Chapter 938

938.346(1)(h)3. 3. The right to compensation, as provided under subch. I of ch. 949.

938.346(1)(h)4. 4. The right to a speedy disposition of the case under s. 950.04 (1v) (k).

938.346(1)(h)5. 5. The right to have personal property returned, as provided under s. 950.04 (1v) (s).

938.346(1)(h)6. 6. The right to complain to the department of justice concerning the treatment of crime victims, as provided under s. 950.08 (3), and to request review by the crime victims rights board of the complaint, as provided under s. 950.09 (2).

938.346(1m) (1m) Duties of intake workers and district attorneys. The intake worker shall make a reasonable attempt to provide notice of the information under sub. (1) (a), (b), (c), and (h), the information under sub. (1) (d) relating to a deferred prosecution agreement under s. 938.245, the information under sub. (1) (em) relating to the right to confer, if requested, on deferred prosecution agreements and the information under sub. (3) if the juvenile’s case is closed. The district attorney or corporation counsel shall make a reasonable attempt to provide notice of the information under sub. (1) (e), (ec), (f), (fm), and (g), the information under sub. (1) (d) relating to a consent decree under s. 938.32 or a dispositional order under ss. 938.34 to 938.345, the information under sub. (1) (em) relating to the right to request an opportunity to confer, if requested, on amendment of petitions, consent decrees and disposition recommendations and the information under sub. (3) if he or she decides not to file a petition or the proceeding is terminated without a consent decree or dispositional order after the filing of a petition.

938.346(2) (2) Restrictions on disclosure of information. The notice under sub. (1) shall include an explanation of the restrictions on disclosing information obtained under this chapter and the penalties for violating the restrictions.

938.346(3) (3) Closed cases. If an inquiry is closed by an intake worker or otherwise does not result in a deferred prosecution agreement, the intake worker shall make a reasonable attempt to inform each known victim of the juvenile’s alleged act as provided in s. 938.24 (5m). If a district attorney or corporation counsel decides not to file a petition or if, after a petition is filed, a proceeding is dismissed or otherwise does not result in a consent decree or dispositional order, a district attorney or corporation counsel shall make a reasonable attempt to inform each known victim of the juvenile’s alleged act as provided in s. 938.25 (2m) or 938.312, whichever is applicable.

938.346(4) (4) Child victims. If the victim, as defined in s. 938.02 (20m) (a) 1., is a child, the notice under this section shall be given to the child’s parents, guardian or legal custodian.

938.346(5) (5) Court policies and rules. Chief judges and circuit judges shall establish by policy and rule procedures for the implementation of this section. Subject to subs. (1m) and (3), the policies and rules shall specify when, how and by whom the notice under this section shall be provided to victims and with whom victims may confer regarding deferred prosecution agreements, amendment of petitions, consent decrees and disposition recommendations.

938.346 History History: 1995 a. 77; 1997 a. 181, 205; 1999 a. 188; 2005 a. 155, 277, 344; 2007 a. 20; 2009 a. 209.

938.35 938.35 Effect of judgment and disposition.

938.35(1) (1) Effect and admissibility of judgment. The court shall enter a judgment setting forth the court’s findings and disposition in the proceeding. A judgment in a proceeding on a petition under this chapter is not a conviction of a crime, does not impose any civil disabilities ordinarily resulting from the conviction of a crime and does not operate to disqualify the juvenile in any civil service application or appointment. The disposition of a juvenile, and any record of evidence given in a hearing in court, is not admissible as evidence against the juvenile in any case or proceeding in any other court except for the following:

938.35(1)(a) (a) In sentencing proceedings after conviction of a felony or misdemeanor and then only for the purpose of a presentence investigation.

938.35(1)(b) (b) In a proceeding in any court assigned to exercise jurisdiction under this chapter and ch. 48.

938.35(1)(c) (c) In a court of civil or criminal jurisdiction while it is exercising jurisdiction over an action affecting the family and is considering the custody of a juvenile.

938.35(1)(cm) (cm) In a court of civil or criminal jurisdiction for purposes of setting bail under ch. 969 or impeaching a witness under s. 906.09.

938.35(1)(d) (d) The fact that a juvenile has been adjudged delinquent on the basis of unlawfully and intentionally killing a person is admissible for the purpose of s. 854.14 (5) (b).

938.35(1)(e) (e) In a hearing, trial, or other proceeding under ch. 980.

938.35(1m) (1m) Future criminal proceedings barred. Disposition by the court assigned to exercise jurisdiction under this chapter and ch. 48 of any allegation under s. 938.12 or 938.13 (12) shall bar any future proceeding on the same matter in criminal court when the juvenile attains 17 years of age. This subsection does not affect proceedings in criminal court that have been transferred under s. 938.18.

938.35(2) (2) Court disclosure of information. Except under sub. (1), this section does not preclude the court from disclosing information to qualified persons if the court considers the disclosure to be in the best interests of the juvenile or of the administration of justice.

938.35 History History: 1995 a. 77; 1997 a. 35, 205; 1999 a. 32; 2005 a. 344, 434; 2013 a. 166.

938.35 Annotation If evidence of a prior rape is introduced at a rape trial to prove identity, testimony of the prior rape victim is admissible notwithstanding that the defendant was tried as a juvenile for the prior rape. Sanford v. State, 76 Wis. 2d 72, 250 N.W.2d 348 (1977).

938.35 Annotation Inferential impeachment; the presence of parole officers at subsequent juvenile adjudications. O’Donnell. 55 MLR 349.

938.35 Note NOTE: The above annotations cite to s. 48.35, the predecessor statute to s. 938.35.

938.355 938.355 Dispositional orders.

938.355(1) (1) Intent. In any order under s. 938.34 or 938.345, the court shall decide on a placement and treatment finding based on evidence submitted to the court. The disposition shall employ those means necessary to promote the objectives under s. 938.01. If the court has determined that any of the conditions specified in s. 938.34 (4m) (b) 1., 2., or 3. applies, that determination shall be prima facie evidence that a less restrictive alternative than placement in a juvenile correctional facility or a secured residential care center for children and youth is not appropriate. If information under s. 938.331 has been provided in a court report under s. 938.33 (1), the court shall consider that information when deciding on a placement and treatment finding.

938.355(2) (2) Content of order; copy to parent.

938.355(2)(a) (a) In addition to the order, the court shall make written findings of fact and conclusions of law based on the evidence presented to the court to support the disposition ordered, including findings as to the juvenile’s condition and need for special treatment or care if an examination or assessment was conducted under s. 938.295. A finding may not include a finding that a juvenile is in need of psychotropic medications.

938.355(2)(b) (b) The court order shall be in writing and shall contain:

938.355(2)(b)1. 1. Specific services to be provided to the juvenile and the juvenile’s family, and, if custody is to be transferred to effect the treatment plan, the identity of the legal custodian.

938.355(2)(b)1m. 1m. A notice that the juvenile’s parent, guardian, or legal custodian or the juvenile, if 14 years of age or older, may request an agency that is providing care or services for the juvenile or that has legal custody of the juvenile to disclose to, or make available for inspection by, the parent, guardian, legal custodian, or juvenile the contents of any record kept or information received by the agency about the juvenile as provided in s. 938.78 (2) (ag).

938.355(2)(b)2. 2. If the juvenile is placed outside the home under s. 938.34 (3) or (4d), the name of the place or facility, including transitional placements, where the juvenile shall be cared for or treated, except that if the placement is a foster home and the name and address of the foster parent is not available at the time of the order, the name and address of the foster parent shall be furnished to the court and the parent within 21 days after the order. If, after a hearing on the issue with due notice to the parent or guardian, the court finds that disclosure of the identity of the foster parent would result in imminent danger to the juvenile or the foster parent, the court may order the name and address of the prospective foster parents withheld from the parent or guardian.

938.355(2)(b)2m. 2m. If the juvenile is placed outside the home under s. 938.34 (4m), the name of the county department that will provide supervision and determine placement for the juvenile.

938.355(2)(b)3. 3. The date of the expiration of the court’s order.

938.355(2)(b)4. 4. If the juvenile is placed outside the juvenile’s home, a designation of the amount of support, if any, to be paid by the juvenile’s parent, guardian or trustee, specifying that the support obligation begins on the date of the placement, or a referral to the county child support agency under s. 59.53 (5) for establishment of child support.

938.355(2)(b)4m. 4m. If the juvenile is placed outside the home and if the juvenile’s parent has not provided a statement of the income, assets, debts, and living expenses of the juvenile and the juvenile’s parent to the county department under s. 938.30 (6) (b) or (c) or 938.31 (7) (b) or (c), an order for the parent to provide that statement to the county department by a date specified 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 the form. The county department shall use the information 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.

938.355(2)(b)5. 5. For a juvenile placed outside his or her home under an order under s. 938.34 (3) or 938.345, a permanency plan under s. 938.38 if one has been prepared.

938.355(2)(b)6. 6. If the juvenile is placed outside the home, a finding that continued placement of the juvenile in his or her home would be contrary to the welfare of the juvenile or, if the juvenile has been adjudicated delinquent and is placed outside the home under s. 938.34 (3) (a), (c), (cm), or (d) or (4d), a finding that the juvenile’s current residence will not safeguard the welfare of the juvenile or the community due to the serious nature of the act for which the juvenile was adjudicated delinquent. The court order shall also contain a finding as to whether the county department or the agency primarily responsible for providing services under a court order 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 court finds that any of the circumstances under sub. (2d) (b) 1. to 4. applies, and, if a permanency plan has previously been prepared for the juvenile, a finding as to whether the county department or agency has made reasonable efforts to achieve the permanency goal of the juvenile’s permanency plan, including, if appropriate, through an out-of-state placement. The court shall make the findings specified in this subdivision 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 court order. A court order that merely references this subdivision without documenting or referencing that specific information in the court order or an amended court order that retroactively corrects an earlier court order that does not comply with this subdivision is not sufficient to comply with this subdivision.

938.355(2)(b)6d. 6d. Except as provided in par. (cd), if the juvenile is placed in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675, a finding as to each of the following, the answers to which do not affect whether the placement may be made, after considering the standardized assessment and the recommendation of the qualified individual who conducted the standardized assessment:

938.355(2)(b)6d.a. a. Whether the needs of the juvenile can be met through placement in a foster home.

938.355(2)(b)6d.b. b. Whether placement of the juvenile in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675 provides the most effective and appropriate level of care for the juvenile in the least restrictive environment.

938.355(2)(b)6d.c. c. Whether the placement is consistent with the short-term and long-term goals for the juvenile, as specified in the permanency plan.

938.355(2)(b)6d.d. d. Whether the court approves or disapproves the placement.

938.355(2)(b)6g. 6g. If the juvenile is placed outside the home under the supervision of the county department, an order ordering the juvenile into the placement and care responsibility of the county department as required under 42 USC 672 (a) (2) and assigning the county department primary responsibility for providing services to the juvenile.

938.355(2)(b)6m. 6m. If the juvenile is placed outside the home in a placement under s. 938.34 (3) or (4d) recommended by the agency designated under s. 938.33 (1), a statement that the court approves the placement recommended by the agency or, if the juvenile is placed outside the home in a placement other than a placement recommended by that agency, a statement that the court has given bona fide consideration to the recommendations made by the agency and all parties relating to the juvenile’s placement.

938.355(2)(b)6n. 6n. If the juvenile is placed outside the home under s. 938.34 (4m), a statement that the court has given bona fide consideration to the recommendations made by the agency and all parties relating to the juvenile’s placement.

938.355(2)(b)6p. 6p. If the juvenile is placed outside the home and if the juvenile has one or more siblings, as defined in s. 938.38 (4) (br) 1., who have also been placed outside the home, a finding as to whether the county department or the agency primarily responsible for providing services under a court order has made reasonable efforts to place the juvenile in a placement that enables the sibling group to remain together, unless the court determines that a joint placement would be contrary to the safety or well-being of the juvenile or any of those siblings, in which case the court shall order the county department or agency to make reasonable efforts to provide for frequent visitation or other ongoing interaction between the juvenile and the siblings, unless the court determines that such visitation or interaction would be contrary to the safety or well-being of the juvenile or any of those siblings.

938.355(2)(b)6r. 6r. If the court finds that any of the circumstances under sub. (2d) (b) 1. to 4. applies with respect to a parent, a determination that the county department or agency primarily responsible for providing services under the court order 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.

938.355(2)(b)6v. 6v. If the juvenile is an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7) and who is being removed from the home of his or her parent or Indian custodian and placed outside that home, a finding supported by clear and convincing evidence, including the testimony of one or more qualified expert witnesses, that continued custody of the Indian juvenile by the parent or Indian custodian is likely to result in serious emotional or physical damage to the juvenile under s. 938.028 (4) (d) 1. and a finding that active efforts under s. 938.028 (4) (d) 2. have been made to prevent the breakup of the Indian juvenile’s family and that those efforts have proved unsuccessful. The findings under this subdivision shall be in addition to the findings under subd. 6., except that for the sole purpose of determining whether the cost of providing care for an Indian juvenile is eligible for reimbursement under 42 USC 670 to 679b, the findings under this subdivision and the findings under subd. 6. shall be considered to be the same findings. The findings under this subdivision are not required if they were made in a previous order in the proceeding unless a change in circumstances warrants new findings.

938.355(2)(b)7. 7. A statement of the conditions with which the juvenile is required to comply.

938.355(2)(c) (c) If school attendance is a condition of an order under par. (b) 7., the order shall specify what constitutes a violation of the condition and shall direct the school board of the school district or the governing body of the private school in which the juvenile is enrolled, or shall request the governing body of the tribal school in which the juvenile is enrolled, to notify the county department that is responsible for supervising the juvenile within 5 days after any violation of the condition by the juvenile.

938.355(2)(cd) (cd) If the results of the standardized assessment and recommendation of the qualified individual who conducted the standardized assessment are required but not available at the time of the order, the court shall defer making the findings under par. (b) 6d. as provided in this paragraph. No later than 60 days after the date on which the placement was made, the court shall issue an order making the findings under par. (b) 6d.

938.355(2)(cm) (cm)

938.355(2)(cm)1. 1. Subject to subd. 2., the court shall order the county department or the agency primarily responsible for providing services to the juvenile under the dispositional order to conduct a diligent search in order to locate and provide notice of the information specified in s. 938.21 (5) (e) 2. a. to e. to all relatives of the juvenile named under s. 938.335 (6) and to all adult relatives, as defined in s. 938.21 (5) (e) 1., of the juvenile within 30 days after the juvenile is removed from the custody of the juvenile’s parent unless the juvenile is returned to his or her home within that period. The court may also order the county department or agency to conduct a diligent search in order to locate and provide notice of that information to all other adult individuals named under s. 938.335 (6) within 30 days after the juvenile is removed from the custody of the juvenile’s parent unless the juvenile is returned to his or her home within that period. The county department or agency may not provide that notice to a person named under s. 938.335 (6) or to an adult relative if the county department or agency has reason to believe that it would be dangerous to the juvenile or to the parent if the juvenile were placed with that person or adult relative.

938.355(2)(cm)2. 2. Subdivision 1. does not apply if the search required under subd. 1. was previously conducted and the notice required under subd. 1. was previously provided under s. 938.21 (5) (e) 2.

938.355(2)(d) (d) The court shall provide a copy of the dispositional order to the juvenile’s parent, guardian, legal custodian, or trustee and, if the juvenile is an Indian juvenile who has been removed from the home of his or her parent or Indian custodian and placed outside that home under s. 938.13 (4), (6), (6m), or (7), to the Indian juvenile’s Indian custodian and tribe.

938.355(2b) (2b) Concurrent reasonable efforts permitted.

938.355(2b)(a) (a) In this subsection, “concurrent planning” means appropriate efforts to work simultaneously towards achieving more than one of the permanency goals listed in s. 938.38 (4) (fg) 1. to 5. for a juvenile who is placed in out-of-home care and for whom a permanency plan is required under s. 938.38 (2).

938.355(2b)(b) (b) A county department or the agency primarily responsible for providing services to a juvenile under a court order shall determine, in accordance with standards established by the department, whether to engage in concurrent planning. If, according to those standards, concurrent planning is required, the county department or agency shall engage in concurrent planning unless the court or permanency review panel determines under s. 938.38 (5) (c) 5m. that concurrent planning is inappropriate.

938.355(2c) (2c) Reasonable efforts standards.

938.355(2c)(a) (a) When a court makes a finding under sub. (2) (b) 6. as to whether a county department which provides social services or the agency primarily responsible for providing services to the juvenile under a court order has made reasonable efforts to prevent the removal of the juvenile from his or her home, while assuring that the juvenile’s health and safety are the paramount concerns, the court’s consideration of reasonable efforts shall include whether:

938.355(2c)(a)1. 1. A comprehensive assessment of the family’s situation was completed, including a determination of the likelihood of protecting the juvenile’s health, safety and welfare effectively in the home.

938.355(2c)(a)2. 2. Financial assistance, if applicable, was provided to the family.

938.355(2c)(a)3. 3. Services were offered or provided to the family, if applicable, and whether any assistance was provided to the family to enable the family to utilize the services. Examples of the types of services that may have been offered include:

938.355(2c)(a)3.a. a. In-home support services, such as homemakers and parent aides.

938.355(2c)(a)3.b. b. In-home intensive treatment services.

938.355(2c)(a)3.c. c. Community support services, such as child care, parenting skills training, housing assistance, employment training, and emergency mental health services.

938.355(2c)(a)3.d. d. Specialized services for family members with special needs.

938.355(2c)(a)4. 4. Monitoring of client progress and client participation in services was provided.

938.355(2c)(a)5. 5. A consideration of alternative ways of addressing the family’s needs was provided, if services did not exist or existing services were not available to the family.

938.355(2c)(b) (b) When a court makes a finding under sub. (2) (b) 6. as to whether the county department or the agency primarily responsible for providing services to the juvenile under a court order has made reasonable efforts to achieve the permanency goal of the permanency plan, the court’s consideration of reasonable efforts shall include the considerations under par. (a) and whether visitation schedules between the juvenile and his or her parents were implemented, unless visitation was denied or limited by the court.

938.355(2d) (2d) Reasonable efforts not required.

938.355(2d)(a) (a) In this subsection:

938.355(2d)(a)1. 1. “Aggravated circumstances” include abandonment in violation of s. 948.20 or in violation of the law of any other state or federal law if that violation would be a violation of s. 948.20 if committed in this state, torture, chronic abuse, and sexual abuse.

938.355(2d)(a)2. 2. “Sexual abuse” means a violation of s. 940.225, 944.30 (1m), 948.02, 948.025, 948.05, 948.055, 948.06, 948.085, 948.09 or 948.10 or a violation of the law of any other state or federal law if that violation would be a violation of s. 940.225, 944.30 (1m), 948.02, 948.025, 948.05, 948.055, 948.06, 948.085 (2), 948.09 or 948.10 if committed in this state.

938.355(2d)(b) (b) Notwithstanding sub. (2) (b) 6., the court is not required to include in a dispositional order a finding as to whether the county department or the agency primarily responsible for providing services under a court order has made reasonable efforts with respect to a parent of a juvenile to prevent the removal of the juvenile from the home, while assuring that the juvenile’s health and safety are the paramount concerns, or, if applicable, a finding as to whether the county department or agency has made reasonable efforts with respect to a parent of a juvenile to achieve the permanency goal of returning the juvenile safely to his or her home, if the court finds any of the following:

938.355(2d)(b)1. 1. That the parent has subjected the juvenile to aggravated circumstances, as evidenced by a final judgment of conviction.

938.355(2d)(b)2. 2. That the parent has committed, has aided or abetted the commission of, or has solicited, conspired, or attempted to commit, a violation of s. 940.01, 940.02, 940.03, or 940.05 or a violation of the law of any other state or federal law, if that violation would be a violation of s. 940.01, 940.02, 940.03, or 940.05 if committed in this state, as evidenced by a final judgment of conviction, and that the victim of that violation is a child of the parent.

938.355(2d)(b)3. 3. That the parent has committed a violation of s. 940.19 (3), 1999 stats., or s. 940.19 (2), (4), or (5), 940.198 (2) (a) or (3) (a), 940.225 (1) or (2), 948.02 (1) or (2), 948.025, 948.03 (2) (a), (3) (a), or (5) (a) 1., 2., or 3., or 948.085 or a violation of the law of any other state or federal law, if that violation would be a violation of s. 940.19 (2), (4), or (5), 940.198 (2) (a) or (3) (a), 940.225 (1) or (2), 948.02 (1) or (2), 948.025, or 948.03 (2) (a), (3) (a), or (5) (a) 1., 2., or 3. if committed in this state, as evidenced by a final judgment of conviction, and that the violation resulted in great bodily harm, as defined in s. 939.22 (14), or in substantial bodily harm, as defined in s. 939.22 (38), to the juvenile or another child of the parent.

938.355(2d)(b)3m. 3m. That the parent has committed a violation of s. 948.051 or a violation of the law of any other state or federal law, if that violation would be a violation of s. 948.051 if committed in this state, as evidenced by a final judgment of conviction, and that the victim of that violation is a child of the parent.

938.355(2d)(b)4. 4. That the parental rights of the parent to another child have been involuntarily terminated, as evidenced by a final order of a court of competent jurisdiction terminating those parental rights.

938.355(2d)(bm) (bm) The court shall make a finding specified in par. (b) 1. to 4. on a case-by-case basis based on circumstances specific to the juvenile and shall document or reference the specific information on which that finding is based in the dispositional order. A dispositional order that merely references par. (b) 1. to 4. without documenting or referencing that specific information in the dispositional order or an amended dispositional order that retroactively corrects an earlier dispositional order that does not comply with this paragraph is not sufficient to comply with this paragraph.

938.355(2d)(c) (c) If the court finds that any of the circumstances under par. (b) 1. to 4. applies with respect to a parent, the court shall hold a hearing under s. 938.38 (4m) within 30 days after the date of that finding to determine the permanency goal and, if applicable, any concurrent permanency goals for the juvenile.

938.355(2d)(d) (d) This subsection does not affect the requirement under sub. (2) (b) 6v. that the court include in a dispositional order removing an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7) from the home of his or her parent or Indian custodian and placing the juvenile outside that home a finding that active efforts under s. 938.028 (4) (d) 2. have been made to prevent the breakup of the Indian juvenile’s family and that those efforts have proved unsuccessful.

938.355(2e) (2e) Permanency plans; filing; amended orders; copies.

938.355(2e)(a) (a) If a permanency plan has not been prepared at the time the dispositional order is entered, or if the court orders a disposition that is not consistent with the permanency plan, the agency responsible for preparing the plan shall prepare a permanency plan that is consistent with the order or revise the permanency plan to conform to the order and shall file the plan with the court within the time specified in s. 938.38 (3). A permanency plan filed under this paragraph shall be made a part of the dispositional order.

938.355(2e)(b) (b) Each time a juvenile’s placement is changed under s. 938.32 or 938.357, a trial reunification is ordered under s. 938.358, a consent decree is revised under s. 938.32, or a dispositional order is revised under s. 938.363 or extended under s. 938.365, the agency that prepared the permanency plan shall revise the plan to conform to the order and shall file a copy of the revised plan with the court. Each plan filed shall be made a part of the court order.

938.355(2e)(c) (c) Either the court or the agency that prepared the permanency plan shall furnish a copy of the original plan and each revised plan to the juvenile’s parent or guardian, to the juvenile or the juvenile’s counsel or guardian ad litem and to the person representing the interests of the public.

938.355(2m) (2m) Transitional placements. The court order may include the name of transitional placements, but may not designate a specific time when transitions are to take place. The procedures of ss. 938.357 and 938.363 govern when those transitions take place. The court may place specific time limitations on interim arrangements made for the care of the juvenile pending the availability of the dispositional placement.