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.
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 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.
938.31 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(1)(h)
(h) Any period of delay resulting from the need to appoint a qualified interpreter.
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(2m)
(2m) No continuance or extension of a time limit specified in this chapter may be granted and no period of delay specified in
sub. (1) may be excluded in computing a time requirement under this chapter if the continuance, extension, or exclusion would result in any of the following:
938.315(2m)(b)
(b) The court making an initial finding under
s. 938.38 (5m) that the agency primarily responsible for providing services to the juvenile has made reasonable efforts to achieve the goals of the juvenile's permanency plan more than 12 months after the date on which the juvenile was removed from the home or making any subsequent findings under
s. 938.38 (5m) as to those reasonable efforts more than 12 months after the date of a previous finding as to those reasonable efforts.
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, while assuring the safety of the juvenile, 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 Note
NOTE: 2003 Wis. Act 284, which affected this section, contains extensive explanatory notes.
938.315 Annotation
A consent decree provides for a period of supervision that terminates when the period concludes. Its expiration is not a "time limit" under sub. (3). State v. Sarah R.P. 2001 WI App 49,
241 Wis. 2d 530,
624 N.W.2d 872.
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 circuit 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),
(1p),
(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(1)(c)1.1. If at the time the consent decree is entered into the juvenile is placed outside the home under a voluntary agreement under
s. 48.63 or is otherwise living outside the home without a court order and if the consent decree maintains the juvenile in that placement or other living arrangement, the consent decree shall include a finding that placement of the juvenile in his or her home would be contrary to the welfare of the juvenile, a finding as to whether the county department or the agency primarily responsible for providing services to the juvenile has 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, unless the judge or circuit court commissioner finds that any of the circumstances specified in
s. 938.355 (2d) (b) 1. to
4. applies, and a finding as to whether the county department or agency has made reasonable efforts to achieve the goal of the juvenile's permanency plan, unless return of the juvenile to the home is the goal of the permanency plan and the judge or circuit court commissioner finds that any of the circumstances specified in
s. 938.355 (2d) (b) 1. to
4. applies.
938.32(1)(c)2.
2. If the judge or circuit court commissioner finds that any of the circumstances specified in
s. 938.355 (2d) (b) 1. to
4. applies with respect to a parent, the consent decree shall include a determination that the county department or agency primarily responsible for providing services under the consent decree is not required to make reasonable efforts with respect to the parent to make it possible for the juvenile to return safely to his or her home.
938.32(1)(c)3.
3. The judge or circuit court commissioner shall make the findings specified in
subds. 1. and
2. on a case-by-case basis based on circumstances specific to the juvenile and shall document or reference the specific information on which those findings are based in the consent decree. A consent decree that merely references
subd. 1. or
2. without documenting or referencing that specific information in the consent decree or an amended consent decree that retroactively corrects an earlier consent decree that does not comply with this subdivision is not sufficient to comply with this subdivision.
938.32(1)(d)1.1. If the judge or circuit court commissioner finds that any of the circumstances specified in
s. 938.355 (2d) (b) 1. to
4. applies with respect to a parent, the judge or circuit court commissioner shall hold a hearing within 30 days after the date of that finding to determine the permanency plan for the juvenile. If a hearing is held under this subdivision, the agency responsible for preparing the permanency plan shall file the permanency plan with the court not less than 5 days before the date of the hearing.
938.32(1)(d)2.
2. If a hearing is held under
subd. 1., at least 10 days before the date of the hearing the court shall notify the juvenile, any parent, guardian, and legal custodian of the juvenile, and any foster parent, treatment foster parent, or other physical custodian described in
s. 48.62 (2) of the juvenile of the time, place, and purpose of the hearing.
938.32(1)(d)3.
3. 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. 2. 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 who receives a notice of a hearing under
subd. 2. 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.
938.32(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 circuit court commissioner determines that volunteer supervision under that volunteers in probation program will likely benefit the juvenile and the community, the judge or circuit 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 circuit 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 circuit court commissioner, or any combination of these functions.
938.32(1d)(b)
(b) Any other conditions that the judge or circuit 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 circuit 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 circuit 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 circuit 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(1p)
(1p) The judge or juvenile court commissioner may establish as a condition under
sub. (1) that the juvenile report to a youth report center after school, in the evening, on weekends, on other nonschool days, or at any other time that the juvenile is not under immediate adult supervision, for participation in the social, behavioral, academic, community service, and other programming of the center.
Section 938.34 (5g) applies to any community service work performed by a juvenile under this subsection.
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.
