Chapter 938

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

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

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

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

938.31(4) (4) Findings by court. The court shall make findings of fact and conclusions of law relating to the allegations of a petition under s. 938.12, 938.125 or 938.13. In cases alleging a juvenile to be delinquent or in need of protection or services under s. 938.13 (12), the court shall make findings relating to the proof of the violation of law and to the proof that the juvenile named in the petition committed the violation alleged.

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

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

938.31(7)(a) (a) At the close of the fact-finding hearing, the court, subject to s. 938.299 (10), shall set a date for the dispositional hearing that allows a reasonable time for the parties to prepare but is no more than 10 days after the fact-finding hearing for a juvenile in secure custody and no more than 30 days after the fact-finding hearing for a juvenile not held in secure custody. Subject to s. 938.299 (10), if all parties consent, the court may immediately proceed with a dispositional hearing.

938.31(7)(b) (b) If it appears to the court that disposition of the case may include placement of the juvenile outside the juvenile’s home, the court shall order the juvenile’s parent to provide a statement of the income, assets, debts, and living expenses of the juvenile and the juvenile’s parent, to the court or the designated agency under s. 938.33 (1) at least 5 days before the scheduled date of the dispositional hearing or as otherwise ordered by the court. The clerk of court shall provide, without charge, to any parent ordered to provide the statement a document setting forth the percentage standard established by the department of children and families under s. 49.22 (9) and the manner of its application established by the department of corrections under s. 301.12 (14) (g) and listing the factors under s. 301.12 (14) (c).

938.31(7)(c) (c) If the court orders the juvenile’s parent to provide a statement of the income, assets, debts, and living expenses of the juvenile and juvenile’s parent to the court or if the court orders the juvenile’s parent to provide the statement to the designated agency under s. 938.33 (1) and the designated agency is not the county department, the court shall also order the juvenile’s parent to provide the statement to the county department at least 5 days before the scheduled date of the dispositional hearing or as otherwise ordered by the court. The county department shall provide, without charge, to the parent a form on which to provide the statement, and the parent shall provide the statement on the form. The county department shall use the information provided in the statement to determine whether the department may claim federal foster care and adoption assistance reimbursement under 42 USC 670 to 679a for the cost of providing care for the juvenile.

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

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

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

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

938.31 Annotation A jury trial is not constitutionally required in the adjudicative phase of a state juvenile court delinquency proceeding. McKeiver v. Pennsylvania, 403 U.S. 528.

938.31 Annotation The Right to a Juvenile Jury Trial in Wisconsin: Rebalancing the Balanced Approach. Preciado. 1999 WLR 571.

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

938.312 938.312 Notice of dismissal. If a petition alleges that a juvenile is delinquent under s. 938.12 or in need of protection or services under s. 938.13 (12) and the petition is dismissed or does not otherwise result in a consent decree or dispositional order, the district attorney or corporation counsel shall make a reasonable attempt to inform each known victim of the juvenile’s alleged act that the petition has been dismissed or will not result in a consent decree or dispositional order.

938.312 History History: 1997 a. 181.

938.315 938.315 Delays, continuances and extensions.

938.315(1) (1) Time periods to be excluded. The following time periods shall be excluded in computing time periods under this chapter:

938.315(1)(a) (a) Any period of delay resulting from any of the following:

938.315(1)(a)1. 1. 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.

938.315(1)(a)2. 2. A continuance granted at the request of or with the consent of the juvenile and counsel.

938.315(1)(a)3. 3. 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.

938.315(1)(a)4. 4. 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.

938.315(1)(a)5. 5. Court congestion or scheduling.

938.315(1)(a)6. 6. The imposition of a consent decree.

938.315(1)(a)7. 7. The absence or unavailability of the juvenile.

938.315(1)(a)8. 8. 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.

938.315(1)(a)9. 9. The need to appoint a qualified interpreter.

938.315(1)(a)10. 10. Consultation under s. 938.24 (2r) or 938.25 (2g).

938.315(1)(a)11. 11. 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), (6), (6m), or (7) involving the out-of-home care placement of the juvenile.

938.315(1)(g) (g) 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.

938.315(2) (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.

938.315(2m) (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:

938.315(2m)(a) (a) The court making an initial finding under s. 938.21 (5) (b) 1. or 1m., 938.32 (1) (c) 1., 938.355 (2) (b) 6., or 938.357 (2v) (a) 1. that reasonable efforts have been made to prevent the removal of the juvenile from the home, while assuring that the juvenile’s health and safety are the paramount concerns, or an initial finding under s. 938.21 (5) (b) 3., 938.32 (1) (c) 2., 938.355 (2) (b) 6r., or 938.357 (2v) (a) 3. that those efforts were not required to be made because a circumstance specified in s. 938.355 (2d) (b) 1. to 4. applies, more than 60 days after the date on which the juvenile was removed from the home.

938.315(2m)(b) (b) 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.

938.315(2m)(c) (c) 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.

938.315(3) (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.

938.315 History History: 1995 a. 77, 352; 1997 a. 181; 2001 a. 16, 109; 2003 a. 284; 2005 a. 344; 2007 a. 20, 199; 2009 a. 94; 2011 a. 181; 2015 a. 55, 373.

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

938.315 Annotation A consent decree provides for a period of supervision that terminates when the period concludes. Its expiration is not a “time limit” under sub. (3). State v. Sarah R.P., 2001 WI App 49, 241 Wis. 2d 530, 624 N.W.2d 872, 00-2127.

938.315 Annotation 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, 03-2934.

938.317 938.317 Jeopardy. Jeopardy attaches when a witness is sworn.

938.317 History History: 1995 a. 77.

938.32 938.32 Consent decree.

938.32(1) (1) When ordered; terms; victims’ rights; procedures.

938.32(1)(a) (a) At any time after the filing of a petition for a proceeding relating to s. 938.12 or 938.13 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), (1g), (1m), (1p), (1t), (1v), 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.

938.32(1)(am) (am) 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.

938.32(1)(b) (b) 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:

938.32(1)(b)1g. 1g. 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.

938.32(1)(b)1m. 1m. 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.

938.32(1)(b)2. 2. 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.

938.32(1)(bm) (bm) 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.

938.32(1)(br) (br) 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:

938.32(1)(br)1. 1. Whether the proposed placement will provide the juvenile with the most effective and appropriate level of care in the least restrictive environment.

938.32(1)(br)2. 2. How the placement is consistent with the short-term and long-term goals for the juvenile, as specified in the permanency plan.

938.32(1)(br)3. 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.

938.32(1)(br)4. 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.

938.32(1)(c) (c)

938.32(1)(c)1. 1. 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:

938.32(1)(c)1.a. a. A finding that placement of the juvenile in his or her home would be contrary to the welfare of the juvenile.

938.32(1)(c)1.b. b. 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. to 4. applies.

938.32(1)(c)1.c. c. 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.

938.32(1)(c)1.d. d. 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.

938.32(1)(c)1m. 1m. If the juvenile has one or more siblings, as defined in s. 938.38 (4) (br) 1., who have also been removed from the home, the consent decree shall include a finding as to whether the county department or agency primarily responsible for providing services to the juvenile 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.

938.32(1)(c)1r. 1r. 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 under par. (br):

938.32(1)(c)1r.a. a. Whether the needs of the juvenile can be met through placement in a foster home.

938.32(1)(c)1r.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.

938.32(1)(c)1r.c. c. Whether the placement is consistent with the short-term and long-term goals for the juvenile, as specified in the permanency plan.

938.32(1)(c)1r.d. d. Whether the court approves or disapproves the placement.

938.32(1)(c)2. 2. If the court finds that any of the circumstances specified in s. 938.355 (2d) (b) 1. to 4. applies with respect to a parent, the consent decree shall include a determination that the county department or agency primarily responsible for providing services under the consent decree 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.

938.32(1)(c)3. 3. The court shall make the findings specified in subds. 1. and 2. 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 consent decree. A consent decree that references subd. 1. or 2. without documenting or referencing that specific information in the consent decree or an amended consent decree that retroactively corrects an earlier consent decree that does not comply with this subdivision is not sufficient to comply with this subdivision.

938.32(1)(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. (c) 1r. 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. (c) 1r.

938.32(1)(d) (d) If the court finds that any of the circumstances specified in s. 938.355 (2d) (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.

938.32(1)(e) (e)

938.32(1)(e)1. 1. In the case of an Indian juvenile who is the subject of a proceeding under s. 938.13 (4), (6), (6m), or (7), if at the time the consent decree is entered into the Indian juvenile is placed outside the home of his or her parent or Indian custodian under a voluntary agreement under s. 48.63 or is otherwise living outside that home without a court order and if the consent decree maintains the Indian juvenile in that placement or other living arrangement, or if an amended consent decree changes the placement of the Indian juvenile from a placement in the Indian juvenile’s home to a placement outside the Indian juvenile’s home, the consent decree shall include 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 child 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 par. (c) 1., 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 par. (c) 1. shall be considered to be the same findings.

938.32(1)(e)2. 2. If the placement or other living arrangement under subd. 1. departs from the order of placement preference under s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b), the court shall also find good cause, as described in s. 938.028 (6) (d), for departing from that order.

938.32(1d) (1d) Volunteers in probation program. If the petition alleges that the juvenile has committed an act that would constitute a misdemeanor if committed by an adult, if the chief judge of the judicial administrative district has approved under s. 973.11 (2) a volunteers in probation program established in the juvenile’s county of residence, and if the court determines that volunteer supervision under that volunteers in probation program will likely benefit the juvenile and the community, the court may establish as a condition under sub. (1) that the juvenile be placed with that volunteers in probation program under conditions that the court determines are reasonable and appropriate. The conditions may include any of the following:

938.32(1d)(a) (a) A directive to a volunteer to be a role model for the juvenile, informal counseling, general monitoring, monitoring of the conditions established by the court, or any combination of these functions.

938.32(1d)(b) (b) Any other conditions that the court may establish under this section.

938.32(1g) (1g) Alcohol or other drug abuse treatment and education. If the petition alleges that the juvenile committed a violation specified under ch. 961 and if the multidisciplinary screen conducted under s. 938.24 (2) shows that the juvenile is at risk of having needs and problems related to the use of alcohol beverages, controlled substances, or controlled substance analogs and its medical, personal, family, and social effects, the court may establish as a condition under sub. (1) any of the following:

938.32(1g)(a) (a) That the juvenile participate in outpatient treatment from an approved treatment facility for alcohol and other drug abuse, if an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 938.547 (4) was completed under s. 938.295 (1).

938.32(1g)(b) (b) That the juvenile participate in a court-approved alcohol or other drug abuse education program.

938.32(1m) (1m) Teen court program. The court may establish as a condition under sub. (1) that the juvenile be placed in a teen court program if all of the following conditions apply:

938.32(1m)(a) (a) The chief judge of the judicial administrative district has approved a teen court program established in the juvenile’s county of residence and the court determines that participation in the program will likely benefit the juvenile and the community.

938.32(1m)(b) (b) The juvenile is alleged to have committed a delinquent act that would be a misdemeanor if committed by an adult.

938.32(1m)(c) (c) The juvenile admits or pleads no contest in open court, in the presence of the juvenile’s parent, guardian or legal custodian, to the allegations that the juvenile committed the delinquent act.