Representation of Children in Child Abuse and Neglect Proceedings - Wisconsin

Making The Appointment

Citation: Ann. Stat. §§ 48.23; 48.235

If a child is alleged to be in need of protection or services under § 48.13, the child may be represented by counsel at the discretion of the court. A child who is age 15 or older may waive counsel if the court is satisfied such waiver is knowingly and voluntarily made and the court accepts the waiver. The court may not place the child outside his or her home unless the child is represented by counsel. For a child younger than age 12, the judge may appoint a guardian ad litem (GAL) instead of counsel.

The court shall appoint a GAL, or extend the appointment of a GAL previously appointed for any child 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 child to be placed out of his or her home.

The Use of Court-Appointed Special Advocates (CASAs)

Citation: Ann. Stat. § 48.236

In any proceeding under § 48.13 in which the court finds that providing the services of a court-appointed special advocate (CASA) would be in the best interests of the child, the court may request a CASA program to designate a person who meets the qualifications as a CASA to undertake the activities specified below.

A CASA 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 § 48.13 terminates unless the court discharges the CASA sooner.

Qualifications/Training

Citation: Ann. Stat. §§ 48.235; 48.236; Wis. Sup. Ct. Rules 35.01; 35.03

The GAL shall be an attorney admitted to practice in this State.

A CASA shall be a volunteer or employee of a CASA program who has been selected and trained as provided in the memorandum of understanding entered into under § 48.07(5)(a). No person who is a party in a proceeding, who appears as counsel or GAL 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 CASA in that proceeding.

In court rules: A lawyer may not accept an appointment by a court as a GAL for a minor in an action or proceeding under chapter 48, unless one of the following conditions has been met:

• The lawyer has attended 30 hours of GAL education approved under SCR 35.03.
• The lawyer has attended 6 hours of approved GAL education during the current reporting period at the time he or she accepts an appointment and the immediately preceding reporting period.
• The appointing court has made a finding in writing or on the record that the action or proceeding presents exceptional or unusual circumstances for which the lawyer is otherwise qualified by experience or expertise to represent the best interests of the minor.

The Board of Bar Examiners shall approve courses of instruction at a law school in this state and continuing legal education activities that the board determines to be on the subject of the role and responsibilities of a GAL for a minor or on the subject matter of proceedings under applicable statutes and that are designed to increase the attendees professional competence to act as GAL for a minor in those proceedings.

The board shall approve as family court GAL education courses of instruction at a law school in this State and continuing legal education activities that the board determines to be on any of the following subject matters:

• Proceedings under chapter 767 of the statutes
• Child development
• The effects of conflict and divorce on children
• Mental health issues in divorcing families
• The dynamics and impact of family violence
• Sensitivity to various religious backgrounds, racial and ethnic heritages, and issues of cultural and socioeconomic diversity

Specific Duties

Citation: Ann. Stat. §§ 48.235; 48.236

The GAL shall be an advocate for the best interests of the child for whom the appointment is made. The GAL shall function independently and shall consider, but shall not be bound by, the wishes of the child or the positions of others as to the best interests of the child. If the GAL determines that the best interests of the child are substantially inconsistent with the wishes of the child, the GAL shall so inform the court and the court may appoint counsel to represent the child.

The GAL shall do all the following:

• Meet with the child and, if the child is old enough to communicate, interview the child to determine the child's goals and concerns regarding his or her placement
• Assess the appropriateness and safety of the child's environment
• Make clear and specific recommendations to the court concerning the best interests of the child at every stage of the proceeding

In a case involving a child in need of protection or services, the GAL may do any of the following:

• Participate in permanency planning
• Petition for a change in placement
• Petition for termination of parental rights or any other matter specified under § 48.14
• Petition for revision or extension of dispositional orders
• Petition for the appointment of a guardian, the revision of a guardianship order, or the removal of a guardian

A CASA may perform any of the following activities:

• Gather information and make observations about the child and the child's family and provide that information to the court in the form of written reports or, if requested by the court, oral testimony
• Maintain regular contact with the child; monitor the appropriateness and safety of the environment of the child; the extent to which the child and his or her family are complying with any consent decree, dispositional order, or permanency plan; and the extent to which any agency is providing required services
• Promote the best interests of the child

How the Representative Is Compensated

Citation: Ann. Stat. §§ 48.23; 48.235

If a child has a right to be represented by counsel or is provided counsel at the discretion of the court and counsel is not knowingly and voluntarily waived, the court shall refer the child to the State public defender and counsel shall be appointed by the State public defender under § 977.08 without a determination of indigence.

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

The court may order either or both parents of a child for whom a GAL is appointed to pay all or any part of the compensation of the GAL. In addition, upon motion by the GAL, the court may order either or both parents of the child to pay the fee for an expert witness used by the GAL, if the GAL shows that the use of the expert is necessary to assist the GAL in performing his or her functions or duties.

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 also may order either or both parents to reimburse the county, in whole or in part, for the payment.