*1 S.D.R., аge In the Interest a child under the years: 18of S.D.R., Appellant-Petitioner,
v. Wisconsin, Respondent. State
Supreme Court Argued No. November 3, 1982. 81-914. December Decided 1982.
(Also reported 762.) in 326 N.W.2d *2 appellant-petitioner and there were briefs For argument Margaret Maroney, assistant state by A. oral public defender. argued by Sally L. respondent
For the the cause was attorney general, Wellman, whom on with assistant Follette, attorney general. Bronson La brief was C. unpublished BEILFUSS, C. This is an J. a review of appeals of the cir- decision which affirmed the Judge order, Gardner, presiding, cuit court’s William D. extending juvenile dispositional for 30 pursuant a full the extension 48.365(6), Stats. January 18, legal custody appellant,
On 1980, of the S.D.R., Department was transferred to the of Health adjudicated delinquent and Social after Services he was Judge by dispositional order, placed Gardner. The which Bоys, S.D.R. Ethan Allen School for was for a year, January with an date of 18,1981. January days prior
On six to the dispositional order, attorney the assistant district petitioned pursuant for extension of the order to sec. 48.365, Stats.1 upon, The extension was based 48.365, Stats., provides: Sec. (1) “48.365 parent, guardian, Extension of orders. child, legal custodian, any person agency by or bound may request or the court motion, on its own an extension an order under 48.355. s. be shall submitted the court may entered No order. order under s. 48.355 except provided extended as in this section. “(2) only pursuant An order be extended to a judge which shall include: “(a) Notice to guardian the child or the child’s litem ad or counsel, parent, guardian, legal and to the custodian and all the parties present original hearing. at the report pre- by, accompanied a commitment extension by pared Ethan This a social worker at the Allen School. adjustment report history, related S.D.R.’s offense potential family reintegration. The Ethan for Allen, and gains” report “modest stated that while had made report agency “(b) signed by person or A tiled court pro- designated judge by primarily responsible for the who is report vision of a state- to the contain services child. The shall objec- disposition meeting ment to extent the has been what treatment, specified tives of or in the care rehabilitation as judge’s findings fact. The statement shall contain: placements home, “1. In cases of outside the an evaluation adjustment placement, progress he child’s or she made, anticipated planning description child, has future parties of efforts that have been аll made concerned towards returning home, including parental the child to his or her efforts *3 parents remedy of the to to the factors contributed trans- child, explanation returning why fer of the and an of the child to his or her home not feasible. placed “2. In the the cases where child has not been outside home, description by parties a of all efforts that have been made treatment, meeting objectives concerned or toward the of care explanation rehabilitation, why yet of these have efforts meeting objective, anticipated succeeded in plan- the and future ning for the child. “(c) Any may party present evidence relevant to the issue of judge findings extension. The shall make of fact and conclusions of law based on the evidence. An shall be issued under s. 48.355. “(3) appearance any may The of child be waived consent child, of the guardian or counsel ad litem. “(4) judge dispositions shall determine which are to be considered for extensions. “(5) specified All length orders shall be for a of time not year. to exceed one “(6) request dispositional If a prior extend a order is made to the of termination but the court is unable conduct hearing a prior on the tо the date, termination the court may period days. extend the order for of not more than “(7) Nothing in this any section be construed to allow changes placement or revocation of aftercare. Revocation and changes placement may other place only take under s. 48.357.” “high for a Allen, a need he to exhibit Ethan continued report supervision.” recom-
degree of struсture custody for a be extended mended that S.D.R.’s fa- highly year care of in a structured alternate cility treatment as a residential center. such on that the motion be heard Janu-
The court directed statutorily designated ary 1981, nec- 15, notified the essary parties. indicated At this defense counsel contesting requested that was the extension and that on the of held merits expiration pre- of order to right libеrty. vent a violation S.D.R.’s The district attorney petition filed, responded timely that was quoting Stats. Defense counsel com- plained that the court was unable to hear case before of the order because attorney’s petition failure district office to file a at an earlier date. She cited the fact that the social report worker’s was dated December and that timely part аttorney’s action the district office would have allowed before disposition attorney order. The district did not know the exact date his office received report but working days that at most stated 10 or 12 passed from receipt report filing until the petition. court held timely be- filed 48.365(6), Stats., cause sec. provided authority to extend to 30 in order to hold a *4 hearing long as as the is filed expira- tion of the order. The court found that it was unable to hear S.D.R.’s case before the of the be- given enough cause it had not been advance notice. The court set hearing the case for February 12, 1981, and custody extended over through S.D.R. that date. At February hearing 12th on the merits of the petition for extension, S.D.R. moved to dismiss peti- hearing held to had been tion because violating thus expiration right process. expressed con- due The court S.D.R.’s delaying State, by exten- cern over the fact that custody sion, kept can cause a to be in the However, it period of State for an additional time. attorney’s had found no evidence that the district office intentionally delayed in this case. The court recognized part delay also its that due own was crowded calendar. The denied the motion to dis- finding 48.365(6), Stats., miss, permitted sec. that days hearing. extension for to 30 The court proceeded then to conduct the on the merits of the extension. At this represented was S.D.R. by counsel, behalf, called witnesses on own his and was allowed to cross-examine the State’s witnesses. At the close of the evidence the court ordered the months, order extended for eleven with an January 18, 1982, year date of which was оne from the original expire. date the order was to The court found eligible that to leave Ethan Allen and S.D.R. placed he should alternatively within three weeks. appealed the extension of the or- der. He claimed that temporary extension of cus- tody pending hearing pursuant sec.
Stats., unconstitutionally deprived liberty him of his process. without due He also claimed that the statute vague was unconstitutionally it provide because failed to standards for the trial determining court to follow when permitted. extensions are appeals The court of affirmed the trial court’s orders concluding pursuant to sec. 48.365(6), Stats., a liberty does not have a year interest until one and that vague. statute was not court reasoned 48.355(4) that sec. 48.365(6) together must be permit read the extension of a dis- *5 572 days petition is filed
positiоnal for 30 where judge the order and the trial procedure hearing. It found that this a to hold unable fundamentally unfair. The court also reasoned was not hearing prior inability to hold that the adequate guide standard of the order was granted. determining be when such an extension granted petition to review.2 We S.D.R.’s principal appeal issue is whether sec. 48.365 30-day dispo- (6), which allows extension of a hearing, deprives sitional order liberty process. without due Based on an examination Code, 48, Stats., the Wisconsin Children’s we con- process clude statute does due violate be- liberty cause no interest is violated until 30 fol- lowing peti- termination of a if tion for extension is filed within the of the dis- positional order. process requires
Procedural basically due opportunity meaningful State afford the heard at а meaningful time in a guar procedural manner.3 But the antees of apply govern the due clause deprives ment action person of interests encom passed by the Fourteenth protection Amendment’s 2 granted At the time we to review and the sub briefs, mission of the custody remained in the Department of Health and Social Services as a result of dis- positional subsequent orders entered to the оrders involved in appeal. However, this S.D.R. has since been released to his custody. Despite mother’s appeal the mootness of this we will proceed to the merits of the case because the issue raised is capable yet recurring, evading review due to the short dura juvenile dispositional tion of orders. State ex rel. McDonald v. Douglas Cty. Ct., Cir. 569, 572-73, 100 Wis. 2d 302 N.W.2d 462 (1981). Eldridge, Mathews v. (1976). U.S. *6 liberty property.4 in the first Thereforе to or determine requirements apply, process we whether due instance In of interest at stake.5 must examine the nature protected by the due an which is order to have interest process clause
“ clearly person ‘a must have more than abstract need or desire for it. He than a uni- must have more legiti- expectation must, instead, lateral mate claim of of He it. have ”6 to it.’ entitlеment liberty unconstitutionally
S.D.R. claims his past restrained because he was confined original being date of the order without process protections. liberty afforded due interest involuntary here, asserted freedom confinement, from clearly protected by process an interest the due clause. liberty implicated However, whether this interest is in depends legitimate this case on whether S.D.R. had а expectation liberty disposi- of at the tional order. adjudicated delinquent proceeding
S.D.R. was in a process protections. which he was accorded full due Following deprivation liberty such a constitutional of he legitimate expectation except pro- had no of release as vided the Children’s Thus Code. the determination of deprived whether S.D.R. of due process deрends legislature’s on the intent as to when juveniles legitimate expectation have a of freedom under ch. 48. 4 Inmates, Greenholtz v. Nebraska Penal 1, (1979); 442 U.S. 7 Regents Roth,
Board
v.
564,
(1972); Taplick
408 U.S.
v.
569
City
Board,
Madison
Personnel
162,
169,
97
2d
Wis.
293 N.W.
(1980).
2d 173
5 Greenholtz,
Regents
7;
442
Roth,
Board
at
v.
U.S.
408
at
U.S.
570-71.
6 Greenholtz,
Regents
Roth,
Board
quoting
U.S.
v.
ated 48.355(4), Stats., provides all solely on sec. year terminate at the of one dispositional orders end reject specifies judge a shorter this unless the time. We analysis to one it looks subsection because ch. an examination of the Rather entire isolation. appropriate. adjudication 48 is under completely legislature in revised the Chil- of 1977. as dren’s Ch. Laws Under Code Code. revision, it existed this who was trans- custody department remained ferred to the sub- *7 original ject dispositional he or the order until she age eighteen, department reached the unless the dis- charged completely the child The earlier.7 new Code re- system presently provides system vised this and for a yearly dispositional which allows for at least review of procedural protections applicable orders with the original subsequent disposition any dispositions. originally adjudicated
At the time the is de linquent, he or she hearing is afforded a with full due process protections.8 yearly The then Code envisions original disposition by review of the placing one-year a limit on only such orders can be extended a specific request request for extension.9 may Such a be granted only process hearing after a due is held on the protections merits оf the extension.10 These include no parties right tice to all party present of each judge findings evidence. must make of fact and conclusions law based on the Further, evidence. party responsible for the care of the must child submit a very particularized report stating the extent to which
7 48.34(3), 48.53, Secs. Stats. 1975. 8 See, through 48.335, secs. 48.23 Stats. 1979-80. 48.335(4), 48.365, Secs. Stats. 1979-80. 48.365(2), Sec. Stats. 1979-80. original have met. objectives of order beеn extending dispositional a for order must be year.11 specified not exceed time 30-day provides ex- statute also The extension original dispositional order tension of the hearing. case, which in this provision is at issue This provides: request is “(6) If extend prior
made but the court to the termination prior to unable to on the is conduct a date, termination for a the court extend the order days.” than of not more Stats. Sec. applicable only This is statute limited circumstances. granted only A extension can a re- when quest for such extension filed is before granted order. if the plenary court is unable to conduct the Further, to the termination of the order. granted the extension provision this under can be for more than 30 and the full must be held period. within juvenile process
This review provided for in legis- leads us to thе conclusion lature intended the to be viewed aas continuum. *8 process begins The procedural process with pro- full due protections tections and such provided are also at least yearly on a possibility basis with the temporary of a ex- tension in order to and schedule conduct the extension hearing. Code, when viewed in its entirety, did not system up whereby set a juvenile a automatiсally re- leased at the end dispositional Rather, order. un- der dispositional ch. 48 orders terminate at the end of year one unless the is extended the court for up days plenary 30 a or hearing, up for to a
11 48.365(5), Sec. Stats. 1979-80. hearing. sets year following the Code such a Thus guaranteeing system procedural due of annual review year process the within and 30 after least original dispositional is enterеd. integral part temporary provision extension is an yearly provides review of
of the revised Code which changing juvenile system dispositions. In under from Code, until the old confinement which allowed continued eighteen legislature any after deemed review, without necessary it period to allow a short additional to ac- commodate situations when court “unable” hearing prior expiration hоld the extension dispositional order. in Such extension is parties juvenile the best interests of all involved in the process. purpose of the to extend the “[T]he dispositional order is progress to evaluate the child’s and to determine necessary.”12 whether continued control is report progress which documents the child’s prepared future long needs can not be too before end of the accurately order or it will not progress reflect the child’s legislature and needs. The providing 30-day for the balanced the interests having having order and the benefit of the entire period to examine prog- his or her Further, legislature recognized ress. problems scheduling plenary busy into calendars Thus, of the order. through sec. Stats., legislature attempted effectively practically implement the annual re- requirement view of the revised Code. Because the under must
be viewed as continuum, including the temporary ex- 12 In R.E.H., Interest 652-53, Wis. 2d N.W. (Ct. App. 2d 1981). *9 provision, we find that a not have tension does liberty legitimate expectation days until following dispositional expiration date order. statutorily no en- Therefore, created because had days liberty following up to 30 until titlement original dispositional the due of his tеrmination has not been clause violated. conclusion, In we reiterate sec. request
applies only if for extension is filed before expiration order and the court required hearing prior is unable to conduct to the expiration. petition order’s We hold that for exten- requesting sion should set forth some reason for day extension. While extension filed one timely, date is we recommend that parties seeking juvenile disposition extend file such petitions, possible, when time which enables the plenary hearing prior court to conduct the to the termi- urge nation of the We trial order. also courts to hold possible plenary as near as However, order. under no circum- stances temporarily order ex- days. tended for than more The court must hear and decide the extension within 30 оf the termi- nation of the order. second issue raised S.D.R. is whether 48.-
365(6), Stats., unconstitutionally vague. is S.D.R. con- phrase tends that “but the court is unable to con- hearing” vague duct a provide because it does not suf- guidance ficient determining to the trial court in when a granted. disagree. extension should be We vague “Unless a statute is so and uncertain that it is impossible to legislative execute it or to ascertain the *10 certainty, it Sec. is valid.”13 with reasonable
intent category. clearly does not fall into this (6), Stats., 48.365 legislative earlier, the the intent behind discussed As 48.365(6) leeway period to allow of sec. was inclusion implement the annual of to review in provision by applies orders envisioned 48. where the for extension filed in circumstances is expiration date that the is “unable” close to the court so process hearing prior due the full schedule and conduct to 48.365(6) of find the order. that to the end We provides guidance to trial courts to sufficient determine grant temporary extensions. when to The standard of “inability” hearing, light pur- to conduct the in poses temporary provision of extension as construed guidance case, provides in this sufficient to trial courts protect juveniles arbitrary capricious grant- from ing temporary of extensions.
By the аppeals decision of the of Court. —The court affirmed. (concurring). agree
DAY, J. I majority with the opinion as written and write this concurrence for the purpose stating disagree that I interpreta- with opinion given majority tion Justice Abraham- in son her concurrence.
I am authorized state that Heffernan, Justices Cal- low, join Steinmetz and in Ceci this concurrence. ABRAHAMSON,
SHIRLEY S. (concurring). J. majority holds that S.D.R. his denied due rights by juvenile original court’s extension his hearing to 30 on the petition, sec., 48.365(6), Stats. 1979-80. majority appear does not to address the issue whether there must holding be a delay cause for the in Dodge, Forest Home Karns, Inc. v. 29 Wis. 2d (1965). N.W.2d 214 of this hearing the facts but notes that the extension prior could not held case show juvenile was un- court was held the time it because pp. 571-72). (supra, There- able to schedule light fore, majority’s hоlding, facts case, require that, granting the before seems extension, determine, court must expira- record, cannot be held original tion of did order, as the *11 this case. majority opinion qualifies holding its with the petition only
statement that the extension forth must set requesting p. “some reason” for (supra, the extension 577). interpret light I these words in stated facts require in the case more than bare assertion that nеcessary. majority the extension was affirmed in extension order this case based on the facts that petition report containing extension was attached to a analysis progress detailed probable S.D.R.’s fu- (supra, pp. allowing ture 569-70), needs to make a reasonable assessment that there were suf- grounds, grant proved, ficient if for ex- tension. I therefore majority’s opinion read the to mеan that petition the extension should contain sufficient in- formation to allow the court to if conclude petition facts recited accompanying re- ports true, petition might granted. were be
I majority’s would add opinion that when the petition is filed so close to holding first be- fore expires nearly impossible, should forth set tardy filing. reasons for prac- filing tice of last-minute appears no stated reason to attributed to human inclination to wait until the last minute to practice act. This should not be con- doned this kind of case.