State v. A.A.A., 2024AP2001, 3/12/25, District II (ineligible for publication); case activity
COA affirmed the circuit court’s dispositional order placing juvenile in the Serious Juvenile Offender program at Copper Lake School, a Type I juvenile correctional facility for girls. The Court rejected juvenile’s claim that such a placement was not permissible until the State builds a secure residential care center.
A.A.A. (referred to as “Amanda”) pled no contest in juvenile court to one count of first-degree child sexual assault – sexual intercourse with a child under age 13. The State recommended placement in the Serious Juvenile Offender (SJO) Program at Copper Lake School. Amanda argued that placement in the SJO was not permitted because the SJO placement statute, Wis. Stat. § 938.34(4h), required the circuit court to determine that the only other appropriate placement was in a secure residential care center (SRC) for children and youth as specified in Wis. Stat. § 938.34(4m). And because Wisconsin has not yet built any SRC centers, SJO placement was not allowed.
The circuit court placed Amanda in the SJO program at Copper Lake for five years and remarked that the legislature did not repeal the SJO program, Copper Lake School has not been closed, and the Juvenile Justice Code permits corrections and SJO program placements. (¶ 5).
Amanda asked the COA to vacate the dispositional order because the Juvenile Code did not allow the circuit court to place her directly at Copper Lake School.
By way of background, when a court adjudges a juvenile delinquent, it must enter an order providing one or more of the following dispositions: 1) counseling; 2) supervision; 3) placement; or 4) transfer of legal custody. Wis. Stat. § 938.34. Among the options for transferring legal custody are the SJO (§ 938.34(4h)) and SRC (§ 938.34(4m)).
Placement in the SJO is permitted if: a) the juvenile is 14 years of age or over and has been adjudicated delinquent for committing or conspiring to commit the specified offenses; and 2) the court finds that the only other disposition that is appropriate for the juvenile is placement in a juvenile correctional facility under sub. (4m). § 938.34(4h).
Designation to an SRC under § 938.34(4m) places the juvenile under the supervision of the county department in a secured residential care center for children and is permitted if: 1) the juvenile has been found to be delinquent for the commission of an act that would be punishable by a sentence of 6 months or more if committed by an adult; and b) the juvenile has been found to be a danger to the public and to be in need of restrictive custodial treatment. If the court finds that a juvenile committed specified offenses, but that placement in the serious juvenile offender program is not appropriate, that determination is prima facie evidence that the juvenile is a danger to the public and in need of restrictive custodial treatment under sub. (4m).
As we discussed in a 2023 post addressing a similar issue in J.A.J., § 938.34(4m) was amended in 2018 when the legislature closed Lincoln Hills and intended to build a new juvenile correctional facility. That facility has still not been built. Prior to the 2018 amendment, § 938.34(4m) referred to placement in a “juvenile correctional facility or a secured residential care center for children and youth under the supervision of the department of corrections.” § 938.34(4m) (2015-16). The amendment replaced “juvenile correctional facility” and “department of corrections” with “the county department in a secured residential care center.”
The Court acknowledged that removing “’juvenile correctional facility’ appears to require initial placement at an SRC center for juveniles.” (¶ 11). However, Wis. Stat. § 938.357(3)(b) provides that, notwithstanding § 938.34(4m), the court may order placement in a juvenile correctional facility under the supervision of the department of corrections for a juvenile who was adjudicated delinquent under § 938.34(4m) if the court finds that the county does not have space for the juvenile in an SRC center or that other statutorily prescribed conditions apply.
Amanda did not dispute that she was at least age 14 and her offense was one of those enumerated in § 938.34(4h). However, she argued that until an SRC center is in operation, any initial placement in a juvenile correctional facility is contrary to the requirement in § 938.34(4h) that the court must find that the only other disposition that is appropriate is placement in an SRC. (¶ 10).
The Court found Amanda’s argument “belied by the text and structure of the relevant statutes.” (¶ 13). The Court noted that subsection (4h) was not repealed or amended in 2018 and requires a finding that, “if the court does not enter a dispositional order under that subsection, the only other (i.e., alternative) appropriate disposition is mandatory secured confinement under subsection (4m) in an SRC center.” (¶ 13). Because the circuit court found that Amanda was a danger to the public, required a confined setting, and was ordered into the SJO program, the Court concluded her placement options were controlled by Wis. Stat. § 938.538, which governs the SJO program and was also not repealed or amended in 2018. (¶ 14). The Court concluded that the “lack of actual SRC centers available to Amanda has nothing to do with the ability of the court to select the subsection (4h) disposition option in her case.” (¶ 14).
The Court also considered that, if it adopted Amanda’s interpretation of the statutes, § 938.34(4h) would be void, the SJO program would not be available as a dispositional option, and noncustodial placement would be required “even for the most serious juvenile offenders.” (¶¶ 15-16). The Court considered such an outcome to “run roughshod over the stated purpose of the SJO program (left intact by the Act) which include providing ‘supervision, care, and rehabilitation that is more restrictive than ordinary supervision in the community’ for serious juvenile offenders.” (¶ 16) (quoting Wis. Stat. § 938.538(2)(a)).
