48.227(4)(a)(a) If the child's parent, guardian or legal custodian does not consent to the temporary care and housing of the child at the runaway home as provided under
sub. (2) or
(3), a hearing shall be held on the issue by the judge or a circuit court commissioner within 24 hours of the time that the child entered the runaway home, excluding Saturdays, Sundays and legal holidays. The intake worker shall notify the child and the child's parent, guardian or legal custodian of the time, place and purpose of the hearing.
48.227(4)(c)
(c) For the purposes of this section, the court has jurisdiction over a runaway child only to the extent that it may hold the hearings and make the orders provided in this section.
48.227(4)(d)
(d) At the hearing, the child, the child's parent, guardian or legal custodian and a representative of the runaway home may present evidence, cross-examine and confront witnesses and be represented by counsel or guardian ad litem.
48.227(4)(e)
(e) At the conclusion of the hearing, the court may order:
48.227(4)(e)1.
1. That the child be released to his or her parent, guardian or legal custodian; or
48.227(4)(e)2.
2. That, with the consent of the child and the runaway home, the child remain in the care of the runaway home for a period of not more than 20 days. Without further proceedings, the child shall be released whenever the child indicates, either by statement or conduct, that he or she wishes to leave the home or whenever the runaway home withdraws its consent. During this time period not to exceed 20 days ordered by the court, the child's parent, guardian or legal custodian may not remove the child from the home but may confer with the child or with the person operating the home. If, at the conclusion of the time period ordered by the court the child has not left the home, and no petition concerning the child has been filed under
s. 48.13,
48.133,
938.12 or
938.13, the child shall be released from the home. If a petition concerning the child has been filed under
s. 48.13,
48.133,
938.12 or
938.13, the child may be held in temporary physical custody under
ss. 48.20 to
48.21 or
938.20 to
938.21.
48.227(5)
(5) No person operating an approved or licensed home in compliance with this section is subject to civil or criminal liability by virtue of false imprisonment.
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 juvenile 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 parent to counsel. 48.23(2)(a)(a) Except as provided in
sub. (2g), a minor parent petitioning for a voluntary termination of parental rights shall be represented by a guardian ad litem.
48.23(2)(b)
(b) In a proceeding involving a contested adoption or an involuntary termination of parental rights, any parent who appears before the court shall be represented by counsel, except as follows:
48.23(2)(b)1.
1. A parent 18 years of age or over may waive counsel if the court is satisfied that the waiver is knowingly and voluntarily made.
48.23(2)(b)2.
2. A parent under 18 years of age may not waive counsel.
48.23(2)(b)3.
3. Notwithstanding
subd. 1., a parent 18 years of age or over is presumed to have waived his or her right to counsel and to appear by counsel if the court has ordered the parent to appear in person at any or all subsequent hearings in the proceeding, the parent fails to appear in person as ordered, and the court finds that the parent's conduct in failing to appear in person was egregious and without clear and justifiable excuse. Failure by a parent 18 years of age or over to appear in person at consecutive hearings as ordered is presumed to be conduct that is egregious and without clear and justifiable excuse. If the court finds that a parent's conduct in failing to appear in person as ordered was egregious and without clear and justifiable excuse, the court may not hold a dispositional hearing on the contested adoption or involuntary termination of parental rights until at least 2 days have elapsed since the date of that finding.
48.23(2)(c)
(c) In a proceeding to vacate or reconsider a default judgment granted in an involuntary termination of parental rights proceeding, a parent who has waived counsel under
par. (b) 1. or who is presumed to have waived counsel under
par. (b) 3. in the involuntary termination of parental rights proceeding shall be represented by counsel, unless in the proceeding to vacate or reconsider the default judgment the parent waives counsel as provided in
par. (b) 1. or is presumed to have waived counsel as provided in
par. (b) 3.
48.23(2g)
(2g) Right of Indian child's parent or Indian custodian to counsel. Whenever an Indian child is the subject of a proceeding involving the removal of the Indian child from the home of his or her parent or Indian custodian, placement of the Indian child in an out-of-home care placement, or termination of parental rights to the Indian child, the Indian child's parent or Indian custodian shall have the right to be represented by counsel as provided in
subs. (2) and
(4).
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. Except as provided in
sub. (2g), 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. If a child has a right to be represented by counsel or is provided counsel at the discretion of the court under this section 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),
(2g), 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(4m)
(4m) Discharge of counsel. In any situation under this section in which counsel is knowingly and voluntarily waived or in which a parent is presumed to have waived his or her right to counsel, the court may discharge counsel.
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;
2005 a. 344;
2009 a. 94;
2013 a. 337.
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,
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. 48.32,
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.
