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
Protecting Juveniles' Rights: 50 Years of In re Gault. Lee. Wis. Law. May 2017.
The court may appoint a guardian ad litem in any appropriate matter under this chapter.
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
, 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.
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.
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.
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:
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.
Make clear and specific recommendations to the court concerning the best interest of the juvenile at every stage of the proceeding.
(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:
Bring an action or motion for the determination of the juvenile's paternity under s. 767.80
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)
(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.
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)
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.
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)
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.
The court may enforce its orders under this subsection by means of its contempt powers.
Civil law and ordinance proceedings initiated by citation in the court assigned to exercise jurisdiction under this chapter and ch. 48. 938.237(2)
The procedures for issuance and filing of a citation, and for forfeitures, stipulations, and deposits in ss. 23.50
, 23.75 (3)
, and 800.01
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)
, 66.0114 (1)
, and 778.10
as they relate to collection of forfeitures do not apply.
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
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.
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
(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
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.
(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:
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.
Twelve years of age or older and requests and consents to a multidisciplinary screen.
Consents to a multidisciplinary screen requested by his or her parents.
The multidisciplinary screen may be conducted by an intake worker for any reason other than those specified in par. (a)
(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:
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.
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.
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)
(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.
(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.
(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.
(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.
(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)
(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.
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).
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).
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).
Procedural Changes. Plum. Wis. Law. Apr. 1996.
NOTE: The above annotations cite to s. 48.24, the predecessor statute to s. 938.24.
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
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)
, or (7)
, and the parents of those juveniles of all of the following:
That the referral may result in a petition to the court.
What allegations may be in the petition to the court.
The nature and possible consequences of the proceedings including the provisions of ss. 938.17
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.
The right to confront and cross-examine those appearing against them.
The right to have the allegations of the petition proved by clear and convincing evidence unless the juvenile is within the court's jurisdiction under s. 938.12
or 938.13 (12)
, in which case the standard of proof is beyond a reasonable doubt.
(1m) Disclosure of information for use in civil damages action.
If the juvenile who is the subject of the intake inquiry is alleged to have committed an act that resulted in personal injury or damage to or loss of the property of another, the intake worker shall inform the juvenile's parents in writing of all of the following:
The possibility of disclosure of the identity of the juvenile and the parents, of the juvenile's police records, and of the outcome of proceedings against the juvenile for use in civil actions for damages against the juvenile or the parents.
The parents' liability for acts of their juveniles.
(3) Information when juvenile not at intake conference or has not had custody hearing.
If the juvenile has not had a hearing under s. 938.21
and was not present at an intake conference under s. 938.24
, the intake worker shall notify the juvenile, parent, guardian, and legal custodian as appropriate of their basic rights under this section. The notice shall be given verbally, either in person or by telephone, and in writing. The notice shall be given in sufficient time to allow the juvenile, parent, guardian, or legal custodian to prepare for the plea hearing. This subsection does not apply to cases of deferred prosecution under s. 938.245
This section does not apply if the juvenile was present at a hearing under s. 938.21