J. K. v. State
J. K. v. State
Opinion of the Court
Challenged here is not the adjudication of delinquency, but rather the disposition
Involved are two sections of the Children’s Code of Wisconsin (ch. 48). The first such is sec. 48.01, Stats., which declares the intent of the chapter to be “. . . to promote the best interests of the children of this state, . .
“48.34 Disposition if child adjudged delinquent. (1) Type op disposition. If the court finds that the child is delinquent, it shall enter an order making one of the following dispositions of the case:
“(a) Counsel the child or his parents, guardian or legal custodian; or
“(b) Place the child under supervision in his o_wn home under conditions prescribed by the court including reasonable rules for his conduct and the conduct of his parents, guardian or legal custodian, designed for the physical, mental and moral well-being and behavior of the child; or
“(c) Relieve the parent, guardian or legal custodian of legal custody of the child and place him in a foster home as described in s. 48.62, except that the home does not have to be licensed if the child is placed there for less than 30 days;
“ (d) Transfer legal custody of the child to one of the following:
“1. A relative of the child; or
“2. A county agency specified in s. 48.56 (1); or
*430 “3. A licensed child welfare agency; or
“4. The department;
(( 993
Appellant notes that transfers of legal custody to the state department of health and social services are “until the age of 18,”
“. . . Due process and fair treatment are to mark juvenile proceedings as well as adult trials. Both have a common harbor, the fair and just disposition of matters before the court, but they may sail by different routes to the shared destination. Each must avoid the reefs of constitutionally assured protections, but they need not sail side by side in so doing. Any analogy established between steps in juvenile proceedings with stages in the processing of criminal cases may be arguably persuasive, but it is not controlling.”9
If the state legislature were to eliminate incarceration as an appropriate penalty for the adult crime of possession of LSD, that would not limit or change the right of a juvenile court judge to place an adjudged delinquent, found to have possessed LSD, in the custody of the state department until the age of eighteen, unless earlier released. Such commitment of a juvenile is not for the purpose of penalty or punishment, but for the purpose of effecting a result that will serve the best interests of the child, its parents and the public. The same measur
As to application of the statutory provisions for disposition to this appellant, adjudged delinquent, the principal argument of the appellant is that the juvenile court judge did not sufficiently satisfy himself “. . . that no less onerous disposition would serve the purpose of the commitment.” The language quoted and test come from federal court decisions dealing with the civil commitment of persons adjudged mentally ill to a mental hospital for treatment.
In the case before us, we hold, as did the reviewing circuit court, that the children’s court judge did not only satisfactorily state reasons for the particular disposition made, but also satisfactorily considered other available alternatives to the particular disposition made. However, while upholding the particular disposition here made instead of any of the possible alternative dispositions, we do not adopt the “least restrictive alternative” test, particularly not in the form urged by appellant. To justify any children’s court placing of custody in the state department, appellant would require proof, not by preponderance of the evidence but beyond a reasonable doubt,
Additionally, appellant claims that the juvenile court judge improperly considered charges of disorderly conduct and delivery of a controlled substance and that a police report was received in evidence without foundation. The inferences that appellant extracts from the record in these regards are without foundation. While a police report is part of this record, there is no indication that it was used by the trial judge in determining the appropriate disposition following the adjudication of here admitted delinquency. The court’s questions concerning disorderly conduct and delivery of controlled substances do not furnish a basis for holding that these charges were considered in determining the appropriate disposition. Appellant’s attack upon the reviewing circuit court for assertedly using criminal court standards for review is found to be without foundation, and it is to be noted that for our court, as for the circuit court, the question here is whether the juvenile court abused its discretion.
By the Court. — Order affirmed.
See. 48.01 (2), Stats.
Sec. 48.01 (3), Stats.
See. 48.34 (1) (a), (b), (c), (d), Stats., continuing with and completed by pars, (e), (f) and (g).
.See. 48.34 (3), Stats., providing: “. . . All transfers of legal custody to the department . . . shall be until the age of 18 unless the department discharges the child sooner under s. 48.53.”
Sec. 48.53, Stats., provides:
“(1) All children adjudged delinquent, whose legal custody has been transferred to the department, shall be discharged as soon as the department determines that there is a reasonable probability that it is no longer necessary either for the rehabilitation and treatment of the child or for the protection of the public that the department retain legal custody.”
Brief of Appellant, page 5. NOTE: An adult convicted of possessing LSD is guilty of a misdemeanor punishable by a fine of not more than $250 or one year imprisonment in county jail. Sec. 161.41 (3), Stats.
Chs. 939 to 948, Stats.
In re Alley (1921), 174 Wis. 85, 91, 92, 182 N. W. 360, this court holding: “. . . This law [the Children’s Code] was not designed as a method of punishment for crimes committed by juveniles. Every section and paragraph of the statute is permeated with the benevolent purpose of improving the child’s condition and not with punishing his past conduct. The whole object and purpose of this law will be defeated if it is construed and applied as a punitive statute.”
Winburn v. State (1966), 32 Wis. 2d 152, 158, 145 N. W. 2d 178, this court holding: “The entire philosophy of the Children’s Code is avowedly the antithesis of criminal prosecution.
“The juvenile law is not to be administered as a criminal statute, and the rules of criminal procedure are not to be engrafted upon the Children’s Code. . . .”
Citing Kent v. United States (1966), 383 U. S. 541, 86 Sup. Ct. 1045, 16 L. Ed. 2d 84, and finding it to hold that, while hearings in children’s court must measure up to the essentials of due process and fair treatment, they need “. . . not conform with all of the requirements of a criminal trial or even of the usual administrative hearing . . . .” (Id. at page 161.)
In re D. M. D. (a minor) v. State (1972), 54 Wis. 2d 313, 317, 195 N. W. 2d 594.
Covington v. Harris (D. C. Cir. 1969), 419 Fed. 2d 617, 628, citing and following Lake v. Cameron (D. C. Cir. 1966), 364 Fed. 2d 657. See also: Lessard v. Schmidt (D. C. Wis. 1972), 349 Fed. Supp. 1078.
Ch. 51, Stats.
Ch. 48, Stats.
Covington v. Harris, supra, footnote 10, at page 623, quoting D. C. Code sec. 21-644 (1967).
Brief of Appellant, pages 27, 28, stating: “. . . Proof of . . . lack of suitable less restrictive alternatives by mere preponderance of the evidence would accord equal weight to the interest of the public in a commitment with the interest of the juvenile to his liberty. . . .
“. . . [Ajppellant asserts that commitment of a juvenile to a State institution as a delinquent can be justified only with a compelling state interest served thereby, with proof of . . . exhaustion of less drastic means, made beyond a reasonable doubt. . . .”
Id. at page 28.
In re Alley, supra, footnote 7, at pages 90, 91, this court holding: “. . . A result [as to a child adjudged delinquent] should not be arrived at which deprives a child of a home, or a parent
In re Johnson (1960), 9 Wis. 2d 65, 75, 76, 100 N. W. 2d 383, this court holding: “Thus the question presented to us upon appeal
Mikulovsky v. State (1972), 54 Wis. 2d 699, 707, 196 N. W. 2d 748.
Winburn v. State, supra, footnote 8, at page 161, this court also holding: . . The interest of the public is served not only by rehabilitating juveniles when that is possible, but the interest of the public is also served by removing some juveniles from environments where they are likely to harm their fellow citizens. . . .”
In re Interest of F. R. W. (a minor) (1973), 61 Wis. 2d 193, 209, 212 N. W. 2d 130, upholding sec. 48.18, Stats., providing for waiver of juvenile court jurisdiction, against a claim of vagueness because it failed to specifically state waiver criteria to be considered in exercising the judicial discretion involved in waiver of juvenile court jurisdiction.
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