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Restitution may be ordered in JIPS cases only after a finding the juvenile committed a delinquent act

State v. B.A.H., 2015AP1256-FT, District 4, 10/22/15 (one-judge decision; ineligible for publication); case activity

While restitution is a possible disposition in a proceeding involving a juvenile in need of protection or services (JIPS), it can only be ordered when there has been a finding a finding the juvenile committed a delinquent act. Because there was no such finding in the JIPS case involving B.A.H., the juvenile court had no authority to order restitution.

The state filed a delinquency petition against B.A.H., but B.A.H. was found incompetent to proceed and the delinquency case was suspended. The state then filed a JIPS petition based on B.A.H.’s incompetency, as authorized under § 938.30(5)(a), (d), and (e). At disposition on the JIPS proceeding the juvenile court, over B.A.H.’s objection, ordered B.A.H. to pay restitution for the acts alleged in the delinquency petition. (¶¶2-5).

Whether restitution can be ordered in a JIPS case arises because of the interaction between § 938.34, which lists dispositions available in delinquency cases, and § 938.345, which lists dispositions available in JIPS cases. The JIPS disposition statute incorporates most of the delinquency disposition because § 938.345(1) says the circuit court may order any of the dispositions in the delinquency disposition statute, subject to certain express exceptions. Restitution under § 938.34(5)(a) is not one of the exceptions, so restitution is a possible disposition in JIPS cases.

By incorporating delinquency dispositions under § 938.34, however, the JIPS disposition statute also incorporates the relevant statutory language from § 983.34. Thus, a court may order restitution in a JIPS case only if the requirements of § 938.34(5)(a) itself are met. That statute unambiguously authorizes restitution only “if the juvenile is found to have committed a delinquent act that resulted in [property damage or physical injury to a person].” See also R.W.S. v. State, 162 Wis. 2d 862, 873, 471 N.W.2d 16 (1991) (the statutory language “indicates that if the child ‘is found to have committed a delinquent act,’ the judge may order the child to make reasonable restitution” (emphasis added)). That requirement isn’t met here:

¶11     It is undisputed that here the circuit court did not find that B.A.H. committed any delinquent act that resulted in property damage or injury to a person. Instead, … the circuit court found B.A.H. not competent to proceed, which, so long as B.A.H. remained incompetent, seemingly precluded a proceeding that could result in a finding that B.A.H. committed the requisite delinquent act. I therefore agree with B.A.H. that the circuit court lacked authority to impose restitution.

The state argued the two disposition statutes are in conflict because in many, if not most, JIPS cases there won’t be a finding the child committed a delinquent act. The court was not persuaded. The state does not (and cannot) show that JIPS proceedings never involve a finding that a child committed a delinquent act that caused harm, for the JIPS statutes plainly contemplate that there will be cases in which a court may make the factual finding that a child committed a delinquent act but not adjudicate the child delinquent. (¶¶12-16).

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