Chapter 938

938.255(1)(cr)1.b. b. At the time of the alleged delinquent act, the juvenile was under an order of a tribal court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile’s parent, or permanent guardianship.

938.255(1)(cr)1.c. c. At the time of the delinquent act the juvenile was physically outside the boundaries of the reservation of the Indian tribe of the tribal court and any off-reservation trust land of either that Indian tribe or a member of that Indian tribe as a direct consequence of a tribal court order under subd. 1. b., including a tribal court order placing the juvenile in the home of a relative of the juvenile who on or after the date of the tribal court order resides physically outside the boundaries of a reservation and off-reservation trust land.

938.255(1)(cr)2. 2. If the statement under subd. 1. is included in the petition and if the intake worker, district attorney, or corporation counsel has been notified by an official of the Indian tribe that a petition relating to the delinquent act has been or may be filed in tribal court with respect to the alleged delinquent act, a statement to that effect.

938.255(1)(d) (d) If violation of a criminal statute, an ordinance or another law is alleged, the citation to the appropriate law or ordinance as well as facts sufficient to establish probable cause that an offense has been committed and that the juvenile named in the petition committed the offense.

938.255(1)(e) (e) If the juvenile is alleged to come within the provisions of s. 938.13 (4), (6), (6m), (7) or (14) or 938.14, reliable and credible information which forms the basis of the allegations necessary to invoke the jurisdiction of the court and to provide reasonable notice of the conduct or circumstances to be considered by the court together with a statement that the juvenile is in need of supervision, services, care or rehabilitation.

938.255(1)(f) (f) If the juvenile is being held in custody outside of his or her home, reliable and credible information showing that continued placement of the juvenile in his or her home would be contrary to the welfare of the juvenile and, unless any of the circumstances specified in s. 938.355 (2d) (b) 1. to 4. applies, reliable and credible information showing that the person who took the juvenile into custody and the intake worker have 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, and to make it possible for the juvenile to return safely home.

938.255(1)(g) (g) If the petitioner knows or has reason to know that the juvenile is an Indian juvenile, if the juvenile is alleged to come within the provisions of s. 938.13 (4), (6), (6m), or (7), and if the juvenile has been removed from the home of his or her parent or Indian custodian, reliable and credible information showing that continued custody of the juvenile by the juvenile’s 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 reliable and credible information showing 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 petition shall set forth with specificity both the information required under this paragraph and the information required under par. (f).

938.255(2) (2) Facts not known. If any of the facts in sub. (1) (a) to (cr), (f), and (g) are not known or cannot be ascertained by the petitioner, the petition shall so state.

938.255(3) (3) If certain information not stated. If the information required under sub. (1) (d) or (e) is not stated the petition shall be amended under s. 938.263 (2) or dismissed.

938.255(4) (4) Copy to juvenile, parents, and others. A copy of the petition shall be given to the juvenile and to the parents, guardian, legal custodian and physical custodian. If the juvenile is an Indian juvenile who is alleged to come within the provisions of s. 938.13 (4), (6), (6m), or (7), and who has been removed from the home of his or her parent or Indian custodian, a copy of the petition shall also be given to the Indian juvenile’s Indian custodian and tribe.

938.255 History History: 1995 a. 77, 352; 2001 a. 109; 2003 a. 284; 2005 a. 344; 2009 a. 94; 2015 a. 373, 381; 2021 a. 238 s. 45.

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

938.263 938.263 Amendment of petition.

938.263(1) (1) To cure defect. Except as provided in s. 938.255 (3), no petition, process or other proceeding may be dismissed or reversed for any error or mistake if the case and the identity of the juvenile named in the petition may be readily understood by the court; and the court may order an amendment curing the defects.

938.263(2) (2) Before or after plea. With reasonable notification to the interested parties and prior to the taking of a plea under s. 938.30, the petition may be amended at the discretion of the court or person who filed the petition. After the taking of a plea, the court may allow amendment of the petition to conform to the proof if the amendment is not prejudicial to the juvenile.

938.263 History History: 1995 a. 77; 2005 a. 344.

938.263 Annotation Sub. (2) did not authorize the trial court to sua sponte and without notice amend a juvenile petition charge to disorderly conduct and make a finding of guilt thereon after finding the juvenile not guilty of battery. The court’s action unfairly prejudiced the juvenile’s statutory and due process rights. State v. Tawanna H., 223 Wis. 2d 572, 590 N.W.2d 276 (Ct. App. 1998), 98-1404.

938.265 938.265 Consultation with victims. 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 the plea hearing under s. 938.30, 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 possible outcomes of the proceeding against the juvenile, including potential plea agreements and recommendations that the district attorney or corporation counsel may make concerning dispositions under s. 938.34 or 938.345. The duty to offer an opportunity to confer under this section 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.

938.265 History History: 1997 a. 181; 2005 a. 344.

938.27 938.27 Notice; summons.

938.27(1) (1) Summons; when issued. After a citation is issued or a petition has been filed relating to facts concerning a situation specified under s. 938.12, 938.125 or 938.13, unless the parties under sub. (3) voluntarily appear, the court may issue a summons requiring the parent, guardian and legal custodian of the juvenile to appear personally at any hearing involving the juvenile, and, if the court so orders, to bring the juvenile before the court at a time and place stated.

938.27(2) (2) Summons; necessary persons. Summons may be issued requiring the appearance of any other person whose presence, in the opinion of the court, is necessary.

938.27(3) (3) Notice of hearings.

938.27(3)(a) (a)

938.27(3)(a)1. 1. The court shall notify, under s. 938.273, the juvenile, any parent, guardian, and legal custodian of the juvenile, any foster parent or other physical custodian described in s. 48.62 (2) of the juvenile, and any person specified in par. (b) or (d), if applicable, of all hearings involving the juvenile under this subchapter, except hearings on motions for which notice must be provided only to the juvenile and his or her counsel. If parents entitled to notice have the same place of residence, notice to one constitutes notice to the other. The first notice to any interested party, foster parent, or other physical custodian described in s. 48.62 (2) shall be in writing and may have a copy of the petition attached to it. Notices of subsequent hearings may be given by telephone at least 72 hours before the time of the hearing. The person giving telephone notice shall place in the case file a signed statement of the date and time notice was given and the person to whom he or she spoke.

938.27(3)(a)1m. 1m. The court shall give a foster parent or other physical custodian described in s. 48.62 (2) who is notified of a hearing under subd. 1. a right to be heard at the hearing by permitting the foster parent or other physical custodian to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, relevant to the issues to be determined at the hearing. A foster parent or other physical custodian described in s. 48.62 (2) who receives a notice of a hearing under subd. 1. and a right to be heard under this subdivision does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and right to be heard.

938.27(3)(a)2. 2. Failure to give notice under subd. 1. to a foster parent or other physical custodian described in s. 48.62 (2) does not deprive the court of jurisdiction in the action or proceeding. If a foster parent or other physical custodian described in s. 48.62 (2) is not given notice of a hearing under subd. 1., that person may request a rehearing on the matter during the pendency of an order resulting from the hearing. If the request is made, the court shall order a rehearing.

938.27(3)(b) (b)

938.27(3)(b)1. 1. Except as provided in subd. 2., if the petition that was filed relates to facts concerning a situation under s. 938.13 and if the juvenile is a nonmarital child who is not adopted or whose parents do not subsequently intermarry as provided under s. 767.803 and if paternity has not been established, the court shall notify, under s. 938.273, all of the following persons:

938.27(3)(b)1.a. a. A person who has filed a declaration of paternal interest under s. 48.025.

938.27(3)(b)1.b. b. A person alleged to the court to be the father of the juvenile or who may, based on the statements of the mother or other information presented to the court, be the father of the juvenile.

938.27(3)(b)2. 2. A court is not required to provide notice, under subd. 1., to any person who may be the father of a juvenile conceived as a result of a sexual assault if a physician attests to his or her belief that there was a sexual assault of the juvenile’s mother that may have resulted in the juvenile’s conception.

938.27(3)(d) (d) If the petition that was filed relates to facts concerning a situation under s. 938.13 (4), (6), (6m), or (7) involving an Indian juvenile who has been removed from the home of his or her parent or Indian custodian, the court shall notify, under s. 938.273, the Indian juvenile’s Indian custodian and tribe and that Indian custodian or tribe may intervene at any point in the proceeding.

938.27(4) (4) Contents of notice. The notice shall:

938.27(4)(a) (a) Contain the name of the juvenile, and the nature, location, date and time of the hearing.

938.27(4)(b) (b) Advise the juvenile and any other party, if applicable, of his or her right to legal counsel regardless of ability to pay.

938.27(4m) (4m) Notice to victims. The district attorney or corporation counsel shall make a reasonable attempt to contact any known victim or alleged victim of a juvenile’s act or alleged act to inform them of the right to receive notice of any hearing under this chapter involving the juvenile. If a victim or alleged victim indicates that he or she wishes to receive that notice, the district attorney or corporation counsel shall make a reasonable attempt to notify, under s. 938.273, that victim or alleged victim of any hearing under this chapter involving the juvenile. Failure to comply with this subsection is not a ground for an appeal of a judgment or dispositional order or for any court to reverse or modify a judgment or dispositional order.

938.27(5) (5) Notice to biological fathers. Subject to sub. (3) (b), the court shall make reasonable efforts to identify and notify any person who has filed a declaration of paternal interest under s. 48.025, any person conclusively determined from genetic test results to be the father under s. 767.804 (1), any person who has acknowledged paternity of the child under s. 767.805 (1), and any person who has been adjudged to be the father of the juvenile in a judicial proceeding unless the person’s parental rights have been terminated.

938.27(6) (6) Interstate compact proceedings; notice and summons. When a proceeding is initiated under s. 938.14, all interested parties shall receive notice and appropriate summons shall be issued in a manner specified by the court. If the juvenile who is the subject of the proceeding is in the care of a foster parent or other physical custodian described in s. 48.62 (2), the court shall give the foster parent or other physical custodian notice and a right to be heard as provided in sub. (3) (a).

938.27(7) (7) Citations as notice. When a citation has been issued under s. 938.17 (2) and the juvenile’s parent, guardian and legal custodian have been notified of the citation, subs. (3) and (4) do not apply.

938.27(8) (8) Reimburse legal counsel costs in certain cases; notice. When a petition is filed under s. 938.12 or 938.13, the court shall notify, in writing, the juvenile’s parents or guardian that they may be ordered to reimburse this state or the county for the costs of legal counsel provided for the juvenile, as provided under s. 938.275 (2).

938.27 History History: 1995 a. 77, 275; 1997 a. 80, 181, 237; 2005 a. 293, 344; 2005 a. 443 s. 265; 2007 a. 96; 2009 a. 28, 79, 94; 2019 a. 95.

938.273 938.273 Service of summons or notice; expense.

938.273(1) (1) Methods of service; continuance.

938.273(1)(a) (a) Except as provided in pars. (ag), (ar), and (b), service of summons or notice required by s. 938.27 may be made by mailing a copy of the summons or notice to the person summoned or notified.

938.273(1)(ag) (ag) In a situation described in s. 938.27 (3) (d), service of summons or notice required by s. 938.27 to an Indian juvenile’s parent, Indian custodian, or tribe shall be made as provided in s. 938.028 (4) (a).

938.273(1)(ar) (ar) Except as provided in par. (b), if the person, other than a person specified in s. 938.27 (4m), fails to appear at the hearing or otherwise to acknowledge service, a continuance shall be granted, and service shall be made personally by delivering to the person a copy of the summons or notice; except that if the court determines that it is impracticable to serve the summons or notice personally, the court may order service by certified mail addressed to the last-known address of the person.

938.273(1)(b) (b) The court may refuse to grant a continuance when the juvenile is being held in secure custody, but if the court so refuses, the court shall order that service of notice of the next hearing be made personally or by certified mail to the last-known address of the person who failed to appear at the hearing.

938.273(1)(c) (c) Personal service shall be made at least 72 hours before the hearing. Mail shall be sent at least 7 days before the hearing, except as follows:

938.273(1)(c)1. 1. When the petition is filed under s. 938.13 and the person to be notified lives outside the state, the mail shall be sent at least 14 days before the hearing.

938.273(1)(c)2. 2. When a petition under s. 938.13 (4), (6), (6m), or (7) involves an Indian juvenile who has been removed from the home of his or her parent or Indian custodian and the person to be notified is the Indian juvenile’s parent, Indian custodian, or tribe, the mail shall be sent so that it is received by the person to be notified at least 10 days before the hearing or, if the identity or location of the person to be notified cannot be determined by the U.S. secretary of the interior at least 15 days before the hearing.

938.273(2) (2) By whom made. Service of summons or notice required by this chapter may be made by any suitable person under the direction of the court. Notification of the victim or alleged victim of a juvenile’s act under s. 938.27 (4m) shall be made by the district attorney or corporation counsel.

938.273(3) (3) Expenses; charge on county. The expenses of service of summons or notice or of the publication of summons or notice and the traveling expenses and fees as allowed in ch. 885 incurred by any person summoned or required to appear at the hearing of any case coming within the jurisdiction of the court under s. 938.12, 938.125, 938.13 or 938.14 shall be a charge on the county when approved by the court.

938.273 History History: 1995 a. 77; 1997 a. 35, 181; 1999 a. 32; 2005 a. 344; 2009 a. 94.

938.273 Annotation Failure to follow the statutory requirements for service defeated the state’s assertion of personal jurisdiction and required the juvenile court to vacate its waiver order and the circuit court to dismiss criminal charges without prejudice. Personal jurisdiction depends on compliance with the procedures in sub. (1). The state’s assertion that proper documents had been mailed to various addresses and not returned and that the juvenile had actual notice did not establish personal jurisdiction, nor does personal jurisdiction attach when a delinquency petition is filed. State v. Aufderhaar, 2005 WI 108, 283 Wis. 2d 336, 700 N.W.2d 4, 03-2820.

938.275 938.275 Parents’ contribution to cost of custody, sanctions and court and legal services.

938.275(1) (1) Expense of custody, services, sanctions, or placement.

938.275(1)(a) (a) If a juvenile is held in custody under ss. 938.20 to 938.21, the court shall order the parents of the juvenile to contribute toward the expense of holding the juvenile in custody the proportion of the total amount which the court finds the parents are able to pay.

938.275(1)(b) (b) If the court finds a juvenile to be delinquent under s. 938.12, in violation of a civil law or ordinance under s. 938.125 or in need of protection or services under s. 938.13, the court shall order the parents of the juvenile to contribute toward the expense of post-adjudication services to the juvenile, including any placement under s. 938.34 (3) (f), the proportion of the total amount which the court finds the parents are able to pay.

938.275(1)(c) (c) If the court imposes a sanction on a juvenile as specified in s. 938.355 (6) (d) or (6m) (a) or (ag) or finds the juvenile in contempt under s. 938.355 (6g) (b) and orders a disposition under s. 938.34 or if the juvenile is placed in a juvenile detention facility or place of nonsecure custody under s. 938.355 (6d) (a), (b), or (c) or 938.534 (1) (b) or (c), the court shall order the parents of the juvenile to contribute toward the cost of the sanction, disposition or placement the proportion of the total amount which the court finds the parents are able to pay.

938.275(2) (2) Legal counsel; indigency.

938.275(2)(a) (a) If the state or a county provides legal counsel to a juvenile subject to a proceeding under s. 938.12 or 938.13, the court shall order the juvenile’s parent to reimburse the state or county under par. (b) or (c). The court may not order reimbursement if either of the following apply:

938.275(2)(a)1. 1. A parent is the complaining or petitioning party.

938.275(2)(a)2. 2. The court finds that the interests of the parent and the interests of the juvenile in the proceeding are substantially and directly adverse and that reimbursement would be unfair to the parent.

938.275(2)(am) (am) The court may not order reimbursement under par. (a) until the completion of the proceeding or until the state or county is no longer providing the juvenile with legal counsel in the proceeding.

938.275(2)(b) (b) If the state provides the juvenile with legal counsel and the court orders reimbursement under par. (a), the juvenile’s parent may request the state public defender to determine whether the parent is indigent as provided under s. 977.07 and the amount of reimbursement. If the parent is found not to be indigent, the amount of reimbursement shall be the maximum amount established by the public defender board. If the parent is found to be indigent in part, the amount of reimbursement shall be the amount of partial payment determined under rules promulgated under s. 977.02 (3).

938.275(2)(c) (c) If the county provides the juvenile with legal counsel and the court orders reimbursement under par. (a), the court shall make a determination of indigency or appoint the county department to make the determination. If the court or the county department finds that the parent is not indigent or is indigent in part, the court shall establish the amount of reimbursement and order the parent to pay it.

938.275(2)(cg) (cg) The court shall, upon motion by a parent, hold a hearing to review any of the following:

938.275(2)(cg)1. 1. An indigency determination made under par. (b) or (c).

938.275(2)(cg)2. 2. The amount of reimbursement ordered.

938.275(2)(cg)3. 3. The court’s finding, under par. (a) 2., that the interests of the parent and the juvenile are not substantially and directly adverse and that ordering the payment of reimbursement would not be unfair to the parent.

938.275(2)(cr) (cr) Following a hearing under par. (cg), the court may affirm, rescind or modify the reimbursement order.

938.275(2)(d) (d) Reimbursement payments shall be made to the clerk of courts of the county where the proceedings took place. Each payment shall be transmitted to the county treasurer, who shall deposit 25 percent of the amount paid for state-provided counsel in the county treasury and transmit the remainder to the secretary of administration. Payments transmitted to the secretary of administration shall be deposited in the general fund and credited to the appropriation account under s. 20.550 (1) (L). The county treasurer shall deposit 100 percent of the amount paid for county-provided counsel in the county treasury.

938.275(2)(dm) (dm) Within 30 days after each calendar quarter, the clerk of court for each county shall report to the state public defender all of the following:

938.275(2)(dm)1. 1. The total amount of reimbursement determined or ordered under par. (b) or (cr) for state-provided counsel during the previous calendar quarter.

938.275(2)(dm)2. 2. The total amount collected under par. (d) for state-provided counsel during the previous calendar quarter.

938.275(2)(e) (e) A person who fails to comply with an order under par. (b) or (c) may be proceeded against for contempt of court under ch. 785.

938.275 History History: 1995 a. 77, 352; 1997 a. 205, 239; 2003 a. 33; 2005 a. 344.

938.275 Annotation Guardian ad litem fees are not reimbursable under sub. (2) (a). In Interest of G. & L.P., 119 Wis. 2d 349, 349 N.W.2d 743 (Ct. App. 1984).

938.275 Note NOTE: The above annotation cites to s. 48.275, the predecessor statute to s. 938.275.

938.28 938.28 Failure to obey summons; capias. If any person summoned under this chapter fails without reasonable cause to appear, he or she may be proceeded against for contempt of court under ch. 785. If the summons cannot be served, if the parties served fail to respond to the summons, or if it appears to the court that the service will be ineffectual, a capias may be issued for the parent, guardian, and legal custodian or for the juvenile. Subchapter IV governs the taking and holding of a juvenile in custody.

938.28 History History: 1995 a. 77; 1997 a. 35; 2005 a. 344.

938.28 Annotation The issuance of a capias to secure the physical attendance of a juvenile prior to the service of the summons and petition on the juvenile was error but did not deny the court personal jurisdiction. Interest of Jermaine T.J., 181 Wis. 2d 82, 510 N.W.2d 735 (Ct. App. 1993).

938.28 Note NOTE: The above annotation cites to s. 48.28, the predecessor statute to s. 938.28.

938.29 938.29 Substitution of judge.

938.29(1) (1) Request for substitution. Except as provided in sub. (1g), the juvenile, either before or during the plea hearing, may file a written request with the clerk of the court or other person acting as the clerk for a substitution of the judge assigned to the proceeding. In a proceeding under s. 938.12 or 938.13 (12), only the juvenile may request a substitution of the judge. If the juvenile has the right to request a substitution of judge, the juvenile’s counsel or guardian ad litem may file the request. Not more than one written request may be filed in any one proceeding, and no single request may name more than one judge. This section does not apply to proceedings under s. 938.21.

938.29(1g) (1g) When substitution request not permitted. The juvenile may not request the substitution of a judge in a proceeding under s. 938.12 or 938.13 (12), and the juvenile and the juvenile’s parent, guardian, or legal custodian may not request the substitution of a judge in a proceeding under s. 938.13 (4), (6), (6m), or (7), if any of the following apply:

938.29(1g)(a) (a) The judge assigned to the proceeding has entered a dispositional order with respect to the juvenile in a previous proceeding under s. 48.12, 1993 stats., s. 48.13 (4), (6), (6m), (7), or (12), 1993 stats., s. 938.12, or 938.13 (4), (6), (6m), (7), or (12).

938.29(1g)(b) (b) The juvenile or the juvenile’s parent, guardian, or legal custodian has requested the substitution of a judge in a previous proceeding under s. 48.12, 1993 stats., s. 48.13 (4), (6), (6m), (7) or (12), 1993 stats., s. 938.12 or 938.13 (4), (6), (6m), (7) or (12).