48.235 Annotation
When a party to a CHIPS action is represented by both adversary counsel and a GAL, adversary counsel must be allowed to zealously represent the client's expressed wishes, even if the GAL holds an opposing view. In Interest of T.L.
151 Wis. 2d 725,
445 N.W.2d 729 (Ct. App. 1989).
48.235 Annotation
A court's power to appropriate compensation for court-appointed counsel is necessary for the effective operation of the judicial system. In ordering compensation for 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 Wis. 2d 1,
531 N.W.2d 32 (1995).
48.235 Annotation
Except as provided in sub. (8), a guardian ad litem appointed under ch. 48 is to be paid by the county, regardless of the type of action or the parent's ability to pay. Michael T. v. Briggs,
204 Wis. 2d 401,
555 N.W.2d 651 (Ct. App. 1996).
48.236
48.236
Court-appointed special advocate. 48.236(1)
(1)
Designation. In any proceeding under
s. 48.13 in which the court finds that providing the services of a court-appointed special advocate would be in the best interests of the child, the court may request a court-appointed special advocate program to designate a person who meets the qualifications specified in
sub. (2) as a court-appointed special advocate to undertake the activities specified in
sub. (3). A court-appointed special advocate does not become a party to the proceeding and, as a nonparty, may not make motions or call or cross-examine witnesses. A designation under this subsection terminates when the jurisdiction of the court over the child under
s. 48.13 terminates, unless the court discharges the court-appointed special advocate sooner.
48.236(2)
(2) Qualifications. A court-appointed special advocate shall be a volunteer or employee of a court-appointed special advocate program who has been selected and trained as provided in the memorandum of understanding entered into under
s. 48.07 (5) (a). No person who is a party in a proceeding, who appears as counsel or guardian ad litem in a proceeding on behalf of any party or who is a relative or representative of a party in a proceeding may be designated as a court-appointed special advocate in that proceeding.
48.236(3)
(3) Activities. A court-appointed special advocate may be designated under
sub. (1) to perform any of the following activities:
48.236(3)(a)
(a) Gather information and make observations about the child for whom the designation is made, the child's family and any other person residing in the same home as the child and provide that information and those observations to the court in the form of written reports or, if requested by the court, oral testimony.
48.236(3)(b)
(b) Maintain regular contact with the child for whom the designation is made; monitor the appropriateness and safety of the environment of the child, the extent to which the child and the child's family are complying with any consent decree or dispositional order of the court and with any permanency plan under
s. 48.38, and the extent to which any agency that is required to provide services for the child and the child's family under a consent decree, dispositional order or permanency plan is providing those services; and, based on that regular contact and monitoring, provide information to the court in the form of written reports or, if requested by the court, oral testimony.
48.236(3)(d)
(d) Undertake any other activities that are consistent with the memorandum of understanding entered into under
s. 48.07 (5) (a).
48.236(4)
(4) Authority. A court that requests a court-appointed special advocate program to designate a court-appointed special advocate to undertake the activities specified in
sub. (3) may include in the order requesting that designation an order authorizing the court-appointed special advocate to do any of the following:
48.236(4)(a)
(a) Inspect any reports and records relating to the child who is the subject of the proceeding, the child's family and any other person residing in the same home as the child that are relevant to the subject matter of the proceeding, including records discoverable under
s. 48.293, examination reports under
s. 48.295 (2), law enforcement reports and records under
ss. 48.396 (1) and
938.396 (1), court records under
ss. 48.396 (2) (a) and
938.396 (2) (a), social welfare agency records under
ss. 48.78 (2) (a) and
938.78 (2) (a), abuse and neglect reports and records under
s. 48.981 (7) (a) 11r. and pupil records under
s. 118.125 (2) (L). The order shall also require the custodian of any report or record specified in this paragraph to permit the court-appointed special advocate to inspect the report or record on presentation by the court-appointed special advocate of a copy of the order. A court-appointed special advocate that obtains access to a report or record described in this paragraph shall keep the information contained in the report or record confidential and may disclose that information only to the court. If a court-appointed special advocate discloses any information to the court under this paragraph, the court-appointed special advocate shall also disclose that information to all parties to the proceeding. If a court-appointed special advocate discloses information in violation of the confidentiality requirement specified in this paragraph, the court-appointed special advocate is liable to any person damaged as a result of that disclosure for such damages as may be proved and, notwithstanding
s. 814.04 (1), for such costs and reasonable actual attorney fees as may be incurred by the person damaged.
48.236(4)(b)
(b) Observe the child who is the subject of the proceeding and the child's living environment and, if the child is old enough to communicate, interview the child; interview the parent, guardian, legal custodian or other caregiver of the child who is the subject of the proceeding and observe that person's living environment; and interview any other person who might possess any information relating to the child and the child's family that is relevant to the subject of the proceeding. A court-appointed special advocate may observe or interview the child at any location without the permission of the child's parent, guardian, legal custodian or other caregiver if necessary to obtain any information that is relevant to the subject of the proceeding, except that a court-appointed special advocate may enter a child's home only with the permission of the child's parent, guardian, legal custodian or other caregiver or after obtaining a court order permitting the court-appointed special advocate to do so. A court-appointed special advocate who obtains any information under this paragraph shall keep the information confidential and may disclose that information only to the court. If a court-appointed special advocate discloses any information to the court under this paragraph, the court-appointed special advocate shall also disclose that information to all parties to the proceeding. If a court-appointed special advocate discloses information in violation of the confidentiality requirement specified in this paragraph, the court-appointed special advocate is liable to any person damaged as a result of that disclosure for such damages as may be proved and, notwithstanding
s. 814.04 (1), for such costs and reasonable actual attorney fees as may be incurred by the person damaged.
48.236(4)(c)
(c) Exercise any other authority that is consistent with the memorandum of understanding entered into under
s. 48.07 (5) (a).
48.236(5)
(5) Immunity from liability. A volunteer court-appointed special advocate designated under
sub. (1) or an employee of a court-appointed special advocate program recognized under
s. 48.07 (5) is immune from civil liability for any act or omission of the volunteer or employee occurring while acting within the scope of his or her activities and authority as a volunteer court-appointed special advocate or employee of a court-appointed special advocate program.
48.236 History
History: 1999 a. 149.
PROCEDURE
48.24
48.24
Receipt of jurisdictional information; intake inquiry. 48.24(1)(1) Information indicating that a child or an unborn 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 or unborn 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, or the adult expectant mother of an unborn child that she, may request counseling from a person designated by the court to provide dispositional services under
s. 48.069.
48.24(2)(a)(a) As part of the intake inquiry the intake worker may conduct multidisciplinary screens and intake conferences with notice to the child, parent, guardian and legal custodian or to the adult expectant mother of the unborn child. If
sub. (2m) applies, the intake worker shall conduct a multidisciplinary screen under
s. 48.547 if the child or expectant mother has not refused to participate under
par. (b).
48.24(2)(b)
(b) No child 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.
48.24(2m)(a)(a) In counties that have an alcohol and other drug abuse program under
s. 48.547, a multidisciplinary screen shall be conducted for:
48.24(2m)(a)4.
4. Any child 12 years of age or older who requests and consents to a multidisciplinary screen.
48.24(2m)(a)5.
5. Any child who consents to a multidisciplinary screen requested by his or her parents.
48.24(2m)(a)6.
6. Any expectant mother 12 years of age or over who requests and consents to a multidisciplinary screen.
48.24(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).
48.24(3)
(3) If the intake worker determines as a result of the intake inquiry that the child or unborn child should be referred to the court, the intake worker shall request that the district attorney, corporation counsel or other official specified in
s. 48.09 file a petition.
48.24(4)
(4) If the intake worker determines as a result of the intake inquiry that the case should be subject to an informal disposition, or should be closed, the intake worker shall so proceed. If a petition has been filed, informal disposition may not occur or a case may not be closed unless the petition is withdrawn by the district attorney, corporation counsel or other official specified in
s. 48.09, or is dismissed by the judge.
48.24(5)
(5) The intake worker shall request that a petition be filed, enter into an informal disposition or close the case within 40 days or sooner of receipt of referral information. If the case is closed or an informal disposition is entered into, the district attorney, corporation counsel or other official under
s. 48.09 shall receive written notice of such action. If a law enforcement officer has made a recommendation concerning the child, or the unborn child and the expectant mother of the unborn child, the intake worker shall forward this recommendation to the district attorney, corporation counsel or other official under
s. 48.09. With respect to petitioning a child or unborn child to be in need of protection or services, information received more than 40 days before filing the petition may be included to establish a condition or pattern which, together with information received within the 40-day period, provides a basis for conferring jurisdiction on the court. The judge shall dismiss with prejudice any such petition which is not referred or filed within the time limits specified within this subsection.
48.24(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. 48.06 (1) or
(2).
48.24 Annotation
Under the facts of the case, sub. (5) did not mandate dismissal although referral was not made within 40 days. In re J. L. W.
143 Wis. 2d 126,
420 N.W.2d 398 (Ct. App. 1988).
48.24 Annotation
Under sub. (1), "information indicating that a child should be referred to the court" 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 Wis. 2d 754,
465 N.W.2d 520 (Ct. App. 1990).
48.24 Annotation
Sub. (5), when read in conjunction with sub. (3), requires that an intake worker request the district attorney to file a petition and does not require the intake worker to make a recommendation that a petition be filed. Interest of Antonio M.C.
182 Wis. 2d 301,
513 N.W.2d 662 (Ct. App. 1994).
48.24 Annotation
Under sub. (2) (b), a parent is not be required to cooperate, and a refusal to cooperate cannot be used as evidence supporting a CHIPS petition. Sheboygan County Department of Health and Human Services v. Jodell G. 2001 WI App 18,
240 Wis. 2d 516,
625 N.W.2d 307.
48.24 Annotation
The receipt of phone message calling a county social service agency's attention to specific abuse combined with specific information about the abuse, which the agency labelled a referral, constituted the "receipt of referral information" under sub. (5) and triggered the 40-day period for requesting that a petition to be filed. Sheboygan County Department of Health and Human Services v. Jodell G. 2001 WI App 18,
240 Wis. 2d 516,
625 N.W.2d 307.
48.243
48.243
Basic rights: duty of intake worker. 48.243(1)
(1) Before conferring with the parent, expectant mother or child during the intake inquiry, the intake worker shall personally inform parents, expectant mothers and children 12 years of age or older who are the focus of an inquiry regarding the need for protection or services that the referral may result in a petition to the court and of all of the following:
48.243(1)(b)
(b) The nature and possible consequences of the proceedings.
48.243(1)(c)
(c) The right to remain silent and the fact that silence of any party may be relevant.
48.243(1)(d)
(d) The right to confront and cross-examine those appearing against them.
48.243(1)(f)
(f) The right to present and subpoena witnesses.
48.243(1)(h)
(h) The right to have the allegations of the petition proved by clear and convincing evidence.
48.243(3)
(3) If the child or expectant mother has not had a hearing under
s. 48.21 or
48.213 and was not present at an intake conference under
s. 48.24, the intake worker shall inform the child, parent, guardian and legal custodian, or expectant mother, as appropriate, of the basic rights provided under this section. The notice shall be given verbally, either in person or by telephone, and in writing. This notice shall be given so as to allow the child, parent, guardian, legal custodian or adult expectant mother sufficient time to prepare for the plea hearing. This subsection does not apply to cases of informal disposition under
s. 48.245.
48.243(4)
(4) This section does not apply if the child or expectant mother was present at a hearing under
s. 48.21 or
48.213.
48.243 Annotation
A CHIPS proceeding is not a criminal proceeding within the meaning of the 5th amendment. Miranda warnings are not required to be given to the CHIPS petition subject, even though the individual is in custody and subject to interrogation, in order for the subject's statements to be admissible. State v. Thomas J.W.
213 Wis. 2d 264,
570 N.W.2d 586 (Ct. App. 1997)
48.245
48.245
Informal disposition. 48.245(1)
(1) The intake worker may enter into a written agreement with all parties which imposes informal disposition under this section if the intake worker has determined that neither the interests of the child or unborn child nor of the public require filing of a petition for circumstances relating to
ss. 48.13 to
48.14. Informal disposition 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 child, parent, guardian and legal custodian; or upon consent of the child expectant mother, her parent, guardian and legal custodian and the unborn child, by the unborn child's guardian ad litem; or upon consent of the adult expectant mother and the unborn child, by the unborn child's guardian ad litem.
48.245(2)(a)(a) Informal disposition may provide for any one or more of the following:
48.245(2)(a)1.
1. That the child appear with a parent, guardian or legal custodian for counseling and advice or that the adult expectant mother appear for counseling and advice.
48.245(2)(a)2.
2. That the child and a parent, guardian and legal custodian abide by such obligations as will tend to ensure the rehabilitation, protection or care of the child or that the expectant mother abide by such obligations as will tend to ensure the protection or care of the unborn child and the rehabilitation of the expectant mother.
48.245(2)(a)3.
3. That the child or expectant mother submit to an alcohol and other drug abuse assessment that conforms to the criteria specified under
s. 48.547 (4) and that is conducted by an approved treatment facility for an examination of the use of alcohol beverages, controlled substances or controlled substance analogs by the child or expectant mother and any medical, personal, family or social effects caused by its use, if the multidisciplinary screen conducted under
s. 48.24 (2) shows that the child or expectant mother 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.
48.245(2)(a)4.
4. That the child or expectant mother participate in an alcohol and other drug abuse outpatient treatment program or an education program relating to the abuse of alcohol beverages, controlled substances or controlled substance analogs, if an alcohol and other drug abuse assessment conducted under
subd. 3. recommends outpatient treatment or education.
48.245(2)(b)
(b) Informal disposition may not include any form of residential placement and may not exceed 6 months, except as provided under
sub. (2r).
48.245(2)(c)
(c) If the informal disposition provides for alcohol and other drug abuse outpatient treatment under
par. (a) 4., the child and the child's parent, guardian or legal custodian, or the adult expectant mother, shall execute an informed consent form that indicates that they are, or that she is, voluntarily and knowingly entering into an informal disposition agreement for the provision of alcohol and other drug abuse outpatient treatment.
48.245(2r)
(2r) If an informal disposition is based on allegations that a child or an unborn child is in need of protection or services, the intake worker may, after giving written notice to the child and the child's parent, guardian and legal custodian and their counsel, if any, or after giving written notice to the child expectant mother, her parent, guardian and legal custodian and their counsel, if any, and the unborn child by the unborn child's guardian ad litem, or after giving written notice to the adult expectant mother, her counsel, if any, and the unborn child, by the unborn child's guardian ad litem, extend the informal disposition for up to an additional 6 months unless the child or the child's parent, guardian or legal custodian, the child expectant mother, her parent, guardian or legal custodian or the unborn child by the unborn child's guardian ad litem, or the adult expectant mother or the unborn child by the unborn child's guardian ad litem, objects to the extension. If the child or the child's parent, guardian or legal custodian, the child expectant mother, her parent, guardian or legal custodian or the unborn child by the unborn child's guardian ad litem, or the adult expectant mother or the unborn child by the unborn child's guardian ad litem, objects to the extension, the intake worker may recommend to the district attorney or corporation counsel that a petition be filed under
s. 48.13 or
48.133. An extension under this subsection may be granted only once for any informal disposition. An extension under this subsection of an informal disposition relating to an unborn child who is alleged to be in need of protection or services may be granted after the child is born.
48.245(3)
(3) The obligations imposed under an informal disposition and its effective date shall be set forth in writing. The child and a parent, guardian and legal custodian, the child expectant mother, her parent, guardian and legal custodian and the unborn child by the unborn child's guardian ad litem, or the adult expectant mother and the unborn child by the unborn child's guardian ad litem, shall receive a copy, as shall any agency providing services under the agreement.
48.245(4)
(4) The intake worker shall inform the child and the child's parent, guardian and legal custodian, the child expectant mother, her parent, guardian and legal custodian and the unborn child by the unborn child's guardian ad litem, or the adult expectant mother and the unborn child by the unborn child's guardian ad litem, in writing of their right to terminate the informal disposition at any time or object at any time to the fact or terms of the informal disposition. If an objection arises the intake worker may alter the terms of the agreement or request the district attorney or corporation counsel to file a petition. If the informal disposition is terminated the intake worker may request the district attorney or corporation counsel to file a petition.
48.245(5)
(5) Informal disposition shall be terminated upon the request of the child, parent, guardian or legal custodian, upon request of the child expectant mother, her parent, guardian or legal custodian or the unborn child by the unborn child's guardian ad litem, or upon the request of the adult expectant mother or the unborn child by the unborn child's guardian ad litem.
48.245(5m)
(5m) An informal disposition is terminated if the district attorney or corporation counsel files a petition within 20 days after receipt of notice of the informal disposition under
s. 48.24 (5). In such case statements made to the intake worker during the intake inquiry are inadmissible.
48.245(7)
(7) If at any time during the period of informal disposition the intake worker determines that the obligations imposed under it are not being met, the intake worker may cancel the informal disposition. Within 10 days after the cancellation of the informal disposition, the intake worker shall notify the district attorney, corporation counsel or other official under
s. 48.09 of the cancellation and request that a petition be filed. The judge shall dismiss with prejudice any petition which is not filed within the time limit specified in this subsection.
48.245(8)
(8) If the obligations imposed under the informal disposition are met, the intake worker shall so inform the child and a parent, guardian and legal custodian, the child expectant mother, her parent, guardian and legal custodian and the unborn child by the unborn child's guardian ad litem, or the adult expectant mother and the unborn child by the unborn child's guardian ad litem, in writing, and no petition may be filed on the charges that brought about the informal disposition nor may the charges be the sole basis for a petition under
ss. 48.13 to
48.14.
48.245(9)
(9) The intake worker shall perform his or her responsibilities under this section under general written policies which the judge shall promulgate under
s. 48.06 (1) or
(2).
48.245 History
History: 1977 c. 354;
1979 c. 300,
331,
359;
1985 a. 311;
1987 a. 27,
285,
339,
403;
1991 a. 213,
253,
315;
1993 a. 98;
1995 a. 24,
77,
275,
448;
1997 a. 80,
292.
48.25
48.25
Petition: authorization to file. 48.25(1)
(1) A petition initiating proceedings under this chapter shall be signed by a person who has knowledge of the facts alleged or is informed of them and believes them to be true. The district attorney, corporation counsel or other appropriate official specified under
s. 48.09 may file the petition if the proceeding is under
s. 48.13 or
48.133. The counsel or guardian ad litem for a parent, relative, guardian or child may file a petition under
s. 48.13 or
48.14. The counsel or guardian ad litem for an expectant mother or the guardian ad litem for an unborn child may file a petition under
s. 48.133. The district attorney, corporation counsel or other appropriate person designated by the court may initiate proceedings under
s. 48.14 in a manner specified by the court.
48.25(2)
(2) If the proceeding is brought under
s. 48.13 or
48.133, the district attorney, corporation counsel or other appropriate official shall file the petition, close the case, or refer the case back to intake within 20 days after the date that the intake worker's recommendation was filed. A referral back to intake may be made only when the district attorney, corporation counsel or other appropriate official decides not to file a petition or determines that further investigation is necessary. If the case is referred back to intake upon a decision not to file a petition, the intake worker shall close the case or enter into an informal disposition within 20 days. If the case is referred back to intake for further investigation, the appropriate agency or person shall complete the investigation within 20 days. If another referral is made to the district attorney, corporation counsel or other appropriate official, it shall be considered a new referral to which the time limits of this subsection shall apply. The time limits in this subsection may only be extended by a judge upon a showing of good cause under
s. 48.315. If a petition is not filed within the time limitations set forth in this subsection and the court has not granted an extension, the petition shall be accompanied by a statement of reasons for the delay. The court shall dismiss with prejudice a petition which was not timely filed unless the court finds at the plea hearing that good cause has been shown for failure to meet the time limitations.
48.25(3)
(3) If the district attorney, corporation counsel or other appropriate official specified in
s. 48.09 refuses to file a petition, any person may request the judge to order that the petition be filed and a hearing shall be held on the request. The judge may order the filing of the petition on his or her own motion. The matter may not be heard by the judge who orders the filing of a petition.
48.25(6)
(6) If a proceeding is brought under
s. 48.13, any party to or any governmental or social agency involved in the proceeding may petition the court to issue a temporary restraining order and injunction as provided in
s. 813.122 or
813.125. The court exercising jurisdiction under this chapter shall follow the procedure under
s. 813.122 or
813.125 except that the court may combine hearings authorized under
s. 813.122 or
813.125 and this chapter, the petitioner for the temporary restraining order and injunction is not subject to the limitations under
s. 813.122 (2) or
813.125 (2) and no fee is required regarding the filing of the petition under
s. 813.122 or
813.125.
48.25 Annotation
"Good cause" under sub. (2) is determined by first considering the best interests of the child. Additional factors are whether: 1) the party seeking the enlargement of time has acted in good faith; 2) the opposing party is not prejudiced; and 3) the dilatory party took prompt action to remedy the situation. In Interest of F. E. W.
143 Wis. 2d 856,
422 N.W.2d 893 (Ct. App. 1988).
48.25 Annotation
If the state fails to comply with the mandatory filing procedures pursuant to sub. (2), the petition must be dismissed with prejudice. In Interest of C.A.K.
154 Wis. 2d 612,
453 N.W.2d 897 (1990).
48.25 Annotation
In a case referred by the district attorney of one county to another county, each district attorney had 20 days under sub. (2) to act following the respective referrals by the intake workers of each county. State v. Everett,
231 Wis. 2d 616,
605 N.W.2d 633 (Ct. App. 1999).
48.255
48.255
Petition; form and content. 48.255(1)
(1) A petition initiating proceedings under this chapter, other than a petition under
s. 48.133, shall be entitled, "In the interest of (child's name), a person under the age of 18'' and shall set forth with specificity:
48.255(1)(a)
(a) The name, birth date and address of the child.
48.255(1)(b)
(b) The names and addresses of the child's parent, guardian, legal custodian or spouse, if any; or if no such person can be identified, the name and address of the nearest relative.
48.255(1)(c)
(c) Whether the child is in custody, and, if so, the place where the child is being held and the time he or she was taken into custody unless there is reasonable cause to believe that such disclosure would result in imminent danger to the child or physical custodian.
