Right to counsel

Any child alleged to be in need of protection or services under Wis. Stat. Ann. § 48.13 “may be represented by counsel at the discretion of the court.” § 48.23(1m)(b)(1). In addition, § 48.23(3) states that “at any time, upon request or on its own motion, the court may appoint counsel for the child or any party, unless the child or the party has or wishes to retain counsel of his or her own choosing.”

Under  § 48.23(1m)(b)(2), a child alleged to be in need of protection or services under § 48.13 must be represented in the following circumstances:

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

For any child alleged to be in need of protection or services under §§ 48.13 (3), (3m), (10), (10m) and (11), the court shall appoint counsel, except that “if the child is less than 12 years of age the court may appoint a guardian ad litem instead of counsel.” Wis. Stat. Ann. § 48.23(3m). In addition, “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.” Wis. Stat. Ann. § 48.23(3m). Wis. Stat. Ann. § 48.235(2) specifies that the guardian ad litem “shall be an attorney admitted to practice in this state.”

Waiver: Wis. Stat. Ann. § 48.23(1m)(b)(1) states that “except as provided in subd. 2., a child 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.” There is no similar waiver language in Wis. Stat. Ann. § 48.23(3m), which governs the provision of counsel for children alleged to be in need of protection or services under §§ 48.13(3), (3m), (10), (10m) and (11).