Chapter 938

938.539   Type 2 status.

938.54   Records.

938.546   Juvenile treatment court grant program.

938.547   Juvenile alcohol and other drug abuse pilot program.

938.548   Multidisciplinary screen and assessment criteria.

938.549   Juvenile classification system.

SUBCHAPTER XII

COUNTY JUVENILE WELFARE SERVICES

938.57   Powers and duties of county departments providing juvenile welfare services.

938.59   Examination and records.

938.595   Duration of control of county departments over delinquents.

SUBCHAPTER XVII

GENERAL PROVISIONS ON RECORDS

938.78   Confidentiality of records.

SUBCHAPTER XVIII

COMMUNITY SERVICES

938.795   Powers of the department.

SUBCHAPTER XX

MISCELLANEOUS PROVISIONS

938.988   Interstate placement of juveniles.

938.999   Interstate Compact for Juveniles.

938.9995   Expediting interstate placements of juveniles.

subch. I of ch. 938 SUBCHAPTER I

GENERAL PROVISIONS

938.01 938.01 Title, legislative intent and purposes.

938.01(1) (1) Title. This chapter may be cited as “The Juvenile Justice Code”, and shall be liberally construed in accordance with the objectives expressed in this section.

938.01(2) (2) Legislative intent. It is the intent of the legislature to promote a juvenile justice system capable of dealing with the problem of juvenile delinquency, a system which will protect the community, impose accountability for violations of law and equip juvenile offenders with competencies to live responsibly and productively. To effectuate this intent, the legislature declares the following to be equally important purposes of this chapter:

938.01(2)(a) (a) To protect citizens from juvenile crime.

938.01(2)(b) (b) To hold each juvenile offender directly accountable for his or her acts.

938.01(2)(c) (c) To provide an individualized assessment of each alleged and adjudicated delinquent juvenile, in order to prevent further delinquent behavior through the development of competency in the juvenile offender, so that he or she is more capable of living productively and responsibly in the community.

938.01(2)(d) (d) To provide due process through which each juvenile offender and all other interested parties are assured fair hearings, during which constitutional and other legal rights are recognized and enforced.

938.01(2)(e) (e) To divert juveniles from the juvenile justice system through early intervention as warranted, when consistent with the protection of the public.

938.01(2)(f) (f) To respond to a juvenile offender’s needs for care and treatment, consistent with the prevention of delinquency, each juvenile’s best interest and protection of the public, by allowing the court to utilize the most effective dispositional option.

938.01(2)(g) (g) To ensure that victims and witnesses of acts committed by juveniles that result in proceedings under this chapter are, consistent with this chapter and the Wisconsin constitution, afforded the same rights as victims and witnesses of crimes committed by adults, and are treated with dignity, respect, courtesy, and sensitivity throughout those proceedings.

938.01(3) (3) Indian juvenile welfare; declaration of policy. In Indian juvenile custody proceedings, the best interests of the Indian juvenile shall be determined in accordance with the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and the policy specified in this subsection. It is the policy of this state for courts and agencies responsible for juvenile welfare to do all of the following:

938.01(3)(a) (a) Cooperate fully with Indian tribes in order to ensure that the federal Indian Child Welfare Act is enforced in this state.

938.01(3)(b) (b) Protect the best interests of Indian juveniles and promote the stability and security of Indian tribes and families by doing all of the following:

938.01(3)(b)1. 1. Establishing minimum standards for the removal of Indian juveniles from their families and the placement of those juveniles in out-of-home care placements that will reflect the unique value of Indian culture.

938.01(3)(b)2. 2. Using practices, in accordance with the federal Indian Child Welfare Act, 25 USC 1901 to 1963, this section, and other applicable law, that are designed to prevent the voluntary or involuntary out-of-home care placement of Indian juveniles and, when an out-of-home care placement is necessary, placing an Indian juvenile in a placement that reflects the unique values of the Indian juvenile’s tribal culture and that is best able to assist the Indian juvenile in establishing, developing, and maintaining a political, cultural, and social relationship with the Indian juvenile’s tribe and tribal community.

938.01 History History: 1995 a. 77; 2005 a. 344; 2009 a. 94.

938.01 Annotation The due process standard in juvenile proceedings is fundamental fairness. Basic requirements are discussed. In Interest of D.O.H., 76 Wis. 2d 286, 251 N.W.2d 196 (1976).

938.01 Annotation Time Ripe for Change. Barry & Ladwig. Wis. Law. Apr. 1996.

938.02 938.02 Definitions. In this chapter:

938.02(1) (1) “Adult” means a person who is 18 years of age or older, except that for purposes of investigating or prosecuting a person who is alleged to have violated any state or federal criminal law or any civil law or municipal ordinance, “adult” means a person who has attained 17 years of age.

938.02(1g) (1g) “Age or developmentally appropriate activities” means activities that are generally accepted as suitable for juveniles of a given chronological age or level of maturity or that are determined to be developmentally appropriate for a juvenile based on the cognitive, emotional, physical, and behavioral capacities that are typical for juveniles of a given age or age group or, in the case of a specific juvenile, activities that are suitable for the juvenile based on the cognitive, emotional, physical, and behavioral capacities of that juvenile.

938.02(1m) (1m) “Alcoholism” has the meaning given in s. 51.01 (1m).

938.02(1p) (1p) “Alcohol or other drug abuse impairment” means a condition of a person which is exhibited by characteristics of habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs to the extent that the person’s health is substantially affected or endangered or the person’s social or economic functioning is substantially disrupted.

938.02(1s) (1s) “Approved treatment facility” has the meaning given in s. 51.01 (2).

938.02(2d) (2d) “Controlled substance” has the meaning given in s. 961.01 (4).

938.02(2e) (2e) “Controlled substance analog” has the meaning given in s. 961.01 (4m).

938.02(2f) (2f) “Coordinated services plan of care” has the meaning given in s. 46.56 (1) (cm).

938.02(2g) (2g) “County department” means a county department under s. 46.215, 46.22 or 46.23, unless the context requires otherwise.

938.02(2m) (2m) “Court,” when used without further qualification, means the court assigned to exercise jurisdiction under this chapter and ch. 48 or, when used with reference to a juvenile who is subject to s. 938.183, a court of criminal jurisdiction or, when used with reference to a juvenile who is subject to s. 938.17 (2), a municipal court.

938.02(3) (3) “Court intake worker” means any person designated to provide intake services under s. 938.067.

938.02(3m) (3m) “Delinquent” means a juvenile who is 10 years of age or older who has violated any state or federal criminal law, except as provided in ss. 938.17, 938.18 and 938.183, or who has committed a contempt of court, as defined in s. 785.01 (1), as specified in s. 938.355 (6g).

938.02(4) (4) “Department” means the department of children and families except that with respect to a juvenile who is under the supervision of the department of corrections under s. 938.183, 938.34 (4h) or (7g), or 938.357 (3) or (4), “department” means the department of corrections.

938.02(5) (5) “Developmental disability” has the meaning given in s. 51.01 (5).

938.02(5g) (5g) “Drug dependent” has the meaning given in s. 51.01 (8b).

938.02(6) (6) “Foster home” means any facility that is operated by a person required to be licensed by s. 48.62 (1) and that provides care and maintenance for no more than 4 juveniles or, if necessary to enable a sibling group to remain together, for no more than 6 juveniles or, if the department promulgates rules permitting a different number of juveniles, for the number of juveniles permitted under those rules.

938.02(6m) (6m) “Governing body of a private school” has the meaning given in s. 115.001 (3d).

938.02(7) (7) “Group home” means any facility operated by a person required to be licensed by the department under s. 48.625 for the care and maintenance of 5 to 8 juveniles.

938.02(8) (8) “Guardian” means the person named by the court having the duty and authority of guardianship.

938.02(8b) (8b) “Habitual truant” has the meaning given in s. 118.16 (1) (a).

938.02(8d) (8d) “Indian” means any person who is a member of an Indian tribe or who is an Alaska native and a member of a regional corporation, as defined in 43 USC 1606.

938.02(8e) (8e) “Indian custodian” means an Indian person who has legal custody under tribal law or custom or under state law of an Indian juvenile who is the subject of an Indian juvenile custody proceeding, as defined in s. 938.028 (2) (b), or of an Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is the subject of a temporary physical custody proceeding under ss. 938.19 to 938.21 or to whom temporary physical care, custody, and control has been transferred by the parent of that juvenile.

938.02(8g) (8g) “Indian juvenile” means an unmarried person who is under 18 years of age and who is affiliated with an Indian tribe in any of the following ways:

938.02(8g)(a) (a) As a member of the Indian tribe.

938.02(8g)(b) (b) As a person who is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

938.02(8m) (8m) “Indian juvenile’s tribe” means one of the following:

938.02(8m)(a) (a) The Indian tribe in which an Indian juvenile is a member or eligible for membership.

938.02(8m)(b) (b) In the case of an Indian juvenile who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian juvenile has the more significant contacts.

938.02(8r) (8r) “Indian tribe” means any Indian tribe, band, nation, or other organized group or community of Indians that is recognized as eligible for the services provided to Indians by the U.S. secretary of the interior because of Indian status, including any Alaska native village, as defined in 43 USC 1602 (c).

938.02(10) (10) “Judge,” if used without further qualification, means the judge of the court assigned to exercise jurisdiction under this chapter and ch. 48 or, if used with reference to a juvenile who is subject to s. 938.183, the judge of the court of criminal jurisdiction or, when used with reference to a juvenile who is subject to s. 938.17 (2), the judge of the municipal court.

938.02(10m) (10m) “Juvenile,” when used without further qualification, means a person who is less than 18 years of age, except that for purposes of investigating or prosecuting a person who is alleged to have violated a state or federal criminal law or any civil law or municipal ordinance, “juvenile” does not include a person who has attained 17 years of age.

938.02(10p) (10p) “Juvenile correctional facility” means a correctional institution operated or contracted for by the department of corrections or operated by the department of health services for holding in secure custody persons adjudged delinquent. “Juvenile correctional facility” includes the Mendota juvenile treatment center under s. 46.057 and a facility authorized under s. 938.533 (3) (b), 938.538 (4) (b), or 938.539 (5).

938.02(10r) (10r) “Juvenile detention facility” means a locked facility approved by the department of corrections under s. 301.36 for the secure, temporary holding in custody of juveniles.

938.02(11) (11) “Legal custodian” means a person, other than a parent or guardian, or an agency to whom legal custody of a juvenile has been transferred by a court, but does not include a person who has only physical custody of the juvenile.

938.02(12) (12) “Legal custody” means a legal status created by the order of a court, which confers the right and duty to protect, train and discipline a juvenile, and to provide food, shelter, legal services, education and ordinary medical and dental care, subject to the rights, duties and responsibilities of the guardian of the juvenile and subject to any residual parental rights and responsibilities and the provisions of any court order.

938.02(12c) (12c) “Like-kin” means an individual who has a significant emotional relationship with a child or the child’s family that is similar to a familial relationship and who is not and has not previously been the child’s licensed foster parent. For an Indian child, “like-kin” includes individuals identified by the child’s tribe according to tribal tradition, custom or resolution, code, or law.

Effective date note NOTE: Sub. (12c) is created by 2023 Wis. Act 119 eff. 7-1-25 or on the date specified in the Department of Children and Families notice published in the Wisconsin Administrative Register under 2023 Wis. Act 119, section 122 (1), whichever is earlier.

938.02(12m) (12m) “Off-reservation trust land” means land in this state that is held in trust by the federal government for the benefit of an Indian tribe or individual and that is located outside the boundaries of an Indian tribe’s reservation.

938.02(12r) (12r) “Out-of-home care provider” means a foster parent, guardian, relative other than a parent, or nonrelative in whose home a juvenile is placed, or the operator of a group home, residential care center for children and youth, or shelter care facility in which a juvenile is placed, under the placement and care responsibility of the department of children and families, the department of corrections, or a county department. “Out-of-home care provider” also includes, in the case of a juvenile placed in a group home, residential care center for children and youth, or shelter care facility, a staff member employed on the site of that home, center, or facility who has been designated by the operator of that home, center, or facility as an out-of-home care provider for purposes of making decisions concerning the juvenile’s participation in age or developmentally appropriate activities.

938.02(13) (13) “Parent” means a biological parent, a husband who has consented to the artificial insemination of his wife under s. 891.40, or a parent by adoption. If the juvenile is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803, “parent” includes a person conclusively determined from genetic test results to be the father under s. 767.804 or a person acknowledged under s. 767.805 or a substantially similar law of another state or adjudicated to be the biological father. “Parent” does not include any person whose parental rights have been terminated. For purposes of the application of s. 938.028 and the federal Indian Child Welfare Act, 25 USC 1901 to 1963, “parent” means a biological parent, an Indian husband who has consented to the artificial insemination of his wife under s. 891.40, or an Indian person who has lawfully adopted an Indian juvenile, including an adoption under tribal law or custom, and includes, in the case of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803, a person conclusively determined from genetic test results to be the father under s. 767.804, a person acknowledged under s. 767.805, a substantially similar law of another state, or tribal law or custom to be the biological father, or a person adjudicated to be the biological father, but does not include any person whose parental rights have been terminated.

938.02(14) (14) “Physical custody” means actual custody of the person in the absence of a court order granting legal custody to the physical custodian.

938.02(14m) (14m) “Qualified individual” has the meaning given under 42 USC 675a (c) (1) (D).

938.02(14r) (14r) “Reasonable and prudent parent standard” means a standard for an out-of-home care provider to use in making decisions concerning a juvenile’s participation in age or developmentally appropriate extracurricular, enrichment, cultural, and social activities that is characterized by careful and sensible parental decisions that maintain the health, safety, best interests, and cultural, religious, and tribal values of the juvenile while at the same time encouraging the emotional and developmental growth of the juvenile.

938.02(15) (15) “Relative” means a parent, stepparent, brother, sister, stepbrother, stepsister, half brother, half sister, brother-in-law, sister-in-law, first cousin, 2nd cousin, first cousin once removed, nephew, niece, uncle, aunt, stepuncle, stepaunt, or any person of a preceding generation as denoted by the prefix of grand, great, or great-great, whether by blood, marriage, or legal adoption, or the spouse of any person named in this subsection, even if the marriage is terminated by death or divorce. For purposes of the application of s. 938.028 and the federal Indian Child Welfare Act, 25 USC 1901 to 1963, “relative” includes an extended family member, as defined in s. 938.028 (2) (a), whether by blood, marriage, or adoption, including adoption under tribal law or custom. For purposes of placement of a juvenile, “relative” also includes a parent of a sibling of the juvenile who has legal custody of that sibling.

Effective date note NOTE: Sub. (15) is shown as amended by 2023 Wis. Act 119 eff. 7-1-25 or on the date specified in the Department of Children and Families notice published in the Wisconsin Administrative Register under 2023 Wis. Act 119, section 122 (1), whichever is earlier. Prior to that date sub. (15) reads: