Chapter 938

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.

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.

938.02(15c) (15c) “Reservation,” except as otherwise provided in s. 938.028 (2) (e), means land in this state within the boundaries of the reservation of a tribe.

938.02(15d) (15d) “Residential care center for children and youth” means a facility operated by a child welfare agency licensed under s. 48.60 for the care, maintenance, and treatment of persons residing in that facility.

938.02(15g) (15g) “Secured residential care center for children and youth” means a facility that complies with the requirements of ss. 301.37 and 938.48 (16) (b) operated by an Indian tribe or a county under ss. 46.20, 59.53 (8m), and 938.22 (1) (a) or by a child welfare agency that is licensed under s. 48.66 (1) (b) to hold in secure custody persons adjudged delinquent.

938.02(17) (17) “Shelter care facility” means a nonsecure place of temporary care and physical custody for juveniles, including a holdover room, licensed by the department under s. 48.66 (1) (a).

938.02(17m) (17m) “Special treatment or care” means professional services which need to be provided to a juvenile or his or her family to protect the well-being of the juvenile, prevent placement of the juvenile outside the home or meet the special needs of the juvenile. This term includes medical, psychological or psychiatric treatment, alcohol or other drug abuse treatment or other services which the court finds to be necessary and appropriate.

938.02(17t) (17t) “Standardized assessment” means an assessment, using a tool determined by the department, of the strengths and needs of a juvenile to determine appropriateness of a placement in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675.

938.02(18) (18) “Trial” means a fact-finding hearing to determine jurisdiction.

938.02(18j) (18j) “Tribal court” means a court that has jurisdiction over juvenile custody proceedings, and that is either a court of Indian offenses or a court established and operated under the code or custom of an Indian tribe, or any other administrative body of an Indian tribe that is vested with authority over Indian juvenile custody proceedings.

938.02(18k) (18k) “Tribal school” has the meaning given in s. 115.001 (15m).

938.02(18m) (18m) “Truancy” has the meaning given in s. 118.16 (1) (c).

938.02(19) (19) “Type 1 juvenile correctional facility” means a juvenile correctional facility, but excludes any correctional institution that meets the criteria under sub. (10p) solely because of its status under s. 938.533 (3) (b), 938.538 (4) (b), or 938.539 (5).

938.02(19r) (19r) “Type 2 residential care center for children and youth” means a residential care center for children and youth that is designated by the department of corrections to provide care and maintenance for juveniles who have been placed in the residential care center for children and youth under the supervision of a county department under s. 938.34 (4d).

938.02(20) (20) “Type 2 juvenile correctional facility” means a juvenile correctional facility that meets the criteria under sub. (10p) solely because of its status under s. 938.533 (3) (b), 938.538 (4) (b), or 938.539 (5).

938.02(20m) (20m) 

938.02(20m)(a) (a) “Victim” means any of the following:

938.02(20m)(a)1. 1. A person against whom a delinquent act has been committed.

938.02(20m)(a)2. 2. If the person specified in subd. 1. is a child, a parent, guardian or legal custodian of the child.

938.02(20m)(a)3. 3. If a person specified in subd. 1. is physically or emotionally unable to exercise the rights granted under this chapter, s. 950.04 or article I, section 9m, of the Wisconsin constitution, a person designated by the person specified in subd. 1. or a family member, as defined in s. 950.02 (3), of the person specified in subd. 1.

938.02(20m)(a)4. 4. If a person specified in subd. 1. is deceased, any of the following:

938.02(20m)(a)4.a. a. A family member, as defined in s. 950.02 (3), of the person who is deceased.

938.02(20m)(a)4.b. b. A person who resided with the person who is deceased.

938.02(20m)(a)5. 5. If a person specified in subd. 1. has been adjudicated incompetent in this state, the guardian of the person appointed for him or her.

938.02(20m)(b) (b) “Victim” does not include a juvenile alleged to have committed the delinquent act.

938.02(21) (21) “Victim-witness coordinator” means a person employed or contracted by the county board of supervisors under s. 950.06 to provide services for the victims and witnesses of crimes or a person employed or contracted by the department of justice to provide the services specified in s. 950.08.

938.02 History History: 1995 a. 77, 216, 352, 448; 1997 a. 27, 35, 181, 191; 1999 a. 9, 162; 2001 a. 16, 59; 2003 a. 33, 284; 2005 a. 232, 344, 387; 2005 a. 443 s. 265; 2007 a. 20 ss. 3780 to 3782, 9121 (6) (a); 2009 a. 28, 94, 302, 334; 2011 a. 32, 258; 2011 a. 260 s. 80; 2013 a. 237; 2015 a. 55, 101, 128, 196; 2017 a. 34, 185; 2019 a. 8 ss. 25, 26, 71; 2019 a. 95; 2021 a. 42; 2023 a. 119.

938.02 Note NOTE: 2003 Wis. Act 284 contains explanatory notes.

938.022 938.022 Electronic filing. Section 801.18 shall govern the electronic filing of documents under this chapter. Electronic filing may be made through a custom data exchange between the court case management system and the automated information system used by district attorneys.

938.022 History History: Sup. Ct. Order No. 14-03, 2016 WI 29, 368 Wis. 2d xiii.

938.028 938.028 Indian juvenile welfare.

938.028(1) (1) 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 s. 938.01 (3).

938.028(2) (2) Definitions. In this section:

938.028(2)(a) (a) “Extended family member” means a person who is defined as a member of an Indian juvenile’s extended family by the law or custom of the Indian juvenile’s tribe or, in the absence of such a law or custom, a person who has attained the age of 18 years and who is the Indian juvenile’s grandparent, aunt, uncle, brother, sister, brother-in-law, sister-in-law, niece, nephew, first cousin, 2nd cousin, or stepparent.

938.028(2)(b) (b) “Indian juvenile custody proceeding” means a proceeding under s. 938.13 (4), (6), (6m), or (7) that is governed by the federal Indian Child Welfare Act, 25 USC 1901 to 1963, in which an out-of-home care placement may occur.

938.028(2)(c) (c) “Out-of-home care placement” means the removal of an Indian juvenile from the home of his or her parent or Indian custodian for temporary placement in a foster home, group home, residential care center for children and youth, or shelter care facility, in the home of a relative other than a parent, in the home of like-kin, or in the home of a guardian, from which placement the parent or Indian custodian cannot have the juvenile returned upon demand. “Out-of-home care placement” does not include an emergency change in placement under s. 938.357 (2) (b) or holding an Indian juvenile in custody under ss. 938.19 to 938.21.

938.028(2)(d) (d) “Qualified expert witness” means a person who is any of the following:

938.028(2)(d)1. 1. A member of the Indian juvenile’s tribe recognized by the Indian juvenile’s tribal community as knowledgeable regarding the tribe’s customs relating to family organization or child-rearing practices.

938.028(2)(d)2. 2. A member of another tribe who is knowledgeable regarding the customs of the Indian juvenile’s tribe relating to family organization or child-rearing practices.

938.028(2)(d)3. 3. A professional person having substantial education and experience in the person’s professional specialty and having substantial knowledge of the customs, traditions, and values of the Indian juvenile’s tribe relating to family organization and child-rearing practices.

938.028(2)(d)4. 4. A layperson having substantial experience in the delivery of juvenile and family services to Indians and substantial knowledge of the prevailing social and cultural standards and child-rearing practices of the Indian juvenile’s tribe.

938.028(2)(e) (e) “Reservation” means Indian country, as defined in 18 USC 1151, or any land not covered under that section to which title is either held by the United States in trust for the benefit of an Indian tribe or individual or held by an Indian tribe or individual, subject to a restriction by the United States against alienation.