Chapter 938

938.23(1m)(b) (b)

938.23(1m)(b)1. 1. If a juvenile is alleged to be in need of protection or services under s. 938.13, the juvenile may be represented by counsel at the discretion of the court. Except as provided in subd. 2., a juvenile 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.

938.23(1m)(b)2. 2. If the petition is contested, the court may not place the juvenile outside his or her home unless the juvenile is represented by counsel at the fact-finding hearing and subsequent proceedings. If the petition is not contested, the court may not place the juvenile outside his or her home unless the juvenile is represented by counsel at the hearing at which the placement is made. For a juvenile under 12 years of age, the court may appoint a guardian ad litem instead of counsel.

938.23(2g) (2g) Right of Indian juvenile’s parent or Indian custodian to counsel. Whenever an Indian juvenile is the subject of a proceeding under s. 938.13 (4), (6), (6m), or (7) involving the removal of the Indian juvenile from the home of his or her parent or Indian custodian or the placement of the Indian juvenile in an out-of-home care placement, the Indian juvenile’s parent or Indian custodian shall have the right to be represented by counsel as provided in sub. (4).

938.23(3) (3) Power of the court to appoint counsel. Except as provided in this subsection, at any time, upon request or on its own motion, the court may appoint counsel for the juvenile or any party, unless the juvenile 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 juvenile in a proceeding under s. 938.13.

938.23(4) (4) Providing counsel. If a juvenile 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 juvenile to the state public defender and counsel shall be appointed by the state public defender under s. 977.08 without a determination of indigency. In any situation under sub. (2g) in which a parent 18 years of age or over is entitled to representation by counsel; counsel is not knowingly and voluntarily waived; and it appears that the parent is unable to afford counsel in full, or the parent so indicates; the court shall refer the parent 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 juvenile who is named as the respondent in that petition.

938.23(5) (5) Counsel of own choosing. Notwithstanding subs. (3) and (4), 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.

938.23 History History: 1995 a. 77; 1999 a. 9; 2001 a. 103; 2005 a. 344; 2009 a. 94; 2015 a. 55.

938.23 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).

938.23 Annotation Protecting Juveniles’ Rights: 50 Years of In re Gault. Lee. Wis. Law. May 2017.

938.235 938.235 Guardian ad litem.

938.235(1) (1) Appointment.

938.235(1)(a) (a) The court may appoint a guardian ad litem in any appropriate matter under this chapter.

938.235(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 juvenile 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 juvenile to be placed out of his or her home under s. 938.32, 938.345, or 938.357. This paragraph does not apply to a juvenile who is subject to a dispositional order that terminates as provided in s. 938.355 (4) (am) 4., 938.357 (6) (a) 4., or 938.365 (5) (b) 4.

938.235(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 in a proceeding on behalf of any party or who is a relative or representative of an interested party may be appointed guardian ad litem in that proceeding.

938.235(3) (3) Duties and responsibilities.

938.235(3)(a) (a) The guardian ad litem shall be an advocate for the best interests of the person 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 the person or the positions of others as to the best interests of the person. If the guardian ad litem determines that the best interests of the person are substantially inconsistent with the person’s wishes, the guardian ad litem shall so inform the court and the court may appoint counsel to represent the person. The guardian ad litem has none of the rights or duties of a general guardian.

938.235(3)(b) (b) In addition to any other duties and responsibilities of a guardian ad litem, a guardian ad litem appointed for a juvenile who is the subject of a proceeding under s. 938.13 shall do all of the following:

938.235(3)(b)1. 1. Unless granted leave by the court not to do so, personally, or through a trained designee, meet with the juvenile, assess the appropriateness and safety of the juvenile’s environment and, if the juvenile is old enough to communicate, interview the juvenile and determine the juvenile’s goals and concerns regarding his or her placement.

938.235(3)(b)2. 2. Make clear and specific recommendations to the court concerning the best interest of the juvenile at every stage of the proceeding.

938.235(4) (4) Matters involving juvenile in need of protection or services.

938.235(4)(a) (a) In any matter involving a juvenile 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:

938.235(4)(a)1. 1. Participate in permanency planning under ss. 48.43 (5) and 938.38.

938.235(4)(a)2. 2. Petition for a change in placement under s. 938.357.

938.235(4)(a)3. 3. Petition for termination of parental rights or any other matter specified under s. 48.14 or 938.14.

938.235(4)(a)4. 4. Petition for revision of dispositional orders under s. 938.363.

938.235(4)(a)5. 5. Petition for extension of dispositional orders under s. 938.365.

938.235(4)(a)6. 6. Petition for a temporary restraining order and injunction under s. 813.122 or 813.125.

938.235(4)(a)7. 7. Petition for relief from a judgment terminating parental rights under s. 48.028 or 48.46.

938.235(4)(a)7g. 7g. Petition for the appointment of a guardian under s. 48.977 (2), the revision of a guardianship order under s. 48.977 (6) or the removal of a guardian under s. 48.977 (7).

938.235(4)(a)7m. 7m. Bring an action or motion for the determination of the juvenile’s paternity under s. 767.80.

938.235(4)(a)8. 8. Perform any other duties consistent with this chapter and ch. 48.

938.235(4)(b) (b) The court shall order the agency identified under s. 938.33 (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).

938.235(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, participate in an appeal, or do neither. If an appeal is taken by any party and the guardian ad litem chooses not to participate in the 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 the extension or reappointment.

938.235(8) (8) Compensation.

938.235(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, the amount ordered may not exceed the compensation payable to a private attorney under s. 977.08 (4m) (b).

938.235(8)(b) (b) The court may order either or both of the parents of a juvenile 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. Upon motion by the guardian ad litem, the court may order either or both of the parents of the juvenile 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 of the 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, the court may also order either or both of the parents to reimburse the county, in whole or in part, for the payment.

938.235(8)(c) (c) At any time before the final order in a proceeding in which a guardian ad litem is appointed for a juvenile under this chapter, the court may order a parent of the juvenile to place payments in an escrow account in an amount estimated to be sufficient to pay any compensation and fees payable under par. (b).

938.235(8)(d) (d) If the court orders a parent to reimburse a county under par. (b), the court may order a separate judgment for the amount of the reimbursement in favor of the county and against the parent who is responsible for the reimbursement.

938.235(8)(e) (e) The court may enforce its orders under this subsection by means of its contempt powers.

938.235 History History: 1995 a. 77, 275; 1997 a. 237; 2005 a. 344; 2005 a. 443 s. 265; 2007 a. 20; 2009 a. 94; 2013 a. 334; 2015 a. 373.

938.237 938.237 Civil law and ordinance proceedings initiated by citation in the court assigned to exercise jurisdiction under this chapter and ch. 48.

938.237(1) (1) Citation form. The citation forms under s. 23.54, 66.0113, 778.25, 778.26 or 800.02 may be used to commence an action for a violation of civil laws and ordinances in the court.

938.237(2) (2) Procedures. The procedures for issuance and filing of a citation, and for forfeitures, stipulations, and deposits in ss. 23.50 to 23.67, 23.75 (3) and (4), 66.0113, 778.25, 778.26, and 800.01 to 800.035 except s. 800.035 (7) (b), when the citation is issued by a law enforcement officer, shall be used as appropriate, except that this chapter shall govern taking and holding a juvenile in custody, s. 938.37 shall govern costs, fees, and surcharges imposed under ch. 814, and a capias shall be substituted for an arrest warrant. Sections 66.0113 (3) (c) and (d), 66.0114 (1), and 778.10 as they relate to collection of forfeitures do not apply.

938.237(3) (3) Disposition. If a juvenile to whom a citation has been issued does not submit a deposit or a stipulation and deposit, the juvenile shall appear in the court for a plea hearing under s. 938.30 at the date, time and place for the court appearance specified on the citation. If the juvenile does not submit a stipulation and deposit or if the court refuses to accept a deposit unaccompanied by a stipulation, the juvenile may be summoned to appear and the procedures that govern petitions for civil law or ordinance violations under s. 938.125 shall govern all proceedings initiated by a citation, except that the citation shall not be referred to the court intake worker for an intake inquiry. If the court finds that a juvenile violated a municipal ordinance or a civil law punishable by a forfeiture under this section, the court shall enter a dispositional order under s. 938.344, if applicable, or if s. 938.344 does not apply, the court may enter any of the dispositional orders under s. 938.343.

938.237 History History: 1995 a. 77; 1999 a. 150 s. 672; 2001 a. 30 s. 108; 2003 a. 139; 2005 a. 344; 2009 a. 402.

subch. V of ch. 938 SUBCHAPTER V

PROCEDURE

938.24 938.24 Receipt of jurisdictional information; intake inquiry.

938.24(1) (1) Referral of information to intake worker; inquiry. Except when a citation has been issued under s. 938.17 (2), information indicating that a juvenile should be referred to the court as delinquent, in need of protection or services, or in violation of a civil law or a county, town, or municipal ordinance shall be referred to an intake worker. The intake worker 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 juvenile and of the public with regard to any action to be taken.

938.24(1m) (1m) Counseling. As part of the intake inquiry, the intake worker shall inform the juvenile and the juvenile’s parent, guardian and legal custodian that they may request counseling from a person designated by the court to provide dispositional services under s. 938.069.

938.24(2) (2) Multidisciplinary screens; intake conferences.

938.24(2)(a) (a) As part of the intake inquiry the intake worker, after providing notice to the juvenile, parent, guardian, and legal custodian, may conduct multidisciplinary screens and intake conferences. If sub. (2m) applies and if the juvenile has not refused to participate under par. (b), the intake worker shall conduct a multidisciplinary screen under s. 938.547.

938.24(2)(b) (b) No juvenile or other person may be compelled by an intake worker to appear at any conference, participate in a multidisciplinary screen, produce any papers, or visit any place.

938.24(2m) (2m) Multidisciplinary screen; pilot program.

938.24(2m)(a) (a) In counties that have a pilot program under s. 938.547, a multidisciplinary screen shall be conducted for a juvenile who is or does any of the following:

938.24(2m)(a)1. 1. Alleged to have committed a violation specified under ch. 961.

938.24(2m)(a)2. 2. Alleged to be delinquent or in need of protection and services and has at least 2 prior adjudications for a violation of s. 125.07 (4) (a) or (b), 125.085 (3) (b), or 125.09 (2) or a local ordinance that strictly conforms to any of those sections.

938.24(2m)(a)3. 3. Alleged to have committed any offense that appears to the intake worker to be directly motivated by the juvenile’s need to purchase or otherwise obtain alcohol beverages, controlled substances, or controlled substance analogs.

938.24(2m)(a)4. 4. Twelve years of age or older and requests and consents to a multidisciplinary screen.

938.24(2m)(a)5. 5. Consents to a multidisciplinary screen requested by his or her parents.

938.24(2m)(b) (b) The multidisciplinary screen may be conducted by an intake worker for any reason other than those specified in par. (a).

938.24(2r) (2r) Indian juvenile; notification of tribal court.

938.24(2r)(a) (a) If the intake worker determines as a result of the intake inquiry that the juvenile is an Indian juvenile who has allegedly committed a delinquent act and that all of the following circumstances apply, the intake worker shall promptly notify the clerk of the tribal court under subd. 1., a person who serves as the tribal juvenile intake worker, or a tribal prosecuting attorney that the juvenile has allegedly committed a delinquent act under those circumstances:

938.24(2r)(a)1. 1. At the time of the delinquent act the juvenile was under an order of a tribal court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile’s parent, or permanent guardianship.

938.24(2r)(a)2. 2. At the time of the delinquent act the juvenile was physically outside the boundaries of s the reservation of the Indian tribe of the tribal court and any off-reservation trust land of either that Indian tribe or a member of that Indian tribe as a direct consequence of a tribal court order under subd. 1., including a tribal court order placing the juvenile in the home of a relative of the juvenile who on or after the date of the tribal court order resides physically outside the boundaries of a reservation and off-reservation trust land.

938.24(2r)(b) (b) If the intake worker is notified by an official of the Indian tribe that a petition relating to the delinquent act has been or may be filed in tribal court, the intake worker shall consult with tribal officials, unless the intake worker determines under sub. (4) that the case should be closed. After the consultation, the intake worker shall determine whether the best interests of the juvenile and of the public would be served by having the matter proceed solely in tribal court. If the intake worker determines that the best interests of the juvenile and of the public would be served by having the matter proceed solely in tribal court, the intake worker shall close the case. If the intake worker determines that the best interests of the juvenile and of the public would not be served by having the matter proceed solely in tribal court, the intake worker shall proceed under sub. (3) or (4).

938.24(3) (3) Request for petition. If the intake worker determines as a result of the intake inquiry that the juvenile should be referred to the court, the intake worker shall request that the district attorney, corporation counsel or other official specified in s. 938.09 file a petition.

938.24(4) (4) Deferred prosecution agreement or case closure. If the intake worker determines as a result of the intake inquiry that the case should be subject to a deferred prosecution agreement, or should be closed, the intake worker shall so proceed. If a petition has been filed, a deferred prosecution agreement may not be entered into or a case may not be closed unless the petition is withdrawn by the district attorney, corporation counsel or other official specified in s. 938.09, or is dismissed by the court.

938.24(5) (5) Request for petition, deferred prosecution, or case closure; time periods. The intake worker shall request that a petition be filed, enter into a deferred prosecution agreement, or close the case within 40 days after receipt of referral information. Before entering into a deferred prosecution agreement, the intake worker shall comply with s. 938.245 (1m), if applicable. If the case is closed or a deferred prosecution agreement is entered into, the district attorney, corporation counsel, or other official under s. 938.09 shall receive written notice of that action. If the case is closed, the known victims of the juvenile’s alleged act shall receive notice as provided under sub. (5m), if applicable. A notice of deferred prosecution of an alleged delinquency case shall include a summary of the facts surrounding the allegation and a list of the juvenile’s prior intake referrals and dispositions. If a law enforcement officer has made a recommendation concerning the juvenile, the intake worker shall forward the recommendation to the district attorney under s. 938.09. Notwithstanding the requirements of this section, the district attorney may initiate a delinquency petition under s. 938.25 within 20 days after notice that the case has been closed or that a deferred prosecution agreement has been entered into. The court shall grant appropriate relief as provided in s. 938.315 (3) with respect to any petition that is not referred or filed within the time period specified in this subsection. Failure to object to the fact that a petition is not referred or filed within a time period specified in this subsection waives any challenge to the court’s competency to act on the petition.

938.24(5m) (5m) Case closure; information to victims. If a juvenile is alleged to be delinquent under s. 938.12 or to be in need of protection or services under s. 938.13 (12) and the intake worker decides to close the case, the intake worker shall make a reasonable attempt to inform all of the known victims of the juvenile’s act that the case is being closed at that time.

938.24(6) (6) Written policies. The intake worker shall perform his or her responsibilities under this section under general written policies promulgated under s. 938.06 (1) or (2).

938.24(7) (7) No intake inquiry or review for citations. If a citation is issued to a juvenile, the citation is not subject to an inquiry or a review by an intake worker for the purpose of recommending deferred prosecution.

938.24 History History: 1995 a. 77, 275, 352, 448; 1997 a. 181; 1999 a. 9; 2003 a. 284; 2005 a. 344; 2007 a. 199; 2009 a. 94.

938.24 Note NOTE: 2003 Wis. Act 284 contains explanatory notes.

938.24 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).

938.24 Annotation Under sub. (1), “information indicating that a child should be referred to the court as delinquent” 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).

938.24 Annotation Sub. (5), when read in conjunction with sub. (3), requires that an intake worker request the district attorney to file a delinquency 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).

938.24 Annotation Procedural Changes. Plum. Wis. Law. Apr. 1996.

938.24 Note NOTE: The above annotations cite to s. 48.24, the predecessor statute to s. 938.24.

938.24 Annotation When a district attorney receives notice of a deferred prosecution agreement from an intake worker under sub. (5), the 20 days during which the district attorney may terminate the agreement under s. 938.245 (6) begins. When a court orders a deferred prosecution agreement under s. 938.21 (7), the intake worker need not notify the district attorney and nothing triggers a district attorney’s authority to terminate the agreement under s. 938.245 (6). An order under s. 938.21 (7) dismissing a petition and referring for deferred prosecution does not require district attorney consent. The district attorney may not override the order by filing a new petition with the same charges and facts. State v. Lindsey A.F., 2002 WI App 223, 257 Wis. 2d 650, 653 N.W.2d 116, 01-0081.

938.24 Annotation Affirmed. 2003 WI 63, 262 Wis. 2d 200, 663 N.W.2d 757, 01-0081.

938.243 938.243 Basic rights: duty of intake worker.

938.243(1) (1) Information to juvenile and parents; basic rights. Before conferring with the parent or juvenile during the intake inquiry, the intake worker shall personally inform a juvenile alleged to have committed a delinquent act, a juvenile 10 years of age or older who is the focus of an inquiry regarding the need for protection or services under s. 938.13 (4), (6), (6m), or (7), and the parents of those juveniles of all of the following:

938.243(1)(ag) (ag) That the referral may result in a petition to the court.

938.243(1)(am) (am) What allegations may be in the petition to the court.

938.243(1)(b) (b) The nature and possible consequences of the proceedings including the provisions of ss. 938.17 and 938.18 if applicable.

938.243(1)(c) (c) The right to remain silent, the fact that in a delinquency proceeding the silence of the juvenile is not to be adversely considered by the court, and the fact that in a nondelinquency proceeding the silence of any party may be relevant in the proceeding.

938.243(1)(d) (d) The right to confront and cross-examine those appearing against them.