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.

48.23(4)(a) (a) If a child or a parent under 18 years of age 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 or parent under 18 years of age 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.

48.23(4)(b) (b) 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).

48.23(4)(c) (c) 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; 2017 a. 253.

48.23 Cross-reference Cross-reference: See s. 48.275 (2), concerning contribution toward legal expenses by a 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. M.W. v. Monroe County Department of Human Services, 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 sub. (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 guardian ad litem, adversary counsel must be allowed to zealously represent the client’s expressed wishes, even if the guardian ad litem holds an opposing view. E.H. v. Milwaukee County, 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. A.S. v. Dane County, 168 Wis. 2d 995, 485 N.W.2d 52 (1992).

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 Dept. 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., 202 Wis. 2d 1 (1996), 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 Department of Human Services 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.

48.233 48.233 Five-county pilot program.

48.233(1) (1) No later than July 1, 2018, the state public defender shall establish a pilot program in Brown, Outagamie, Racine, Kenosha, and Winnebago counties to provide counsel to any nonpetitioning parent after a petition has been filed under s. 48.255 in a proceeding under s. 48.13.

48.233(2) (2) This section does not apply to a proceeding commenced after June 2025 under s. 48.13.

48.233(3) (3) The state public defender may promulgate rules necessary to implement the pilot program established under sub. (1). The state public defender may promulgate the rules under this subsection as emergency rules under s. 227.24. Notwithstanding s. 227.24 (1) (a) and (3), the state public defender is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection. Notwithstanding s. 227.24 (1) (c) and (2), emergency rules promulgated under this subsection remain in effect until four years after June 30, 2021.

48.233(4) (4) By January 1, 2025, the department and the state public defender shall each submit a report to the joint committee on finance, and to the chief clerk of each house of the legislature for distribution to the appropriate standing committees under s. 13.172 (3), regarding costs and data from implementing the pilot program under sub. (1).

48.233 History History: 2017 a. 253; 2021 a. 58; 2023 a. 19.

48.235 48.235 Guardian ad litem.

48.235(1) (1) Appointment.

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, 48.978, or 48.9795.

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.