Chapter 938

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

938.29 938.29 Substitution of judge.

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

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

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

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

938.29(1m) (1m) Assignment of new judge. When the clerk receives a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. Except as provided in sub. (2), if the request is found to be timely and in proper form, the judge named in the request has no further jurisdiction and the clerk shall request the assignment of another judge under s. 751.03. If no determination is made within 7 days after receipt of the request for substitution, the clerk shall refer the matter to the chief judge of the judicial administrative district for determination of whether the request was made timely and in proper form and for reassignment as necessary.

938.29(2) (2) Substitution of judge scheduled to conduct waiver hearing. If the request for substitution of a judge is made for the judge scheduled to conduct a waiver hearing under s. 938.18, the request shall be filed before the close of the working day preceding the day that the waiver hearing is scheduled. Except as provided in sub. (1g), the judge may allow an authorized party to make a request for substitution on the day of the waiver hearing. If the request for substitution is made subsequent to the waiver hearing, the judge who conducted the waiver hearing may also conduct the plea hearing.

938.29 History History: 1995 a. 77, 352; 2005 a. 344; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii.

938.29 Annotation Section 801.58 (2) giving the chief judge authority to review a denial of a request for substitution applies when a juvenile’s request for substitution is denied. Mateo D.O. v. Circuit Court for Winnebago County, 2005 WI App 85, 280 Wis. 2d 575, 696 N.W.2d 275, 05-0220.

938.29 Annotation A juvenile’s request for judicial substitution, filed and signed by counsel, was in proper form. There is no requirement that the juvenile sign the substitution request. Mateo D.O. v. Circuit Court for Winnebago County, 2005 WI App 85, 280 Wis. 2d 575, 696 N.W.2d 275, 05-0220.

938.293 938.293 Discovery.

938.293(1) (1) Law enforcement reports. Copies of all law enforcement officer reports, including the officer’s memorandum and witnesses’ statements, shall be made available upon request to counsel or guardian ad litem prior to a plea hearing. The reports shall be available through the representative of the public designated under s. 938.09. The juvenile, through counsel or guardian ad litem, is the only party who shall have access to the reports in proceedings under s. 938.12, 938.125, or 938.13 (12). The identity of a confidential informant may be withheld under s. 905.10.

938.293(2) (2) Records relating to juvenile. All records relating to a juvenile which are relevant to the subject matter of a proceeding under this chapter shall be open to inspection by a guardian ad litem or counsel for any party, upon demand and upon presentation of releases where necessary, at least 48 hours before the proceeding. Persons entitled to inspect the records may obtain copies of the records with the permission of the custodian of the records or with the permission of the court. The court may instruct counsel not to disclose specified items in the materials to the juvenile or the parent if the court reasonably believes that the disclosure would be harmful to the interests of the juvenile. Section 971.23 shall be applicable in all delinquency proceedings under this chapter, except that the court shall establish the timetable for the disclosures required under s. 971.23 (1), (2m), (8), and (9).

938.293(3) (3) Audiovisual recording of oral statement. Upon request prior to the fact-finding hearing, the district attorney shall disclose to the juvenile, and to the juvenile’s counsel or guardian ad litem, the existence of any audiovisual recording of an oral statement of a child under s. 908.08 that is within the possession, custody, or control of the state and shall make reasonable arrangements for the requesting person to view the statement. If, after compliance with this subsection, the state obtains possession, custody, or control of the audiovisual recording of the oral statement, the district attorney shall promptly notify the requesting person of that fact and make reasonable arrangements for the requesting person to view the statement.

938.293 History History: 1995 a. 77, 387; 1997 a. 35; 2001 a. 16; 2005 a. 42, 344; 2007 a. 97.

938.295 938.295 Physical, psychological, mental or developmental examination.

938.295(1) (1) Examination or assessment of juvenile or parent.

938.295(1)(a) (a) After the filing of a petition and upon a finding by the court that reasonable cause exists to warrant a physical, psychological, mental, or developmental examination or an alcohol and other drug abuse assessment that conforms to the criteria under s. 938.547 (4), the court may order a juvenile within its jurisdiction to be examined as an outpatient by personnel in an approved treatment facility for alcohol and other drug abuse, by a physician, psychiatrist, or licensed psychologist, or by another expert appointed by the court holding at least a master’s degree in social work or another related field of child development, in order that the juvenile’s physical, psychological, alcohol or other drug dependency, mental, or developmental condition may be considered. The court may also order an examination or an alcohol and other drug abuse assessment that conforms to the criteria under s. 938.547 (4) of a parent, guardian, or legal custodian whose ability to care for a juvenile is at issue before the court.

938.295(1)(b) (b) The court shall hear any objections by the juvenile and the juvenile’s parents, guardian, or legal custodian to the request under par. (a) for an examination or assessment before ordering the examination or assessment.

938.295(1)(c) (c) The expenses of an examination, if approved by the court, shall be paid by the county of the court ordering the examination. The payment for an alcohol and other drug abuse assessment shall be in accordance with s. 938.361.

938.295(1c) (1c) Reasonable cause for assessment; when. Reasonable cause exists to warrant an alcohol and other drug abuse assessment under sub. (1) if any of the following applies:

938.295(1c)(a) (a) The multidisciplinary screen procedure conducted under s. 938.24 (2) indicates that the juvenile is at risk of having needs and problems related to alcohol or other drug abuse.

938.295(1c)(b) (b) The juvenile was adjudicated delinquent on the basis of an offense specified in ch. 961.

938.295(1c)(c) (c) The greater weight of the evidence at the fact-finding hearing indicates that any offense which formed the basis for the adjudication was motivated by the juvenile’s need to purchase or otherwise obtain alcohol beverages, controlled substances or controlled substance analogs.

938.295(1g) (1g) Report of results and recommendations. If the court orders an alcohol or other drug abuse assessment under sub. (1), the approved treatment facility shall, within 14 days after the order, report the results of the assessment to the court, except that, if requested by the facility and if the juvenile is not held in secure or nonsecure custody, the court may extend the period for assessment for not more than 20 additional working days. The report shall include a recommendation as to whether the juvenile is in need of treatment, intervention, or education relating to the use or abuse of alcohol beverages, controlled substances, or controlled substance analogs and, if so, shall recommend a service plan and appropriate treatment from an approved treatment facility or education from a court-approved alcohol or other drug abuse education program.

938.295(2) (2) Not competent or not responsible.

938.295(2)(a) (a) If there is probable cause to believe that the juvenile has committed the alleged offense and if there is reason to doubt the juvenile’s competency to proceed, or upon entry of a plea under s. 938.30 (4) (c), the court shall order the juvenile to be examined by a psychiatrist or licensed psychologist. If the cost of the examination is approved by the court, the cost shall be paid by the county of the court ordering the examination, and the county may recover that cost from the juvenile’s parent or guardian as provided in par. (c). Evaluation shall be made on an outpatient basis unless the juvenile presents a substantial risk of physical harm to the juvenile or others; or the juvenile, parent, or guardian, and legal counsel or guardian ad litem, consent to an inpatient evaluation. An inpatient evaluation shall be completed in a specified period that is no longer than necessary.

938.295(2)(b) (b)

938.295(2)(b)1. 1. The examiner shall file a report of the examination with the court by the date specified in the order. The court shall cause copies to be transmitted to the district attorney or corporation counsel and to the juvenile’s counsel or guardian ad litem. The report shall describe the nature of the examination, identify the persons interviewed, the particular records reviewed, and any tests administered to the juvenile and state in reasonable detail the facts and reasoning upon which the examiner’s opinions are based.

938.295(2)(b)2. 2. If the examination is ordered following a plea under s. 938.30 (4) (c), the report shall also contain an opinion regarding whether the juvenile suffered from mental disease or defect at the time of the commission of the act alleged in the petition and, if so, whether this caused the juvenile to lack substantial capacity to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law.

938.295(2)(b)3. 3. If the examination is ordered following a finding that there is probable cause to believe that the juvenile has committed the alleged offense and that there is reason to doubt the juvenile’s competency to proceed, the report shall also contain an opinion regarding the juvenile’s present mental capacity to understand the proceedings and assist in his or her defense and, if the examiner reports that the juvenile lacks competency to proceed, the examiner’s opinion regarding the likelihood that the juvenile, if provided treatment, may be restored to competency within the time specified in s. 938.30 (5) (e) 1.

938.295(2)(c) (c) A county that pays the cost of an examination under par. (a) may recover a reasonable contribution toward that cost from the juvenile’s parent or guardian, based on the ability of the parent or guardian to pay. If the examination is provided or otherwise funded by the county department under s. 46.215, 46.22, or 46.23, the county department shall collect the contribution of the parent or guardian as provided in s. 301.03 (18). If the examination is provided or otherwise funded by the county department under s. 51.42 or 51.437, the county department shall collect the contribution of the parent or guardian as provided in s. 46.03 (18).

938.295(3) (3) Objection to a particular professional. If the juvenile or a parent objects to a particular physician, psychiatrist, licensed psychologist, or other expert, the court shall appoint a different physician, psychiatrist, psychologist or other expert.

938.295(4) (4) Telephone or live audiovisual proceeding. Motions or objections under this section may be heard under s. 938.299 (5).

938.295 History History: 1995 a. 77, 448; 2001 a. 109; 2005 a. 344; 2011 a. 32; 2021 a. 141.

938.296 938.296 Testing for HIV infection and certain diseases.

938.296(1) (1) Definitions. In this section:

938.296(1)(a) (a) “Health care professional” has the meaning given in s. 252.15 (1) (am).

938.296(1)(b) (b) “HIV” has the meaning given in s. 252.01 (1m).

938.296(1)(bm) (bm) “HIV test” has the meaning given in s. 252.01 (2m).

938.296(1)(c) (c) “Sexually transmitted disease” has the meaning given in s. 252.11 (1).

938.296(1)(d) (d) “Significant exposure” has the meaning given in s. 252.15 (1) (em).

938.296(1)(e) (e) “Victim” has the meaning given in s. 938.02 (20m) (a) 1.

938.296(2) (2) Sexually transmitted disease and HIV testing. In a proceeding under s. 938.12 or 938.13 (12) in which the juvenile is alleged to have violated s. 940.225, 948.02, 948.025, 948.05, 948.06, or 948.085 (2), the district attorney or corporation counsel shall apply to the court for an order requiring the juvenile to submit to an HIV test and a test or a series of tests to detect the presence of a sexually transmitted disease, each of which tests shall be administered by a health care professional, and to disclose the results of those tests as specified in sub. (4) (a) to (e), if all of the following apply:

938.296(2)(a) (a) The victim or alleged victim, if an adult, or the parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child, requests the district attorney or corporation counsel to apply for that order.

938.296(2)(b) (b) The district attorney or corporation counsel has probable cause to believe that the victim or alleged victim has had contact with body fluid of the juvenile that constitutes a significant exposure. If the juvenile is adjudicated delinquent, is found to be in need of protection or services or is found not responsible by reason of mental disease or defect under s. 938.30 (5), this paragraph does not apply.

938.296(2m) (2m) Communicable disease testing. In a proceeding under s. 938.12 or 938.13 (12) in which the juvenile is alleged to have violated s. 946.43 (2m), the district attorney or corporation counsel shall apply to the court for an order requiring the juvenile to submit to a test or a series of tests administered by a health care professional to detect the presence of communicable diseases and to disclose the results of the test or tests as specified in sub. (5) (a) to (e), if all of the following apply:

938.296(2m)(a) (a) The victim or alleged victim, if an adult, or the parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child, requests the district attorney or corporation counsel to apply for the order.

938.296(2m)(b) (b) The district attorney or corporation counsel has probable cause to believe that the act or alleged act of the juvenile that constitutes a violation of s. 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the juvenile’s blood, semen, vomit, saliva, urine, feces, or other bodily substance.

938.296(3) (3) When order may be sought. The district attorney or corporation counsel may apply for an order under sub. (2) or (2m) at any of the following times:

938.296(3)(a) (a) At or after the plea hearing and before a dispositional order is entered.

938.296(3)(b) (b) At any time after the juvenile is adjudicated delinquent or found to be in need of protection or services.

938.296(3)(c) (c) At any time after the juvenile is found not responsible by reason of mental disease or defect under s. 938.30 (5).

938.296(3)(d) (d) If the court has determined that the juvenile is not competent to proceed under s. 938.30 (5) and has suspended proceedings on the petition, at any time after the determination that the juvenile is not competent to proceed.

938.296(4) (4) Disclosure of sexually transmitted disease and HIV test results. On receipt of an application for an order under sub. (2), the court shall set a time for a hearing on the application. If the juvenile has been found not competent to proceed under s. 938.30 (5), the court may hold a hearing under this subsection only if the court first determines that the probable cause finding can be fairly made without the personal participation of the juvenile. If, after hearing, the court finds probable cause to believe that the victim or alleged victim has had contact with body fluid of the juvenile that constitutes a significant exposure, the court shall order the juvenile to submit to an HIV test and a test or series of tests to detect the presence of a sexually transmitted disease. The tests shall be administered by a health care professional. The court shall require the health care professional who performs the tests to refrain from making the test results part of the juvenile’s permanent medical record and to disclose the results of the tests to any of the following:

938.296(4)(a) (a) The parent, guardian or legal custodian of the juvenile.

938.296(4)(b) (b) The victim or alleged victim, if the victim or alleged victim is an adult.

938.296(4)(c) (c) The parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child.

938.296(4)(d) (d) The health care professional that provides care for the juvenile, upon request by the parent, guardian or legal custodian of the juvenile.

938.296(4)(e) (e) The health care professional that provides care for the victim or alleged victim, upon request by the victim or alleged victim or, if the victim or alleged victim is a child, upon request by the parent, guardian or legal custodian of the victim or alleged victim.

938.296(5) (5) Disclosure of communicable disease test results. On receipt of an application for an order under sub. (2m), the court shall set a time for a hearing on the application. If the juvenile has been found not competent to proceed under s. 938.30 (5), the court may hold a hearing under this subsection only if the court first determines that the probable cause finding can be fairly made without the personal participation of the juvenile. If, after hearing, the court finds probable cause to believe that the act or alleged act of the juvenile that constitutes a violation of s. 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the juvenile’s blood, semen, vomit, saliva, urine or feces or other bodily substance of the juvenile, the court shall order the juvenile to submit to a test or a series of tests administered by a health care professional to detect the presence of any communicable disease that was potentially transmitted by the act or alleged act of the juvenile. The court shall require the health care professional who performs the test or series of tests to refrain from making the test results part of the juvenile’s permanent medical record and to disclose the results of the test to any of the following:

938.296(5)(a) (a) The parent, guardian or legal custodian of the juvenile.

938.296(5)(b) (b) The victim or alleged victim, if the victim or alleged victim is an adult.

938.296(5)(c) (c) The parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child.

938.296(5)(d) (d) The health care professional that provides care for the juvenile, upon request by the parent, guardian or legal custodian of the juvenile.