938.23
938.23
Right to counsel. 938.23(1)(1)
Right of juveniles to legal representation. Juveniles subject to proceedings under this chapter shall be afforded legal representation as follows:
938.23(1)(a)
(a) Any juvenile alleged to be delinquent under
s. 938.12 or held in a secure detention facility shall be represented by counsel at all stages of the proceedings, but a juvenile 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. If the waiver is accepted, the court may not place the juvenile in a secured correctional facility, transfer supervision of the juvenile to the department for participation in the serious juvenile offender program or transfer jurisdiction over the juvenile to adult court.
938.23(1)(ar)
(ar) A juvenile subject to proceedings under
s. 938.357 (3) or
(5) shall be afforded legal representation as provided in those subsections.
938.23(1)(b)1.1. If a juvenile is alleged to be in need of protection or services under
s. 938.13, the juvenile may be represented by counsel at the discretion of the court. Except as provided in
subd. 2., a juvenile 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.
938.23(1)(b)2.
2. If the petition is contested, the court may not place the juvenile outside his or her home unless the juvenile is represented by counsel at the fact-finding hearing and subsequent proceedings. If the petition is not contested, the court may not place the juvenile outside his or her home unless the juvenile is represented by counsel at the hearing at which the placement is made. For a juvenile under 12 years of age, the judge may appoint a guardian ad litem instead of counsel.
938.23(3)
(3) Power of the court to appoint counsel. Except in proceedings under
s. 938.13, at any time, upon request or on its own motion, the court may appoint counsel for the juvenile or any party, unless the juvenile 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 juvenile in a proceeding under
s. 938.13.
938.23(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. 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 juvenile who is named as the respondent in that petition.
938.23(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.
938.23(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.
938.23 History
History: 1995 a. 77.
938.23 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).
938.235(1)(a)(a) The court may appoint a guardian ad litem in any appropriate matter under this chapter.
938.235(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 juvenile 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 juvenile to be placed out of his or her home under
s. 938.345 or
938.357.
938.235(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, who appears as counsel in a proceeding on behalf of any party or who is a relative or representative of an interested party may be appointed guardian ad litem in that proceeding.
938.235(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.
938.235(3)(b)
(b) In addition to any other duties and responsibilities required of a guardian ad litem, a guardian ad litem appointed for a juvenile who is the subject of a proceeding under
s. 938.13 shall do all of the following:
938.235(3)(b)1.
1. Unless granted leave by the court not to do so, personally, or through a trained designee, meet with the juvenile, assess the appropriateness and safety of the juvenile's environment and, if the juvenile is old enough to communicate, interview the juvenile and determine the juvenile's goals and concerns regarding his or her placement.
938.235(3)(b)2.
2. Make clear and specific recommendations to the court concerning the best interest of the juvenile at every stage of the proceeding.
938.235(4)
(4) Matters involving juvenile in need of protection or services. 938.235(4)(a)(a) In any matter involving a juvenile 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:
938.235(4)(a)7m.
7m. Bring an action or motion for the determination of the juvenile's paternity under
s. 767.45.
938.235(4)(b)
(b) The court shall order the agency identified under
s. 938.355 (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).
938.235(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.
938.235(8)(a)(a) A guardian ad litem appointed under this chapter shall be compensated at a rate that the court determines is reasonable, except that, if the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation payable to a private attorney under
s. 977.08 (4m) (b).
938.235(8)(b)
(b) The court may order either or both of the parents of a juvenile for whom a guardian ad litem is appointed under this chapter to pay all or any part of the compensation of the guardian ad litem. In addition, upon motion by the guardian ad litem, the court may order either or both of the parents of the juvenile to pay the fee for an expert witness used by the guardian ad litem, if the guardian ad litem shows that the use of the expert is necessary to assist the guardian ad litem in performing his or her functions or duties under this chapter. If one or both parents are indigent or if the court determines that it would be unfair to a parent to require him or her to pay, the court may order the county of venue to pay the compensation and fees, in whole or in part. If the court orders the county of venue to pay because a parent is indigent, the court may also order either or both of the parents to reimburse the county, in whole or in part, for the payment.
938.235(8)(c)
(c) At any time before the final order in a proceeding in which a guardian ad litem is appointed for a juvenile under this chapter, the court may order a parent of the juvenile to place payments in an escrow account in an amount estimated to be sufficient to pay any compensation and fees payable under
par. (b).
938.235(8)(d)
(d) If the court orders a parent to reimburse a county under
par. (b), the court may order a separate judgment for the amount of the reimbursement in favor of the county and against the parent who is responsible for the reimbursement.
938.235(8)(e)
(e) The court may enforce its orders under this subsection by means of its contempt powers.
938.235 History
History: 1995 a. 77,
275;
1997 a. 237.
938.237
938.237
Civil law and ordinance proceedings initiated by citation in the court assigned to exercise jurisdiction under this chapter and ch. 48. 938.237(2)
(2) The procedures for issuance and filing of a citation, and for forfeitures, stipulations and deposits in
ss. 23.50 to
23.67,
23.75 (3) and
(4),
66.119,
778.25,
778.26 and
800.01 to
800.04 except
s. 800.04 (2) (b), when the citation is issued by a law enforcement officer, shall be used as appropriate, except that this chapter shall govern taking and holding a juvenile in custody,
s. 938.37 shall govern costs, penalty assessments and jail assessments, and a capias shall be substituted for an arrest warrant.
Sections 66.119 (3) (c) and
(d),
66.12 (1) and
778.10 as they relate to collection of forfeitures do not apply.
938.237(3)
(3) If a juvenile to whom a citation has been issued does not submit a deposit or a stipulation and deposit, the juvenile shall appear in the court for a plea hearing under
s. 938.30 at the date, time and place for the court appearance specified on the citation. If the juvenile does not submit a stipulation and deposit or if the court refuses to accept a deposit unaccompanied by a stipulation, the juvenile may be summoned to appear and the procedures that govern petitions for civil law or ordinance violations under
s. 938.125 shall govern all proceedings initiated by a citation, except that the citation shall not be referred to the court intake worker for an intake inquiry. If the court finds that a juvenile violated a municipal ordinance or a civil law punishable by a forfeiture under this section, the court shall enter a dispositional order under
s. 938.344, if applicable, or if
s. 938.344 does not apply, the court may enter any of the dispositional orders under
s. 938.343.
938.237 History
History: 1995 a. 77.
PROCEDURE
938.24
938.24
Receipt of jurisdictional information; intake inquiry. 938.24(1)(1) Except when a citation has been issued under
s. 938.17 (2), information indicating that a juvenile should be referred to the court as delinquent, in need of protection or services or in violation of a civil law or a county, town or municipal ordinance 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 juvenile and of the public with regard to any action to be taken.
938.24(1m)
(1m) As part of the intake inquiry, the intake worker shall inform the juvenile and the juvenile's parent, guardian and legal custodian that they may request counseling from a person designated by the court to provide dispositional services under
s. 938.069.
938.24(2)(a)(a) As part of the intake inquiry the intake worker may conduct multidisciplinary screens and intake conferences with notice to the juvenile, parent, guardian and legal custodian. If
sub. (2m) applies, the intake worker shall conduct a multidisciplinary screen under
s. 938.547 if the juvenile has not refused to participate under
par. (b).
938.24(2)(b)
(b) No juvenile or other person may be compelled to appear at any conference, participate in a multidisciplinary screen, produce any papers or visit any place by an intake worker.
938.24(2m)(a)(a) In counties that have a pilot program under
s. 938.547, a multidisciplinary screen shall be conducted for:
938.24(2m)(a)1.
1. Any juvenile alleged to have committed a violation specified under
ch. 961.
938.24(2m)(a)3.
3. Any juvenile alleged to have committed any offense which appears to the intake worker to be directly motivated by the juvenile's need to purchase or otherwise obtain alcohol beverages, controlled substances or controlled substance analogs.
938.24(2m)(a)4.
4. Any juvenile 12 years of age or older who requests and consents to a multidisciplinary screen.
938.24(2m)(a)5.
5. Any juvenile who consents to a multidisciplinary screen requested by his or her parents.
938.24(2m)(b)
(b) The multidisciplinary screen may be conducted by an intake worker for any reason other than those specified in the criteria under
par. (a).
938.24(3)
(3) If the intake worker determines as a result of the intake inquiry that the juvenile should be referred to the court, the intake worker shall request that the district attorney, corporation counsel or other official specified in
s. 938.09 file a petition.
938.24(4)
(4) If the intake worker determines as a result of the intake inquiry that the case should be subject to a deferred prosecution agreement, or should be closed, the intake worker shall so proceed. If a petition has been filed, a deferred prosecution agreement may not be entered into or a case may not be closed unless the petition is withdrawn by the district attorney, corporation counsel or other official specified in
s. 938.09, or is dismissed by the judge.
938.24(5)
(5) The intake worker shall request that a petition be filed, enter into a deferred prosecution agreement or close the case within 40 days or sooner of receipt of referral information. Before entering into a deferred prosecution agreement, the intake worker shall comply with
s. 938.245 (1m), if applicable. If the case is closed or a deferred prosecution agreement is entered into, the district attorney, corporation counsel or other official under
s. 938.09 shall receive written notice of such action. If the case is closed, the known victims of the juvenile's alleged act shall receive notice as provided under
sub. (5m), if applicable. In addition, if a deferred prosecution agreement is entered into placing a juvenile in a youth village program as described in
s. 118.42, the judge or juvenile court commissioner shall receive written notice of such action and, on receipt of that notice, shall enter an order requiring compliance with that agreement. A notice of deferred prosecution of an alleged delinquency case shall include a summary of the facts surrounding the allegation and a list of prior intake referrals and dispositions. If a law enforcement officer has made a recommendation concerning the juvenile, the intake worker shall forward this recommendation to the district attorney under
s. 938.09. Notwithstanding the requirements of this section, the district attorney may initiate a delinquency petition under
s. 938.25 within 20 days after notice that the case has been closed or that a deferred prosecution agreement has been entered into. The judge shall grant appropriate relief as provided in
s. 938.315 (3) with respect to any such petition which is not referred or filed within the time limits specified within this subsection. Failure to object if a petition is not referred or filed within a time limit specified in this subsection waives that time limit.
938.24(5m)
(5m) If a juvenile is alleged to be delinquent under
s. 938.12 or to be in need of protection or services under
s. 938.13 (12) and the intake worker decides to close the case, the intake worker shall make a reasonable attempt to inform all of the known victims of the juvenile's act that the case is being closed at that time.
938.24(6)
(6) The intake worker shall perform his or her responsibilities under this section under general written policies which the judge shall promulgate under
s. 938.06 (1) or
(2).
938.24(7)
(7) If a citation is issued to a juvenile, the citation shall not be the subject of an intake inquiry or a review by an intake worker for the purpose of recommending deferred prosecution.
938.24 History
History: 1995 a. 77,
275,
352,
448;
1997 a. 181.
938.24 Annotation
Under facts of case, (5) didn't mandate dismissal although referral wasn't made within 40 days. In re J. L. W., 143 W (2d) 126, 420 NW (2d) 398 (Ct. App. 1988).
938.24 Annotation
Under (1), "information indicating that a child should be referred to the court as delinquent" is that quantum of information that would allow a reasonable intake worker to evaluate the appropriate disposition of the matter. In Interest of J.W.T., 159 W (2d) 754, 465 NW (2d) 520 (Ct. App. 1990).
938.24 Annotation
Sub. (5), when read in conjunction with sub. (3), requires that an intake worker request the district attorney to file a delinquency petition and does not require the intake worker to make a recommendation that a petition be filed. Interest of Antonio M.C. 182 W (2d) 301, 513 NW (2d) 662 (Ct. App. 1994).
938.24 Annotation
Procedural Changes. Plum. Wis. Law. Apr. 1996.
938.24 Note
NOTE: The above annotated cases cited to s. 48.24, the predecessor statute to s. 938.24.
938.243
938.243
Basic rights: duty of intake worker. 938.243(1)
(1) Before conferring with the parent or juvenile during the intake inquiry, the intake worker shall personally inform a juvenile alleged to have committed a delinquent act, and parents and juveniles 10 years of age or over who are the focus of an inquiry regarding the need for protection or services under
s. 938.13 (4),
(6),
(6m) or
(7), of all of the following:
938.243(1)(ag)
(ag) That the referral may result in a petition to the court.
938.243(1)(am)
(am) What allegations could be in the petition to the court.
938.243(1)(b)
(b) The nature and possible consequences of the proceedings including the provisions of
ss. 938.17 and
938.18 if applicable.
938.243(1)(c)
(c) The right to remain silent and the fact that in a delinquency proceeding the silence of the juvenile shall not be adversely considered by the court although the silence of any party may be relevant in any nondelinquency proceeding.
938.243(1)(d)
(d) The right to confront and cross-examine those appearing against them.
938.243(1)(h)
(h) The right to have the allegations of the petition proved by clear and convincing evidence unless the juvenile comes within the court's jurisdiction under
s. 938.12 or
938.13 (12), in which case the standard of proof shall be beyond a reasonable doubt.
938.243(1m)
(1m) If the juvenile who is the subject of the intake inquiry is alleged to have committed an act which resulted in personal injury or damage to or loss of the property of another, the intake worker shall inform the juvenile's parents in writing of the possibility of disclosure of the identity of the juvenile and the parents, of the juvenile's police records and of the outcome of proceedings against the juvenile for use in civil actions for damages against the juvenile or the parents and of the parents' potential liability for acts of their juveniles.
