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COA holds no “counseling and closing” JIPS petition when juvenile is found incompetent to proceed

State v. X.B.A.-S., 2022AP944-946, 11/29/22, District 1, (1-judge opinion; ineligible for publication); case activity

When a circuit court finds a juvenile not competent to proceed in a delinquency proceeding but likely to regain, may it “counsel and close” the related JIPS cases per §938.34(1)? Or must it enter dispositional orders requiring periodic reexaminations of the juvenile per §938.30(5)(e)? Siding with the State, the court of appeals chose the latter option.

The State charged X.B.A.-S with crimes in three separate juvenile delinquency proceedings. At defense counsel’s request, the circuit conducted competency proceedings and found X.B.A.-S. not competent to proceed but likely to be restored within the statutory period. As a result, the court suspended the delinquency proceedings, and the State filed a JIPS petition in each case.

While all of this was going on, X.B.A.-S. was receiving intensive mental health treatment at a facility in Georgia, pursuant to a pre-existing CHIPS order. So his defense lawyer, his social worker, and his G.A.L. asked the circuit court for “counsel and close” dispositions of his JIPS petitions, pursuant to §938.34. Otherwise, the JIPS petitions would require adding competency restoration programming, which would divert to X.B.A.-S from the treatment he was already receiving. That treatment was the best option for helping him avoid future delinquent behavior.

The circuit court noted that it made no sense to have competing CHIPS and JIPS orders, so it granted the request. The State appealed and the court of appeals reversed.

According to the State, the circuit court couldn’t close the JIPS cases because §938.30(5)(e) mandates that juveniles found not competent to proceed “shall be periodically reexamined” with reports filed every 3 months.

X.B.A.-S. countered that “counseling and closing” is a valid disposition of JIPS cases under §938.34. Without ongoing orders, there is no vehicle for ordering reexaminations under §938.30(5)(e).

Construing the two statutes, the court of appeals held:

¶14 . . . The requirement for reexaminations set forth in WIS. STAT. § 938.30(5)(e) relates directly back to paragraph (5)(d)2.—the option of the trial court to order the filing of a JIPS petition after suspending delinquency proceedings when a juvenile has been found not competent to proceed, but likely to regain competency within the statutory time frame. The interplay of these closely related paragraphs within § 938.30(5) cannot be ignored just because a particular disposition is permitted under another section of the Juvenile Justice Code . . . Furthermore, the fact that § 938.30(5)(e) mandates reexaminations by stating that the juvenile “shall be periodically reexamined” supports this interpretation.


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