Chapter 938

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.

938.32(5)(b) (b) A consent decree is granted but the petition under s. 938.12 or 938.13 is subsequently reinstated.

938.32(6) (6) Notice to juvenile of right to object to continuation. The court shall inform the juvenile and the juvenile’s parent, guardian, or legal custodian, in writing, of the juvenile’s right to object to the continuation of the consent decree under sub. (3) and of the fact that 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 History History: 1995 a. 77, 352, 448; 1997 a. 181, 183, 205, 239; 1999 a. 9, 32; 2001 a. 16, 61, 105, 109; 2003 a. 138; 2005 a. 344; 2007 a. 20; 2009 a. 28, 79, 94, 185; 2011 a. 32, 181, 258; 2015 a. 373; 2017 a. 359; 2021 a. 42.

938.32 Annotation A court may not vacate a consent decree and adjudicate a juvenile delinquent after the decree’s expiration date. A court’s authority to declare a juvenile delinquent is revoked when the consent decree expires. State v. Sarah R.P. 2001 WI App 49, 241 Wis. 2d 530, 624 N.W.2d 872, 00-2127.

938.325 938.325 Proceedings by telephone or live audiovisual means. Unless good cause to the contrary is shown, proceedings referred to under this chapter may be conducted by telephone or live audiovisual means if available. If the proceeding is required to be reported under SCR 71.01 (2), the proceeding shall be reported by a court reporter who is in simultaneous voice communication with all parties to the proceeding. Regardless of the physical location of any party to a proceeding conducted by telephone or live audiovisual means, any plea, waiver, stipulation, motion, objection, decision, order, or other action taken by the court or any party has the same effect as if made in open court. Simultaneous access to the proceeding shall be provided to persons entitled to attend by means of a loudspeaker or live audiovisual feed or, upon request to the court, by allowing persons entitled to attend to participate in the telephone call without charge.

938.325 History History: 2021 a. 141.

subch. VI of ch. 938 SUBCHAPTER VI

DISPOSITION

938.33 938.33 Court reports.

938.33(1) (1) Report required. Before the disposition of a juvenile adjudged to be delinquent or in need of protection or services, the court shall designate an agency, as defined in s. 938.38 (1) (a), to submit a report that contains all of the following:

938.33(1)(a) (a) The social history of the juvenile.

938.33(1)(b) (b) A recommended plan of rehabilitation or treatment and care for the juvenile, based on the investigation conducted by the agency and any report resulting from an examination or assessment under s. 938.295, that employs the most effective means available to accomplish the objectives of the plan.

938.33(1)(c) (c) A description of the specific services or continuum of services that the agency is recommending for the juvenile or family, the persons or agencies that would be primarily responsible for providing those services, and the identity of the person or agency that would provide case management or coordination of services, if any, and whether or not the juvenile should receive a coordinated services plan of care.

938.33(1)(d) (d) A statement of the objectives of the plan, including any desired behavior changes and the academic, social and vocational skills needed by the juvenile.

938.33(1)(e) (e) A plan for the provision of educational services to the juvenile, prepared after consultation with the staff of the school in which the juvenile is enrolled or the last school in which the juvenile was enrolled.

938.33(1)(f) (f) If the agency is recommending that the court order the juvenile’s parent, guardian, or legal custodian to participate in mental health treatment, anger management, individual or family counseling, or parent training and education, a statement as to the availability of those services and the availability of funding for those services.

938.33(2) (2) Home placement reports. A report recommending that the juvenile remain in his or her home may be presented orally at the dispositional hearing if all parties consent. A report that is presented orally shall be transcribed and made a part of the court record.

938.33(3) (3) Correctional placement reports. A report recommending placement of a juvenile in a juvenile correctional facility or a secured residential care center for children and youth shall be in writing, except that the report may be presented orally at the dispositional hearing if the juvenile and the juvenile’s counsel consent. A report that is presented orally shall be transcribed and made a part of the court record. In addition to the information specified under sub. (1) (a) to (d), the report shall include all of the following:

938.33(3)(a) (a) A description of any less restrictive alternatives that are available and that have been considered, and why they have been determined to be inappropriate. If the court has found that any of the conditions specified in s. 938.34 (4m) (b) 1., 2., or 3. applies, the report shall indicate that a less restrictive alternative than placement in a juvenile correctional facility or a secured residential care center for children and youth is not appropriate.

938.33(3)(b) (b) A recommendation for an amount of child support to be paid by either or both of the juvenile’s parents or for referral to the county child support agency under s. 59.53 (5) for the establishment of child support.

938.33(3r) (3r) Serious juvenile offender report. If a juvenile has been adjudicated delinquent for committing a violation for which the juvenile may be placed in the serious juvenile offender program under s. 938.34 (4h) (a), the report shall be in writing and, in addition to the information specified in sub. (1) and in sub. (3) or (4), if applicable, shall include an analysis of the juvenile’s suitability for placement in the serious juvenile offender program under s. 938.34 (4h) or in a secured residential care center for children and youth under s. 938.34 (4m), a placement specified in s. 938.34 (3), or placement in the juvenile’s home with supervision and community-based programming and a recommendation as to the type of placement for which the juvenile is best suited.

938.33(4) (4) Other out-of-home placements. A report recommending placement in a foster home, group home, or nonsecured residential care center for children and youth, in the home of a relative other than a parent, in the home of like-kin, in the home of a guardian under s. 48.977 (2), or in a supervised independent living arrangement shall be in writing, except that the report may be presented orally at the dispositional hearing if all parties consent. A report that is presented orally shall be transcribed and made a part of the court record. The report shall include all of the following:

938.33(4)(a) (a) A permanency plan prepared under s. 938.38.

938.33(4)(b) (b) A recommendation for an amount of child support to be paid by either or both of the juvenile’s parents or for referral to the county child support agency under s. 59.53 (5) for the establishment of child support.

938.33(4)(c) (c) Specific information showing that continued placement of the juvenile in his or her home would be contrary to the welfare of the juvenile, specific information showing that 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 any of the circumstances specified in s. 938.355 (2d) (b) 1. to 4. applies, and, if a permanency plan has previously been prepared for the juvenile, specific information showing that 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.

938.33(4)(cm) (cm) A statement indicating whether the recommended placement is certified under s. 48.675.

938.33(4)(cr) (cr)

938.33(4)(cr)1. 1. If the report recommends placement of a juvenile in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675, except as provided in subd. 2., the report shall contain the results of the standardized assessment and the recommendation of the qualified individual who conducted the standardized assessment, including all of the following:

938.33(4)(cr)1.a. a. Whether the proposed placement will provide the juvenile with the most effective and appropriate level of care in the least restrictive environment.

938.33(4)(cr)1.b. b. How the placement is consistent with the short-term and long-term goals for the juvenile, as specified in the permanency plan.

938.33(4)(cr)1.c. c. 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.

938.33(4)(cr)1.d. d. 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.

938.33(4)(cr)2. 2. If the information under subd. 1. is not available at the time of the report, the agency shall submit it by the date of the dispositional hearing or, if it is not available on that date, no later than 30 days after the date on which the placement was made.

938.33(4)(d) (d)

938.33(4)(d)1. 1. If the juvenile has one or more siblings, as defined in s. 938.38 (4) (br) 1., who have been removed from the home or for whom an out-of-home placement is recommended, specific information showing that 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 county department or agency recommends that the juvenile and his or her siblings not be placed in a joint placement, in which case the report shall include specific information showing that a joint placement would be contrary to the safety or well-being of the juvenile or any of those siblings and the specific information required under subd. 2.

938.33(4)(d)2. 2. If a recommendation is made that the juvenile and his or her siblings not be placed in a joint placement, specific information showing that the county department or agency has made reasonable efforts to provide for frequent visitation or other ongoing interaction between the juvenile and the siblings, unless the county department or agency recommends that such visitation or interaction not be provided, in which case the report shall include specific information showing that such visitation or interaction would be contrary to the safety or well-being of the juvenile or any of those siblings.

938.33(4)(dm) (dm) In the case of a proceeding under s. 938.13 (4), (6), (6m), or (7), if the agency knows or has reason to know that the juvenile is an Indian juvenile who is being removed from the home of his or her parent or Indian custodian, a description of any efforts undertaken to determine whether the juvenile is an Indian juvenile; specific information showing that continued custody of the juvenile by the parent or Indian custodian is likely to result in serious emotional or physical damage to the juvenile, under s. 938.028 (4) (d) 1.; specific 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; a statement as to whether the out-of-home care placement recommended is in compliance with the order of placement preference under s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b); and, if the recommended placement is not in compliance with that order, specific information showing good cause, as described in s. 938.028 (6) (d), for departing from that order.

938.33(4m) (4m) Support recommendations; information to parents. In making a recommendation for an amount of child support under sub. (3) or (4), the agency shall consider the factors under s. 301.12 (14) (c). At or before the dispositional hearing under s. 938.335, the agency shall provide the juvenile’s parent with all of the following:

938.33(4m)(a) (a) Its recommendation for child support.

938.33(4m)(b) (b) A written explanation of how the parent may request that the court modify the amount of child support under s. 301.12 (14) (c).

938.33(4m)(c) (c) A written explanation of how the parent may request a revision under s. 938.363 in the amount of child support ordered by the court under s. 938.355 (2) (b) 4.

938.33(5) (5) Identity of foster parent; confidentiality. If the report recommends placement in a foster home, and the name of the foster parent is not available at the time the report is filed, the agency shall provide the court and the juvenile’s parent or guardian with the name and address of the foster parent within 21 days after the dispositional order is entered, except that the court may order the information withheld from the juvenile’s parent or guardian if the court finds that disclosure would result in imminent danger to the juvenile or to the foster parent. After notifying the juvenile’s parent or guardian, the court shall hold a hearing prior to ordering the information withheld.

938.33(6) (6) Retention. Reports submitted under this section shall be retained in the record of the pending action, which shall be made available to the agency that is designated to supervise the juvenile under a disposition under s. 938.34 or a change of placement order under s. 938.357.

938.33 History History: 1995 a. 77, 417; 1997 a. 27, 35, 237, 252; 1999 a. 9; 2001 a. 59, 109; 2005 a. 25, 344; 2009 a. 28, 79, 94, 185, 334; 2011 a. 181, 258; 2011 a. 260 s. 80; 2013 a. 165, 334; 2019 a. 8; 2021 a. 42; 2023 a. 119.

938.33 Cross-reference Cross-reference: See also s. DCF 80.04, Wis. adm. code.

938.331 938.331 Court reports; effect on victim. If the delinquent act would constitute a felony if committed by an adult, the person preparing the report under s. 938.33 (1) shall attempt to determine the economic, physical and psychological effect of the delinquent act on the victim, as defined in s. 938.02 (20m) (a) 1. and 4. The person preparing the report may ask any appropriate person for information. This section does not preclude the person who prepares the report from including any information for the court concerning the impact of a delinquent act on the victim. If the delinquent act would not constitute a felony but a victim, as defined in s. 938.02 (20m) (a) 1., has suffered bodily harm or the act involved theft or damage to property, the person preparing the report is encouraged to seek the information described in this section.

938.331 History History: 1995 a. 77; 1997 a. 181.

938.335 938.335 Dispositional hearings.

938.335(1) (1) When required. The court shall conduct a hearing to determine the disposition of a case in which a juvenile is adjudged to be delinquent under s. 938.12, to have violated a civil law or ordinance under s. 938.125, or to be in need of protection or services under s. 938.13, except that the court shall proceed under s. 938.237 (2) if a citation is issued and the juvenile fails to contest the citation.