COA affirms denial of motion to dismiss delinquency petition filed 351 days after the § 938.25(2)(a) deadline.
State v. K.R.C., 2025AP90, 12/9/25, District III (one-judge decision; ineligible for publication); case activity
“Kyle” appeals, arguing that the state did not have good cause for filing a delinquency petition outside the 20-day filing deadline in WIS. STAT. § 938.25(2)(a). COA disagrees and affirms.
Kyle was accused of committing sexual assault at his mother’s house in Wisconsin, but lives with his father in Minnesota. (¶2). A social worker referred the matter to the DA’s office (“the state”) in WI with a request for referral to the MN county attorney’s office. The MN county initially accepted the referral and filed a delinquency petition. (¶3). About 7 months later, a new county attorney dismissed the petition due to his belief that he did not have jurisdiction. In 2023, 351 days past the 20-day deadline, the state filed a delinquency petition and an affidavit regarding the late filing. (¶4). Kyle moved to dismiss the petition and the circuit court denied his motion. (¶¶5-8).
WIS. STAT. § 938.25(2)(a) provides that a petition initiating proceedings under WIS. STAT. ch. 938 must be filed “within 20 days after the date that the intake worker’s request was filed.” (¶12). “If a petition is not filed within the time periods… and the court has not granted an extension, the petition shall be accompanied by a statement of reasons for the delay. The court shall grant appropriate relief as provided in s. 938.315 (3) with respect to a petition that is not filed within the applicable time period[.]” WIS. STAT. § 938.25(2)(a).
COA adopts the definition of “good cause” in F.E.W. v. State, 143 Wis. 2d 856, 422 N.W.2d 893 (Ct. App. 1988), which involved a ch. 48 delinquency petition. There are four factors courts should consider in determining “good cause” for the
untimely filing of a delinquency petition under ch. 48: (1) the best interests of the child, (2) whether the party seeking an enlargement of time has acted in good faith, (3) whether the opposing party has been prejudiced, and (4) whether the dilatory party took prompt action to remedy the situation. (¶14).
First, the court concludes the best interests of the child weighs in favor of the state because it is in the child’s best interest to be held accountable and receive services to prevent a recurrence. (¶16). Next, it concludes that the circuit court’s factual finding that the state acted in good faith was not clearly erroneous because Kyle failed to develop his argument that the state’s failing was due to a lack of diligence. (¶19). As to prejudice, COA deems the element conceded by the state but notes that Kyle “does not contend that his ability to present a defense has been prejudiced in any way by the delay” or address the victim’s rights. (¶22). Last, as to prompt remedial action, COA considers whether there was any delay in the state’s filing of the petition after receiving notice that the MN petition had been dismissed. It finds that the state filed the petition within 20 days of receiving notice and concludes, on that basis, that the state took prompt action to remedy the situation. (¶28).
Finally, the court weighs the factors and holds that because three of the factors weigh in favor of the state, “it is clear that there was good cause” to retroactively extend the state’s deadline to file the delinquency petition by 351 days. (¶29).
In relying on F.E.W. for the definition of “good cause,” COA seems to ignore the additional requirements in Wis. Stat. 938.315(2), which provides that a continuance for good cause be “only for so long as is necessary, taking into account the request or consent of the representative of the public under s. 938.09 or the parties, the interests of the victims and the interest of the public in the prompt disposition of cases.”
Concerningly, COA also seems to hold that under the F.E.W. “good cause” test, it is always in “the best interests of the child and the public that [the child] be held responsible for the consequences of his [or her] acts and be provided with services in an attempt to prevent a recurrence.” (¶16). However, the best interest of the child is a factor that courts must consider when the state seeks to prove good cause. It is not a given. Here, it seems that neither the circuit court nor COA considered Kyle’s specific circumstances and needs, or the services he might actually receive if prosecuted.
We would also note that the COA refers to the circuit court’s good faith conclusion as if it were a factual finding, stating that “the circuit court’s finding that the State acted in good faith was not clearly erroneous.” This is relevant because if good cause is a finding of fact, the standard of review for appellants to overcome is clearly erroneous rather than de novo. (See ¶¶10, 19).