938.24 Annotation
Under facts of case, (5) didn't mandate dismissal although referral wasn't made within 40 days. In re J. L. W., 143 W (2d) 126, 420 NW (2d) 398 (Ct. App. 1988).
938.24 Annotation
Under (1), "information indicating that a child should be referred to the court as delinquent" is that quantum of information that would allow a reasonable intake worker to evaluate the appropriate disposition of the matter. In Interest of J.W.T., 159 W (2d) 754, 465 NW (2d) 520 (Ct. App. 1990).
938.24 Annotation
Sub. (5), when read in conjunction with sub. (3), requires that an intake worker request the district attorney to file a delinquency petition and does not require the intake worker to make a recommendation that a petition be filed. Interest of Antonio M.C. 182 W (2d) 301, 513 NW (2d) 662 (Ct. App. 1994).
938.24 Annotation
Procedural Changes. Plum. Wis. Law. Apr. 1996.
938.24 Note
NOTE: The above annotations cited to s. 48.24, the predecessor statute to s. 938.24.
938.243
938.243
Basic rights: duty of intake worker. 938.243(1)
(1) Before conferring with the parent or juvenile during the intake inquiry, the intake worker shall personally inform a juvenile alleged to have committed a delinquent act, and parents and juveniles 10 years of age or over who are the focus of an inquiry regarding the need for protection or services under
s. 938.13 (4),
(6),
(6m) or
(7), of all of the following:
938.243(1)(ag)
(ag) That the referral may result in a petition to the court.
938.243(1)(am)
(am) What allegations could be in the petition to the court.
938.243(1)(b)
(b) The nature and possible consequences of the proceedings including the provisions of
ss. 938.17 and
938.18 if applicable.
938.243(1)(c)
(c) The right to remain silent and the fact that in a delinquency proceeding the silence of the juvenile shall not be adversely considered by the court although the silence of any party may be relevant in any nondelinquency proceeding.
938.243(1)(d)
(d) The right to confront and cross-examine those appearing against them.
938.243(1)(h)
(h) The right to have the allegations of the petition proved by clear and convincing evidence unless the juvenile comes within the court's jurisdiction under
s. 938.12 or
938.13 (12), in which case the standard of proof shall be beyond a reasonable doubt.
938.243(1m)
(1m) If the juvenile who is the subject of the intake inquiry is alleged to have committed an act which resulted in personal injury or damage to or loss of the property of another, the intake worker shall inform the juvenile's parents in writing of the possibility of disclosure of the identity of the juvenile and the parents, of the juvenile's police records and of the outcome of proceedings against the juvenile for use in civil actions for damages against the juvenile or the parents and of the parents' potential liability for acts of their juveniles.
938.243(2)
(2) This section does not apply if the juvenile was present at a hearing under
s. 938.21.
938.243(3)
(3) If the juvenile has not had a hearing under
s. 938.21 and was not present at an intake conference under
s. 938.24, the intake worker shall inform the juvenile, parent, guardian and legal custodian as appropriate of their basic rights under this section. This notice shall be given verbally, either in person or by telephone, and in writing. This notice shall be given so as to allow the juvenile, parent, guardian or legal custodian sufficient time to prepare for the plea hearing. This subsection does not apply to cases of deferred prosecution under
s. 938.245.
938.243 History
History: 1995 a. 77.
938.245
938.245
Deferred prosecution. 938.245(1)
(1) The intake worker may enter into a written deferred prosecution agreement with all parties as provided in this section if the intake worker has determined that neither the interests of the juvenile nor of the public require filing of a petition for circumstances relating to
s. 938.12,
938.125,
938.13 or
938.14. Deferred prosecution shall be available only if the facts persuade the intake worker that the jurisdiction of the court, if sought, would exist and upon consent of the juvenile, parent, guardian and legal custodian.
938.245(2)(a)(a) A deferred prosecution agreement may provide for any one or more of the following:
938.245(2)(a)1.
1. That the juvenile and the juvenile's parent, guardian or legal custodian participate in individual, family or group counseling and that the parent, guardian or legal custodian participate in parenting skills training.
938.245(2)(a)2.
2. That the juvenile and a parent, guardian and legal custodian abide by such obligations, including supervision, curfews and school attendance requirements, as will tend to ensure the juvenile's rehabilitation, protection or care.
938.245(2)(a)3.
3. That the juvenile submit to an alcohol and other drug abuse assessment that conforms to the criteria specified under
s. 938.547 (4) and that is conducted by an approved treatment facility for an examination of the juvenile's use of alcohol beverages, controlled substances or controlled substance analogs and any medical, personal, family or social effects caused by its use, if the multidisciplinary screen conducted under
s. 938.24 (2) shows that the juvenile is at risk of having needs and problems related to the use of alcohol beverages, controlled substances or controlled substance analogs and its medical, personal, family or social effects.
938.245(2)(a)4.
4. That the juvenile participate in an alcohol and other drug abuse outpatient treatment program, a court-approved pupil assistance program provided by the juvenile's school board or a court-approved alcohol or other drug abuse education program, if an alcohol and other drug abuse assessment conducted under
subd. 3. recommends outpatient treatment, intervention or education. The juvenile's participation in a court-approved pupil assistance program under this subdivision is subject to the approval of the juvenile's school board.
938.245(2)(a)5.a.a. That the juvenile participate in a restitution project if the act for which the deferred prosecution agreement is being entered into has resulted in damage to the property of another, or in actual physical injury to another excluding pain and suffering. Subject to
subd. 5. c., the deferred prosecution agreement may require the juvenile to repair the damage to property or to make reasonable restitution for the damage or injury if the intake worker, after taking into consideration the well-being and needs of the victim, considers it beneficial to the well-being and behavior of the juvenile. Any such deferred prosecution agreement shall include a determination that the juvenile alone is financially able to pay and may allow up to the date of the expiration of the deferred prosecution agreement for the payment.
938.245(2)(a)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 may, for the purpose of making restitution, be employed or perform any duties under any circumstances in which a juvenile 14 or 15 years of age is permitted to be employed or to perform duties under
ch. 103 or any rule or order under
ch. 103. A juvenile who is participating in a restitution project provided by the county is exempt from the permit requirement under
s. 103.70 (1).
938.245(2)(a)5.c.
c. Under this subdivision, a deferred prosecution agreement may not require a juvenile who is under 14 years of age to make more than $250 in restitution.
938.245(2)(a)6.
6. That the juvenile participate in a supervised work program or other community service work in accordance with
s. 938.34 (5g).
938.245(2)(a)7.
7. That the juvenile be placed with a volunteers in probation program under such conditions as the intake worker determines are reasonable and appropriate, if the juvenile is alleged to have committed an act that would constitute a misdemeanor if committed by an adult, if the chief judge of the judicial administrative district has approved under
s. 973.11 (2) a volunteers in probation program established in the juvenile's county of residence and if the intake worker determines that volunteer supervision under that volunteers in probation program will likely benefit the juvenile and the community. The conditions that the intake worker may establish under this subdivision may include, but need not be limited to, a request to a volunteer to provide for the juvenile a role model, informal counseling, general monitoring and monitoring of the conditions established by the intake worker, or any combination of these functions, and any other deferred prosecution condition that the intake worker may establish under this paragraph.
938.245(2)(a)8.
8. That the juvenile be placed in a teen court program if all of the following conditions apply:
938.245(2)(a)8.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 intake worker determines that participation in the teen court program will likely benefit the juvenile and the community.
938.245(2)(a)8.b.
b. The juvenile is alleged to have committed a delinquent act that would be a misdemeanor if committed by an adult or a civil law or ordinance violation.
938.245(2)(a)8.c.
c. The juvenile admits to the intake worker, with the juvenile's parent, guardian or legal custodian present, that the juvenile committed the alleged delinquent act or civil law or ordinance violation.
938.245(2)(a)8.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 or civil law or ordinance violation.
938.245(2)(a)9.
9. That the juvenile be placed in a youth village program as described in
s. 118.42. Upon the motion of the court or the application of the juvenile, parent, guardian, legal custodian, intake worker or any agency supervising the juvenile under a deferred prosecution agreement under this subdivision, the court may, after giving notice to the parties to the deferred prosecution agreement and their counsel, if any, extend the agreement for up to an additional one year in the absence of an objection to extension by the parties to the initial deferred prosecution agreement. If the juvenile or the parent, guardian or legal custodian object to the extension, the court shall schedule a hearing and make a determination on the issue of extension. A deferred prosecution agreement under this subdivision may be extended no more than twice.
938.245(2)(b)
(b) A deferred prosecution agreement, other than an agreement under
par. (a) 9., may not include any form of out-of-home placement and may not exceed one year.
938.245(2)(c)
(c) If the deferred prosecution agreement provides for alcohol and other drug abuse outpatient treatment under
par. (a) 4., the juvenile and the juvenile's parent, guardian or legal custodian shall execute an informed consent form that indicates that they are voluntarily and knowingly entering into a deferred prosecution agreement for the provision of alcohol and other drug abuse outpatient treatment.
938.245(2g)
(2g) If the deferred prosecution agreement is based on an allegation that the juvenile violated
s. 943.017 and the juvenile has attained the minimum age at which a juvenile may be adjudicated delinquent, the deferred prosecution agreement may require that the juvenile participate for not less than 10 hours nor more than 100 hours in a supervised work program under
s. 938.34 (5g) or perform not less than 10 hours nor more than 100 hours of other community service work, except that if the juvenile has not attained 14 years of age the maximum number of hours is 40.
938.245(3)
(3) The obligations imposed under a deferred prosecution agreement and its effective date shall be set forth in writing. If the deferred prosecution agreement places the juvenile in a youth village program under
sub. (2) (a) 9., the judge or juvenile court commissioner shall receive written notice that a deferred prosecution agreement has been entered into and, on receipt of that notice, shall enter an order requiring compliance with that agreement. The juvenile and a parent, guardian and legal custodian shall receive a copy of the agreement and order, as shall any agency providing services under the agreement.
938.245(4)
(4) The intake worker shall inform the juvenile and the juvenile's parent, guardian and legal custodian in writing of their right to terminate or, if the juvenile is subject to a deferred prosecution agreement under
sub. (2) (a) 9., to request the court to terminate the deferred prosecution agreement at any time or to object at any time to the fact or terms of the deferred prosecution agreement. If an objection arises the intake worker may alter the terms of the agreement or recommend to the district attorney or corporation counsel that a petition be filed. If the deferred prosecution agreement is terminated the intake worker may recommend to the district attorney or corporation counsel that a petition be filed.
938.245(5)
(5) A deferred prosecution agreement under
sub. (2) (a) 1. to
8. may be terminated upon the request of the juvenile, parent, guardian or legal custodian. A deferred prosecution agreement under
sub. (2) (a) 9. may be terminated by the court upon the request of the juvenile, parent, guardian or legal custodian.
938.245(6)
(6) A deferred prosecution agreement arising out of an alleged delinquent act is terminated if the district attorney files a delinquency petition within 20 days after receipt of notice of the deferred prosecution agreement under
s. 938.24 (5). In such case statements made to the intake worker during the intake inquiry are inadmissible.
938.245(7)(a)(a) If at any time during the period of a deferred prosecution agreement the intake worker determines that the obligations imposed under it are not being met, the intake worker may cancel the deferred prosecution agreement. Within 10 days after the cancellation of the deferred prosecution agreement, the intake worker shall notify the district attorney, corporation counsel or other official under
s. 938.09 of the cancellation and recommend whether or not a petition should be filed. In delinquency cases, the district attorney may initiate a petition within 20 days after the date of the notice regardless of whether the intake worker has recommended that a petition be filed. The judge shall grant appropriate relief as provided in
s. 938.315 (3) with respect to any petition which is not filed within the time limit specified in this subsection. Failure to object if a petition is not filed within the time limit specified in this subsection waives that time limit.
938.245(7)(b)
(b) In addition to the action taken under
par. (a), if the intake worker cancels a deferred prosecution agreement based on a determination that the juvenile's parent, guardian or legal custodian is not meeting the obligations imposed under the agreement, the intake worker shall recommend to the district attorney, corporation counsel or other official under
s. 938.09 whether or not a petition should be filed requesting the court to order the juvenile's parent, guardian or legal custodian to show good cause for not meeting the obligations imposed under the agreement. If the district attorney, corporation counsel or other official under
s. 938.09 files a petition under this paragraph and if the court finds prosecutive merit for the petition, the court shall grant an order directing the parent, guardian or legal custodian to show good cause, at a time and place fixed by the court, for not meeting the obligations imposed under the agreement. If the parent, guardian or legal custodian does not show good cause for not meeting the obligations imposed under the agreement, the court may impose a forfeiture not to exceed $1,000.
938.245(8)
(8) If the obligations imposed under the deferred prosecution agreement are met, the intake worker shall so inform the juvenile and a parent, guardian and legal custodian in writing, and no petition may be filed or citation issued on the charges that brought about the deferred prosecution agreement nor may the charges be the sole basis for a petition under
s. 48.13,
48.14,
938.13 or
938.14.
938.245(9)
(9) The intake worker shall perform his or her responsibilities under this section under general written policies which the judge shall promulgate under
s. 938.06 (1) or
(2).
938.245 History
History: 1995 a. 77,
352,
448.
938.25
938.25
Petition: authorization to file. 938.25(1)
(1) A petition initiating proceedings under this chapter shall be signed by a person who has knowledge of the facts alleged or is informed of them and believes them to be true. If a petition under
s. 938.12 is to be filed, it shall be prepared, signed and filed by the district attorney. The district attorney, corporation counsel or other appropriate official specified under
s. 938.09 may file the petition if the proceeding is under
s. 938.125 or
938.13. The counsel or guardian ad litem for a parent, relative, guardian or juvenile may file a petition under
s. 938.13 or
938.14. The district attorney, corporation counsel or other appropriate person designated by the court may initiate proceedings under
s. 938.14 in a manner specified by the court.
938.25(2)(a)(a) The district attorney, corporation counsel or other appropriate official shall file the petition, close the case, or refer the case back to intake or, with notice to intake, the law enforcement agency investigating the case within 20 days after the date that the intake worker's request was filed. A referral back to intake or the law enforcement agency investigating the case may be made only when the district attorney, corporation counsel or other appropriate official decides not to file a petition or determines that further investigation is necessary. If the case is referred back to intake upon a decision not to file a petition, the intake worker shall close the case or enter into a deferred prosecution agreement within 20 days. If the case is referred back to intake or the law enforcement agency investigating the case for further investigation, the appropriate agency or person shall complete the investigation within 20 days. If another referral is made to the district attorney, corporation counsel or other appropriate official by intake or the law enforcement agency investigating the case, it shall be considered a new referral to which the time limits of this subsection shall apply. The time limits in this subsection may only be extended by a judge upon a showing of good cause under
s. 938.315. If a petition is not filed within the time limitations set forth in this subsection and the court has not granted an extension, the petition shall be accompanied by a statement of reasons for the delay. The court shall grant appropriate relief as provided in
s. 938.315 (3) with respect to a petition which is not filed within the time limits specified in this paragraph. Failure to object if a petition is not filed within the time limits specified in this paragraph waives those time limits.
938.25(2)(b)
(b) In delinquency cases where there has been a case closure or deferred prosecution agreement, the petition shall be filed within 20 days of receipt of the notice of closure or deferred prosecution. Failure to file within 20 days invalidates the petition and affirms the case closure or deferred prosecution agreement, except that the court shall grant appropriate relief as provided in
s. 938.315 (3) with respect to a petition that is not filed within the time limit specified in this paragraph and that failure to object if a petition is not filed within the time limit specified in this paragraph waives that time limit. If a petition is filed within 20 days or the time permitted by the court under
s. 938.315 (3), whichever is later, the district attorney shall notify the parties to the agreement and the intake worker as soon as possible.
938.25(3)
(3) If the district attorney, corporation counsel or other appropriate official under
s. 938.09 refuses to file a petition, any person may request the judge to order that the petition be filed and a hearing shall be held on the request. The judge may order the filing of the petition on his or her own motion. The matter may not be heard by the judge who orders the filing of a petition.
938.25(4)
(4) Section 939.74 applies to delinquency petitions filed under this subchapter.
938.25(5)
(5) A citation issued under
s. 938.17 (2) may serve as the initial pleading and is sufficient to confer the court with jurisdiction over the juvenile when the citation is filed with the court.
938.25(6)
(6) If a proceeding is brought under
s. 938.13, any party to or any governmental or social agency involved in the proceeding may petition the court to issue a temporary restraining order and injunction as provided in
s. 813.122 or
813.125. The court shall follow the procedure under
s. 813.122 or
813.125 except that the court may combine hearings authorized under
s. 813.122 or
813.125 and this chapter, the petitioner for the temporary restraining order and injunction is not subject to the limitations under
s. 813.122 (2) or
813.125 (2) and no fee is required regarding the filing of the petition under
s. 813.122 or
813.125.
938.25 History
History: 1995 a. 77,
352.
938.25 Annotation
"Good cause" under (2) (a) defined. In Interest of F. E. W., 143 W (2d) 856, 422 NW (2d) 893 (Ct. App. 1988).
938.25 Annotation
Where state fails to comply with mandatory filing procedures pursuant to (2) (a), petition must be dismissed with prejudice. In Interest of C.A.K., 154 W (2d) 612, 453 NW (2d) 897 (1990).
938.25 Annotation
Delinquency and waiver petitions must both be filed to bring about a waiver hearing; trial court may not proceed with waiver hearing where time limits under s. 48.25 for delinquency petition are not complied with. In Interest of Michael J.L. 174 W (2d) 131, 496 NW (2d) 758 (Ct. App. 1993).
938.25 Note
NOTE: The above annotation cited to s. 48.25, the predecessor statute to s. 938.25.
938.255
938.255
Petition; form and content. 938.255(1)
(1) A petition initiating proceedings under this chapter, other than a petition initiating proceedings under
s. 938.12,
938.125 or
938.13 (12), shall be entitled, "In the interest of (juvenile's name), a person under the age of 18". A petition initiating proceedings under
s. 938.12,
938.125 or
938.13 (12) shall be entitled, "In the interest of (juvenile's name), a person under the age of 17". A petition initiating proceedings under this chapter shall set forth with specificity all of the following:
938.255(1)(a)
(a) The name, birth date and address of the juvenile.
938.255(1)(b)
(b) The names and addresses of the juvenile's parent, guardian, legal custodian or spouse, if any; or if no such person can be identified, the name and address of the nearest relative.
938.255(1)(c)
(c) Whether the juvenile is in custody, and, if so, the place where the juvenile is being held and the time he or she was taken into custody unless there is reasonable cause to believe that such disclosure would result in imminent danger to the juvenile or physical custodian.
938.255(1)(d)
(d) If violation of a criminal statute, an ordinance or another law is alleged, the citation to the appropriate law or ordinance as well as facts sufficient to establish probable cause that an offense has been committed and that the juvenile named in the petition committed the offense.
938.255(1)(e)
(e) If the juvenile is alleged to come within the provisions of
s. 938.13 (4),
(6),
(6m),
(7) or
(14) or
938.14, reliable and credible information which forms the basis of the allegations necessary to invoke the jurisdiction of the court and to provide reasonable notice of the conduct or circumstances to be considered by the court together with a statement that the juvenile is in need of supervision, services, care or rehabilitation.
938.255(2)
(2) If any of the facts in
sub. (1) (a) to
(cm) are not known or cannot be ascertained by the petitioner, the petition shall so state.
938.255(4)
(4) A copy of the petition shall be given to the juvenile and to the parents, guardian, legal custodian and physical custodian.
938.255 History
History: 1995 a. 77,
352.
938.263
938.263
Amendment of petition. 938.263(1)
(1) Except as provided in
s. 938.255 (3), no petition, process or other proceeding may be dismissed or reversed for any error or mistake if the case and the identity of the juvenile named in the petition may be readily understood by the court; and the court may order an amendment curing the defects.
938.263(2)
(2) With reasonable notification to the interested parties and prior to the taking of a plea under
s. 938.30, the petition may be amended at the discretion of the court or person who filed the petition. After the taking of a plea, the court may allow amendment of the petition to conform to the proof if the amendment is not prejudicial to the juvenile.
938.263 History
History: 1995 a. 77.
938.27
938.27
Notice; summons. 938.27(1)(1) After a citation is issued or a petition has been filed relating to facts concerning a situation specified under
s. 938.12,
938.125 or
938.13, unless the parties under
sub. (3) voluntarily appear, the court may issue a summons requiring the parent, guardian and legal custodian of the juvenile to appear personally at any hearing involving the juvenile, and, if the court so orders, to bring the juvenile before the court at a time and place stated.
938.27(2)
(2) Summons may be issued requiring the appearance of any other person whose presence, in the opinion of the court, is necessary.
938.27(3)(a)1.1. The court shall also notify, under
s. 938.273, the juvenile, any parent, guardian and legal custodian of the juvenile, any foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) of the juvenile and any person specified in
par. (b), if applicable, of all hearings involving the juvenile under this subchapter, except hearings on motions for which notice need only be provided to the juvenile and his or her counsel. Where parents entitled to notice have the same place of residence, notice to one shall constitute notice to the other. The first notice to any interested party, foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) shall be written and may have a copy of the petition attached to it. Thereafter, notice of hearings may be given by telephone at least 72 hours before the time of the hearing. The person giving telephone notice shall place in the case file a signed statement of the time notice was given and the person to whom he or she spoke.
938.27(3)(a)2.
2. Failure to give notice under
subd. 1. to a foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) does not deprive the court of jurisdiction in the action or proceeding. If a foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) is not given notice of a hearing under
subd. 1. and if the court is required under this chapter to permit that person to make a written or oral statement at the hearing or to submit a written statement prior to the hearing and that person does not make or submit such statement, that person may request a rehearing on the matter during the pendency of an order resulting from the hearing. If the request is made, the court shall order a rehearing.
