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.
938.243(3)
(3) If the juvenile has not had a hearing under
s. 938.21 and was not present at an intake conference under
s. 938.24, the intake worker shall inform the juvenile, parent, guardian and legal custodian as appropriate of their basic rights under this section. This notice shall be given verbally, either in person or by telephone, and in writing. This notice shall be given so as to allow the juvenile, parent, guardian or legal custodian sufficient time to prepare for the plea hearing. This subsection does not apply to cases of deferred prosecution under
s. 938.245.
938.243(4)
(4) This section does not apply if the juvenile was present at a hearing under
s. 938.21.
938.243 History
History: 1995 a. 77;
1997 a. 35.
938.245
938.245
Deferred prosecution. 938.245(1)
(1) The intake worker may enter into a written deferred prosecution agreement with all parties as provided in this section if the intake worker has determined that neither the interests of the juvenile nor of the public require filing of a petition for circumstances relating to
s. 938.12,
938.125,
938.13 or
938.14. Deferred prosecution shall be available only if the facts persuade the intake worker that the jurisdiction of the court, if sought, would exist and upon consent of the juvenile, parent, guardian and legal custodian.
938.245(1m)
(1m) 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), an intake worker shall, as soon as practicable but in any event before entering into a deferred prosecution agreement under
sub. (1), offer all of the victims of the juvenile's alleged act who have requested the opportunity an opportunity to confer with the intake worker concerning the proposed deferred prosecution agreement. The duty to confer under this subsection does not limit the obligation of the intake worker to perform his or her responsibilities under this section.
938.245(2)(a)(a) A deferred prosecution agreement may provide for any one or more of the following:
938.245(2)(a)1.
1. That the juvenile and the juvenile's parent, guardian or legal custodian participate in individual, family or group counseling and that the parent, guardian or legal custodian participate in parenting skills training.
938.245(2)(a)2.
2. That the juvenile and a parent, guardian and legal custodian abide by such obligations, including supervision, curfews and school attendance requirements, as will tend to ensure the juvenile's rehabilitation, protection or care.
938.245(2)(a)3.
3. That the juvenile submit to an alcohol and other drug abuse assessment that conforms to the criteria specified under
s. 938.547 (4) and that is conducted by an approved treatment facility for an examination of the juvenile's use of alcohol beverages, controlled substances or controlled substance analogs and any medical, personal, family or social effects caused by its use, if the multidisciplinary screen conducted under
s. 938.24 (2) shows that the juvenile is at risk of having needs and problems related to the use of alcohol beverages, controlled substances or controlled substance analogs and its medical, personal, family or social effects.
938.245(2)(a)4.
4. That the juvenile participate in an alcohol and other drug abuse outpatient treatment program, a court-approved pupil assistance program provided by the juvenile's school board or a court-approved alcohol or other drug abuse education program, if an alcohol and other drug abuse assessment conducted under
subd. 3. recommends outpatient treatment, intervention or education. The juvenile's participation in a court-approved pupil assistance program under this subdivision is subject to the approval of the juvenile's school board.
938.245(2)(a)5.a.a. That the juvenile participate in a restitution project if the act for which the deferred prosecution agreement is being entered into has resulted in damage to the property of another, or in actual physical injury to another excluding pain and suffering. Subject to
subd. 5. c., the deferred prosecution agreement may require the juvenile to repair the damage to property or to make reasonable restitution for the damage or injury, either in the form of cash payments or, if the victim agrees, the performance of services for the victim, or both, if the intake worker, after taking into consideration the well-being and needs of the victim, considers it beneficial to the well-being and behavior of the juvenile. Any such deferred prosecution agreement shall include a determination that the juvenile alone is financially able to pay or physically able to perform the services, may allow up to the date of the expiration of the deferred prosecution agreement for the payment or for the completion of the services and may include a schedule for the performance and completion of the services. Any recovery under this
subd. 5. a. shall be reduced by the amount recovered as restitution for the same act under
subd. 5. am.
938.245 Note
NOTE: Subd. par. a. is shown as affected by two acts of the 1997 legislature and as merged by the revisor under s. 13.93 (2) (c).
938.245(2)(a)5.am.
am. That the parent who has custody, as defined in
s. 895.035 (1), of the juvenile make reasonable restitution for any damage to the property of another, or for any actual physical injury to another excluding pain and suffering, resulting from the act for which the deferred prosecution agreement is being entered into. Except for recovery for retail theft under
s. 943.51, the maximum amount of any restitution ordered under this
subd. 5. am. for damage or injury resulting from any one act of a juvenile or from the same act committed by 2 or more juveniles in the custody of the same parent may not exceed the amount specified in
s. 799.01 (1) (d). Any order under this
subd. 5. am. shall include a finding that the parent who has custody of the juvenile is financially able to pay the amount ordered and may allow up to the date of the expiration of the deferred prosecution agreement for the payment. Any recovery under this
subd. 5. am. shall be reduced by the amount recovered as restitution for the same act under
subd. 5. a.
938.245(2)(a)5.b.
b. In addition to any other employment or duties permitted under
ch. 103 or any rule or order under
ch. 103, a juvenile under 14 years of age who is participating in a restitution project provided by the county or who is performing services for the victim as restitution may, for the purpose of making restitution, be employed or perform any duties under any circumstances in which a juvenile 14 or 15 years of age is permitted to be employed or to perform duties under
ch. 103 or any rule or order under
ch. 103. A juvenile who is participating in a restitution project provided by the county or who is performing services for the victim as restitution is exempt from the permit requirement under
s. 103.70 (1).
938.245(2)(a)5.c.
c. Under this subdivision, a deferred prosecution agreement may not require a juvenile who is under 14 years of age to make more than $250 in restitution or to perform more than 40 total hours of services for the victim as restitution.
