Chapter 938

938.299 Note NOTE: 2003 Wis. Act 284 contains 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.

938.30 938.30 Plea hearing.

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)(a) (a) Whether he or she has complied with ss. 938.265 and 938.27 (4m).

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) (e)

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.a. a. That the juvenile has become competent.

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 History History: 1995 a. 27 s. 9126 (19); 1995 a. 77; 1997 a. 27, 35, 181, 237, 252; 1999 a. 32, 103; 2001 a. 38, 61; 2005 a. 344; 2007 a. 20; 2009 a. 94; 2013 a. 20, 214; 2015 a. 55, 373; 2021 a. 141.

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.

938.31 938.31 Fact-finding hearing.

938.31(1) (1) Definition. 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) Hearing to the court; procedures. 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 that a deposition be taken by audiovisual means and allow the use of a recorded 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(3) (3) Admissibility of custodial interrogations.

938.31(3)(a) (a) In this subsection:

938.31(3)(a)1. 1. “Custodial interrogation” has the meaning given in s. 968.073 (1) (a).

938.31(3)(a)2. 2. “Law enforcement agency” has the meaning given in s. 165.83 (1) (b).

938.31(3)(a)3. 3. “Law enforcement officer” has the meaning given in s. 165.85 (2) (c).

938.31(3)(a)4. 4. “Statement” has the meaning given in s. 972.115 (1) (d).

938.31(3)(b) (b) Except as provided under par. (c), a statement made by the juvenile during a custodial interrogation is not admissible in evidence against the juvenile in any court proceeding alleging the juvenile to be delinquent unless an audio or audio and visual recording of the interrogation was made as required under s. 938.195 (2) and is available.

938.31(3)(c) (c) A juvenile’s statement is not inadmissible in evidence under par. (b) if any of the following applies or if other good cause exists for not suppressing a juvenile’s statement under par. (b):

938.31(3)(c)1. 1. The juvenile refused to respond or cooperate in the custodial interrogation if an audio or audio and visual recording was made of the interrogation so long as a law enforcement officer or agent of a law enforcement agency made a contemporaneous audio or audio and visual recording or written record of the juvenile’s refusal.

938.31(3)(c)2. 2. The statement was made in response to a question asked as part of the routine processing after the juvenile was taken into custody.

938.31(3)(c)3. 3. The law enforcement officer or agent of a law enforcement agency conducting the interrogation in good faith failed to make an audio or audio and visual recording of the interrogation because the recording equipment did not function, the officer or agent inadvertently failed to operate the equipment properly, or, without the officer’s or agent’s knowledge, the equipment malfunctioned or stopped operating.

938.31(3)(c)4. 4. The statement was made spontaneously and not in response to a question by a law enforcement officer or agent of a law enforcement agency.

938.31(3)(c)5. 5. Exigent public safety circumstances existed that prevented the making of an audio or audio and visual recording or rendered the making of such a recording infeasible.

938.31(3)(d) (d) Notwithstanding ss. 968.28 to 968.37, a juvenile’s lack of consent to having an audio or audio and visual recording made of a custodial interrogation does not affect the admissibility in evidence of an audio or audio and visual recording of a statement made by the juvenile during the interrogation.

938.31(4) (4) Findings by court. 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(5) (5) Indian juveniles. If the juvenile is an Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7), the court shall also determine at the fact-finding hearing whether continued custody of the Indian juvenile by the Indian juvenile’s parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian juvenile under s. 938.028 (4) (d) 1. and whether active efforts under s. 938.028 (4) (d) 2. have been made to prevent the breakup of the Indian juvenile’s family and whether those efforts have proved unsuccessful, unless partial summary judgment on the allegations under s. 938.13 (4), (6), (6m), or (7) is granted, in which case the court shall make those determinations at the dispositional hearing.

938.31(7) (7) Date for dispositional hearing.

938.31(7)(a) (a) At the close of the fact-finding hearing, the court, subject to s. 938.299 (10), shall set a date for the dispositional hearing that 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. Subject to s. 938.299 (10), 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 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 the 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).

938.31(7)(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 the 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.

938.31 History History: 1995 a. 27 s. 9126 (19); 1995 a. 77; 1997 a. 27, 35, 181, 237, 252; 1999 a. 32, 103; 2001 a. 38; 2005 a. 42, 60, 344; 2007 a. 20, 97; 2009 a. 94; 2015 a. 55; 2015 a. 197 s. 51; 2015 a. 373; 2021 a. 239.

938.31 Annotation A fact-finding hearing under sub. (1) was not closed until the court ruled on a motion to set aside the verdict. In Interest of C.M.L., 157 Wis. 2d 152, 458 N.W.2d 573 (Ct. App. 1990).

938.31 Annotation Under the facts of this case, an officer’s decision to question an injured juvenile suspect in the back of an ambulance when recording the interview was not feasible was reasonably prompted by a concern for the public safety and within the sub. (3) (c) 5. “exigent public safety circumstances” exception to the requirement that a juvenile’s statement must be recorded to be admissible. State v. Joel I.-N, 2014 WI App 119, 358 Wis. 2d 404, 856 N.W.2d 654, 14-0610.

938.31 Annotation A suspect who “refuse[s] to respond or cooperate” under sub. (3) (c) 1. must do more than request or express a preference that a recording device be turned off. Rather, the plain meaning of the statute is that the recording device may be turned off only when the suspect expresses or shows that he or she will no longer participate in the interrogation unless the recording device is turned off. A refusal must be affirmative; it is not enough for officers to assume that the interrogation will yield better results if the recording device is turned off. It was therefore a violation of s. 938.195, which requires recording custodial interrogations, for police to cease recording the interrogation in this case. Nevertheless, the error, if any, in not suppressing some of the defendant’s statements, was harmless. State v. Moore, 2015 WI 54, 363 Wis. 2d 376, 864 N.W.2d 827, 13-0127.

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.

938.31 Annotation Instituting Innocence Reform: Wisconsin’s New Government Experiment. Kruse. 2006 WLR 645.

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.