938.299(2m)(b)
(b) Restraints may not be used on a juvenile during a court proceeding and shall be removed prior to the juvenile being brought into the courtroom and appearing before the court unless the court finds all of the following:
938.299(2m)(b)1.
1. The use of restraints is necessary due to any of the following factors:
938.299(2m)(b)1.a.
a. Restraints are necessary to prevent physical harm to the juvenile or another person.
938.299(2m)(b)1.b.
b. The juvenile has a history of disruptive courtroom behavior that has placed others in potentially harmful situations, or the juvenile presents a substantial risk of inflicting physical harm on himself or herself or others as evidenced by recent behavior.
938.299(2m)(b)1.c.
c. There is a founded belief that the juvenile presents a substantial risk of flight from the courtroom.
938.299(2m)(b)2.
2. There are no less restrictive alternatives to restraints that will prevent flight or physical harm to the juvenile or another person, including the presence of court personnel, law enforcement officers, or bailiffs.
938.299(2m)(c)
(c) The court shall provide the juvenile's counsel an opportunity to be heard before the court orders the use of restraints. If the juvenile's counsel informs the court that the juvenile wishes to be present, the court may order telephone or videoconference hearing pursuant to sub.
(5). If restraints are ordered, the court shall make findings of fact in support of the order.
938.299(2m)(d)
(d) Any restraints shall allow the juvenile limited movement of the hands to read and handle documents and writings necessary to the hearing. Under no circumstances may a juvenile be restrained using restraints that are fixed to a wall, floor, or furniture.
938.299(4)(b)
(b) Except as provided in s.
901.05, common law and statutory rules of evidence are not 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,
948.06, or
948.085 (2), 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)
Telephone or live audiovisual hearings. 938.299(5)(a)
(a) The court may, upon the motion of the juvenile or the prosecutor or upon its own motion, conduct any hearing under this chapter on the record by telephone or live audiovisual means, if available. If the proceeding is required to be reported under
SCR 71.01 (2), the proceeding shall be reported by a court reporter who is in simultaneous voice communication with all parties to the proceeding. Regardless of the physical location of any party to a proceeding conducted by telephone or live audiovisual means, any plea, waiver, stipulation, motion, objection, decision, order, or other action taken by the court or any party shall have the same effect as if made in open court. Simultaneous access to the proceeding shall be provided to persons entitled to attend by means of a loudspeaker, live audiovisual means, or, upon request to the court, by allowing a person entitled to attend to listen to or view the proceedings without charge.
938.299(5)(b)
(b) If the juvenile or the prosecutor objects to the use of telephone or live audiovisual means for a critical stage of the proceedings, the court shall sustain the objection. For all other such objections, the court shall consider the factors outlined in s.
885.56 in determining whether to sustain or overrule the objection.
938.299(6)
(6)
Establishment of paternity when man alleges paternity. 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.
767.80, 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.
767.80 (5) (c) and
(6r).
938.299(6)(c)
(c) The court having jurisdiction over actions affecting the family shall give priority under s.
767.82 (7m) to an action brought under s.
767.80 whenever the petition filed under s.
767.80 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 subch.
IX of ch. 767 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 or if the court determines or has reason to know that the paternity proceedings may result in a finding that the juvenile is an Indian juvenile and in a petition by the juvenile's parent, Indian custodian, or tribe for transfer of the proceeding to the jurisdiction of the tribe.
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 percent 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(7)
(7)
Establishment of paternity when no man alleges paternity. 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.
767.80, of whether an action should be brought for the purpose of determining the paternity of the juvenile.
938.299(8)
(8)
Testimony of juvenile's mother relating to paternity. 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 subch.
IX of ch. 767.
938.299(9)
(9)
Indian juvenile; tribal court involvement. 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 tribal 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 is 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 is 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(10)
(10)
Indian juvenile; notice. If at any point in a proceeding under s.
938.13 (4),
(6),
(6m), or
(7) the court determines or has reason to know that the juvenile is an Indian juvenile, the court shall provide notice of the proceeding to the juvenile's parent, Indian custodian, and tribe in the manner specified in s.
938.028 (4) (a). The next hearing in the proceeding may not be held until at least 10 days after receipt of the notice by the parent, Indian custodian, and tribe or, if the identity or location of the parent, Indian custodian, or tribe cannot be determined, until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for that hearing.
938.299 History
History: 1995 a. 77,
275,
352;
1997 a. 35,
205,
252,
296;
1999 a. 32,
188;
2001 a. 16;
2003 a. 284,
326;
2005 a. 277,
344;
2005 a. 443 s.
265;
2007 a. 97;
2009 a. 28,
94;
2013 a. 252;
2015 a. 196,
373;
2021 a. 141; Sup. Ct. Order No.
21-04, 2022 WI 26, filed 5-2-22, eff. 7-1-22; Sup. Ct. Order No.
21-04A, 2022 WI 28, filed 5-9-22, eff. 7-1-22; s. 35.17 correction in (2m) (c).
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)
Time of hearing. Except as provided in this subsection and s.
938.299 (10), 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
(14), 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), or
(7) 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)
Information to juvenile and parents; basic rights; substitution. At or before the commencement of the hearing under this section the juvenile and the parent, guardian, legal custodian, or Indian 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 is 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(2m)
(2m)
Biological specimen. If the juvenile is before the court on the basis of a violation that would be a violent crime, as defined in s.
165.84 (7) (ab), if committed by an adult in this state, the court shall determine if a biological specimen has been obtained from the juvenile under s.
165.84 (7), and if not, the court shall direct that a law enforcement agency or tribal law enforcement agency obtain a biological specimen from the juvenile and submit it to the state crime laboratories as specified in rules promulgated by the department of justice under s.
165.76 (4). If the court requires the juvenile to provide a specimen under this subsection or if a biological specimen has already been obtained from the juvenile, the court shall inform the juvenile that he or she may request expungement under s.
165.77 (4).
938.30(3)
(3)
Juvenile in need of protection or services proceeding; possible pleas. 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)
Delinquency and civil law or ordinance proceedings; possible pleas. 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. This 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, if the court permits the juvenile to enter that plea.
938.30(4)(c)
(c) Except in the case of 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)
Court to inquire about notice to victims. 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 as to all of the following:
938.30(4m)(b)
(b) 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 that notice.
938.30(5)
(5)
Not competent or not responsible. 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, after the 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 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 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 within the time period of 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 one of the following:
938.30(5)(e)1.b.
b. That the juvenile remains incompetent but that attainment of competence is likely within the remaining period of the commitment or dispositional order.
938.30(5)(e)1.c.
c. 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)
(6)
Uncontested petitions; disposition. 938.30(6)(a)
(a) If a petition is not contested, the court, subject to s.
938.299 (10), 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. Subject to s.
938.299 (10), 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 the income, assets, debts, and living expenses of the juvenile and the juvenile's parent 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 that statement a document setting forth the percentage standard established by the department of children and families under s.
49.22 (9) and the manner of its application established by the department of corrections under s.
301.12 (14) (g) and listing the factors under s.
301.12 (14) (c).
938.30(6)(c)
(c) If the court orders the juvenile's parent to provide a statement of the income, assets, debts, and living expenses of the juvenile and juvenile's parent 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 the designated agency is not the county department, the court shall also order the juvenile's parent to provide the 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 the statement, and the parent shall provide the statement on the 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)
Contested petitions or citations; date for fact-finding hearing. If the petition or citation is contested, the court, subject to s.
938.299 (10), shall set a date for the fact-finding hearing that allows a reasonable time for the parties to prepare but is no more than 20 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(8)
(8)
Admission or no contest plea; inquiries required. 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 explain to unrepresented parties the possibility that a lawyer may discover defenses or mitigating circumstances that 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)
Hearings conducted by court commissioner; court to review. 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 court shall review the admission at the beginning of the dispositional hearing by addressing the parties and making the inquires under sub.
(8).
938.30(10)
(10)
Telephone or live audiovisual participation. Subject to s.
938.299 (5), the court may permit any party to participate in hearings under this section by telephone or live audiovisual means.
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 the court's 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.
938.30 Annotation
The language of sub. (5), read in conjunction with the language of this chapter, allows a circuit court to resume delinquency proceedings that were suspended because a juvenile was initially found not competent to proceed under sub. (5) (d) and not likely to become competent within the statutory time limits. State v. A.L.,
2019 WI 20,
385 Wis. 2d 612,
923 N.W.2d 827,
16-0880.
938.30 Annotation
Under
Porter,
80 Wis. 2d 197 (1977), the expiration of a civil commitment such as a juvenile in need of protection or services (JIPS) proceeding does not affect a circuit court's competency with regard to delinquency proceedings. State v. A.L.,
2019 WI 20,
385 Wis. 2d 612,
923 N.W.2d 827,
16-0880.
938.30 Annotation
A court's redetermination of a juvenile's competency pursuant to sub. (5) is mandatory when the court receives information reflecting that the juvenile's competency is restored. State v. M.D.M.,
2021 WI App 42,
398 Wis. 2d 718,
963 N.W.2d 98,
17-0138.
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, subject to s.
938.299 (10), 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;
2009 a. 94.
