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COURT OF APPEALS DECISION DATED AND RELEASED October 12, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1318
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN THE INTEREST OF
KENNETH M. W.,
A PERSON UNDER THE AGE
OF 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
KENNETH M. W.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Green County:
DAVID G. DEININGER, Judge. Affirmed.
EICH, C.J.[1] Kenneth M. W. appeals from an order revoking
a consent decree in a juvenile prosecution.
The issue is whether the trial court erred in applying a
preponderance-of-the-evidence burden of proof to the state's motion to revoke
the decree. We see no error and affirm
the order.
Kenneth M. W. and the
state entered into a consent decree in a delinquency case in 1994. The decree stated, as a condition, that
"Kenneth will commit no further delinquent or criminal acts." In March 1995, the state moved to revoke the
decree based on delinquent acts alleged to have been committed by Kenneth M.
W. A question arose at the hearing on
the motion as to the appropriate burden of proof the state must carry to
establish the violation, and the trial court ruled that the
preponderance-of-the-evidence standard applied. Kenneth M. W. disagrees, arguing that a higher burden
applies.[2] It is a question of law which we review de
novo, owing no deference to the trial court's decision.
Section 48.32(1), Stats., authorizes the petitioner and
the child (together with his or her parent, guardian or legal custodian) to
enter into consent decrees at any time prior to the entry of judgment in a
juvenile case. The statute does not
specify the standard of proof to be applied in proceedings to revoke such
agreements, and Kenneth M. W.'s argument for reversal of the trial court's
order is two-fold. He maintains that:
(1) because the law does not enforce contracts made by juveniles, it is
inappropriate to permit the state to revoke a consent decree under a burden of
proof that is also applicable in civil contract cases; and (2) because
§ 48.18(6), Stats., sets a
clear-and-convincing-evidence standard for waiver of juveniles into adult
criminal court, the same standard should apply to consent-decree revocation
proceedings. The arguments are brief
and may briefly be disposed of.
It may be the general
rule that civil contracts made by persons under the age of 18 are not
enforceable in court, but the statutes, in the juvenile code and elsewhere,
plainly contemplate the execution of enforceable agreements by minors in
certain specific situations. Sections
103.67, 103.78 and 103.79, Stats.,
for example, set minimum ages and restrictions for minors in several types of
employment contracts, while other statutes permit minors to hold shares in
thrift institutions, § 215.43(2)(b), Stats.,
and to contract (with parental consent) for the purchase of a motor vehicle, §
218.01(7b), Stats. The juvenile code authorizes children to
enter into informal disposition agreements prior to the filing of petitions, §
48.245, Stats., in addition to
the consent decrees authorized by the statutes under discussion on this appeal.
Since the legislature
has expressly authorized minors to agree to the entry of such decrees--with the
concurrence of the child's parent, guardian or legal custodian--we see no
reason why the standard of proof for breach of the underlying agreement should
be any greater than that applicable to such agreements generally.
Finally, we agree with
Kenneth M. W. that the statutes providing for waiver of alleged juvenile
offenders into adult criminal court impose a middle-burden standard of proof on
the state. We also agree that while the
juvenile court is to consider a variety of interests--those of the parent and
the public--the "paramount consideration" of the code is the child's
best interest. See § 48.01(2), Stats.
But Kenneth M. W.'s argument that "[t]here is no ... reason to
believe that a lesser burden [than that applicable to waivers] was intended by
the legislature for revocation of a consent decree" begs the
question. In simplest terms, Kenneth M.
W. has failed to persuade us that when the legislature expressly authorized
juveniles--with the concurrence of parents, guardians or legal custodians--to
enter into consent agreements, it intended a higher standard of proof than that
applicable to such agreements generally to apply in proceedings asserting their
breach.
By
the Court.—Order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] Oddly, Kenneth M. W. does not say which of the two "higher" burdens should apply--the "clear-and-convincing-evidence" standard employed in certain civil and forfeiture cases, or the "beyond-a-reasonable-doubt" criminal standard. He argues only that "[s]ince the Court found only a preponderance of the evidence, and did not find clear and convincing evidence or evidence beyond a reasonable doubt, the Court erred in revoking [the] consent decree. The matter should be remanded to the trial court to correct this error."