citation. If the juvenile stands mute or refuses to plead, the court shall direct entry of a denial of the facts alleged in the petition or citation on the juvenile's behalf.
938.30(4)(bm)
(bm) Plead no contest to the allegations, but only if the court permits the juvenile to enter that plea.
938.30(4)(c)
(c) Except pursuant to a petition or citation under
s. 938.125, state that he or she is not responsible for the acts alleged in the petition by reason of mental disease or defect. This plea shall be joined with an admission under
par. (a), a denial under
par. (b) or a plea of no contest under
par. (bm).
938.30(4m)
(4m) Before accepting a plea under
sub. (4) 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
s. 938.265 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 the plea hearing and, if so, whether the district attorney or corporation counsel provided to the victim notice of the date, time and place of the hearing.
938.30(5)(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 if the juvenile enters a plea of not responsible by reason of mental disease or defect, the court shall order an examination under
s. 938.295 and shall specify the date by which the report must be filed in order to give the district attorney or corporation counsel and the juvenile's counsel a reasonable opportunity to review the report. The court shall set a date for hearing as follows:
938.30(5)(a)1.
1. If the juvenile admits or pleads no contest to the allegations in the petition, the hearing to determine whether the juvenile was not responsible by reason of mental disease or defect shall be held no more than 10 days from the plea hearing for a juvenile held in secure custody and no more than 30 days from the plea hearing for a juvenile who is not held in secure custody.
938.30(5)(a)2.
2. If the juvenile denies the allegations in the petition or citation, the court shall hold a fact-finding hearing on the allegations in the petition or citation as provided under
s. 938.31. If, at the end of the fact-finding hearing, the court finds that the allegations in the petition have been proven, the court shall immediately hold a hearing to determine whether the juvenile was not responsible by reason of mental disease or defect.
938.30(5)(a)3.
3. If the court has found probable cause to believe that the juvenile has committed the alleged offense and reason to doubt the juvenile's competency to proceed, the hearing to determine whether the juvenile is competent to proceed shall be held no more than 10 days after the plea hearing for a juvenile who is held in secure custody and no more than 30 days after the plea hearing for a juvenile who is not held in secure custody.
938.30(5)(b)
(b) If the court, after a hearing under
par. (a) 1. or
2., finds that the juvenile was responsible, the court shall proceed to a dispositional hearing.
938.30(5)(bm)
(bm) If the court, after a hearing under
par. (a) 3., finds that the juvenile is competent to proceed, the court shall resume the delinquency proceeding.
938.30(5)(c)
(c) If the court finds that the juvenile was not responsible by reason of mental disease or defect, as described under
s. 971.15 (1) and
(2), the court shall dismiss the petition with prejudice and shall also do one of the following:
938.30(5)(c)1.
1. If the court finds that there is probable cause to believe that the juvenile meets the conditions specified under
s. 51.20 (1) (a) 1. and
2., order the county department under
s. 46.215,
46.22 or
46.23 in the county of the juvenile's residence or the district attorney or corporation counsel who filed the petition under
s. 938.12 or
938.13 (12) to file a petition under
s. 51.20 (1).
938.30(5)(c)2.
2. Order the district attorney or corporation counsel who filed the petition under
s. 938.12 or
938.13 (12) to file a petition alleging that the juvenile is in need of protection or services under
s. 938.13 (14).
938.30(5)(d)
(d) If the court finds that the juvenile is not competent to proceed, as described in
s. 971.13 (1) and
(2), the court shall suspend proceedings on the petition and shall also do one of the following:
938.30(5)(d)1.
1. If the court finds that there is probable cause to believe that the juvenile meets the conditions specified under
s. 51.20 (1) (a) 1. and
2., order the county department under
s. 46.215,
46.22 or
46.23 in the county of the juvenile's residence or the district attorney or corporation counsel who filed the petition under
s. 938.12 or
938.13 (12) to file a petition under
s. 51.20 (1).
938.30(5)(d)2.
2. Order the district attorney or corporation counsel who filed the petition under
s. 938.12 or
938.13 (12) to file a petition alleging that the juvenile is in need of protection or services under
s. 938.13 (14).
938.30(5)(e)1.1. A juvenile who is not competent to proceed, as described in
s. 971.13 (1) and
(2), but who is likely to become competent to proceed within 12 months or the maximum sentence that may be imposed on an adult for the most serious delinquent act with which the juvenile is charged, whichever is less, and who is committed under
s. 51.20 following an order under
par. (d) 1. or who is placed under a dispositional order following an order under
par. (d) 2., shall be periodically reexamined with written reports of those reexaminations to be submitted to the court every 3 months and within 30 days before the expiration of the juvenile's commitment or dispositional order. Each report shall indicate either that the juvenile has become competent, that the juvenile remains incompetent but that attainment of competence is likely within the remaining period of the commitment or dispositional order or that the juvenile has not made such progress that attainment of competency is likely within the remaining period of the commitment or dispositional order.
938.30(5)(e)2.
2. The court shall cause copies of the reports under
subd. 1. to be transmitted to the district attorney or corporation counsel and the juvenile's counsel. If a report under
subd. 1. indicates that the juvenile has become competent, the court shall hold a hearing within 10 days after the court receives the report to determine whether the juvenile is competent. If the court determines that the juvenile is competent, the court shall terminate the juvenile's commitment or dispositional order and resume the delinquency proceeding.
938.30(5)(e)3.
3. If the juvenile is receiving psychotropic medication, the court may make appropriate orders for the continued administration of the psychotropic medication in order to maintain the competence of the juvenile for the duration of the proceeding.
938.30(6)(a)(a) 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 a juvenile who is held in secure custody and no more than 30 days from the plea hearing for a juvenile who is not held in secure custody. If all parties consent the court may proceed immediately with the dispositional hearing. If a citation is not contested, the court may proceed immediately to enter a dispositional order.
938.30(6)(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).
938.30(6)(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 juvenile'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.
938.30(7)
(7) If the petition or citation is contested, the court shall set a date for the fact-finding hearing which allows a reasonable time for the parties to prepare but is no more than 20 days from the plea hearing for a juvenile who is held in secure custody and no more than 30 days from the plea hearing for a juvenile who is not held in secure custody.
938.30(8)
(8) Except when a juvenile fails to appear in response or stipulates to a citation before accepting an admission or plea of no contest of the alleged facts in a petition or citation, the court shall do all of the following:
938.30(8)(a)
(a) Address the parties present including the juvenile personally and determine that the plea or admission is made voluntarily with understanding of the nature of the acts alleged in the petition or citation and the potential dispositions.
938.30(8)(b)
(b) Establish whether any promises or threats were made to elicit a plea and alert unrepresented parties to the possibility that a lawyer may discover defenses or mitigating circumstances which would not be apparent to them.
938.30(8)(c)
(c) Make such inquiries as satisfactorily establish that there is a factual basis for the juvenile's plea or the parent's and juvenile's admission.
938.30(9)
(9) If a circuit court commissioner conducts the plea hearing and accepts an admission of the alleged facts in a petition brought under
s. 938.12 or
938.13, the judge shall review the admission at the beginning of the dispositional hearing by addressing the parties and making the inquires set forth in
sub. (8).
938.30(10)
(10) The court may permit any party to participate in hearings under this section by telephone or live audiovisual means except a juvenile who intends to admit the facts of the delinquency petition.
938.30 Annotation
There is no right to a jury determination of responsibility under sub. (5). In Interest of R.H.L.
159 Wis. 2d 653,
464 N.W.2d 848 (Ct. App. 1990).
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),
94-1866.
938.30 Note
NOTE: The above annotations 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.
