Chapter 938

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.

938.335(3) (3) Evidence and recommendations. At hearings under this section, any party may present evidence relevant to the issue of disposition, including expert testimony, and may make alternative dispositional recommendations.

938.335(3g) (3g) Reasonable efforts finding. At hearings under this section, if the agency, as defined in s. 938.38 (1) (a), is recommending placement of the juvenile in a foster home, group home, or 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, the agency shall present as evidence specific information showing all of the following:

938.335(3g)(a) (a) That continued placement of the juvenile in his or her home would be contrary to the welfare of the juvenile.

938.335(3g)(b) (b) 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.

938.335(3g)(c) (c) That, if a permanency plan has previously been prepared for the juvenile, 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.

938.335(3g)(d) (d)

938.335(3g)(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, that the county department or agency 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 county department or agency shall present as evidence 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.

938.335(3g)(d)2. 2. If a recommendation is made that the juvenile and his or her siblings not be placed in a joint placement, 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 county department or agency shall present as evidence 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.

938.335(3j) (3j) Indian juvenile; active efforts finding. At hearings under this section involving an Indian juvenile who is the subject of a proceeding under s. 938.13 (4), (6), (6m), or (7), if the agency, as defined in s. 938.38 (1) (a), is recommending removal of the Indian juvenile from the home of his or her parent or Indian custodian and placement of the Indian juvenile in a foster home, group home, or residential care center for children and youth, in the home of a relative other than a parent, or in the home of like-kin, the agency shall present as evidence specific information showing all of the following:

938.335(3j)(a) (a) 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 Indian juvenile under s. 938.028 (4) (d) 1.

938.335(3j)(b) (b) 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.

938.335(3j)(c) (c) That the 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) or, if that placement is not in compliance with that order, good cause, as described in s. 938.028 (6) (d), for departing from that order.

938.335(3m) (3m) Victims’ statements. Before imposing a disposition in a proceeding in which a juvenile is adjudged to be delinquent under s. 938.12 or is found to be in need of protection or services under s. 938.13 (12), all of the following shall occur:

938.335(3m)(ag) (ag) 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 paragraph. Any statement made under this paragraph must be relevant to the disposition.

938.335(3m)(am) (am) The court shall inquire of the district attorney or corporation counsel whether he or she has complied with par. (b) and s. 938.27 (4m), whether any of the known victims requested notice of the date, time, and place of the dispositional hearing, and, if so, whether the district attorney or corporation counsel provided to the victim notice of the date, time, and place of the hearing.

938.335(3m)(b) (b) 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 par. (ag). Any failure to comply with this paragraph is not a ground for an appeal of a dispositional order or for any court to reverse or modify a dispositional order.

938.335(3r) (3r) Child support. At hearings under this section, a parent of the juvenile may present evidence relevant to the amount of child support to be paid by either or both parents.

938.335(5) (5) Dispositional order. At the conclusion of the hearing, the court shall make a dispositional order in accordance with s. 938.355.

938.335(6) (6) Juvenile placed outside the home. If the dispositional order places the juvenile outside the home, the parent, if present at the hearing, shall be requested to provide the names and other identifying information of 3 relatives of the juvenile or other individuals 18 years of age or over whose homes the parent requests the court to consider as placements for the juvenile, unless that information has previously been provided under s. 938.21 (2) (e) or (3) (f). If the parent does not provide that information at the hearing, the county department or the agency primarily responsible for providing services to the juvenile under the dispositional order shall permit the parent to provide the information at a later date.

938.335 History History: 1995 a. 77; 1997 a. 181, 252; 2001 a. 109; 2005 a. 344; 2009 a. 28, 79, 94, 185; 2011 a. 181, 258; 2013 a. 165, 334; 2021 a. 141; 2023 a. 119.

938.34 938.34 Disposition of juvenile adjudged delinquent. If the court adjudges a juvenile delinquent, the court shall enter an order deciding one or more of the dispositions of the case as provided in this section under a care and treatment plan. A disposition under sub. (4m) must be combined with a disposition under sub. (4n). In deciding the dispositions for a juvenile who is adjudicated delinquent, the court shall consider the seriousness of the act for which the juvenile is adjudicated delinquent and may consider any other delinquent act that is read into the record and dismissed at the time of the adjudication. The dispositions under this section are:

938.34(1) (1) Counseling. Counsel the juvenile or the parent, guardian or legal custodian.

938.34(2) (2) Supervision.

938.34(2)(a) (a) Place the juvenile under the supervision of an agency, the county department, or a suitable adult, including a friend of the juvenile, under conditions prescribed by the court, including reasonable rules for the juvenile’s conduct, designed for the physical, mental, and moral well-being and behavior of the juvenile.

938.34(2)(b) (b) If the juvenile is placed in the juvenile’s home under the supervision of an agency or the county department, order that agency or department to provide specified services to the juvenile and the juvenile’s family, including individual, family, or group counseling, homemaker or parent aide services, respite care, housing assistance, child care, or parent skills training.

938.34(2)(c) (c) Order the juvenile to remain at his or her home or other placement for a period of not more than 30 days under rules of supervision specified in the order.

938.34(2g) (2g) Volunteers in probation program. If the juvenile is adjudicated delinquent for the commission of 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 program will likely benefit the juvenile and the community, place the juvenile with the volunteers in probation program under conditions the court determines are reasonable and appropriate. These conditions may include any of the following:

938.34(2g)(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.

938.34(2g)(b) (b) Any other disposition that the court may impose under this section.

938.34(2m) (2m) Teen court program. Order the juvenile to be placed in a teen court program if all of the following conditions apply:

938.34(2m)(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 teen court program will likely benefit the juvenile and the community.

938.34(2m)(b) (b) The juvenile is alleged to have committed a delinquent act that would be a misdemeanor if committed by an adult.

938.34(2m)(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.

938.34(2m)(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.

938.34(2r) (2r) Intensive supervision. Order the juvenile to participate in an intensive supervision program under s. 938.534.

938.34(3) (3) Placement. Designate one of the following as the placement for the juvenile:

938.34(3)(a) (a) The home of a parent, other relative, or like-kin of the juvenile, except that the court may not designate any of the following as the juvenile’s placement, unless the court determines by clear and convincing evidence that the placement would be in the best interests of the juvenile or, in the case of an Indian juvenile, the best interests of the Indian juvenile as described in s. 938.01 (3):

938.34(3)(a)1. 1. The home of a parent, other relative, or like-kin of the juvenile if the parent, other relative, or like-kin has been convicted of the homicide of a parent of the juvenile under s. 940.01 or 940.05, and the conviction has not been reversed, set aside, or vacated. In determining whether a placement under this subdivision would be in the best interests of the juvenile, the court shall consider the wishes of the juvenile.

938.34(3)(a)2. 2. The home of a relative other than the parent of the juvenile or the home of like-kin if the court finds that the relative or like-kin has been convicted of, has pleaded no contest to, or has had a charge dismissed or amended as a result of a plea agreement for a crime under s. 948.02 (1) or (2), 948.025, 948.03 (2) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051, 948.055, 948.06, 948.07, 948.08, 948.081, 948.085, 948.11 (2) (a) or (am), 948.12, 948.125, 948.13, 948.21, 948.215, 948.30, or 948.53, or a similar law of another state.

938.34 Note NOTE: Par. (a) is shown as amended by 2023 Wis. Acts 119 and 224 and as merged by the legislative reference bureau under s. 13.92 (2) (i).

938.34(3)(b) (b) The home of a person who is not required to be licensed if placement is for less than 30 days, except that the court may not designate any of the following as the juvenile’s placement, unless the court determines by clear and convincing evidence that the placement would be in the best interests of the juvenile or, in the case of an Indian juvenile, the best interests of the Indian juvenile as described in s. 938.01 (3):

938.34(3)(b)1. 1. The home of a person who is not required to be licensed if the court finds that the person has been convicted of the homicide of a parent of the juvenile under s. 940.01 or 940.05, and the conviction has not been reversed, set aside, or vacated. In determining whether a placement under this subdivision would be in the best interests of the juvenile, the court shall consider the wishes of the juvenile.

938.34(3)(b)2. 2. The home of a person who is not required to be licensed if the court finds that the person has been convicted of, has pleaded no contest to, or has had a charge dismissed or amended as a result of a plea agreement for a crime under s. 948.02 (1) or (2), 948.025, 948.03 (2) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051, 948.055, 948.06, 948.07, 948.08, 948.081, 948.085, 948.11 (2) (a) or (am), 948.12, 948.125, 948.13, 948.21, 948.215, 948.30, or 948.53, or a similar law of another state.

938.34(3)(c) (c) A foster home licensed under s. 48.62 or a group home licensed under s. 48.625.

938.34(3)(cm) (cm) A group home described in s. 48.625 (1m) if the juvenile is at least 12 years of age, is a custodial parent, as defined in s. 49.141 (1) (b), or an expectant mother, is receiving inadequate care, and is in need of a safe and structured living arrangement.

938.34(3)(d) (d) A residential treatment center operated by a child welfare agency licensed under s. 48.60.

938.34(3)(e) (e) An independent living situation effective on or after the juvenile’s 17th birthday, either alone or with friends, under supervision the court considers appropriate, but only if the juvenile is of sufficient maturity and judgment to live independently and only upon proof of a reasonable plan for supervision by an appropriate person or agency.

938.34(3)(f) (f) A juvenile detention facility or juvenile portion of a county jail that meets the standards promulgated by the department of corrections by rule, or in a place of nonsecure custody designated by the court, subject to all of the following:

938.34(3)(f)1. 1. The placement may be for any combination of single or consecutive days totalling not more than 365 in a juvenile detention facility under s. 938.22 (2) (d) 1. and may be for no more than 30 consecutive days in any other juvenile detention facility, including any placement under pars. (a) to (e). The juvenile shall be given credit against the period of detention or nonsecure custody imposed under this paragraph for all time spent in secure detention in connection with the course of conduct for which the detention or nonsecure custody was imposed.

938.34(3)(f)2. 2. The order may provide that the juvenile may be released from the juvenile detention facility, juvenile portion of the jail, or place of nonsecure custody during specified hours to attend school, to work at the juvenile’s place of employment or to attend or participate in any activity which the court considers beneficial to the juvenile.

938.34(3)(f)3. 3. The use of placement in a juvenile detention facility or in a juvenile portion of a county jail as a disposition under this paragraph is subject to the adoption of a resolution by the county board of supervisors under s. 938.06 (5) authorizing the use of those placements as a disposition.

938.34(3)(f)4. 4. If a juvenile’s placement under this paragraph exceeds 30 days, whether or not consecutive, the county department shall offer the juvenile alcohol or other drug abuse treatment, counseling, and education services under sub. (6r). The payment for those services shall be in accordance with s. 938.361.

938.34(3g) (3g) Electronic monitoring. Monitoring by an electronic monitoring system for a juvenile subject to an order under sub. (2), (2r), (3) (a) to (e), (4h) or (4n) who is placed in the community.

938.34(4) (4) Transfer of legal custody. If it is shown that the rehabilitation or the treatment and care of the juvenile cannot be accomplished by means of voluntary consent of the parent or guardian, transfer legal custody to any of the following:

938.34(4)(a) (a) A relative of the juvenile.

938.34(4)(b) (b) A county department.

938.34(4)(c) (c) A licensed child welfare agency.

938.34(4d) (4d) Type 2 residential care center for children and youth placement. Place the juvenile in a Type 2 residential care center for children and youth under the supervision of the county department and subject to Type 2 status, as described in s. 938.539, but only if all of the following apply:

938.34(4d)(a) (a) The juvenile has been found to be delinquent for the commission of an act that would be punishable by a sentence of 6 months or more if committed by an adult.

938.34(4d)(b) (b) The juvenile has been found to be a danger to the public and to be in need of restrictive custodial treatment. If the court determines that any of the conditions specified in sub. (4m) (b) 1., 2., or 3. applies, but that placement in the serious juvenile offender program under sub. (4h) or in a juvenile correctional facility under sub. (4m) would not be appropriate, that determination shall be prima facie evidence that the juvenile is a danger to the public and in need of restrictive custodial treatment under this subsection.

938.34(4h) (4h) Serious juvenile offender program. Place the juvenile in the serious juvenile offender program under s. 938.538, but only if all of the following apply:

938.34(4h)(a) (a) The juvenile is 14 years of age or over and has been adjudicated delinquent for committing or conspiring to commit a violation of s. 939.32 (1) (a), 940.03, 940.06, 940.21, 940.225 (1), 940.305, 940.31, 941.327 (2) (b) 4., 943.02, 943.10 (2), 943.231 (1), 943.32 (2), 948.02 (1), 948.025 (1), or 948.30 (2) or attempting a violation of s. 943.32 (2) or the juvenile is 10 years of age or over and has been adjudicated delinquent for attempting or committing a violation of s. 940.01 or for committing a violation of s. 940.02 or 940.05.

938.34(4h)(b) (b) The court finds that the only other disposition that is appropriate for the juvenile is placement in a juvenile correctional facility under sub. (4m).

938.34(4m) (4m) Correctional placement. Place the juvenile under the supervision of the county department in a secured residential care center for children and youth identified by the county department if all of the following apply:

938.34(4m)(a) (a) The juvenile has been found to be delinquent for the commission of an act that would be punishable by a sentence of 6 months or more if committed by an adult.

938.34(4m)(b) (b) The juvenile has been found to be a danger to the public and to be in need of restrictive custodial treatment. If the court determines that any of the following conditions applies, but that placement in the serious juvenile offender program under sub. (4h) is not appropriate, that determination shall be prima facie evidence that the juvenile is a danger to the public and in need of restrictive custodial treatment under this subsection:

938.34(4m)(b)1. 1. The juvenile has committed a delinquent act that would be a felony under s. 940.01, 940.02, 940.03, 940.05, 940.19 (2) to (6), 940.198, 940.21, 940.225 (1), 940.31, 941.20 (3), 943.02 (1), 943.231 (1), 943.32 (2), 947.013 (1t), (1v), or (1x), 948.02 (1) or (2), 948.025, 948.03, or 948.085 (2) if committed by an adult.

938.34(4m)(b)2. 2. The juvenile has possessed, used or threatened to use a handgun, as defined in s. 175.35 (1) (b), short-barreled rifle, as defined in s. 941.28 (1) (b), or short-barreled shotgun, as defined in s. 941.28 (1) (c), while committing a delinquent act that would be a felony under ch. 940 if committed by an adult.

938.34(4m)(b)3. 3. The juvenile has possessed or gone armed with a short-barreled rifle or a short-barreled shotgun in violation of s. 941.28 or has possessed or gone armed with a handgun in violation of s. 948.60.

938.34(4n) (4n) Aftercare supervision. In the case of a juvenile who has received a correctional placement under sub. (4m), designate one of the following to provide aftercare supervision for the juvenile following the juvenile’s release from a secured residential care center for children and youth or Type 1 juvenile correctional facility:

938.34(4n)(b) (b) The county department of the county of the court that placed the juvenile in the juvenile correctional facility or secured residential care center for children and youth.

938.34(4n)(c) (c) The county department of the juvenile’s county of legal residence.

938.34(5) (5) Restitution.

938.34(5)(a) (a) Subject to par. (c), if the juvenile is found to have committed a delinquent act that resulted in damage to the property of another, or actual physical injury to another excluding pain and suffering, order the juvenile 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. The order 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 order 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, the juvenile is entitled to a hearing on the question of damages before the amount of restitution is ordered. Any recovery under this paragraph shall be reduced by the amount recovered as restitution under s. 938.45 (1r) (a).

938.34(5)(am) (am) Subject to par. (c), order a juvenile who owes restitution under par. (a) and who is receiving income while placed in a juvenile correctional facility, residential care center for children and youth, or other out-of-home placement to contribute a specified percentage of that income towards that restitution.

938.34(5)(b) (b) 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 ordered by the court under this subsection, 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 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).

938.34(5)(c) (c) Under this subsection, 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 order.

938.34(5g) (5g) Supervised work program or other community service work.

938.34(5g)(a) (a) Order the juvenile to participate in a supervised work program administered by the county department or a community agency approved by the court or other community service work administered by a public agency or nonprofit charitable organization approved by the court.

938.34(5g)(am) (am) The court shall set standards for the supervised work program within the budgetary limits established by the county board of supervisors. The supervised work program may provide the juvenile reasonable compensation reflecting a reasonable market value of the work performed or it may consist of uncompensated community service work. Community service work may be in lieu of restitution only if also agreed to by the county department, community agency, public agency or nonprofit charitable organization and by the person to whom the restitution is owed. The court may use any available resources, including any community service work program, in ordering the juvenile to perform community service work.

938.34(5g)(b) (b) The supervised work program or other community service work shall be constructive and designed to promote the rehabilitation of the juvenile, appropriate to the age level and physical ability of the juvenile, and combined with counseling from a member of the staff of the county department, community agency, public agency, or nonprofit charitable organization or other qualified person. The supervised work program or other community service work may not conflict with the juvenile’s regular attendance at school. Subject to par. (d), the amount of work required shall be reasonably related to the seriousness of the juvenile’s offense.

938.34(5g)(c) (c) 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 supervised work program or other community service work may, for purposes of performing the supervised work or other community service work, 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 perform duties under ch. 103 or any rule or order under ch. 103. A juvenile who is participating in a supervised work program or other community service work is exempt from the permit requirement under s. 103.70 (1).

938.34(5g)(d) (d) Under this subsection, a juvenile who is under 14 years of age may not be required to perform more than 40 total hours of supervised work or other community service work, except as provided in subs. (13r) and (14t).

938.34(5m) (5m) Community service work program. Order the juvenile to participate in a youth corps program, as defined in s. 16.22 (1) (dm) or another community service work program, if the sponsor of the program approves the juvenile’s participation in the program.

938.34(5r) (5r) Victim-offender mediation program. Order the juvenile to participate in a victim-offender mediation program if the victim of the juvenile’s delinquent act agrees.

938.34(6) (6) Special treatment or care.

938.34(6)(a) (a) If the juvenile is in need of special treatment or care, as identified in an evaluation under s. 938.295 and the report under s. 938.33 (1), order the juvenile’s parent to provide the special treatment or care.