48.21 Annotation
When party waives custody hearing pursuant to (3) (a), trial court need not enter written custody order or inform parties of rights; department need not file petition within 24 hours pursuant to (1) (b). In Interest of G.H. 150 W (2d) 407, 441 NW (2d) 227 (1989).
48.21 Annotation
The 24 hour period under sub. (1) (a) runs from the time the intake worker decides to hold the child. Curtis W. v. State, 192 W (2d) 719, 531 NW (2d) 633 (Ct. App. 1995).
48.215
48.215
Mother-young child care program. Sections 48.19 to
48.21 do not apply to children participating in the mother-young child care program under
s. 301.049.
48.215 History
History: 1991 a. 39.
48.215 Annotation
Developmentally disabled father's allegation that the county, in violation of the Americans with Disabilities Act, did not take into account his disability in attempting to provide court ordered services was not a basis to attack a termination proceeding. The ADA did not place an added burden on the county to meet the requirements of sub. (2) (b). In Interest of Torrence P. 187 W (2d) 10, 522 NW (2d) 243 (Ct. App. 1994).
48.227(1)(1) Nothing contained in this section prohibits a home licensed under
s. 48.48 or
48.75 from providing housing and services to a runaway child with the consent of the child and the consent of the child's parent, guardian or legal custodian, under the supervision of a county department, a child welfare agency or the department. When the parent, guardian or legal custodian and the child both consent to the provision of these services and the child has not been taken into custody, no hearing as described in this section is required.
48.227(2)
(2) Any person who operates a home under
sub. (1) and licensed under
s. 48.48 or
48.75, when engaged in sheltering a runaway child without the consent of the child's parent, guardian or legal custodian, shall notify the intake worker of the presence of the child in the home within 12 hours. The intake worker shall notify the parent, guardian and legal custodian as soon as possible of the child's presence in that home. A hearing shall be held under
sub. (4). The child shall not be removed from the home except with the approval of the court under
sub. (4). This subsection does not prohibit the parent, guardian or legal custodian from conferring with the child or the person operating the home.
48.227(3)
(3) For runaway children who have been taken into custody and then released, the judge may, with the agreement of the persons operating the homes, designate homes licensed under
ss. 48.48 and
48.75 as places for the temporary care and housing of such children. If the parent, guardian or legal custodian refuses to consent, the person taking the child into custody or the intake worker may release the child to one of the homes designated under this section; however, a hearing shall be held under
sub. (4). The child shall not be removed from the home except with the approval of the court under
sub. (4). This subsection does not prohibit the parent, guardian, or legal custodian from conferring with the child or the person operating the home.
48.227(4)(a)(a) If the child's parent, guardian or legal custodian does not consent to the temporary care and housing of the child at the runaway home as provided under
sub. (2) or
(3), a hearing shall be held on the issue by the judge or juvenile court commissioner within 24 hours of the time that the child entered the runaway home, excluding Saturdays, Sundays and legal holidays. The intake worker shall notify the child and the child's parent, guardian or legal custodian of the time, place and purpose of the hearing.
48.227(4)(c)
(c) For the purposes of this section, the court has jurisdiction over a runaway child only to the extent that it may hold the hearings and make the orders provided in this section.
48.227(4)(d)
(d) At the hearing, the child, the child's parent, guardian or legal custodian and a representative of the runaway home may present evidence, cross-examine and confront witnesses and be represented by counsel or guardian ad litem.
48.227(4)(e)
(e) At the conclusion of the hearing, the court may order:
48.227(4)(e)1.
1. That the child be released to his or her parent, guardian or legal custodian; or
48.227(4)(e)2.
2. That, with the consent of the child and the runaway home, the child remain in the care of the runaway home for a period of not more than 20 days. Without further proceedings, the child shall be released whenever the child indicates, either by statement or conduct, that he or she wishes to leave the home or whenever the runaway home withdraws its consent. During this time period not to exceed 20 days ordered by the court, the child's parent, guardian or legal custodian may not remove the child from the home but may confer with the child or with the person operating the home. If, at the conclusion of the time period ordered by the court the child has not left the home, and no petition concerning the child has been filed under
s. 48.13,
938.12 or
938.13, the child shall be released from the home. If a petition concerning the child has been filed under
s. 48.13,
938.12 or
938.13, the child may be held in temporary physical custody under
ss. 48.20 to
48.21 or
938.20 to
938.21.
48.227(5)
(5) No person operating an approved or licensed home in compliance with this section is subject to civil or criminal liability by virtue of false imprisonment.
48.23
48.23
Right to counsel. 48.23(1)(1)
Right of children to legal representation. Children subject to proceedings under this chapter shall be afforded legal representation as follows:
48.23(1)(a)
(a) Any child held in a secure detention facility shall be represented by counsel at all stages of the proceedings, but a child 15 years of age or older may waive counsel if the court is satisfied that the waiver is knowingly and voluntarily made and the court accepts the waiver.
48.23(1)(b)1.1. If a child is alleged to be in need of protection or services under
s. 48.13, the child may be represented by counsel at the discretion of the court. Except as provided in
subd. 2., a child 15 years of age or older may waive counsel if the court is satisfied such waiver is knowingly and voluntarily made and the court accepts the waiver.
48.23(1)(b)2.
2. If the petition is contested, the court may not place the child outside his or her home unless the child is represented by counsel at the fact-finding hearing and subsequent proceedings. If the petition is not contested, the court may not place the child outside his or her home unless the child is represented by counsel at the hearing at which the placement is made. For a child under 12 years of age, the judge may appoint a guardian ad litem instead of counsel.
48.23(1)(c)
(c) Any child subject to the jurisdiction of the court under
s. 48.14 (5) shall be represented by counsel. No waiver of counsel may be accepted by the court.
48.23(1)(cm)
(cm) Any minor who is subject to the jurisdiction of the circuit court under
s. 48.16 and who is required to appear in court shall be represented by counsel.
48.23(2)
(2) Right of parents to counsel. Whenever a child is the subject of a proceeding involving a contested adoption or the involuntary termination of parental rights, any parent under 18 years of age who appears before the court shall be represented by counsel; but no such parent may waive counsel. A minor parent petitioning for the voluntary termination of parental rights shall be represented by a guardian ad litem. If a proceeding involves a contested adoption or the involuntary termination of parental rights, any parent 18 years old or older who appears before the court shall be represented by counsel; but the parent may waive counsel provided the court is satisfied such waiver is knowingly and voluntarily made.
48.23(3)
(3) Power of the court to appoint counsel. Except in proceedings under
s. 48.13, at any time, upon request or on its own motion, the court may appoint counsel for the child or any party, unless the child or the party has or wishes to retain counsel of his or her own choosing. The court may not appoint counsel for any party other than the child in a proceeding under
s. 48.13.
48.23(3m)
(3m) Guardians ad litem or counsel for abused or neglected children. The court shall appoint counsel for any child alleged to be in need of protection or services under
s. 48.13 (3),
(3m),
(10),
(10m) and
(11), except that if the child is less than 12 years of age the court may appoint a guardian ad litem instead of counsel. The guardian ad litem or counsel for the child shall not be the same as counsel for any party or any governmental or social agency involved.
48.23(4)
(4) Providing counsel. In any situation under this section in which a person has a right to be represented by counsel or is provided counsel at the discretion of the court and counsel is not knowingly and voluntarily waived, the court shall refer the person to the state public defender and counsel shall be appointed by the state public defender under
s. 977.08 without a determination of indigency. If the referral is of a person who has filed a petition under
s. 48.375 (7), the state public defender shall appoint counsel within 24 hours after that referral. Any counsel appointed in a petition filed under
s. 48.375 (7) shall continue to represent the child in any appeal brought under
s. 809.105 unless the child requests substitution of counsel or extenuating circumstances make it impossible for counsel to continue to represent the child. In any situation under
sub. (2) in which a parent 18 years of age or older is entitled to representation by counsel; counsel is not knowingly and voluntarily waived; and it appears that the parent is unable to afford counsel in full, or the parent so indicates; the court shall refer the parent to the authority for indigency determinations specified under
s. 977.07 (1). In any other situation under this section in which a person has a right to be represented by counsel or is provided counsel at the discretion of the court, competent and independent counsel shall be provided and reimbursed in any manner suitable to the court regardless of the person's ability to pay, except that the court may not order a person who files a petition under
s. 813.122 or
813.125 to reimburse counsel for the child who is named as the respondent in that petition.
48.23(5)
(5) Counsel of own choosing. Regardless of any provision of this section, any party is entitled to retain counsel of his or her own choosing at his or her own expense in any proceeding under this chapter.
48.23(6)
(6) Definition. For the purposes of this section, "counsel" means an attorney acting as adversary counsel who shall advance and protect the legal rights of the party represented, and who may not act as guardian ad litem for any party in the same proceeding.
48.23 History
History: 1977 c. 354,
355,
447,
449;
1979 c. 300,
356;
1987 a. 27;
1987 a. 383;
1989 a. 31; Sup. Ct. Order, 151 W (2d) xxv (1989);
1989 a. 56,
107;
1991 a. 263;
1993 a. 377,
385,
395,
451,
491;
1995 a. 27,
77.
48.23 Cross-reference
Cross-reference: See s.
48.275 (2), concerning contribution toward legal expenses by parent or guardian.
48.23 Annotation
See note to 48.422, citing In re Termination of Parental Rights to M. A. M. 116 W (2d) 432, 342 NW (2d) 410 (1984).
48.23 Annotation
Neither temporary custody order nor custodial interrogation were proceedings under (1) (a). State v. Woods, 117 W (2d) 701, 345 NW (2d) 457 (1984).
48.23 Annotation
When party to CHIPS action is represented both by adversary counsel and GAL, adversary counsel must be allowed to zealously represent client's expressed wishes even where GAL holds opposing view. In Interest of T.L. 151 W (2d) 725, 445 NW (2d) 729 (Ct. App. 1989).
48.23 Annotation
Right to be represented by counsel includes right to effective counsel. In Interest of M.D.(S), 168 W (2d) 996, 485 NW (2d) 52 (1992).
48.23 Annotation
The prohibition in sub. (3) against appointing counsel for a party other than the child is unconstitutional. Joni B. v. State, 202 W (2d) 1, 549 NW (2d) 411 (1996).
48.235
48.235
Guardian ad litem. 48.235(1)(a)(a) The court may appoint a guardian ad litem in any appropriate matter under this chapter.
48.235(1)(b)
(b) The court shall appoint a guardian ad litem for a minor parent petitioning for the voluntary termination of parental rights.
48.235(1)(c)
(c) The court shall appoint a guardian ad litem for any child who is the subject of a proceeding to terminate parental rights, whether voluntary or involuntary, for a child who is the subject of a contested adoption proceeding and for a child who is the subject of a proceeding under
s. 48.977.
48.235(1)(d)
(d) The circuit court may appoint a guardian ad litem for a minor in a proceeding under
s. 48.375 (7) to aid the circuit court in determining under
s. 48.375 (7) (c) whether or not the minor is mature and well-informed enough to make the abortion decision on her own and whether or not the performance or inducement of the abortion is in the minor's best interests.
48.235(1)(e)
(e) The court shall appoint a guardian ad litem, or extend the appointment of a guardian ad litem previously appointed under
par. (a), for any child alleged or found to be in need of protection or services, if the court has ordered, or if a request or recommendation has been made that the court order, the child to be placed out of his or her home under
s. 48.345 or
48.357.
48.235(2)
(2) Qualifications. The guardian ad litem shall be an attorney admitted to practice in this state. No person who is an interested party in a proceeding, appears as counsel in a proceeding on behalf of any party or is a relative or representative of an interested party may be appointed guardian ad litem in that proceeding.
48.235(3)(a)(a) The guardian ad litem shall be an advocate for the best interests of the person for whom the appointment is made. The guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but shall not be bound by, the wishes of such person or the positions of others as to the best interests of such person. If the guardian ad litem determines that the best interests of the person are substantially inconsistent with the wishes of such person, the guardian ad litem shall so inform the court and the court may appoint counsel to represent that person. The guardian ad litem has none of the rights or duties of a general guardian.
48.235(3)(b)
(b) In addition to any other duties and responsibilities required of a guardian ad litem, a guardian ad litem appointed for a child who is the subject of a proceeding under
s. 48.13 shall do all of the following:
48.235(3)(b)1.
1. Unless granted leave by the court not to do so, personally, or through a trained designee, meet with the child, assess the appropriateness and safety of the child's environment and, if the child is old enough to communicate, interview the child and determine the child's goals and concerns regarding his or her placement.
48.235(3)(b)2.
2. Make clear and specific recommendations to the court concerning the best interest of the child at every stage of the proceeding.
48.235(4)
(4) Matters involving child in need of protection or services. 48.235(4)(a)(a) In any matter involving a child found to be in need of protection or services, the guardian ad litem may, if reappointed or if the appointment is continued under
sub. (7), do any of the following:
48.235(4)(a)3.
3. Petition for termination of parental rights or any other matter specified under
s. 48.14.
48.235(4)(a)7.
7. Petition for relief from a judgment terminating parental rights under
s. 48.46.
48.235(4)(a)7m.
7m. Bring an action or motion for the determination of the child's paternity under
s. 767.45.
48.235(4)(a)8.
8. Perform any other duties consistent with this chapter.
48.235(4)(b)
(b) The court shall order the agency identified under
s. 48.355 (2) (b) 1. as primarily responsible for the provision of services to notify the guardian ad litem, if any, regarding actions to be taken under
par. (a).
48.235(5)
(5) Matters involving minor parent. The guardian ad litem for a minor parent whose parental rights are the subject of a voluntary termination proceeding shall interview the minor parent, investigate the reason for the termination of parental rights, assess the voluntariness of the consent and inform the minor parent of his or her rights and of the alternatives to, and the effect of, termination of parental rights.
48.235(6)
(6) Communication to a jury. In jury trials under this chapter, the guardian ad litem or the court may tell the jury that the guardian ad litem represents the interests of the person for whom the guardian ad litem was appointed.
48.235(7)
(7) Termination and extension of appointment. The appointment of a guardian ad litem under
sub. (1) terminates upon the entry of the court's final order or upon the termination of any appeal in which the guardian ad litem participates. The guardian ad litem may appeal, may participate in an appeal or may do neither. If an appeal is taken by any party and the guardian ad litem chooses not to participate in that appeal, he or she shall file with the appellate court a statement of reasons for not participating. Irrespective of the guardian ad litem's decision not to participate in an appeal, the appellate court may order the guardian ad litem to participate in the appeal. At any time, the guardian ad litem, any party or the person for whom the appointment is made may request in writing or on the record that the court extend or terminate the appointment or reappointment. The court may extend that appointment, or reappoint a guardian ad litem appointed under this section, after the entry of the final order or after the termination of the appeal, but the court shall specifically state the scope of the responsibilities of the guardian ad litem during the period of that extension or reappointment.
48.235(8)
(8) Compensation. On order of the court, the guardian ad litem appointed under this chapter shall be allowed reasonable compensation to be paid by the county of venue, except that compensation shall be paid by the proposed adoptive parents in uncontested termination proceedings and uncontested adoption cases under
ss. 48.835 and
48.837 and by the agency in uncontested termination proceedings and uncontested adoptions under
s. 48.833. If the proposed adoptive parents are unable to pay, the court may direct that the county of venue pay the compensation, in whole or in part, and may direct that the proposed adoptive parents reimburse the county, in whole or in part, for the payment. If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys under
s. 977.08 (4m) (b). At any time before the final order for adoption, the court may order that payments be placed in an escrow account in an amount estimated to be sufficient to pay the compensation of the guardian ad litem.
48.235 History
History: Sup. Ct. Order, 151 W (2d) xxv (1989);
1991 a. 189,
263;
1993 a. 16,
318,
395;
1995 a. 27,
275.
48.235 Note
Judicial Council Note, 1990: This section is designed to clarify when a guardian ad litem may or shall be appointed under this chapter; to define the duties of the guardian ad litem; and to require the adoptive parents to pay guardian ad litem fees in independent adoptions and the agency to do so in adoptions pursuant to s. 48.837.
48.235 Annotation
Sub. (1) indicates when a guardian ad litem is to be appointed, leaving broad discretion to the court for such appointments.
48.235 Annotation
Sub. (1) (b) and (c) set forth situations in which a guardian ad litem is required. While there are situations in which adversary counsel are an alternative to a guardian ad litem or more desirable and therefore required under s. 48.23, the committee concluded that the best interests of the child must be reflected by a guardian ad litem in the situations enumerated in these paragraphs.
48.235 Annotation
Sub. (2) continues the qualifications currently in s. 48.235.
48.235 Annotation
Sub. (3) addresses the responsibilities of the guardian ad litem. The guardian ad litem is to be an advocate for the best interests of the person for whom the appointment is made. The definition specifically rejects the view that the guardian ad litem should represent the wishes of the subject when they are different from interests. The guardian ad litem is required to inform the court when the wishes of the person differ from what the guardian ad litem believes to be his or her best interests. The definition also stresses the fact that the guardian ad litem should be independent and function in the same manner as the lawyer for a party. This includes the responsibility to serve appropriate documents, to advocate in accordance with the rules of evidence, to avoid ex parte communication, and the like.
48.235 Annotation
Sub. (4) is designed to suggest the possible duties of a guardian ad litem after a CHIPS order. Continuation of the guardian ad litem is discretionary with the court in such situations, as provided in sub. (7). Sub. (4) specifically permits the continued involvement of the guardian ad litem in permanency planning and in the monitoring of the placement. It also makes it clear that, if it is in the best interests of the child, the guardian ad litem may seek the termination of the parental rights of the parents of the child and prosecute such an action. It is not intended to limit the responsibilities to those noted. The court may require the department to give appropriate notice to the guardian ad litem so the duties can be fulfilled.
48.235 Annotation
Sub. (5) clarifies the responsibilities of the guardian ad litem for minor parents in termination cases, in the way of investigation and communication.
48.235 Annotation
Sub. (6) permits the guardian ad litem or court to explain to the jury that he or she represents the interests of the person. This is to avoid unnecessary confusion.
48.235 Annotation
Sub. (7) provides for the termination of appointment of the guardian ad litem upon entry of the court's final order unless the court extends or reappoints, indicating the scope of continuing responsibility. There are a large number of things a guardian ad litem might do during the period of extension or reappointment, including participate in permanency planning, seek extension or revision of dispositional orders, seek a change in placement and the like. The court might well identify general concerns to which the guardian ad litem should continue to be attentive, leaving to the guardian ad litem the methods to carry out the delegation of responsibility. This subsection also provides for the involvement of the guardian ad litem in appeals, leaving to the guardian ad litem broad discretion as to whether and how to participate. The requirement that the guardian ad litem notify the appellate court if the guardian ad litem chooses not to participate is to ensure that the guardian ad litem reflects on this important decision. The appellate court may require participation, notwithstanding the guardian ad litem's decision.
48.235 Annotation
Sub. (8) retains the current law that, unless the court otherwise orders, the county pays the fees of the guardian ad litem in matters under this chapter, but it creates an exception for uncontested termination proceedings and uncontested adoptions, in which cases the adoptive parents or the agency are required to pay this fee unless the court finds they are unable to do so. The court is given the authority to require advance payment of the guardian ad litem fees into an escrow account. [Re Order effective Jan. 1, 1990]
48.235 Annotation
See note to 48.23, citing In Interest of T.L., 151 W (2d) 725, 445 NW (2d) 729 (Ct. App. 1989).
48.235 Annotation
The courts' power to appropriate compensation for court-appointed counsel is necessary for the effective operation of the judicial system. In ordering compensation for court ordered attorneys, a court should abide by the s. 977.08 (4m) rate when it can retain qualified and effective counsel at that rate, but should order compensation at the rate under
SCR 81.01 or 81.02 or a higher rate when necessary to secure effective counsel. Friedrich v. Dane County Circuit Ct. 192 W (2d) 1, 531 NW (2d) 32 (1995).
PROCEDURE
48.24
48.24
Receipt of jurisdictional information; intake inquiry. 48.24(1)(1) Information indicating that a child should be referred to the court as in need of protection or services shall be referred to the intake worker, who shall conduct an intake inquiry on behalf of the court to determine whether the available facts establish prima facie jurisdiction and to determine the best interests of the child and of the public with regard to any action to be taken.
48.24(1m)
(1m) As part of the intake inquiry, the intake worker shall inform the child and the child's parent, guardian and legal custodian that they may request counseling from a person designated by the court to provide dispositional services under
s. 48.069.
