Chapter 938

938.222(2)(b) (b) In addition to the requirements under par. (a), a contract under sub. (1) shall include all of the following:

938.222(2)(b)1. 1. The rates to be paid by the county for holding a juvenile in the private juvenile detention facility and the charges to be paid by the county for any extraordinary medical and dental expenses and any programming provided for a juvenile who is held in the private juvenile detention facility.

938.222(2)(b)2. 2. An agreement that the county retains jurisdiction over a juvenile who is held in the private juvenile detention facility.

938.222(2)(b)3. 3. An agreement that the private juvenile detention facility is subject to investigation and inspection by the department of corrections under s. 301.36.

938.222(2)(b)4. 4. Any other matters that are necessary and appropriate concerning the obligations, responsibilities, and rights of the contracting counties and the department of corrections.

938.222 History History: 1997 a. 27; 2005 a. 344; 2007 a. 97; 2015 a. 55.

938.223 938.223 Contracts with Minnesota counties for juvenile detention facility services.

938.223(1) (1) Uses of facilities. The county board of supervisors of any county may contract with one or more counties in Minnesota that operate a juvenile detention facility for the use of one or more Minnesota juvenile detention facilities for the holding of juveniles who meet the criteria under s. 48.208, 938.17 (1), 938.183 (1m) (a), or 938.208 or who are subject to a disposition under s. 938.17 (1) (b) or 938.34 (3) (f), a sanction under s. 938.355 (6) (d) 1., or short-term detention under s. 938.355 (6d) or 938.534 (1).

938.223(2) (2) Contract requirements.

938.223(2)(a) (a) A contract under sub. (1) shall require all of the following:

938.223(2)(a)1. 1. That the Minnesota juvenile detention facility meet or exceed the minimum requirements for the approval and operation of a Wisconsin juvenile detention facility established by the department of corrections by rule under s. 938.22 (2) (a) and that the Minnesota juvenile detention facility be approved by the department under s. 301.36.

938.223(2)(a)2. 2. That the Minnesota juvenile detention facility provide educational programming, health care, and other care that is equivalent to that which a juvenile would receive in a Wisconsin juvenile detention facility.

938.223(2)(b) (b) In addition to the requirements under par. (a), a contract under sub. (1) shall include all of the following:

938.223(2)(b)1. 1. The rates to be paid by the Wisconsin county for holding a juvenile in the Minnesota juvenile detention facility and the charges to be paid by the Wisconsin county for any extraordinary medical and dental expenses and any programming provided for a juvenile who is held in the Minnesota juvenile detention facility.

938.223(2)(b)2. 2. An agreement that the Wisconsin county retains jurisdiction over a juvenile who is held in the Minnesota juvenile detention facility.

938.223(2)(b)3. 3. An agreement that the Minnesota juvenile detention facility is subject to investigation and inspection by the department of corrections under s. 301.36.

938.223(2)(b)4. 4. Any other matters that are necessary and appropriate concerning the obligations, responsibilities, and rights of the contracting counties and the department of corrections.

938.223(3) (3) Minnesota juveniles in Wisconsin facilities. The county board of supervisors of a county that operates a juvenile detention facility may contract with one or more counties in Minnesota for the use of the juvenile detention facility operated by the Wisconsin county for the holding of juveniles transferred to that juvenile detention facility by the Minnesota county.

938.223 History History: 1995 a. 352; 1997 a. 27; 2005 a. 344; 2007 a. 97; 2015 a. 55.

938.224 938.224 Contracts with department for juvenile detention facility services.

938.224(1) (1) Uses of facilities. The county board of supervisors of a county may contract with the department of corrections for the use of a juvenile correctional facility operated by that department for the holding of juveniles who meet the criteria under s. 48.208, 938.17 (1), 938.183 (1m) (a), or 938.208 or who are subject to a disposition under s. 938.17 (1) (b) or 938.34 (3) (f), a sanction under s. 938.355 (6) (d) 1., or short-term detention under s. 938.355 (6d) or 938.534 (1).

938.224(2) (2) Contract requirements. A contract under sub. (1) shall require all of the following:

938.224(2)(a) (a) That the county may use a juvenile correctional facility for holding a juvenile under sub. (1) only if any of the following criteria are met:

938.224(2)(a)1. 1. There is no county-operated juvenile detention facility approved by the department of corrections within 40 miles of the county seat of the county.

938.224(2)(a)2. 2. There is no bed space available in a county-operated juvenile detention facility approved by the department of corrections within 40 miles of the county seat of the county.

938.224(2)(b) (b) That the county may use a juvenile correctional facility for holding a juvenile under sub. (1) only if the department of corrections approves that use based on the availability of beds in the juvenile correctional facility and on the programming needs of the juvenile.

938.224(3) (3) Additional requirements. In addition to the requirements under sub. (2), a contract under sub. (1) shall include all of the following:

938.224(3)(a) (a) The per person daily rate to be paid by the county for holding a juvenile under sub. (1) and the charges to be paid by the county for any extraordinary medical and dental expenses and any programming provided for the juvenile by the department of corrections.

938.224(3)(b) (b) Any other matters that are necessary and appropriate concerning the obligations, responsibilities, and rights of the contracting county and the department of corrections.

938.224(4) (4) Supervision and control of juveniles. A juvenile held in custody under sub. (1) is under the supervision and control of the department of corrections and is subject to the rules and discipline of that department.

938.224 History History: 1997 a. 27; 2005 a. 344; 2007 a. 97; 2015 a. 55.

938.225 938.225 Statewide plan for juvenile detention and correctional facilities. The department of corrections shall assist counties in establishing juvenile detention facilities and secured residential care centers for children and youth under s. 938.22 by developing and promulgating a statewide plan for the establishment and maintenance of suitable juvenile detention facilities reasonably accessible to each court and secured residential care centers for children and youth reasonably accessible to each county.

938.225 History History: 1995 a. 77; 2007 a. 97; 2015 a. 55; 2017 a. 185.

938.23 938.23 Right to counsel.

938.23(1g) (1g) Definition. In this section, “counsel” means an attorney acting as adversary counsel.

938.23(1j) (1j) Duties of Counsel. Counsel shall advance and protect the legal rights of the party represented. Counsel may not act as guardian ad litem for any party in the same proceeding.

938.23(1m) (1m) Right of juveniles to legal representation. Juveniles subject to proceedings under this chapter shall be afforded legal representation as follows:

938.23(1m)(a) (a) A juvenile alleged to be delinquent under s. 938.12 or held in a juvenile detention facility shall be represented by counsel at all stages of the proceedings. A juvenile 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. If the waiver is accepted, the court may not place the juvenile in a juvenile correctional facility or a secured residential care center for children and youth, transfer supervision of the juvenile to the department of corrections for participation in the serious juvenile offender program, or transfer jurisdiction over the juvenile to adult court.

938.23(1m)(am) (am) A juvenile subject to a sanction under s. 938.355 (6) (a) is entitled to representation by counsel at the hearing under s. 938.355 (6) (c).

938.23(1m)(ar) (ar) A juvenile subject to proceedings under s. 938.357 (3) or (5) shall be afforded legal representation as provided in those subsections.

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.