48.275(2)(a)(a) If this state or a county provides legal counsel to a child who is subject to a proceeding under
s. 48.13 or to a child expectant mother who is subject to a proceeding under
s. 48.133, the court shall order the child's parent to reimburse the state or county in accordance with
par. (b) or
(c). If this state or a county provides legal counsel to an adult expectant mother who is subject to a proceeding under
s. 48.133, the court shall order the adult expectant mother to reimburse the state or county in accordance with
par. (b) or
(c). The court may not order reimbursement if a parent is the complaining or petitioning party or if the court finds that the interests of the parent and the interests of the child in the proceeding are substantially and directly adverse and that reimbursement would be unfair to the parent. The court may not order reimbursement until the completion of the proceeding or until the state or county is no longer providing the child or expectant mother with legal counsel in the proceeding.
48.275(2)(b)
(b) If this state provides the child or adult expectant mother with legal counsel and the court orders reimbursement under
par. (a), the child's parent or the adult expectant mother may request the state public defender to determine whether the parent or adult expectant mother is indigent as provided under
s. 977.07 and to determine the amount of reimbursement. If the parent or adult expectant mother is found not to be indigent, the amount of reimbursement shall be the maximum amount established by the public defender board. If the parent or adult expectant mother is found to be indigent in part, the amount of reimbursement shall be the amount of partial payment determined in accordance with the rules of the public defender board under
s. 977.02 (3).
48.275(2)(c)
(c) If the county provides the child or adult expectant mother with legal counsel and the court orders reimbursement under
par. (a), the court shall either make a determination of indigency or shall appoint the county department to make the determination. If the court or the county department finds that the parent or adult expectant mother is not indigent or is indigent in part, the court shall establish the amount of reimbursement and shall order the parent or adult expectant mother to pay it.
48.275(2)(cg)
(cg) The court shall, upon motion by a parent or expectant mother, hold a hearing to review any of the following:
48.275(2)(cg)3.
3. The court's finding, under
par. (a), that the interests of the parent and the child are not substantially and directly adverse and that ordering the payment of reimbursement would not be unfair to the parent.
48.275(2)(cr)
(cr) Following a hearing under
par. (cg), the court may affirm, rescind or modify the reimbursement order.
48.275(2)(d)1.1. In a county having a population of less than 500,000, reimbursement payments shall be made to the clerk of courts of the county where the proceedings took place. Each payment shall be transmitted to the county treasurer, who shall deposit 25% of the amount paid for state-provided counsel in the county treasury and transmit the remainder to the state treasurer. Payments transmitted to the state treasurer shall be deposited in the general fund and credited to the appropriation account under
s. 20.550 (1) (L). The county treasurer shall deposit 100% of the amount paid for county-provided counsel in the county treasury.
48.275(2)(d)2.
2. In a county having a population of 500,000 or more, reimbursement payments shall be made to the clerk of courts of the county where the proceedings took place. Each payment shall be transmitted to the state treasurer, who shall deposit the amount paid in the general fund and credit 25% of the amount paid to the appropriation account under
s. 20.435 (3) (gx) and the remainder to the appropriation account under
s. 20.550 (1) (L).
48.275(2)(dm)
(dm) Within 30 days after each calendar quarter, the clerk of court for each county shall report to the state public defender all of the following:
48.275(2)(dm)1.
1. The total amount of reimbursement determined or ordered under
par. (b) or
(cr) for state-provided counsel during the previous calendar quarter.
48.275(2)(dm)2.
2. The total amount collected under
par. (d) for state-provided counsel during the previous calendar quarter.
48.275(2)(e)
(e) A person who fails to comply with an order under
par. (b) or
(c) may be proceeded against for contempt of court under
ch. 785.
48.275 Annotation
Guardian ad litem fees are not reimbursable under sub.(2) (a). In Interest of G. & L.P.
119 Wis. 2d 349,
349 N.W.2d 743 (Ct. App. 1984).
48.28
48.28
Failure to obey summons; capias. If any person summoned fails without reasonable cause to appear, he or she may be proceeded against for contempt of court. In case the summons cannot be served or the parties served fail to obey the same, or in any case when it appears to the court that the service will be ineffectual a capias may be issued for the parent or guardian or for the child.
Subchapter IV governs the taking and holding of a child in custody.
48.28 History
History: 1977 c. 354 s.
41; Stats. 1977 s. 48.28;
1979 c. 331,
359.
48.28 Annotation
The issuance of a capias to secure the physical attendance of a juvenile prior to the service of the summons and petition on the juvenile was error but did not deny the court personal jurisdiction. Interest of Jermaine T.J.
181 Wis. 2d 82,
510 N.W.2d 735 (Ct. App. 1993).
48.29
48.29
Substitution of judge. 48.29(1)
(1) The child, the child's parent, guardian or legal custodian, the expectant mother or the unborn child by the unborn child's guardian ad litem, either before or during the plea hearing, may file a written request with the clerk of the court or other person acting as the clerk for a substitution of the judge assigned to the proceeding. Upon filing the written request, the filing party shall immediately mail or deliver a copy of the request to the judge named in the request. When any person has the right to request a substitution of judge, that person's counsel or guardian ad litem may file the request. Not more than one such written request may be filed in any one proceeding, nor may any single request name more than one judge. This section does not apply to proceedings under
s. 48.21 or
48.213.
48.29(1m)
(1m) When the clerk receives a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. If the request is found to be timely and in proper form, the judge named in the request has no further jurisdiction and the clerk shall request the assignment of another judge under
s. 751.03. If no determination is made within 7 days, the clerk shall refer the matter to the chief judge of the judicial administrative district for determination of whether the request was made timely and in proper form and reassignment as necessary.
48.29(3)
(3) Subsections (1) and
(1m) do not apply in any proceeding under
s. 48.375 (7). For proceedings under
s. 48.375 (7), the minor may select the judge whom she wishes to be assigned to the proceeding and that judge shall be assigned to the proceeding.
48.293(1)(1) Copies of all law enforcement officer reports, including the officer's memorandum and witnesses' statements, shall be made available upon request to counsel or guardian ad litem for any party and to the court-appointed special advocate for the child prior to a plea hearing. The reports shall be available through the representative of the public designated under
s. 48.09. The identity of a confidential informant may be withheld pursuant to
s. 905.10.
48.293(2)
(2) All records relating to a child, or to an unborn child and the unborn child's expectant mother, which are relevant to the subject matter of a proceeding under this chapter shall be open to inspection by a guardian ad litem or counsel for any party and to inspection by the court-appointed special advocate for the child, upon demand and upon presentation of releases when necessary, at least 48 hours before the proceeding. Persons and unborn children, by their guardians ad litem, entitled to inspect the records may obtain copies of the records with the permission of the custodian of the records or with permission of the court. The court may instruct counsel, a guardian ad litem or a court-appointed special advocate not to disclose specified items in the materials to the child or the parent, or to the expectant mother, if the court reasonably believes that the disclosure would be harmful to the interests of the child or the unborn child.
48.293(3)
(3) Upon request prior to the fact-finding hearing, counsel for the interests of the public shall disclose to the child, through his or her counsel or guardian ad litem, or to the unborn child, through the unborn child's guardian ad litem, the existence of any videotaped oral statement of a child under
s. 908.08 which is within the possession, custody or control of the state and shall make reasonable arrangements for the requesting person to view the videotaped oral statement. If, subsequent to compliance with this subsection, the state obtains possession, custody or control of such a videotaped statement, counsel for the interests of the public shall promptly notify the requesting person of that fact and make reasonable arrangements for the requesting person to view the videotaped oral statement.
48.293(4)
(4) In addition to the discovery procedures permitted under
subs. (1) to
(3), the discovery procedures permitted under
ch. 804 shall apply in all proceedings under this chapter.
48.293 Note
Judicial Council Note, 1985: Sub. (3) makes videotaped oral statements of children in the possession, custody or control of the state discoverable upon demand by the child, child's counsel or guardian ad litem. These statements may be admissible under s. 908.08, stats. [85 Act 262]
48.293 Annotation
Prior to a waiver hearing a juvenile does not have broad discovery rights under this section. In Interest of T. M. J.
110 Wis. 2d 7,
327 N.W.2d 198 (Ct. App. 1982).
48.293 Annotation
This section is the exclusive source of discovery rights of parties in ch. 48 actions. That ch. 804 discovery procedures are not available in ch. 48 actions does not deny due process. State v. Tammy F.
196 Wis. 2d 981,
539 N.W.2d 475 (Ct. App. 1995).
48.295
48.295
Physical, psychological, mental or developmental examination. 48.295(1)(1) After the filing of a petition and upon a finding by the court that reasonable cause exists to warrant an examination or an alcohol and other drug abuse assessment that conforms to the criteria specified under
s. 48.547 (4), the court may order any child coming within its jurisdiction to be examined as an outpatient by personnel in an approved treatment facility for alcohol and other drug abuse, by a physician, psychiatrist or licensed psychologist, or by another expert appointed by the court holding at least a master's degree in social work or another related field of child development, in order that the child's physical, psychological, alcohol or other drug dependency, mental or developmental condition may be considered. The court may also order an examination or an alcohol and other drug abuse assessment that conforms to the criteria specified under
s. 48.547 (4) of a parent, guardian or legal custodian whose ability to care for a child is at issue before the court or of an expectant mother whose ability to control her use of alcohol beverages, controlled substances or controlled substance analogs is at issue before the court. The court shall hear any objections by the child, the child's parents, guardian or legal custodian to the request for such an examination or assessment before ordering the examination or assessment. The expenses of an examination, if approved by the court, shall be paid by the county of the court ordering the examination in a county having a population of less than 500,000 or by the department in a county having a population of 500,000 or more. The payment for an alcohol and other drug abuse assessment shall be in accordance with
s. 48.361.
48.295(1c)
(1c) Reasonable cause is considered to exist to warrant an alcohol and other drug abuse assessment under
sub. (1) if the multidisciplinary screen procedure conducted under
s. 48.24 (2) indicates that the child or expectant mother is at risk of having needs and problems related to alcohol or other drug abuse.
48.295(1g)
(1g) If the court orders an alcohol or other drug abuse assessment under
sub. (1), the approved treatment facility shall, within 14 days after the court order, report the results of the assessment to the court, except that, upon request by the approved treatment facility and if the child is not an expectant mother under
s. 48.133 and is not held in secure or nonsecure custody, the court may extend the period for assessment for not more than 20 additional working days. The report shall include a recommendation as to whether the child or expectant mother is in need of treatment for abuse of alcohol beverages, controlled substances or controlled substance analogs or education relating to the use of alcohol beverages, controlled substances and controlled substance analogs and, if so, shall recommend a service plan and an appropriate treatment, from an approved treatment facility, or a court-approved education program.
48.295(2)
(2) The examiner shall file a report of the examination with the court by the date specified in the order. The court shall cause copies to be transmitted to the district attorney or corporation counsel, to counsel or guardian ad litem for the child and to the court-appointed special advocate for the child. If applicable, the court shall also cause copies to be transmitted to counsel or guardian ad litem for the unborn child and the unborn child's expectant mother. The report shall describe the nature of the examination and identify the persons interviewed, the particular records reviewed and any tests administered to the child or expectant mother. The report shall also state in reasonable detail the facts and reasoning upon which the examiner's opinions are based.
48.295(3)
(3) If the child, the child's parent or the expectant mother objects to a particular physician, psychiatrist, licensed psychologist or other expert as required under this section, the court shall appoint a different physician, psychiatrist, psychologist or other expert as required under this section.
48.295(4)
(4) Motions or objections under this section may be heard under
s. 807.13.
48.295 Note
Judicial Council Note, 1988: Sub. (4) allows oral argument on motions or objections under this section to be heard by telephone. [Re Order effective Jan. 1, 1988]
48.297
48.297
Motions before trial. 48.297(1)
(1) Any motion which is capable of determination without trial of the general issue may be made before trial.
48.297(2)
(2) Defenses and objections based on defects in the institution of proceedings, lack of probable cause on the face of the petition, insufficiency of the petition or invalidity in whole or in part of the statute on which the petition is founded shall be raised not later than 10 days after the plea hearing or be deemed waived. Other motions capable of determination without trial may be brought any time before trial.
48.297(3)
(3) Motions to suppress evidence as having been illegally seized or statements as having been illegally obtained shall be made before fact-finding on the issues. The court may entertain the motion at the fact-finding hearing if it appears that a party is surprised by the attempt to introduce such evidence and that party waives jeopardy.
48.297(4)
(4) Although the taking of a child or an expectant mother of an unborn child into custody is not an arrest, that taking into custody shall be considered an arrest for the purpose of deciding motions which require a decision about the propriety of taking into custody, including motions to suppress evidence as illegally seized, motions to suppress statements as illegally obtained and motions challenging the lawfulness of the taking into custody.
48.297(5)
(5) If the child or the expectant mother of an unborn child is in custody and the court grants a motion to dismiss based on a defect in the petition or in the institution of the proceedings, the court may order the child or expectant mother to be continued in custody for not more than 48 hours pending the filing of a new petition.
48.297(6)
(6) A motion required to be served on a child may be served on his or her attorney of record. A motion required to be served on an unborn child may be served on the unborn child's guardian ad litem.
48.297(7)
(7) Oral argument permitted on motions under this section may be heard by telephone under
s. 807.13 (1).
48.297 History
History: 1977 c. 354;
1979 c. 300,
331,
359; Sup. Ct. Order, 141 Wis. 2d xiii (1987);
1995 a. 77;
1997 a. 35,
292.
48.299
48.299
Procedures at hearings. 48.299(1)(a)(a) The general public shall be excluded from hearings under this chapter and from hearings by courts exercising jurisdiction under
s. 48.16 unless a public fact-finding hearing is demanded by a child through his or her counsel, by an expectant mother through her counsel or by an unborn child through the unborn child's guardian ad litem. However, the court shall refuse to grant the public hearing in a proceeding other than a proceeding under
s. 48.375 (7), if a parent, guardian, expectant mother or unborn child through the unborn child's guardian ad litem objects.
48.299(1)(ag)
(ag) In a proceeding other than a proceeding under
s. 48.375 (7), if a public hearing is not held, only the parties and their counsel or guardian ad litem, the court-appointed special advocate for the child, the child's foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2), witnesses and other persons requested by a party and approved by the court may be present, except that the court may exclude a foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) from any portion of the hearing if that portion of the hearing deals with sensitive personal information of the child or the child's family or if the court determines that excluding the foster parent, treatment foster parent or other physical custodian would be in the best interests of the child. Except in a proceeding under
s. 48.375 (7), any other person the court finds to have a proper interest in the case or in the work of the court, including a member of the bar, may be admitted by the court.
48.299(1)(ar)
(ar) All hearings under
s. 48.375 (7) shall be held in chambers, unless a public fact-finding hearing is demanded by the child through her counsel. In a proceeding under
s. 48.375 (7), the child's foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) may be present if requested by a party and approved by the court.
48.299(1)(b)
(b) Except as provided in
ss. 48.375 (7) (e) and
48.396, any person who divulges any information which would identify the child, the expectant mother or the family involved in any proceeding under this chapter shall be subject to
ch. 785.
48.299(3)
(3) If the court finds that it is in the best interest of the child, and if the child's counsel or guardian ad litem consents, the child may be temporarily excluded by the court from a hearing on a petition alleging that the child is in need of protection or services. If the court finds that a child under 7 years of age is too young to comprehend the hearing, and that it is in the best interest of the child, the child may be excluded from the entire hearing.
48.299(4)(b)
(b) Except as provided in
s. 901.05, neither common law nor statutory rules of evidence are binding at a hearing for a child held in custody under
s. 48.21, a hearing for an adult expectant mother held in custody under
s. 48.213, a runaway home hearing under
s. 48.227 (4), a dispositional hearing, or a hearing about changes in placement, revision of dispositional orders, extension of dispositional orders or termination of guardianship orders entered under
s. 48.977 (4) (h) 2. or
(6) or
48.978 (2) (j) 2. or
(3) (g). At those hearings, the court shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant or unduly repetitious testimony or evidence that is inadmissible under
s. 901.05. Hearsay evidence may be admitted if it has demonstrable circumstantial guarantees of trustworthiness. The court shall give effect to the rules of privilege recognized by law. The court shall apply the basic principles of relevancy, materiality and probative value to proof of all questions of fact. Objections to evidentiary offers and offers of proof of evidence not admitted may be made and shall be noted in the record.
48.299(5)
(5) On request of any party, unless good cause to the contrary is shown, any hearing under
s. 48.209 (1) (e),
48.21 (1) or
48.213 (1) may be held on the record by telephone or live audiovisual means or testimony may be received by telephone or live audiovisual means as prescribed in
s. 807.13 (2). The request and the showing of good cause for not conducting the hearing or admitting testimony by telephone or live audiovisual means may be made by telephone.
48.299(6)
(6) If a man who has been given notice under
s. 48.27 (3) (b) 1. appears at any hearing for which he received the notice, alleges that he is the father of the child and states that he wishes to establish the paternity of the child, all of the following apply:
48.299(6)(a)
(a) The court shall refer the matter to the state or to the attorney responsible for support enforcement under
s. 59.53 (6) (a) for a determination, under
s. 767.45, of whether an action should be brought for the purpose of determining the paternity of the child.
48.299(6)(b)
(b) The state or the attorney responsible for support enforcement who receives a referral under
par. (a) shall perform the duties specified under
s. 767.45 (5) (c) and
(6r).
48.299(6)(c)
(c) The court having jurisdiction over actions affecting the family shall give priority under 767.475 (7m) to an action brought under
s. 767.45 whenever the petition filed under
s. 767.45 indicates that the matter was referred by the court under
par. (a).
48.299(6)(d)
(d) The court may stay the proceedings under this chapter pending the outcome of the paternity proceedings under
ss. 767.45 to
767.60 if the court determines that the paternity proceedings will not unduly delay the proceedings under this chapter and the determination of paternity is necessary to the court's disposition of the child if the child is found to be in need of protection or services.
48.299(6)(e)1.1. In this paragraph, "genetic test" means a test that examines genetic markers present on blood cells, skin cells, tissue cells, bodily fluid cells or cells of another body material for the purpose of determining the statistical probability that a man who is alleged to be a child's father is the child's biological father.
48.299(6)(e)2.
2. The court shall, at the hearing, orally inform any man specified in
sub. (6) (intro.) that he may be required to pay for any testing ordered by the court under this paragraph or under
s. 885.23.
48.299(6)(e)3.
3. In addition to ordering testing as provided under
s. 885.23, if the court determines that it would be in the best interests of the child, the court may order any man specified in
sub. (6) (intro.) to submit to one or more genetic tests which shall be performed by an expert qualified as an examiner of genetic markers present on the cells and of the specific body material to be used for the tests, as appointed by the court. A report completed and certified by the court-appointed expert stating genetic test results and the statistical probability that the man alleged to be the child's father is the child's biological father based upon the genetic tests is admissible as evidence without expert testimony and may be entered into the record at any hearing. The court, upon request by a party, may order that independent tests be performed by other experts qualified as examiners of genetic markers present on the cells of the specific body materials to be used for the tests.
48.299(6)(e)4.
4. If the genetic tests show that an alleged father is not excluded and that the statistical probability that the alleged father is the child's biological father is 99.0% or higher, the court may determine that for purposes of a proceeding under this chapter, other than a proceeding under
subch. VIII, the man is the child's biological parent.
48.299(6)(e)5.
5. A determination by the court under
subd. 4. is not a judgment of paternity under
ch. 767 or an adjudication of paternity under
subch. VIII.
48.299(7)
(7) If a man who has been given notice under
s. 48.27 (3) (b) 1. appears at any hearing for which he received the notice but does not allege that he is the father of the child and state that he wishes to establish the paternity of the child or if no man to whom such notice was given appears at a hearing, the court may refer the matter to the state or to the attorney responsible for support enforcement under
s. 59.53 (6) (a) for a determination, under
s. 767.45, of whether an action should be brought for the purpose of determining the paternity of the child.
48.299(8)
(8) As part of the proceedings under this chapter, the court may order that a record be made of any testimony of the child's mother relating to the child's paternity. A record made under this subsection is admissible in a proceeding to determine the child's paternity under
ss. 767.45 to
767.60.
48.299 History
History: 1979 c. 300;
1981 c. 353;
1985 a. 311;
1987 a. 27; Sup. Ct. Order, 141 Wis. 2d xiii (1987);
1991 a. 263,
269;
1993 a. 16,
32,
98,
227,
228,
395;
1995 a. 77,
201,
275;
1997 a. 35,
252,
292,
334;
1999 a. 32,
149.
48.299 Note
Judicial Council Note, 1988: Sub. (5) allows a judicial review of the status of a child held in a county jail, or a continuation of custody hearing, to be held by telephone conference, or telephoned testimony to be admitted at such a hearing, on request of any party, unless good cause to the contrary is shown. [Re Order effective Jan. 1, 1988]
48.30
48.30
Plea hearing. 48.30(1)(1) Except as provided in this subsection, the hearing to determine whether any party wishes to contest an allegation that the child or unborn child is in need of protection or services shall take place on a date which allows reasonable time for the parties to prepare but is within 30 days after the filing of a petition for a child or an expectant mother who is not being held in secure custody or within 10 days after the filing of a petition for a child who is being held in secure custody.
48.30(2)
(2) At the commencement of the hearing under this section the child and the parent, guardian or legal custodian, the child expectant mother, her parent, guardian or legal custodian and the unborn child through the unborn child's guardian ad litem or the adult expectant mother and the unborn child through the unborn child's guardian ad litem, shall be advised of their rights as specified in
s. 48.243 and shall be informed that a request for a jury trial or for a substitution of judge under
s. 48.29 must be made before the end of the plea hearing or be waived. Nonpetitioning parties, including the child, shall be granted a continuance of the plea hearing if they wish to consult with an attorney on the request for a jury trial or substitution of a judge.
48.30(3)
(3) If a petition alleges that a child is in need of protection or services under
s. 48.13 or that an unborn child of a child expectant mother is in need of protection or services under
s. 48.133, the nonpetitioning parties and the child, if he or she is 12 years of age or older or is otherwise competent to do so, shall state whether they desire to contest the petition. If a petition alleges that an unborn child of an adult expectant mother is in need of protection or services under
s. 48.133, the adult expectant mother of the unborn child shall state whether she desires to contest the petition.
48.30(6)(a)(a) If a petition is not contested, the court shall set a date for the dispositional hearing which allows reasonable time for the parties to prepare but is no more than 10 days after the plea hearing for a child who is held in secure custody and no more than 30 days after the plea hearing for a child or an expectant mother who is not held in secure custody. If all parties consent the court may proceed immediately with the dispositional hearing.
48.30(6)(b)
(b) If it appears to the court that disposition of the case may include placement of the child outside the child's home, the court shall order the child's parent to provide a statement of income, assets, debts and living expenses to the court or the designated agency under
s. 48.33 (1) at least 5 days before the scheduled date of the dispositional hearing or as otherwise ordered by the court. The clerk of court shall provide, without charge, to any parent ordered to provide a statement of income, assets, debts and living expenses a document setting forth the percentage standard established by the department of workforce development under
s. 49.22 (9) and the manner of its application established by the department of health and family services under
s. 46.247 and listing the factors that a court may consider under
s. 46.10 (14) (c).
48.30(6)(c)
(c) If the court orders the child's parent to provide a statement of income, assets, debts and living expenses to the court or if the court orders the child's parent to provide that statement to the designated agency under
s. 48.33 (1) and that designated agency is not the county department or, in a county having a population of 500,000 or more, the department, the court shall also order the child's parent to provide that statement to the county department or, in a county having a population of 500,000 or more, the department at least 5 days before the scheduled date of the dispositional hearing or as otherwise ordered by the court. The county department or, in a county having a population of 500,000 or more, the department shall provide, without charge, to the parent a form on which to provide that statement, and the parent shall provide that statement on that form. The county department or, in a county having a population of 500,000 or more, the department shall use the information provided in the statement to determine whether the department may claim federal foster care and adoption assistance reimbursement under
42 USC 670 to
679a for the cost of providing care for the child.
48.30(7)
(7) If the petition is contested, the court shall set a date for the fact-finding hearing which allows reasonable time for the parties to prepare but is no more than 20 days after the plea hearing for a child who is held in secure custody and no more than 30 days after the plea hearing for a child or an expectant mother who is not held in secure custody.
48.30(8)
(8) Before accepting an admission or plea of no contest of the alleged facts in a petition, the court shall:
