Chapter 938

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.

938.32(1m)(d) (d) The juvenile has not successfully completed participation in a teen court program during the 2 years before the date of the alleged delinquent act.

938.32(1p) (1p) Participation in youth report center. The court may establish as a condition under sub. (1) that the juvenile report to a youth report center after school, in the evening, on weekends, on other nonschool days, or at any other time that the juvenile is not under immediate adult supervision, for participation in the social, behavioral, academic, community service, and other programming of the center. Section 938.34 (5g) applies to any community service work performed by a juvenile under this subsection.

938.32(1r) (1r) Alcohol and other drug abuse treatment; informed consent. If the conditions of the consent decree provide for an alcohol and other drug abuse outpatient treatment program under sub. (1g) (a), the juvenile or, if the juvenile has not attained 12 years of age, the juvenile’s parent, guardian, or legal custodian shall execute an informed consent form that indicates that they are voluntarily and knowingly entering into a consent decree for the provision of alcohol and other drug abuse outpatient treatment.

938.32(1t) (1t) Restitution.

938.32(1t)(a) (a)

938.32(1t)(a)1. 1. Subject to subd. 3., if the petition alleges that the juvenile committed a delinquent act that has resulted in damage to the property of another, or in actual physical injury to another excluding pain and suffering, the court may require the juvenile as a condition of the consent decree, to repair the damage to property or to make reasonable restitution for the damage or injury, either in the form of cash payments or, if the victim agrees, the performance of services for the victim, or both, if the court, after taking into consideration the well-being and needs of the victim, considers it beneficial to the well-being and behavior of the juvenile. Any consent decree that includes a condition of restitution by a juvenile shall include a finding that the juvenile alone is financially able to pay or physically able to perform the services, may allow up to the date of the expiration of the consent decree for the payment or for the completion of the services, and may include a schedule for the performance and completion of the services. If the juvenile objects to the amount of damages claimed, a hearing shall be held to determine the amount of damages before an amount of restitution is made part of the consent decree. Any recovery under this subdivision shall be reduced by the amount recovered as restitution for the same act under subd. 1m.

938.32(1t)(a)1m. 1m. If the petition alleges that the juvenile has committed a delinquent act that has resulted in damage to the property of another, or in actual physical injury to another excluding pain and suffering, the court may require a parent who has custody, as defined in s. 895.035 (1), of the juvenile, as a condition of the consent decree, to make reasonable restitution for the damage or injury. Except for recovery for retail theft under s. 943.51, the maximum amount of any restitution ordered under this subdivision for damage or injury resulting from any one act of a juvenile or from the same act committed by 2 or more juveniles in the custody of the same parent may not exceed $5,000. Any consent decree that includes a condition of restitution by a parent under this subdivision shall include a finding that the parent is financially able to pay the amount ordered and may allow up to the date of the expiration of the consent decree for the payment. If the parent objects to the amount of damages claimed, a hearing shall be held to determine the amount of damages before an amount of restitution is made part of the consent decree. Any recovery under this subdivision shall be reduced by the amount recovered as restitution for the same act under subd. 1.

938.32(1t)(a)2. 2. In addition to any other employment or duties permitted under ch. 103 or any rule or order under ch. 103, a juvenile under 14 years of age who is participating in a restitution project provided by the county or who is performing services for the victim as restitution may, for the purpose of making restitution under the consent decree, be employed or perform any duties under any circumstances in which a juvenile 14 or 15 years of age is permitted to be employed or to perform duties under ch. 103 or any rule or order under ch. 103. A juvenile who is participating in a restitution project provided by the county or who is performing services for the victim as restitution is exempt from the permit requirement under s. 103.70 (1).

938.32(1t)(a)3. 3. Under this paragraph, a court may order a juvenile who is under 14 years of age to make not more than $250 in restitution or to perform not more than 40 total hours of services for the victim as total restitution under the consent decree.

938.32(1t)(b) (b) The court may require the juvenile to participate in a supervised work program or other community service work under s. 938.34 (5g) as a condition of the consent decree.

938.32(1v) (1v) Parental school attendance. If the petition alleges that the juvenile is in need of protection or services under s. 938.13 (6), the court may require as a condition under sub. (1) that the juvenile’s parent, guardian, or legal custodian attend school with the juvenile.

938.32(1x) (1x) Supervised work program. If the petition alleges that the juvenile violated s. 943.017 and the juvenile has attained 10 years of age, the court may require, as a condition of the consent decree, that the juvenile participate for not less than 10 hours nor more than 100 hours in a supervised work program under s. 938.34 (5g) or perform not less than 10 hours nor more than 100 hours of other community service work, except that if the juvenile has not attained 14 years of age the maximum number of hours is a total of 40 under the consent decree.

938.32(2) (2) Time period for consent decree; extension.

938.32(2)(a) (a) A consent decree shall remain in effect for up to one year unless the juvenile, parent, guardian, or legal custodian is discharged sooner by the court.

938.32(2)(c) (c) Upon the motion of the court or the application of the juvenile, parent, guardian, legal custodian, intake worker or any agency supervising the juvenile under the consent decree, the court may, after giving notice to the parties to the consent decree and their counsel, if any, extend the decree for up to an additional 6 months in the absence of objection to extension by the parties to the initial consent decree. If the parent, guardian or legal custodian objects to the extension, the court shall schedule a hearing and make a determination on the issue of extension.

938.32(3) (3) Failure to follow; objection to continuance consent decree. If, prior to discharge by the court or to the expiration of the consent decree, the court finds that the juvenile or parent, legal guardian, or legal custodian has failed to fulfill the express terms and conditions of the consent decree or that the juvenile objects to the continuation of the consent decree, the hearing under which the juvenile was placed on supervision may be continued to conclusion as if the consent decree had never been entered.

938.32(4) (4) Discharge by court or completion of supervision. A juvenile who is discharged by the court or who completes the period of supervision without reinstatement of the original petition may not be proceeded against in any court for the same offense alleged in the petition or an offense based on the same conduct, and the original petition shall be dismissed with prejudice. This subsection does not preclude a civil suit against the juvenile or parent for damages arising from the juvenile’s conduct.

938.32(5) (5) Recusal from subsequent proceedings. A court which, under this section, elicits or examines information or material about a juvenile which would be inadmissible in a hearing on the allegations of the petition may not, over objections of one of the parties, participate in any subsequent proceedings if any of the following applies:

938.32(5)(a) (a) The court refuses to enter into a consent decree, the allegations in the petition remain to be decided, and the juvenile denies the allegations of delinquency.