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,
99-1309.
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,
99-1962.
48.23 Annotation
Self-representation competency standards developed in criminal cases apply to parents in termination of parental rights actions. When a defendant seeks self-representation, the circuit court must insure that the defendant: 1) has knowingly, intelligently, and voluntarily waived the right to counsel, and 2) is competent to so proceed. The determination of self-representation competency requires an assessment of whether a person is able to provide himself or herself with meaningful self-representation. Dane County DHS v. Susan P. S.
2006 WI App 100,
293 Wis. 2d 279,
715 N.W.2d 692,
05-3155.
48.23 Annotation
`Catch 22': Ethical Dilemma for Defense Counsel in TPR Litigation. Foley. Wis. Law. Aug. 2011.
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. This paragraph does not apply to a child who is subject to a dispositional order that terminates as provided in
s. 48.355 (4) (b) 4.,
48.357 (6) (a) 4., or
48.365 (5) (b) 4.
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(1)(g)
(g) The court shall appoint a guardian ad litem for a parent who is the subject of a termination of parental rights proceeding, if any assessment or examination of a parent that is ordered under
s. 48.295 (1) shows that the parent is not competent to participate in the proceeding or to assist his or her counsel or the court in protecting the parent's rights in the proceeding.
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)7m.
7m. Bring an action or motion for the determination of the child's paternity under
s. 767.80.
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. 48.33 (1) (c) 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. 48.028 or
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. 767.80 after the child is born.
48.235(4m)(b)
(b) The court shall order the agency identified under
s. 48.33 (1) (c) 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(5m)
(5m) Matters involving contested termination of parental rights proceedings. 48.235(5m)(a)(a) In any termination of parental rights proceeding involving a child who has been found to be in need of protection or services and whose parent is contesting the termination of his or her parental rights, a guardian ad litem for a parent who has been appointed under
sub. (1) (g) shall provide information to the court relating to the parent's competency to participate in the proceeding, and shall also provide assistance to the court and the parent's adversary counsel in protecting the parent's rights in the proceeding.
48.235(5m)(b)
(b) The guardian ad litem may not participate in the proceeding as a party, and may not call witnesses, provide opening statements or closing arguments, or participate in any activity at trial that is required to be performed by the parent's adversary counsel.
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)(c)3.
3. In a proceeding under
s. 813.122 or
813.125, the court may not order the child victim or any parent, stepparent, or legal guardian of the child victim who is not a party to the action, to pay any part of the compensation of the guardian ad litem.
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 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 Note
Sub. (1) indicates when a guardian ad litem is to be appointed, leaving broad discretion to the court for such appointments.
48.235 Note
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 Note
Sub. (2) continues the qualifications currently in s. 48.235.
48.235 Note
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 Note
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 Note
Sub. (5) clarifies the responsibilities of the guardian ad litem for minor parents in termination cases, in the way of investigation and communication.
48.235 Note
Sub. (6) permits the guardian ad litem or court to explain to the jury that he or she represents the interests of the person. This is to avoid unnecessary confusion.
48.235 Note
Sub. (7) provides for the termination of appointment of the guardian ad litem upon entry of the court's final order unless the court extends or reappoints, indicating the scope of continuing responsibility. There are a large number of things a guardian ad litem might do during the period of extension or reappointment, including participate in permanency planning, seek extension or revision of dispositional orders, seek a change in placement and the like. The court might well identify general concerns to which the guardian ad litem should continue to be attentive, leaving to the guardian ad litem the methods to carry out the delegation of responsibility. This subsection also provides for the involvement of the guardian ad litem in appeals, leaving to the guardian ad litem broad discretion as to whether and how to participate. The requirement that the guardian ad litem notify the appellate court if the guardian ad litem chooses not to participate is to ensure that the guardian ad litem reflects on this important decision. The appellate court may require participation, notwithstanding the guardian ad litem's decision.
48.235 Note
Sub. (8) retains the current law that, unless the court otherwise orders, the county pays the fees of the guardian ad litem in matters under this chapter, but it creates an exception for uncontested termination proceedings and uncontested adoptions, in which cases the adoptive parents or the agency are required to pay this fee unless the court finds they are unable to do so. The court is given the authority to require advance payment of the guardian ad litem fees into an escrow account. [Re Order effective Jan. 1, 1990]
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),
96-1297.
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:
