Chapter 938

938.355(4m) (4m) Expungement of record.

938.355(4m)(a) (a) A juvenile who has been adjudged delinquent under s. 48.12, 1993 stats., or s. 938.12 may, on attaining 17 years of age, petition the court to expunge the court’s record of the juvenile’s adjudication. Subject to par. (b), the court may expunge the record if the court determines that the juvenile has satisfactorily complied with the conditions of his or her dispositional order and that the juvenile will benefit from, and society will not be harmed by, the expungement.

938.355(4m)(b) (b) The court shall expunge the court’s record of a juvenile’s adjudication if it was the juvenile’s first adjudication based on a violation of s. 942.08 (2) (b), (c), or (d) or (3), and if the court determines that the juvenile has satisfactorily complied with the conditions of his or her dispositional order. Notwithstanding s. 938.396 (2), the court shall notify the department of corrections and the department of children and families promptly of any expungement under this paragraph.

938.355(5) (5) Effect of court order. Any party, person or agency who provides services for the juvenile under this section shall be bound by the court order.

938.355(6) (6) Sanctions for violation of order.

938.355(6)(a) (a) Juvenile court orders.

938.355(6)(a)1. 1. Except as provided in subd. 3., if a juvenile who has been adjudged delinquent or to have violated a civil law or ordinance, other than an ordinance enacted under s. 118.163 (1m) or (2), violates a condition specified in sub. (2) (b) 7., the court may impose on the juvenile any of the sanctions specified in par. (d).

938.355(6)(a)2. 2. Except as provided in subd. 3., if a juvenile who has been found to be in need of protection or services under s. 938.13 (4), (6m), (7), (12), or (14) violates a condition specified in sub. (2) (b) 7., the court may impose on the juvenile any of the sanctions under par. (d), other than placement in a juvenile detention facility or juvenile portion of a county jail.

938.355(6)(a)2m. 2m. A sanction may be imposed under subd. 1. or 2. only if, at the dispositional hearing under s. 938.335, the court explained the conditions specified in sub. (2) (b) 7. to the juvenile and informed the juvenile of those possible sanctions or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and possible sanctions and that he or she understands those conditions and possible sanctions.

938.355(6)(a)3. 3. The court may not impose a sanction under subd. 1. or 2. on a juvenile who is subject to an order under this section or s. 938.357 or 938.365 that terminates as provided in sub. (4) (am) 4. or s. 938.357 (6) (a) 4. or 938.365 (5) (b) 4.

938.355(6)(an) (an) Municipal court orders.

938.355(6)(an)1. 1. If a juvenile who has violated a municipal ordinance, other than an ordinance enacted under s. 118.163 (1m) or (2), violates a condition of a dispositional order imposed by the municipal court, the municipal court may petition the court assigned to exercise jurisdiction under this chapter and ch. 48 to impose on the juvenile the sanction under par. (d) 1. or the sanction under par. (d) 3., with monitoring by an electronic monitoring system. A sanction may be imposed under this subdivision only if, at the time of the judgment, the municipal court explained the conditions to the juvenile and informed the juvenile of those possible sanctions for a violation or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and possible sanctions and that he or she understands those conditions and possible sanctions. The petition shall contain a statement of whether the juvenile may be subject to the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and, if the juvenile may be subject to that act, the names and addresses of the juvenile’s Indian custodian, if any, and tribe, if known.

938.355(6)(an)2. 2. If the court assigned to exercise jurisdiction under this chapter and ch. 48 imposes the sanction under par. (d) 1. or home detention with monitoring by an electronic monitoring system under par. (d) 3., on a petition described in subd. 1., the court shall order the municipality of the municipal court that filed the petition to pay to the county the cost of providing the sanction imposed under par. (d) 1. or 3.

938.355(6)(b) (b) Motion to impose sanction. A motion for imposition of a sanction may be brought by the person or agency primarily responsible for the provision of dispositional services, the district attorney or corporation counsel, or the court that entered the dispositional order. If the court initiates the motion, that court is disqualified from holding a hearing on the motion. Notice of the motion shall be given to the juvenile, guardian ad litem, counsel, parent, guardian, legal custodian, and all parties present at the original dispositional hearing. The motion shall contain a statement of whether the juvenile may be subject to the federal Indian Child Welfare Act, 25 USC 1901 to 1963 and, if the juvenile may be subject to that act, the names and addresses of the juvenile’s Indian custodian, if any, and tribe, if known.

938.355(6)(bm) (bm) Indian juvenile; notice. If the person initiating the motion knows or has reason to know that the juvenile is an Indian juvenile who has been found to be in need of protection or services under s. 938.13 (4), (6m), or (7) or who has been adjudged to have violated a civil law or ordinance, other than an ordinance enacted under s. 118.163 (1m) or (2), and if the motion is seeking removal of the juvenile from the home of his or her parent or Indian custodian and placement of the juvenile in a place of nonsecure custody specified in par. (d) 1., notice under par. (b) to the Indian juvenile’s parent shall be provided in the manner specified in s. 938.028 (4) (a). In like manner, the court shall also notify the Indian juvenile’s Indian custodian and tribe. No hearing may be held under par. (c) until at least 10 days after receipt of the notice by the Indian juvenile’s parent, Indian custodian, and tribe or, if the identity or location of the Indian juvenile’s parent, Indian custodian, or tribe cannot be determined, until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the Indian juvenile’s parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for the hearing.

938.355(6)(c) (c) Sanction hearing. Before imposing any sanction, the court shall hold a hearing, at which the juvenile is entitled to be represented by legal counsel and to present evidence.

938.355(6)(cm) (cm) Reasonable efforts finding. The court may not order the sanction of placement in a place of nonsecure custody specified in par. (d) 1. unless the court finds that the agency primarily responsible for providing services for the juvenile has made reasonable efforts to prevent the removal of the juvenile from his or her home and that continued placement of the juvenile in his or her home is contrary to the welfare of the juvenile. These findings are not required if they were made in the dispositional order under which the juvenile is being sanctioned. The court shall make the findings under this paragraph on a case-by-case basis based on circumstances specific to the juvenile and shall document or reference the specific information on which that finding is based in the sanction order. A sanction order that merely references this paragraph without documenting or referencing that specific information in the sanction order or an amended sanction order that retroactively corrects an earlier sanction order that does not comply with this paragraph is not sufficient to comply with this paragraph.

938.355(6)(cr) (cr) Indian juvenile; findings. In the case of an Indian juvenile who has been found to be in need of protection or services under s. 938.13 (4), (6m), or (7) or who has been adjudged to have violated a civil law or ordinance, other than an ordinance enacted under s. 118.163 (1m) or (2), the court may not order the sanction of removal from the home of the Indian juvenile’s parent or Indian custodian and placement in a place of nonsecure custody specified in par. (d) 1., unless the court finds 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 juvenile under s. 938.028 (4) (d) 1. and the court finds 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. These findings are not required if they were made in the dispositional order under which the juvenile is being sanctioned. The findings under this paragraph shall be in addition to the findings under par. (cm), 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 paragraph and the findings under par. (cm) shall be considered to be the same findings.

938.355(6)(d) (d) Sanctions permitted. If the court finds by a preponderance of the evidence that the juvenile has violated a condition of his or her dispositional order, the court may order any of the following sanctions as a consequence for any incident in which the juvenile has violated one or more conditions of his or her dispositional order:

938.355(6)(d)1. 1. Placement of the juvenile in 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, for not more than 10 days and the provision of educational services consistent with his or her current course of study during the period of placement. The juvenile shall be given credit against the period of detention or nonsecure custody imposed under this subdivision for all time spent in secure detention in connection with the course of conduct for which the detention or nonsecure custody was imposed. If the court orders placement of the juvenile in a place of nonsecure custody under the supervision of the county department, the court shall order the juvenile into the placement and care responsibility of the county department as required under 42 USC 672 (a) (2) and shall assign the county department primary responsibility for providing services to the juvenile.

938.355(6)(d)2. 2. Suspension of or limitation on the use of the juvenile’s operating privilege, as defined under s. 340.01 (40), or of any approval issued under ch. 29 for a period of not more than 3 years. If the juvenile does not hold a valid operator’s license under ch. 343, other than an instruction permit under s. 343.07 or a restricted license under s. 343.08, on the date of the order issued under this subdivision, the court may order the suspension to begin on the date on which the juvenile is first eligible for issuance or reinstatement of an operator’s license under ch. 343. If the court suspends the juvenile’s operating privileges or an approval issued under ch. 29, the court shall immediately take possession of the suspended approval and may take possession of, and if possession is taken, shall destroy, the suspended license. The court shall forward to the department that issued the license or approval the notice of suspension, together with any approval of which the court takes possession.

938.355(6)(d)3. 3. Detention in the juvenile’s home or current residence for a period of not more than 30 days under rules of supervision specified in the order. An order under this subdivision may require the juvenile to be monitored by an electronic monitoring system.

938.355(6)(d)4. 4. Not more than 25 hours of uncompensated participation in a supervised work program or other community service work under s. 938.34 (5g).

938.355(6)(d)5. 5. Participation 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, in the social, behavioral, academic, community service, and other programming of a youth report center. Subdivision 4. and s. 938.34 (5g) apply to any community service work performed by a juvenile under this subdivision.

938.355(6)(e) (e) Contempt of court. This subsection does not preclude a person who is aggrieved by a juvenile’s violation of a condition specified in sub. (2) (b) 7. from proceeding against the juvenile for contempt of court under ch. 785.

938.355(6d) (6d) Short-term detention.

938.355(6d)(a) (a) Violation of delinquency order.

938.355(6d)(a)1. 1. Notwithstanding ss. 938.19 to 938.21, but subject to subds. 2g., 2m., and 2r., if a juvenile who has been adjudged delinquent violates a condition specified in sub. (2) (b) 7., the juvenile’s caseworker or any other person authorized to provide or providing intake or dispositional services for the court under s. 938.067 or 938.069 may, without a hearing, take the juvenile into custody and place the juvenile in 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 that person for not more than 72 hours while the alleged violation and the appropriateness of a sanction under sub. (6) are being investigated.

938.355(6d)(a)2. 2. Notwithstanding ss. 938.19 to 938.21, but subject to subds. 2g., 2m., and 2r., if a juvenile who has been adjudged delinquent violates a condition specified in sub. (2) (b) 7., the juvenile’s caseworker or any other person authorized to provide or providing intake or dispositional services for the court under s. 938.067 or 938.069 may, without a hearing, take the juvenile into custody and place the juvenile in 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 that person for not more than 72 hours as a consequence of that violation. A person who takes a juvenile into custody under this subdivision shall permit the juvenile to make a written or oral statement concerning the possible placement of the juvenile and the course of conduct for which the juvenile was taken into custody. A person designated by the court or county department who is employed in a supervisory position by a person authorized to provide or providing intake or dispositional services under s. 938.067 or 938.069 shall review that statement and either approve the placement, modify the terms of the placement, or order the juvenile to be released from custody.

938.355(6d)(a)2g. 2g. The taking into custody and placement of a juvenile under subd. 1. or 2. is subject to any general written policies adopted by the court under s. 938.06 (1) and (2) and to any policies adopted by the county board relating to such taking into custody and placement.

938.355(6d)(a)2m. 2m. Short-term detention may be imposed under subd. 1. or 2. only if at the dispositional hearing the court explained the conditions specified in sub. (2) (b) 7. to the juvenile and informed the juvenile of that possible placement or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible placement and that he or she understands those conditions and that possible placement.

938.355(6d)(a)2r. 2r. A juvenile who is subject to an order under this section or s. 938.357 or 938.365 that terminates as provided in sub. (4) (am) 4. or s. 938.357 (6) (a) 4. or 938.365 (5) (b) 4. may not be taken into custody under subd. 1. or 2.

938.355(6d)(a)3. 3. A juvenile may be taken into and held in custody under both subds. 1. and 2. in connection with the same course of conduct, except that no juvenile may be held in custody for more than a total of 72 hours under subds. 1. and 2. in connection with the same course of conduct unless the juvenile receives a hearing under par. (d).

938.355(6d)(a)4. 4. Subject to par. (d), subds. 1. and 2. do not preclude a juvenile who has been adjudged delinquent and who has violated a condition specified in sub. (2) (b) 7. from being taken into and held in custody under ss. 938.19 to 938.21.

938.355(6d)(b) (b) Violation of condition of aftercare supervision.

938.355(6d)(b)1. 1. Notwithstanding ss. 938.19 to 938.21, but subject to subds. 2g., 2m., and 2r., if a juvenile who is on aftercare supervision violates a condition of that supervision, the juvenile’s caseworker or any other person authorized to provide or providing intake or dispositional services for the court under s. 938.067 or 938.069 may, without a hearing, take the juvenile into custody and place the juvenile in 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 that person for not more than 72 hours while the alleged violation and the appropriateness of revoking the juvenile’s aftercare status are being investigated.

938.355(6d)(b)2. 2. Notwithstanding ss. 938.19 to 938.21, but subject to subds. 2g., 2m., and 2r., if a juvenile who is on aftercare supervision violates a condition of that supervision, the juvenile’s caseworker or any other person authorized to provide or providing intake or dispositional services for the court under s. 938.067 or 938.069 may, without a hearing, take the juvenile into custody and place the juvenile in 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 that person for not more than 72 hours as a consequence of that violation. A person who takes a juvenile into custody under this subdivision shall permit the juvenile to make a written or oral statement concerning the possible placement of the juvenile and the course of conduct for which the juvenile was taken into custody. A person designated by the court or the county department who is employed in a supervisory position by a person authorized to provide or providing intake or dispositional services under s. 938.067 or 938.069 shall review that statement and either approve the placement of the juvenile, modify the terms of the placement, or order the juvenile to be released from custody.

938.355(6d)(b)2g. 2g. The taking into custody and placement of a juvenile under subd. 1. or 2. is subject to any general written policies adopted by the court under s. 938.06 (1) and (2), to any policies adopted by the county department relating to aftercare supervision, and to any policies adopted by the county board relating to such taking into custody and placement.

938.355(6d)(b)2m. 2m. Short-term detention may be imposed under subd. 1. or 2. only if at the dispositional hearing the court explained the conditions of aftercare supervision to the juvenile and informed the juvenile of that possible placement or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible placement and that he or she understands those conditions and that possible placement.

938.355(6d)(b)2r. 2r. A juvenile who is subject to an order under this section or s. 938.357 or 938.365 that terminates as provided in sub. (4) (am) 4. or s. 938.357 (6) (a) 4. or 938.365 (5) (b) 4. may not be taken into custody under subd. 1. or 2.

938.355(6d)(b)3. 3. A juvenile may be taken into and held in custody under both subds. 1. and 2. in connection with the same course of conduct, except that no juvenile may be held in custody for more than a total of 72 hours under subds. 1. and 2. in connection with the same course of conduct unless the juvenile receives a hearing under par. (d).

938.355(6d)(b)4. 4. Subject to par. (d), subds. 1. and 2. do not preclude a juvenile who has violated a condition of aftercare supervision from being taken into and held in custody under ss. 938.19 to 938.21.

938.355(6d)(c) (c) Violation of protection or services order.

938.355(6d)(c)1. 1. Notwithstanding ss. 938.19 to 938.21, but subject to subds. 2g., 2m., and 2r., if a juvenile who has been found to be in need of protection or services under s. 938.13 violates a condition specified in sub. (2) (b) 7., the juvenile’s caseworker or any other person authorized to provide or providing intake or dispositional services for the court under s. 938.067 or 938.069 may, without a hearing, take the juvenile into custody and place the juvenile in a place of nonsecure custody designated by that person for not more than 72 hours while the alleged violation and the appropriateness of a sanction under sub. (6) or (6m) are being investigated.

938.355(6d)(c)2. 2. Notwithstanding ss. 938.19 to 938.21, but subject to subds. 2g., 2m., and 2r., if a juvenile who has been found to be in need of protection or services under s. 938.13 violates a condition specified in sub. (2) (b) 7., the juvenile’s caseworker or any other person authorized to provide or providing intake or dispositional services for the court under s. 938.067 or 938.069 may, without a hearing, take the juvenile into custody and place the juvenile in a place of nonsecure custody designated by that person for not more than 72 hours as a consequence of that violation. A person who takes a juvenile into custody under this subdivision shall permit the juvenile to make a written or oral statement concerning the possible placement of the juvenile and the course of conduct for which the juvenile was taken into custody. A person designated by the court or the county department who is employed in a supervisory position by a person authorized to provide or providing intake or dispositional services under s. 938.067 or 938.069 shall review that statement and either approve the placement, modify the terms of the placement, or order the juvenile to be released from custody.

938.355(6d)(c)2g. 2g. The taking into custody and placement of a juvenile under subd. 1. or 2. is subject to any general written policies adopted by the court under s. 938.06 (1) and (2) and to any policies adopted by the county board relating to such taking into custody and placement.

938.355(6d)(c)2m. 2m. Short-term detention may be imposed under subd. 1. or 2. only if at the dispositional hearing the court explained the conditions specified in sub. (2) (b) 7. to the juvenile and informed the juvenile of that possible placement or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible placement and that he or she understands those conditions and that possible placement.

938.355(6d)(c)2r. 2r. A juvenile who is subject to an order under this section or s. 938.357 or 938.365 that terminates as provided in sub. (4) (am) 4. or s. 938.357 (6) (a) 4. or 938.365 (5) (b) 4. may not be taken into custody under subd. 1. or 2.

938.355(6d)(c)3. 3. A juvenile may be taken into and held in custody under both subds. 1. and 2. in connection with the same course of conduct, except that no juvenile may be held in custody for more than a total of 72 hours under subds. 1. and 2. in connection with the same course of conduct unless the juvenile receives a hearing under par. (d).

938.355(6d)(c)4. 4. Subject to par. (d), subds. 1. and 2. do not preclude a juvenile who has been found to be in need of protection or services and who has violated a condition specified in sub. (2) (b) 7. from being taken into and held in custody under ss. 938.19 to 938.21.

938.355(6d)(d) (d) Hearing; when required. If a juvenile is held under par. (a), (b), or (c) in a juvenile detention facility, juvenile portion of a county jail, or place of nonsecure custody for longer than 72 hours, the juvenile is entitled to a hearing under sub. (6) (c) or s. 938.21. The hearing shall be conducted in the manner provided in sub. (6) or s. 938.21, except that, notwithstanding s. 938.21 (1) (a), the hearing shall be conducted within 72 hours, rather than 24 hours, after the time that the decision to hold the juvenile was made and a written statement of the reasons for continuing to hold the juvenile in custody may be filed instead of a petition under s. 938.25.

938.355(6d)(e) (e) County board authorization required. The use of placement in a juvenile detention facility or in a juvenile portion of a county jail as a place of short-term detention under par. (a) 1. or 2. or (b) 1. or 2. 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 places of short-term detention under par. (a) 1. or 2. or (b) 1. or 2.

938.355(6g) (6g) Contempt for continued violation of order.

938.355(6g)(a) (a) If a juvenile upon whom the court has imposed a sanction under sub. (6) (a) or (6m) commits a 2nd or subsequent violation of a condition specified in sub. (2) (b) 7., the district attorney may file a petition under s. 938.12 charging the juvenile with contempt of court, as defined in s. 785.01 (1), and reciting the recommended disposition under s. 938.34. The district attorney may file the petition on his or her own initiative or on the request of the court that imposed the condition specified in sub. (2) (b) 7. or that imposed the sanction under sub. (6) (a) or (6m). If the district attorney files the petition on the request of the court that imposed the condition specified in sub. (2) (b) 7. or that imposed the sanction under sub. (6) (a) or (6m), that court is disqualified from holding a hearing on the contempt petition.

938.355(6g)(b) (b) The court may find a juvenile in contempt of court, as defined in s. 785.01 (1), and order a disposition under s. 938.34 if the court makes all of the following findings:

938.355(6g)(b)1. 1. That the juvenile has previously been sanctioned under sub. (6) (a) or (6m) for violating a condition specified in sub. (2) (b) 7. and, subsequent to that sanction, has committed another violation of a condition specified in sub. (2) (b) 7.

938.355(6g)(b)2. 2. That at the sanction hearing the court explained the conditions to the juvenile and informed the juvenile of a possible finding of contempt for a violation and the possible consequences of that contempt.

938.355(6g)(b)3. 3. That the violation is egregious.

938.355(6g)(b)4. 4. That the court has considered less restrictive alternatives and found them to be ineffective.

938.355(6g)(c) (c) This subsection does not preclude a person who is aggrieved by a juvenile’s violation of a condition specified in sub. (2) (b) 7. from proceeding against the juvenile for contempt of court under ch. 785.

938.355(6m) (6m) Sanctions for violation of order: truancy or habitual truancy.

938.355(6m)(a) (a) Violation of habitual truancy order. If the court finds by a preponderance of the evidence that a juvenile who has been found to have violated a municipal ordinance enacted under s. 118.163 (2) or who has been found to be in need of protection or services under s. 938.13 (6) has violated a condition specified under sub. (2) (b) 7., the court may order as a sanction any combination of the sanctions under subds.1g. to 4. and the dispositions under s. 938.342 (1g) (d) to (j) and (1m), regardless of whether the disposition was imposed in the order violated by the juvenile. A sanction may be imposed under this paragraph only if at the dispositional hearing under s. 938.335 the court explained those conditions to the juvenile and informed the juvenile of the possible sanctions under this paragraph for a violation or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and possible sanctions and that he or she understands those conditions and possible sanctions. The court may not impose a sanction under this paragraph on a juvenile who is subject to an order under this section or s. 938.357 or 938.365 that terminates as provided in sub. (4) (am) 4. or s. 938.357 (6) (a) 4. or 938.365 (5) (b) 4. The court may order as a sanction under this paragraph any of the following:

938.355(6m)(a)1g. 1g. Placement of the juvenile in 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, for not more than 10 days and the provision of educational services consistent with his or her current course of study during the period of placement. The juvenile shall be given credit against the period of detention or nonsecure custody imposed under this subdivision for all time spent in secure detention in connection with the course of conduct for which the detention or nonsecure custody was imposed. The use of placement in a juvenile detention facility or in a juvenile portion of a county jail as a sanction under this subdivision 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 sanction. If the court orders placement of the juvenile in a place of nonsecure custody under the supervision of the county department, the court shall order the juvenile into the placement and care responsibility of the county department as required under 42 USC 672 (a) (2) and shall assign the county department primary responsibility for providing services to the juvenile.

938.355(6m)(a)1m. 1m. Suspension or limitation on the use of the juvenile’s operating privilege, as defined under s. 340.01 (40), or of any approval issued under ch. 29 for not more than one year. If the juvenile does not hold a valid operator’s license under ch. 343, other than an instruction permit under s. 343.07 or a restricted license under s. 343.08, on the date of the order issued under this subdivision, the court may order the suspension or limitation to begin on the date on which the juvenile is first eligible for issuance or reinstatement of an operator’s license under ch. 343. If the court suspends a juvenile’s operating privilege or an approval issued under ch. 29, the court shall immediately take possession of the suspended approval and may take possession of, and if possession is taken, shall destroy, the suspended license. The court shall forward to the department that issued the license or approval a notice stating the reason for and the duration of the suspension, together with any approval of which the court takes possession.

938.355(6m)(a)2. 2. Counseling or participation for not more than 25 hours in a supervised work program or other community service work under s. 938.34 (5g).

938.355(6m)(a)3. 3. Detention in the juvenile’s home or current residence for a period of not more than 30 days except during hours in which the juvenile is attending religious worship or a school program, including travel time required to get to and from the place of worship or school program. The order may permit a juvenile to leave his or her home or current residence if he or she is accompanied by a parent or guardian.

938.355(6m)(a)4. 4. Participation 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, in the social, behavioral, academic, community service, and other programming of a youth report center. Subdivision 2. and s. 938.34 (5g) apply to any community service work performed by a juvenile under this subdivision.

938.355(6m)(ag) (ag) Violation of truancy order. If the court finds by a preponderance of the evidence that a juvenile who has been found to have violated a municipal ordinance enacted under s. 118.163 (1m) has violated a condition specified under sub. (2) (b) 7., the court may order as a sanction any combination of the operating privilege suspension specified in par. (a) and the dispositions specified in s. 938.342 (1g) (b) to (k) and (1m), regardless of whether the disposition was imposed in the order violated by the juvenile. A sanction may be imposed under this paragraph only if at the dispositional hearing under s. 938.335 the court explained those conditions to the juvenile and informed the juvenile of the possible sanctions under this paragraph for a violation or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and possible sanctions and that he or she understands those conditions and possible sanctions.

938.355(6m)(am) (am) Violation of municipal court order.

938.355(6m)(am)1. 1. If a juvenile who has violated a municipal ordinance enacted under s. 118.163 (2) violates a condition of a dispositional order imposed by the municipal court, the municipal court may petition the court assigned to exercise jurisdiction under this chapter and ch. 48 to impose on the juvenile the sanction specified in par. (a) 1g. A sanction may be imposed under this subdivision only if, at the time of the judgment the municipal court explained the conditions to the juvenile and informed the juvenile of that possible sanction or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and that possible sanction and that he or she understands those conditions and that possible sanction. The petition shall contain a statement of whether the juvenile may be subject to the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and, if the juvenile may be subject to that act, the names and addresses of the juvenile’s Indian custodian, if any, and tribe, if known.

938.355(6m)(am)2. 2. If the court assigned to exercise jurisdiction under this chapter and ch. 48 imposes the sanction under par. (a) 1g. on a petition under subd. 1., the court shall order the municipality of the municipal court that filed the petition to pay to the county the cost of providing the sanction imposed under par. (a) 1g.

938.355(6m)(b) (b) Motion for sanction. A motion for the imposition of a sanction under par. (a) or (ag) may be brought by the person or agency primarily responsible for providing dispositional services to the juvenile, the district attorney, the corporation counsel or the court that entered the dispositional order. If the court initiates the motion, that court is disqualified from holding a hearing on the motion. Notice of the motion shall be given to the juvenile, guardian ad litem, counsel, parent, guardian, legal custodian and all parties present at the original dispositional hearing.

938.355(6m)(bm) (bm) Indian juvenile; notice. If the person initiating the motion knows or has reason to know that the juvenile is an Indian juvenile who has been found to be in need of protection or services under s. 938.13 (6) or who has been adjudged to have violated an ordinance enacted under s. 118.163 (2), and if the motion is seeking removal of the juvenile from the home of his or her parent or Indian custodian and placement in a place of nonsecure custody specified in par. (a) 1g., notice under par. (b) to the Indian juvenile’s parent shall be provided in the manner specified in s. 938.028 (4) (a). In like manner, the court shall also notify the Indian juvenile’s Indian custodian and tribe. No hearing may be held under par. (c) until at least 10 days after receipt of the notice by the Indian juvenile’s parent, Indian custodian, and tribe or, if the identity or location of the Indian juvenile’s parent, Indian custodian, or tribe cannot be determined, until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the Indian juvenile’s parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for the hearing.

938.355(6m)(c) (c) Sanction hearing. Before imposing a sanction under par. (a) or (ag), the court shall hold a hearing at which the juvenile is entitled to be represented by legal counsel and to present evidence. Except as provided in par. (bm), the hearing shall be held within 15 days after the filing of a motion under par. (b).

938.355(6m)(cm) (cm) Reasonable efforts finding. The court may not order the sanction of placement in a place of nonsecure custody under par. (a) 1g. unless the court finds that the agency primarily responsible for providing services for the juvenile has made reasonable efforts to prevent the removal of the juvenile from his or her home and that continued placement of the juvenile in his or her home is contrary to the welfare of the juvenile. The court shall make the findings under this paragraph on a case-by-case basis based on circumstances specific to the juvenile and shall document or reference the specific information on which that finding is based in the sanction order. A sanction order that merely references this paragraph without documenting or referencing that specific information in the sanction order or an amended sanction order that retroactively corrects an earlier sanction order that does not comply with this paragraph is not sufficient to comply with this paragraph.

938.355(6m)(cr) (cr) Indian juvenile; findings. In the case of an Indian juvenile who has been found to be in need of protection or services under s. 938.13 (6) or who has been adjudged to have violated an ordinance enacted under s. 118.163 (2), the court may not order the sanction of removal from the home of the Indian juvenile’s parent or Indian custodian and placement in a place of nonsecure custody specified in par. (a) 1g., unless the court finds 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 juvenile under s. 938.028 (4) (d) 1. and the court finds 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. These findings are not required if they were made in the dispositional order under which the juvenile is being sanctioned. The findings under this paragraph shall be in addition to the findings under par. (cm), 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 paragraph and the findings under par. (cm) shall be considered to be the same findings.

938.355(7) (7) Orders applicable to parents, guardians, legal custodians, and other adults. In addition to any dispositional order entered under s. 938.34 or 938.345, the court may enter an order applicable to a juvenile’s parent, guardian, or legal custodian or to another adult, as provided under s. 938.45.

938.355 History History: 1995 a. 77, 352; 1997 a. 27, 35, 205, 237, 239, 252; 1999 a. 9, 32, 103; 2001 a. 16, 69, 109; 2003 a. 50; 2005 a. 277, 344; 2007 a. 20, 97; 2009 a. 28, 79, 94, 103, 180, 185, 302; 2011 a. 181, 258; 2013 a. 165, 334, 362; 2015 a. 55, 80; 2015 a. 195 ss. 64, 83; 2015 a. 366, 367, 373; 2017 a. 366; 2019 a. 8; 2021 a. 42, 76; 2023 a. 119.

938.355 Annotation Mandatory time limits affect the trial court’s competency to act, but an objection must be raised before the trial court to avoid waiver. In Interest of L.M.C., 146 Wis. 2d 377, 430 N.W.2d 352 (Ct. App. 1988).

938.355 Annotation Section 118.16 (5) does not limit a court’s discretion in setting school attendance requirements in a dispositional order for a delinquent juvenile and in imposing sanctions when the order is violated. By its terms, s. 118.16 (5) is limited to children who are in need of protection and services as a result of being habitual truants. State v. Jason R.N., 201 Wis. 2d 646, 549 N.W.2d 752 (Ct. App. 1996), 95-1728.

938.355 Annotation There is no requirement that the court apply the sanctions in sub. (6) (d) in graduated order of severity. Sanctions are solely within the discretion of the court. State v. Jason R.N., 201 Wis. 2d 646, 549 N.W.2d 752 (Ct. App. 1996), 95-1728.

938.355 Annotation Sanctions for a violation of a dispositional order by a delinquent were found to not be punitive for purposes of double jeopardy. Craig S.G. v. State, 209 Wis. 2d 65, 561 N.W.2d 807 (Ct. App. 1997), 96-0761.

938.355 Note NOTE: The above annotations cite to s. 48.355, the predecessor statute to s. 938.355.

938.355 Annotation All juveniles who violate a condition of a dispositional order are subject to sanctions under sub. (6) (d), but the restrictions that may be imposed on habitual truants are limited by sub. (6m). Under sub. (6g), no juvenile can be charged with contempt of court for the first violation of a dispositional order. State v. Aaron D., 214 Wis. 2d 56, 571 N.W.2d 399 (Ct. App. 1997), 97-0806.

938.355 Annotation The one-year limitation in sub. (4) is not limited to the original dispositional order but also applies to subsequent proceedings in the case including revisions of the dispositional order. State v. Kendall G., 2001 WI App 95, 243 Wis. 2d 67, 625 N.W.2d 918, 00-3240.

938.355 Annotation Sub. (6) (a) requires that the court assure that the juvenile has the ability to comprehend the conditions of a dispositional order and potential sanctions whether informed of them at the dispositional hearing or a later time. Once the issue of the juvenile’s ability to understand the conditions and sanctions is raised, the burden shifts to the prosecution to establish that the juvenile is capable of understanding the court’s warnings. State v. Eugene W., 2002 WI App 54, 251 Wis. 2d 259, 641 N.W.2d 467, 01-2274.

938.355 Annotation The focus of sub. (4) (a) is not on the juvenile’s seventeenth birthday. The critical phrase is “original dispositional order.” There is a critical distinction between an original dispositional order and an extended or revised dispositional order. State v. Terry T., 2003 WI App 21, 259 Wis. 2d 339, 657 N.W.2d 97, 02-2502.

938.355 Annotation Sub. (6) (d) recognizes that multiple conditions may be violated in any one incident but only allows one sanction per incident, not per condition violation. What constitutes an incident is determined by whether the juvenile’s course of conduct is marked by different and distinct volitional acts in between which the juvenile had sufficient time to reflect and choose to commit himself or herself to a particular act. State v. Ellis H., 2004 WI App 123, 274 Wis. 2d 703, 684 N.W.2d 157, 03-3178.

938.355 Annotation Section 938.355 provides a variety of sanctions for juveniles who have violated their dispositional orders. Section 938.357 enumerates the ways in which a juvenile’s placement may be changed. Nothing in either statute indicates that it is to be the exclusive mechanism for violation of a disposition order. Section 938.34 (16) specifically allows an alternative procedure for dealing with violations of a disposition order when part of the disposition is imposed and stayed. State v. Richard J.D., 2006 WI App 242, 297 Wis. 2d 20, 724 N.W.2d 665, 06-0555.