48.23
48.23
Right to counsel. 48.23(1g)(1g)
Definition. In 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 or court-appointed special advocate for any party in the same proceeding.
48.23(1m)
(1m) Right of children to legal representation. Children subject to proceedings under this chapter shall be afforded legal representation as follows:
48.23(1m)(a)
(a) Any child held in a secure detention facility shall be represented by counsel at all stages of the proceedings, but a child 15 years of age or older may waive counsel if the court is satisfied that the waiver is knowingly and voluntarily made and the court accepts the waiver.
48.23(1m)(b)1.1. If a child is alleged to be in need of protection or services under
s. 48.13, the child may be represented by counsel at the discretion of the court. Except as provided in
subd. 2., a child 15 years of age or older may waive counsel if the court is satisfied such waiver is knowingly and voluntarily made and the court accepts the waiver.
48.23(1m)(b)2.
2. If the petition is contested, the court may not place the child outside his or her home unless the child is represented by counsel at the fact-finding hearing and subsequent proceedings. If the petition is not contested, the court may not place the child outside his or her home unless the child is represented by counsel at the hearing at which the placement is made. For a child under 12 years of age, the judge may appoint a guardian ad litem instead of counsel.
48.23(1m)(c)
(c) Any child subject to the jurisdiction of the court under
s. 48.14 (5) shall be represented by counsel. No waiver of counsel may be accepted by the court.
48.23(1m)(cm)
(cm) Any minor who is subject to the jurisdiction of the circuit court under
s. 48.16 and who is required to appear in court shall be represented by counsel.
48.23(2)
(2) Right of parents to counsel. Whenever a child is the subject of a proceeding involving a contested adoption or the involuntary termination of parental rights, any parent under 18 years of age who appears before the court shall be represented by counsel; but no such parent may waive counsel. A minor parent petitioning for the voluntary termination of parental rights shall be represented by a guardian ad litem. If a proceeding involves a contested adoption or the involuntary termination of parental rights, any parent 18 years old or older who appears before the court shall be represented by counsel; but the parent may waive counsel provided the court is satisfied such waiver is knowingly and voluntarily made.
48.23(2m)
(2m) Right of expectant mother to counsel. 48.23(2m)(a)(a) When an unborn child is alleged to be in need of protection or services under
s. 48.133, the expectant mother of the unborn child, if the expectant mother is a child, shall be represented by counsel and may not waive counsel.
48.23(2m)(b)
(b) If a petition under
s. 48.133 is contested, no expectant mother may be placed outside of her home unless the expectant mother is represented by counsel at the fact-finding hearing and subsequent proceedings. If the petition is not contested, the expectant mother may not be placed outside of her home unless the expectant mother is represented by counsel at the hearing at which the placement is made. An adult expectant mother, however, may waive counsel if the court is satisfied that the waiver is knowingly and voluntarily made and the court may place the adult expectant mother outside of her home even though the adult expectant mother was not represented by counsel.
48.23(2m)(c)
(c) For an expectant mother under 12 years of age, the judge may appoint a guardian ad litem instead of counsel.
48.23(3)
(3) Power of the court to appoint counsel. Except in proceedings under
s. 48.13, at any time, upon request or on its own motion, the court may appoint counsel for the child or any party, unless the child or the party has or wishes to retain counsel of his or her own choosing. The court may not appoint counsel for any party other than the child in a proceeding under
s. 48.13.
48.23(3m)
(3m) Guardians ad litem or counsel for abused or neglected children. The court shall appoint counsel for any child alleged to be in need of protection or services under
s. 48.13 (3),
(3m),
(10),
(10m) and
(11), except that if the child is less than 12 years of age the court may appoint a guardian ad litem instead of counsel. The guardian ad litem or counsel for the child may not act as counsel for any other party or any governmental or social agency involved in the proceeding and may not act as court-appointed special advocate for the child in the proceeding.
48.23(4)
(4) Providing counsel. In any situation under this section in which a child 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 child to the state public defender and counsel shall be appointed by the state public defender under
s. 977.08 without a determination of indigency. If the referral is of a child who has filed a petition under
s. 48.375 (7), the state public defender shall appoint counsel within 24 hours after that referral. Any counsel appointed in a petition filed under
s. 48.375 (7) shall continue to represent the child in any appeal brought under
s. 809.105 unless the child requests substitution of counsel or extenuating circumstances make it impossible for counsel to continue to represent the child. In any situation under
sub. (2) or
(2m) in which a parent 18 years of age or over or an adult expectant mother is entitled to representation by counsel; counsel is not knowingly and voluntarily waived; and it appears that the parent or adult expectant mother is unable to afford counsel in full, or the parent or adult expectant mother so indicates; the court shall refer the parent or adult expectant mother to the authority for indigency determinations specified under
s. 977.07 (1). In any other situation under this section in which a person has a right to be represented by counsel or is provided counsel at the discretion of the court, competent and independent counsel shall be provided and reimbursed in any manner suitable to the court regardless of the person's ability to pay, except that the court may not order a person who files a petition under
s. 813.122 or
813.125 to reimburse counsel for the child who is named as the respondent in that petition.
48.23(5)
(5) Counsel of own choosing. Regardless of any provision of this section, any party is entitled to retain counsel of his or her own choosing at his or her own expense in any proceeding under this chapter.
48.23 History
History: 1977 c. 354,
355,
447,
449;
1979 c. 300,
356;
1987 a. 27;
1987 a. 383;
1989 a. 31; Sup. Ct. Order, 151 Wis. 2d xxv (1989);
1989 a. 56,
107;
1991 a. 263;
1993 a. 377,
385,
395,
451,
491;
1995 a. 27,
77;
1997 a. 292;
1999 a. 9,
149;
2001 a. 103.
48.23 Cross-reference
Cross-reference: See s.
48.275 (2), concerning contribution toward legal expenses by parent or guardian.
48.23 Annotation
The court erred by failing to inform the parents of their right to a jury trial and to representation by counsel. In re Termination of Parental Rights to M. A. M.
116 Wis. 2d 432,
342 N.W.2d 410 (1984).
48.23 Annotation
Neither a temporary custody order nor a custodial interrogation were proceedings under sub. (1) (a) [now (1m) (a)]. State v. Woods,
117 Wis. 2d 701,
345 N.W.2d 457 (1984).
48.23 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).
48.23 Annotation
The right to be represented by counsel includes the right to effective counsel. In Interest of M.D.(S),
168 Wis. 2d 996,
485 N.W.2d 52 (1992).
48.23 Annotation
The prohibition in sub. (3) against appointing counsel for a party other than the child is unconstitutional. Joni B. v. State,
202 Wis. 2d 1,
549 N.W.2d 411 (1996),
95-2757.
48.23 Annotation
Sub. (4) does not say in cases other than those under s. 48.375 that appointment of counsel does not continue after an appeal has been filed. Section 809.85 provides otherwise. Juneau County Department of Human Services v. James B. 2000 WI App 86,
234 Wis. 2d 406,
610 N.W.2d 144.
48.23 Annotation
Under Joni B., juvenile courts have discretionary authority to appoint counsel for parents in CHIPS cases. When a parent requests counsel or when circumstances raise a reasonable concern that the parent will not be able to provide meaningful self-representation, the court must exercise that discretion. State v. Tammy L.D. 2000 WI App 200,
238 Wis. 2d 516,
617 N.W.2d 894.
48.235
48.235
Guardian ad litem. 48.235(1)(a)(a) The court may appoint a guardian ad litem in any appropriate matter under this chapter.
48.235(1)(b)
(b) The court shall appoint a guardian ad litem for a minor parent petitioning for the voluntary termination of parental rights.
48.235(1)(c)
(c) The court shall appoint a guardian ad litem for any child who is the subject of a proceeding to terminate parental rights, whether voluntary or involuntary, for a child who is the subject of a contested adoption proceeding and for a child who is the subject of a proceeding under
s. 48.977 or
48.978.
48.235(1)(d)
(d) The circuit court may appoint a guardian ad litem for a minor in a proceeding under
s. 48.375 (7) to aid the circuit court in determining under
s. 48.375 (7) (c) whether or not the minor is mature and well-informed enough to make the abortion decision on her own and whether or not the performance or inducement of the abortion is in the minor's best interests.
48.235(1)(e)
(e) The court shall appoint a guardian ad litem, or extend the appointment of a guardian ad litem previously appointed under
par. (a), for any child alleged or found to be in need of protection or services, if the court has ordered, or if a request or recommendation has been made that the court order, the child to be placed out of his or her home under
s. 48.345 or
48.357.
48.235(1)(f)
(f) The court shall appoint a guardian ad litem, or extend the appointment of a guardian ad litem previously appointed under
par. (a), for any unborn child alleged or found to be in need of protection or services.
48.235(2)
(2) Qualifications. The guardian ad litem shall be an attorney admitted to practice in this state. No person who is an interested party in a proceeding, who appears as counsel or court-appointed special advocate in a proceeding on behalf of any party or who is a relative or representative of an interested party in a proceeding may be appointed guardian ad litem in that proceeding.
48.235(3)(a)(a) The guardian ad litem shall be an advocate for the best interests of the person or unborn child 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 that person or the positions of others as to the best interests of that person or unborn child. If the guardian ad litem determines that the best interests of the person are substantially inconsistent with the wishes of that person, the guardian ad litem shall so inform the court and the court may appoint counsel to represent that person. The guardian ad litem has none of the rights or duties of a general guardian.
48.235(3)(b)
(b) In addition to any other duties and responsibilities required of a guardian ad litem, a guardian ad litem appointed for a child who is the subject of a proceeding under
s. 48.13 or for an unborn child who is the subject of a proceeding under
s. 48.133 shall do all of the following:
48.235(3)(b)1.
1. Unless granted leave by the court not to do so, personally, or through a trained designee, meet with the child or expectant mother of the unborn child, assess the appropriateness and safety of the environment of the child or unborn child and, if the child is old enough to communicate, interview the child and determine the child's goals and concerns regarding his or her placement.
48.235(3)(b)2.
2. Make clear and specific recommendations to the court concerning the best interest of the child or unborn child at every stage of the proceeding.
48.235(4)
(4) Matters involving child in need of protection or services. 48.235(4)(a)(a) In any matter involving a child found to be in need of protection or services, the guardian ad litem may, if reappointed or if the appointment is continued under
sub. (7), do any of the following:
48.235(4)(a)3.
3. Petition for termination of parental rights or any other matter specified under
s. 48.14.
48.235(4)(a)7.
7. Petition for relief from a judgment terminating parental rights under
s. 48.46.
48.235(4)(a)7m.
7m. Bring an action or motion for the determination of the child's paternity under
s. 767.45.
48.235(4)(a)8.
8. Perform any other duties consistent with this chapter.
48.235(4)(b)
(b) The court shall order the agency identified under
s. 48.355 (2) (b) 1. as primarily responsible for the provision of services to notify the guardian ad litem, if any, regarding actions to be taken under
par. (a).
48.235(4m)
(4m) Matters involving unborn child in need of protection or services. 48.235(4m)(a)(a) In any matter involving an unborn child found to be in need of protection or services, the guardian ad litem may, if reappointed or if the appointment is continued under
sub. (7), do any of the following:
48.235(4m)(a)3.
3. Petition for termination of parental rights or any other matter specified under
s. 48.14 after the child is born.
48.235(4m)(a)7.
7. Petition for relief from a judgment terminating parental rights under
s. 48.46 after the child is born.
48.235(4m)(a)7m.
7m. Bring an action or motion for the determination of the child's paternity under
s. 767.45 after the child is born.
48.235(4m)(b)
(b) The court shall order the agency identified under
s. 48.355 (2) (b) 1. as primarily responsible for the provision of services to notify the guardian ad litem, if any, regarding actions to be taken under
par. (a).
48.235(5)
(5) Matters involving minor parent. The guardian ad litem for a minor parent whose parental rights are the subject of a voluntary termination proceeding shall interview the minor parent, investigate the reason for the termination of parental rights, assess the voluntariness of the consent and inform the minor parent of his or her rights and of the alternatives to, and the effect of, termination of parental rights.
48.235(6)
(6) Communication to a jury. In jury trials under this chapter, the guardian ad litem or the court may tell the jury that the guardian ad litem represents the interests of the person or unborn child for whom the guardian ad litem was appointed.
48.235(7)
(7) Termination and extension of appointment. The appointment of a guardian ad litem under
sub. (1) terminates upon the entry of the court's final order or upon the termination of any appeal in which the guardian ad litem participates. The guardian ad litem may appeal, may participate in an appeal or may do neither. If an appeal is taken by any party and the guardian ad litem chooses not to participate in that appeal, he or she shall file with the appellate court a statement of reasons for not participating. Irrespective of the guardian ad litem's decision not to participate in an appeal, the appellate court may order the guardian ad litem to participate in the appeal. At any time, the guardian ad litem, any party or the person for whom the appointment is made may request in writing or on the record that the court extend or terminate the appointment or reappointment. The court may extend that appointment, or reappoint a guardian ad litem appointed under this section, after the entry of the final order or after the termination of the appeal, but the court shall specifically state the scope of the responsibilities of the guardian ad litem during the period of that extension or reappointment.
48.235(8)(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 under
par. (b) or
(c) 2., the amount ordered may not exceed the compensation payable to a private attorney under
s. 977.08 (4m) (b).
48.235(8)(b)
(b) Subject to
par. (c), the court may order either or both of the parents of a child 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 child 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.
48.235(8)(c)1.1. In an uncontested termination of parental rights and adoption proceeding under
s. 48.833, the court shall order the agency that placed the child for adoption to pay the compensation of the child's guardian ad litem.
48.235(8)(c)2.
2. In an uncontested termination of parental rights and adoption proceeding under
s. 48.835 or
48.837, the court shall order the proposed adoptive parents to pay the compensation of the child's guardian ad litem. If the proposed adoptive parents are indigent, the court may order the county of venue to pay the compensation, in whole or in part, and may order the proposed adoptive parents to reimburse the county, in whole or in part, for the payment.
48.235(8)(d)
(d) At any time before the final order in a proceeding in which a guardian ad litem is appointed for a child under this chapter, the court may order a parent, agency or proposed adoptive parent to place payments in an escrow account in an amount estimated to be sufficient to pay any compensation and fees payable under
par. (b) or
(c).
48.235(8)(e)
(e) If the court orders a parent or proposed adoptive parent to reimburse a county under
par. (b) or
(c) 2., the court may order a separate judgment for the amount of the reimbursement in favor of the county and against the parent or proposed adoptive parent who is responsible for the reimbursement.
48.235(8)(f)
(f) The court may enforce its orders under this subsection by means of its contempt powers.
48.235 History
History: Sup. Ct. Order, 151 Wis. 2d xxv (1989);
1991 a. 189,
263;
1993 a. 16,
318,
395;
1995 a. 27,
275;
1997 a. 237,
292,
334;
1999 a. 149.
48.235 Note
Judicial Council Note, 1990: This section is designed to clarify when a guardian ad litem may or shall be appointed under this chapter; to define the duties of the guardian ad litem; and to require the adoptive parents to pay guardian ad litem fees in independent adoptions and the agency to do so in adoptions pursuant to s. 48.837.
48.235 Annotation
Sub. (1) indicates when a guardian ad litem is to be appointed, leaving broad discretion to the court for such appointments.
48.235 Annotation
Sub. (1) (b) and (c) set forth situations in which a guardian ad litem is required. While there are situations in which adversary counsel are an alternative to a guardian ad litem or more desirable and therefore required under s. 48.23, the committee concluded that the best interests of the child must be reflected by a guardian ad litem in the situations enumerated in these paragraphs.
48.235 Annotation
Sub. (2) continues the qualifications currently in s. 48.235.
48.235 Annotation
Sub. (3) addresses the responsibilities of the guardian ad litem. The guardian ad litem is to be an advocate for the best interests of the person for whom the appointment is made. The definition specifically rejects the view that the guardian ad litem should represent the wishes of the subject when they are different from interests. The guardian ad litem is required to inform the court when the wishes of the person differ from what the guardian ad litem believes to be his or her best interests. The definition also stresses the fact that the guardian ad litem should be independent and function in the same manner as the lawyer for a party. This includes the responsibility to serve appropriate documents, to advocate in accordance with the rules of evidence, to avoid ex parte communication, and the like.
48.235 Annotation
Sub. (4) is designed to suggest the possible duties of a guardian ad litem after a CHIPS order. Continuation of the guardian ad litem is discretionary with the court in such situations, as provided in sub. (7). Sub. (4) specifically permits the continued involvement of the guardian ad litem in permanency planning and in the monitoring of the placement. It also makes it clear that, if it is in the best interests of the child, the guardian ad litem may seek the termination of the parental rights of the parents of the child and prosecute such an action. It is not intended to limit the responsibilities to those noted. The court may require the department to give appropriate notice to the guardian ad litem so the duties can be fulfilled.
48.235 Annotation
Sub. (5) clarifies the responsibilities of the guardian ad litem for minor parents in termination cases, in the way of investigation and communication.
