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:
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) (a), court records under ss.
48.396 (2) (a) and
938.396 (2), 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;
2005 a. 344.
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 court.
48.24(5)
(5) The intake worker shall request that a petition be filed, enter into an informal disposition, or close the case within 60 days after receipt of referral information. If the referral information is a report received by a county department or, in a county having a population of 750,000 or more, the department or a licensed child welfare agency under contract with the department under s.
48.981 (3) (a) 1.,
2., or
2d., that 60-day period shall begin on the day on which the report is received by the county department, department, or licensed child welfare agency. 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 that 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. If a petition is filed, the petition may include information received more than 60 days before filing the petition to establish a condition or pattern which, together with information received within the 60-day period, provides a basis for conferring jurisdiction on the court. The court shall grant appropriate relief as provided in s.
48.315 (3) with respect to any petition that is not referred or filed within the time periods specified in this subsection. Failure to object to the fact that a petition is not requested within the time period specified in this subsection waives any challenge to the court's competency to act on the petition.
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,
00-1618.
48.24 Annotation
The receipt of a 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 time period for requesting that a petition 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,
00-1618.
48.24 Annotation
Section 805.04 (1), the voluntary dismissal statute, does not apply in a CHIPS proceeding because it is different from and inconsistent with sub. (4), which is construed to provide that a district attorney may withdraw a CHIPS petition only with the approval of the court. Kenneth S. v. Circuit Court for Dane County,
2008 WI App 120,
313 Wis. 2d 508,
756 N.W.2d 573,
08-0147.
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),
97-0506.
48.245
48.245
Informal disposition. 48.245(1)(1)
An intake worker may enter into a written agreement with all parties that imposes informal disposition under this section if all of the following apply:
48.245(1)(a)
(a) The intake worker has determined that neither the interests of the child or unborn child nor of the public require the filing of a petition for circumstances relating to ss.
48.13 to
48.14.
48.245(1)(b)
(b) The facts persuade the intake worker that the jurisdiction of the court, if sought, would exist.
48.245(1)(c)
(c) The child, if 12 years of age or over, and the child's parent, guardian, and legal custodian; the parent, guardian, and legal custodian of the child expectant mother and the child expectant mother, if 12 years of age or over; or the adult expectant mother, consent.
