(10) Telephone or live audiovisual participation.
The court may permit any party to participate in hearings under this section by telephone or live audiovisual means except a juvenile who intends to admit the facts of the delinquency petition.
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).
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
NOTE: The above annotations cite to s. 48.30, the predecessor statute to s. 938.30.
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
, 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
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.
History: 1995 a. 77
; 2009 a. 94
Fact-finding hearing. 938.31(1)(1)
In this section, “fact-finding hearing" means a hearing to determine if the allegations of a petition under s. 938.12
or 938.13 (12)
are supported beyond a reasonable doubt or a hearing to determine if the allegations in a petition or citation under s. 938.125
or 938.13 (4)
are proved by clear and convincing evidence.
(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)
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.
(3) Admissibility of custodial interrogations. 938.31(3)(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.
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)
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.
The statement was made in response to a question asked as part of the routine processing after the juvenile was taken into custody.
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.
The statement was made spontaneously and not in response to a question by a law enforcement officer or agent of a law enforcement agency.
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.
Notwithstanding ss. 968.28
, 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.
(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
. 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.
If the juvenile is an Indian juvenile in need of protection or services under s. 938.13 (4)
, 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)
, or (7)
is granted, in which case the court shall make those determinations at the dispositional hearing.
(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.
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)
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
for the cost of providing care for the juvenile.
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).
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
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
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
The Right to a Juvenile Jury Trial in Wisconsin: Rebalancing the Balanced Approach. Preciado. 1999 WLR 571.
Instituting Innocence Reform: Wisconsin's New Government Experiment. Kruse. 2006 WLR 645.
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.
History: 1997 a. 181
Delays, continuances and extensions. 938.315(1)(1)
Time periods to be excluded.
The following time periods shall be excluded in computing time periods under this chapter:
Any period of delay resulting from any of the following:
Other legal actions concerning the juvenile, including an examination under s. 938.295
or a hearing related to the juvenile's mental condition, prehearing motions, waiver motions, and hearings on other matters.
A continuance granted at the request of or with the consent of the juvenile and counsel.
The disqualification or substitution of a judge or by any other transfer of the case or intake inquiry to a different judge, intake worker or county.
A continuance granted at the request of the representative of the public under s. 938.09
if the continuance is granted because of the unavailability of evidence material to the case when he or she has exercised due diligence to obtain the evidence and there are reasonable grounds to believe that the evidence will be available at the later date, or to allow him or her additional time to prepare the case and additional time is justified because of the exceptional circumstances of the case.
The inability of the court to provide the juvenile with notice of an extension hearing under s. 938.365
due to the juvenile having run away or otherwise having made himself or herself unavailable to receive that notice.
A continuance, not to exceed 20 days, granted at the request of the parent, Indian custodian, or tribe of a juvenile whom the court knows or has reason to know is an Indian juvenile to enable the requester to prepare for a proceeding under s. 938.13 (4)
, or (7)
involving the out-of-home care placement of the juvenile.
A reasonable period of delay when the juvenile is joined in a hearing with another juvenile as to whom the time for a hearing has not expired under this section if there is good cause for not hearing the cases separately.
(2) Continuance for good cause.
A continuance may be granted by the court only upon a showing of good cause in open court or during a telephone conference under s. 807.13
on the record and only for so long as is necessary, taking into account the request or consent of the representative of the public under s. 938.09
or the parties, the interests of the victims and the interest of the public in the prompt disposition of cases.
(2m) When no continuance, extension, or exclusion permitted.
No continuance or extension of a time period specified in this chapter may be granted and no period of delay specified in sub. (1)
may be excluded in computing a time period under this chapter if the continuance, extension, or exclusion would result in any of the following:
The court making an initial finding under s. 938.38 (5m)
that the agency primarily responsible for providing services to the juvenile has made reasonable efforts to achieve the permanency goal of the juvenile's permanency plan more than 12 months after the date on which the juvenile was removed from the home or making any subsequent findings under s. 938.38 (5m)
as to those reasonable efforts more than 12 months after the date of a previous finding as to those reasonable efforts.
The court making a finding under s. 938.366 (3) (am) 3.
that a person's placement in out-of-home care under a transition-to-independent-living agreement is in the best interests of the person more than 180 days after the date on which the agreement is entered into.
(3) Consequences of failure to act within time period.
Failure by the court or a party to act within any time period specified in this chapter does not deprive the court of personal or subject matter jurisdiction or of competency to exercise that jurisdiction. Failure to object to a period of delay or a continuance waives any challenge to the court's competency to act during the period of delay or continuance. If the court or a party does not act within a time period specified in this chapter, the court, while assuring the safety of the juvenile, may grant a continuance under sub. (2)
, dismiss the petition with or without prejudice, release the juvenile from secure or nonsecure custody or from the terms of a custody order, or grant any other relief that the court considers appropriate.
The expiration date of a dispositional order is not a time limit contemplated in sub. (3). The length of time a dispositional order can remain in effect, however, is not really a requirement or deadline by which something must be done to proceed to the next step. State v. Michael S., Jr., 2005 WI 82
, 282 Wis. 2d 1
, 698 N.W.2d 673
Jeopardy attaches when a witness is sworn.
History: 1995 a. 77
When ordered; terms; victims' rights; procedures. 938.32(1)(a)
At any time after the filing of a petition for a proceeding relating to s. 938.12
and before the entry of judgment, the court may suspend the proceedings and place the juvenile under supervision in the juvenile's own home or present placement. The court may establish terms and conditions applicable to the parent, guardian, or legal custodian, and to the juvenile, including any of the conditions specified in subs. (1d)
, and (1x)
. The order under this section shall be known as a consent decree and must be agreed to by the juvenile; the parent, guardian, or legal custodian; and the person filing the petition under s. 938.25
. If the consent decree includes any conditions specified in sub. (1g)
, the consent decree shall include provisions for payment of the services as specified in s. 938.361
. The consent decree shall be in writing and be given to the parties.
Before entering into a consent decree in a case in which the juvenile is alleged to be delinquent under s. 938.12
or to be in need of protection or services under s. 938.13 (12)
, the district attorney or corporation counsel shall, as soon as practicable but before agreeing to the consent decree, offer all of the victims of the juvenile's alleged act who have so requested an opportunity to confer with the district attorney or corporation counsel concerning the proposed consent decree. The duty to offer an opportunity to confer under this paragraph does not limit the obligation of the district attorney or corporation counsel to exercise his or her discretion concerning the handling of the proceeding against the juvenile.
Before entering into a consent decree in a proceeding in which a juvenile is alleged to be delinquent under s. 938.12
or to be in need of protection or services under s. 938.13 (12)
all of the following shall occur:
The court shall determine whether a victim of the juvenile's act wants to make a statement to the court. If a victim wants to make a statement, the court shall allow the victim to make a statement in court or to submit a written statement to be read to the court. The court may allow any other person to make or submit a statement under this subdivision. Any statement made under this subdivision must be relevant to the consent decree.
The court shall inquire of the district attorney or corporation counsel whether he or she has complied with par. (am)
, whether he or she has complied with subd. 2.
and s. 938.27 (4m)
, whether any of the known victims requested notice of the date, time, and place of any hearing to be held on the consent decree, and, if so, whether the district attorney provided to the victim notice of the date, time, and place of the hearing.
The district attorney or corporation counsel shall make a reasonable attempt to contact any known victim to inform that person of the right to make a statement under subd. 1g.
Any failure to comply with this subdivision is not a ground for discharge of the juvenile, parent, guardian, or legal custodian from fulfilling the terms and conditions of the consent decree.
Using the procedures specified in par. (a)
for the entry of an original consent decree, the parties to a consent decree may agree to, and the court may enter, an amended consent decree. An amended consent decree may change the placement of the juvenile who is the subject of the original consent decree or revise any other term or condition of the original consent decree. An amended consent decree that changes the placement of a juvenile from a placement in the juvenile's home to a placement outside the juvenile's home shall include the findings, orders, and determinations specified in par. (c)
, as applicable. An amended consent decree that changes the placement of an Indian juvenile from a placement in the Indian juvenile's home to a placement outside the Indian juvenile's home shall include the findings specified in par. (e)
. An amended consent decree may not extend the expiration date of the original consent decree.
If the consent decree places a juvenile in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675
, the qualified individual shall conduct a standardized assessment and the agency primarily responsible for providing services to the juvenile shall submit it and the recommendation of the qualified individual who completed the assessment, including all of the following, to the court and to all persons who are parties to the consent decree, no later than the time the consent decree is entered or, if not available by that time, no later than 30 days after the date on which the placement is made:
1. Whether the proposed placement will provide the juvenile with the most effective and appropriate level of care in the least restrictive environment.
2. How the placement is consistent with the short-term and long-term goals for the juvenile, as specified in the permanency plan.
3. The reasons why the juvenile's needs can or cannot be met by the juvenile's family or in a foster home. A shortage or lack of foster homes is not an acceptable reason for determining that the juvenile's needs cannot be met in a foster home.
4. The placement preference of the family permanency team under s. 938.38 (3m) and, if that preference is not the placement recommended by the qualified individual, why that recommended placement is not preferred.
Effective date note
Par. (br) is created eff. 9-29-21 by 2021 Wis. Act 42
If at the time the consent decree is entered into the juvenile is placed outside the home under a voluntary agreement under s. 48.63
or is otherwise living outside the home without a court order and if the consent decree maintains the juvenile in that placement or other living arrangement, or if an amended consent decree changes the placement of the juvenile from a placement in the juvenile's home to a placement outside the juvenile's home, the consent decree shall include all of the following:
A finding that placement of the juvenile in his or her home would be contrary to the welfare of the juvenile.
A finding as to whether the county department or the agency primarily responsible for providing services to the juvenile has made reasonable efforts to prevent the removal of the juvenile from the home, while assuring that the juvenile's health and safety are the paramount concerns, unless the court finds that any of the circumstances specified in s. 938.355 (2d) (b) 1.
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.
If the juvenile's placement or other living arrangement is 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.