*1 In re the Termination Rights of Parental Age
Jоshua S., a Person Under the of 18: Sheboygan County Department of Social Services,
Petitioner-Respondent, †
v. Respondent-Co-Appellant, S., Matthew Respondent-Appellant-Petitioner. Rachel B.,
Supreme Court No. argument April 2004AP901. Oral Decided June 84WI (Also 631.) reported in 698 N.W.2d † Motion reconsideration denied 10-17-05.
152 respondent-appellant-petitioner there were For the by Waukesha, Law Office, and Grau J. Grau briefs John argument by oral John J. Grau. argued petitioner-respondent the cause was For the attorney, Mary Wagner, assistant district T. Joseph DeCecco, district attor- on the brief was whom ney. CROOKS, J. Petitioner Rachel PATRICK N. unpublished of the of decision
B. review an seeks County Sheboygan affirming appeals order оf the an of termination, rights parental her Court Circuit argues appeal that the circuit Rachel B. to Joshua S. rights, competency parental her to terminate court lost mandatory statutory time limi- it because violated (2003-04).1 48.422(2) tation set forth Wis. Stat. this court is whether The issue before challenge statutory on the violation based the circuit if not made before limitation is waived first court. challenge conclude such We limitation violation of the
based on the 48.422(2) though waived, even cannot be Wis. The court of the circuit court. it was not raised in Village extending holding erred Trempealeau Mikrut, v. WI
1 Wisconsin all references to the otherwise indicated Unless the edition. are to 2003-04 Statutes 48.422(2) "If con- petition the is § Stat. states: Wisconsin hearing fact-finding to be a date for a the court shall set tested of petition, the unless all days hearing of the on held within 45 hearing on to commence with the necessary parties agree immediately." the merits
153 mandatory statutory 190, to of a N.W.2d violations such time limitation under ch. Wis. Stat. 48. circuit fact-finding hearing court did hold the within the by 48.422(2), time limits established and never granted proper pursuant extension or continuance 48.315(1)(a) §§ (2),2 and and it thus lost proceed before it ordered the termina parental rights. Accordingly, tion of Rachel B.'s we appeals, of reverse decision which had the order affirmed circuit court.
W gave Rachel B. 3. birth to Joshua S. on October 10, 2001, On 30, Nоvember the circuit court physical determined that S. Joshua was at risk of abuse protection pursuant services, and in need of or to Wis. 48.13(3m) (10). §§ Stat. and The court ordered that placed Joshua S. be in a licensed foster home and imposed Children in Need of Protection or Services (CHIPS) B. husband, conditions Rachel and her presumed B. B. Ronald Ronald was to be Joshua S.'s he father, as and Rachel B. were married at the time of conception. January Sheboygan However, 2002, adjudicated County Circuit Court Matthew S. as Joshua 2 48.315(2) general requirements "The all control ex tensions of time deadlines under the Children's Code." State v. O., 2000 AppWI N.W.2d 48.315(2) "A
Wisconsin states: continuance shall be only upon showing good thе court open cause in during court or a telephone conference under s. 807.13 on the only long record necessary, taking and for so as is into account request attorney parties consent of the district or the the interest of the public prompt disposition of cases." *5 2002, S. 8, On Matthew biological January S.'s father.3 the child ten-year prison a sentence for began serving half-brother. of Joshua S.'s abuse 7, the social 2003, 4. On March worker Rights case filed a Termination of Parental Joshua S.'s (TPR) S., to B. and Matthew Rachel petition regard 48.415(2).4 stated petition to Wis. Stat. pursuant following: long-term [S.'s] of incarceration and Because Matthew half- violent behavior towards Joshua's previоus his brother; inability [Rachel B.'s] of to meet because year of the court order for well over a the conditions unlikely it either progress, appears and her lack of meet the for the safe will be able to conditions parent year [Joshua S.] to their home within one return any fact-finding hearing in this matter. for an attorney The circuit court appointed initial on hearing B. and then conducted the Rachel B. attorney for Rachel on March 2003. The petition termination for of her parental the grounds denied denied attorney Matthew S.'s hearing, At rights. termination, for the possibility discussed the grounds file a planning indicated that he was trial, separate he severance, and stated that wоuld waive motion motion granted. limits if the the time September the circuit On petition Services Sheboygan County's Department of Social change in paternity. order to reflect amend CHIPS petition first filed a to terminate The social worker 20,2002, pursuant on parental rights March Matthew S.'s Code, abuse section Children's child 48.415(5)(a). 2, 2002, petition was dismissed This abuse had for his child pending Matthew still because S. conviction. petition
¶ 6. Since the TPR was contested, there fact-finding hearing, pursuant was a need to set a *6 48.422(2). originally The circuit court hearing jury April scheduled this before a for 30, 29 and 45-day 2003, which fell well within the 48.422(2). required by April In a letter dated 3, 2003, deputy attorney requested hearing the district that the be rescheduled, аs he had a TPR trial scheduled for April in30 another branch of the court. Matthew S.'s attorney asking also a sent letter to the court it to adjourn hearing, the as he would not be able obtain hearing a April date on a motion for severance before scheduling and 30. He also stated that he had conflicts April on 29. requests, 7. Pursuant to these the court notified parties April
the fact-finding on 4, 2003, that the hearing was rescheduled for June 17 18, and open None during of these actions occurred in court or telephone a April conference on the record. On 15, 2003, respondents, Matthew S. moved for severance of separate and thus for trials. The court scheduled a hearing May for this motion on 19, 2003. After these hearings attorney scheduled, were Rachel B.'s indicated that he longer had a conflict the case and could no attorney. continue as her 23, On 2003, a new attorney appointed represent was Rachel B. Soon appointment, attorney after his Rachel B.'s new indi- scheduling cated that he had a conflict with the motion hearing May for severance rescheduling 19, and also asked for a fact-finding hearing. June 17 and 18 permission, attorney With the par- court's Rachel B.'s ticipated May hearing telephone. the 19 motion via hearing, At that Murphy, the court, circuit John D. Judge, denied Matthew S.'s motion for severance. The court referred counsel to the court clerk to schedule the fact-finding hearing jury. 4, 2003, a June before On hearing fact-finding parties notified the that the court 19, 18 and rescheduled November was deputy 2003, district attor- 8. On June hearing expressing ney date, a moved the court for new 45-day set forth in about constraints concern The circuit court heard and moved the dates for motion on June hearing August fact-finding 8,2003. 7 and Rachel attorney he the court that would be B.'s informed represent dates, her and was on those unavailable finding replacement. result, As a later unsuccessful fact-finding hearing apparently off took the July conference for calendar and scheduled status 30, 2003. no record made that status 9. While *7 appears
conference, it cоurt held another the August 2003, and rescheduled 7, conference on status hearing fact-finding September 17, Prior for 2003. Judge hearing was date, Thomas S. Williams to that Judge place Bourke, and a Terence J. substituted attorney appointed B. for Rachel new was August call conference on accord hearing September held a on 28, 2003, the court motion 2003, various motions. court address fact-finding hearing from of Matthew S.'s severance Although not another formal motion was Rachel B.'s. agreed parties effect, all of the to sever- made to stipulation. accepted ance, circuit fact-finding.hearing was then 11. Matthew S.'s hearing, September all At his scheduled questions special answered in the were four verdict things, indicating, among affirmative, other thus CHIPS conditions not meet the he would be able hearing. period Rachel after the 12-month within fact-finding hearing postponed B.'s until October hearing, special 15, 16, and 17, 2003. At her all four questions verdict were also answered the affirma- tive.5
¶ 12. On October 30, 2003, the circuit court en- dispositional terminating parental tered a order rights pursuant of both Matthew S. and B., Rachel jury these verdicts. The record does indicate that parents Sheboygan County guard- either the or or the regarding ian ad litem raised the issue the circuit court's to hear the cases. Both Matthew S. timely appealed. and Rachel B. appeal, argued pursuant 13. On Rachеl B. that, § 48.422(2), compe-
to Wis. Stat. tency the circuit court lost proceed May days with her case on 2003, 45 hearing petition. after the initial termination fact-finding hearing Because her did not occur until 15,16, October and 17, 2003, she claimed that the court did not have to order the termination of her parental rights. unpublished opinion, In an the court of parental rights affirmed the termination of her
5 The special four questions verdict were as follows: adjudged [Joshua S.] 1. Has protection been to be in need of placed services and outside the home for a cumulative total longer pursuant of six months or to one or more court containing parental rights orders the termination of noticе required by law? Sheboygan County Department 2. Did the of Social Services make *8 provide a reasonable effort to the [Rachel B.] services to assist meeting the conditions for the return of the child? [Rachel B.] 3. Has failed to meet the conditions for the safe return [Joshua S.] of to her home? 4. Is there a substantial [Rachel likelihood that B.] will not meet these following conditions within the twelve-month the hearing? conclusion of this
158 Judge appeals Richard S. August Court of 25, 2004. on Village Trempealeau Mikrut, relying v. on Brown, of by raising it holding her claim waived that Rachel held extended the The court circuit court. before challenges on the viola- based Mikrut to statutory a at issue. As constraints tion of the of the the order affirmed result, the court of rights parental terminating B.'s Rachel circuit Joshua S. petitioned to review
¶ this court Rachel 14. appeals, her and we court of of the decision petition and now reverse.
H—I
compe
whether
address is
The issue we
tency challenge
violation
on the
based
48.422(2)
of the
of Wis.
time limitation
though
raised
it was not
waived, even
is
Children's Code
question
presents
of law. We
This
in circuit court.
benefiting
question
from
novo,
de
review this
therefore
appeals.
analyses
and court of
circuit court
Kywanda F.,
v.
7;
2d
State
Mikrut, 273 Wis.
See
(1996).
32-33, 546 N.W.2d
2d
200 Wis.
court's
Competency
as the
defined
has been
jurisdiction.
subject
Kohler
power
matter
to exercise
(Ct.
337, 555 N.W.2d
Wixen,
204 Wis.
Co. v.
1996).
conceрt
narrower
App.
is
jurisdiction,
subject
while
because
matter
that of
than
jurisdiction
subject
matter
confers
the constitution
ability
may
legislature
limit the
courts, the state
power
See Wis.
statute.
exercise that
courts to
*9
legisla
VII, 8;
Const. art.
Wis. Stat. 801.04. "Such a
pro
tive enactment affects that court's
subject
jurisdiction. Cepuke
ceed rather than its
matter
Cepukenas,
nas v.
221
166, 170,
Wis. 2d
584 N.W.2d227
(Ct.
1998).
App.
Competency
importance
is of central
comply
mandatory
case,
since the failure to
may
time limits under the Children's Code
result in the
proceed.
loss of the circuit court's
State v.
App
O.,
70, 5,
2000 WI
¶ 17. The
of the Children's
previously by
Code has been summarized
Wisconsin
unnecessary
provide great
courts, so it is
that we
detail
B.J.N.,
In
here.
re
635, 645,
162 Wis. 2d
469 N.W.2d845
(1991);
R.H.,
see also In
re
147
2dWis.
433 N.W.2d
(Ct.
1988).
App.
highlight
16
However, we do
some
important
clarify
legislative
revisions, in order to
intent behind the
time limits at issue. When
the Children's Code was first enacted, "there were'no
statutorily
processing
authorized time limits for the
juvenile
cases in the
court,' the lack of which often
detention." B.J.N.,
resulted in an abuse of
162 Wis. 2d at
(citing
646
Wisconsin Council on
Justice,
Criminal
(Dec. 1975)).
Juvenile Justice Standards and
Goals
substantially
1977 and
however, the Code revised to include numerous time limitations, which
protect
process
were established to
constitutional due
rights. B.J.N.,
R.H.,
646;
at
147 Wis. 2d at
legislative history
27-31. "The
of the Children's Code
legislature
shows that
considers that strict time
stages
adjudication
limits between critical
within the
proсess
necessary
protect
process rights
are
the due
parents."
of children
R.H.,
(1) excluded in following periods time shall be chapter: computing requirements within (a) resulting legal from other Any period delay concerning the child or the unborn child and actions mother, including an ex- expectant the unborn child's hearing related to the 48.295 or a amination under s. child, parent, guard- condition of the the child's mental mother, prehear- or the legal expectant ian or custodian motions, hearings on other motions and ing waiver matters. County,
According Sheboygan effect of Matthew light statute, severance, in of this motion for S.'s days, 45-day additional 34 limit for an toll the expanding 2003. deadline June argues Sheboygan County that the cir- also good properly cause; case for continued the cuit court 48.315(2). pursuant contends that at It to Wis. Stat. May hearing on the motion for severance 2003, the court noted on the record that there were scheduling fact-finding hearing and that the conflicts postponed. Sheboygan County argues would need to be scheduling good these cause, conflicts constituted triggering permitted thus continuance under opposition argument, In to this Rachel B. claims that the court lost when it violated § 48.422(2), the time limitation set forth Wis. Stat. properly and that this deadline was never continued response Sheboygan nor the time In tolled. County's argument, first that Matthew S.'s motion for statute, severance tolled the Rachel B. contends that filing of this motion had no effect on the violation of mandatory 48.315(l)(a), time limit. "any period delay resulting the statute excludes from *11 legal concerning comput- other actions the child" when ing requirements time within the Children's Code. argues Rachel B. that because the motion for severance already was not filed until after the court had extended fact-finding hearing, delay the time for the "resulting could not be from" Matthew S.'s motion. agree ¶ 22. We with Rachel B. that Matthew S.'s statutory motion for severance did not toll the 48.422(2). limit set forth in Wis. Stat. Because the appearance initial was held for B. both Rachel petition 27, 2003, Matthew S. on March and the was statutory contested at time, deadline for the fact-finding hearing May 12, However, was 2003. on April fact-finding 3, 2003, the court rescheduled the hearing to June 2003. Matthew S. did not file his April motion for fact-finding hearing 15, 2003, severance until after the already had been rescheduled. As a delay fact-finding hearing result, the in the did not
162 filing result from the of the severance motion.6 Because fact-finding the motion for severance was filed after the hearing already Sheboygan County's rescheduled, was argument persuasive.7 is not response Sheboygan County's In second
argument, Rachel B. contends that there never was a fact-finding hearing, continuance of the in accord with argues She that the circuit court acknowledge open telephone failed to court or hearing conference on the record that the contin- was good required cause, ued for as is the statute. She appeals' April also on the court of relies decision in O. In parents argued appeal O., the that the circuit court did not have to terminate their parental rights, since the circuit court failed to hold dispositional hearings their initial and within the man- datory §§ limits set forth Wis. Stat. 48.422 and 48.424(4) (1997-98). April O., 233 Wis. case, the circuit court determined on the record good limits, cause existed to extend the time
6 It attorney should also be noted that for Matthew S. hearing was directed at the March make his motion for 45-day Judge Murphy severance within time limit. stated: days your "We have 45 to do this. Make motion." agreed Sheboygan County Even if we that the statute tolled, violated, properly time limit was still proceed. and the court lost Matthew motion S.'s severance, statute, if it tolled the would have extended fact-finding hearing by days, time to hold the to June *12 Thirty-four days elapsed 2003. was the amount of time that 15, 2003, filing April between the of the motion on and the date 19, hearing, May Regardless, of the motion record fact-finding hearing indicates that Rachel B.'s did not com 15, mence until October 2003. This date falls well outside 45-day by time limit mandated
163 48.315(2), only pursuant but it did so to Stat. Wis. already expired. of The court time limits had after the "[o]nce appeals a court has lost therefore concluded good proceeding, find cannot, in a it later thereby competency." delay Id., restore for a cause Accordingly, determined that the court of proceed and had the circuit court lost order of the circuit court. vacated the termination agree Rachel B. that the there was 24. We during good open cause no determination telephone case, record. In this conference on the a April O., court did not make a the circuit similar finding good during hear- the March 2003 cause fact-finding hearing ing. was rescheduled When the for June 4, 2003, time on and set the first statutorily required 2003, that date was outside days. parties letter, without The court notified the 45 during phone showing good open cause in court or a a only 27, 2003, On March conference on the record. potential scheduling problem when of a mention attorney possibility raised the of sever- Matthew S.'s fact-finding court noted that the ance, and the circuit hearing days. Therefore, held within 45 when had be expired time limit without a continuance accord 48.315(2), com- the circuit court lost with Wis. petency proceed. words, In other "the circuit court any proceeding granted a before never continuance at expired did not do so in the time limits and therefore 'timely open April O., court and manner.'" Wis. County's argu- Accordingly, Sheboygan 10.8 conflicts, scheduling do not decide whether the noted We good hearings, at later wоuld have constituted record distinguishes cause for a continuance. Such determination D., 318, 259 Quinsanna App this case from State v. 2002 WI *13 competency pursuant ments to extend the court, § 48.315(2), to Wis. Stat. fails. Sheboygan County argues
¶ 25. next appeals correctly applied Village Trempea court of determining challenge leau v. Mikrut in that a to a competency circuit court's is waived if not raised in the adjudged Mikrut, In circuit court. the defendant was guilty appeal, 21of violations of local ordinances. On he argued that defects in the issuance of these citations competency, caused the circuit court to lack and that judgments against Mikrut, him thus were void. competency ¶76, Wis. 2d 6. This сourt held that does equate subject jurisdiction, not matter and that such challenge a to the circuit court's if is waived Id., ¶ not raised in the circuit court. 3. "The Mikrut adopting categorical court, however, backed off from a objections that all rule must be made at circuit court or S., be waived." State v.Michael 2005 WI (citing ¶82, 71, Mikrut, 282 Wis. 2d 698 N.W.2d673 30). ¶76, 273 Wis. 2d argues B., 26. Rachel hand, the other appeals misinterpreted holding
the court of improperly Mikrut and extended the waiver rule. She by contends that this issue should be controlled our petition decision in case, B.J.N. was filed to 655 N.W.2d and other scheduling cases where record, conflicts were discussed on the within the limit. recognize 9, 2005,
We also that on February this court K., a petition for review in State v. Robert 2004AP2330 consolidated with 2004AP2331. similarly That case involved a competency challenge based on a violation of Stat. That case is somewhat different than the one at here. issue 30-day beyond dispositional exten order
extend 48.365(6) (1987-88). B.J.N., allowed Wis. sion an held that such This court 2d at 643. 162 Wis. regard proper to the issue and, with extension was *14 party the "a cannot waive that waiver, concluded competence object right once the loss of to a court's to hearing." 30-day passed Id. at without has extension "[a]n emphasized holding, that In 658. objecting party's so expressly the loss raise failure competence cannot available moment at the earliest longer expired carries and no has revive an order which argues any reason B. that this of law."Id. Rachel force statutory mandatory applied ing to similar should be as the Code, the Children's such limits within time 45-day in Wis. Stat. deadline set forth recog- analysis rule, we ¶ In waiver our whether court did not address the Mikrut nize that mandatory statutory limitations can be waived. case, this court stated: that holding, in line of cases is an established [T]here fashion, challenges pre- that conclusory statutory mandatory noncompliance with upon mised compe- be waived. Because time limitations cannot premised upon is not tency challenge in this case limitations, statutory time we do with noncompliance except in this context the issue of waiver not address appear simply perpetuate that these cases note statutory rule in older case law rote the be and therefore cannot "jurisdictional" are limitations waived. omitted). (citation n.1
Mikrut, 3 273 Wis. acknowledged Although in Mikrut we holding mandatory law there was case ch. 48 cannot be Wis. Stat. time limitations under the continued concern with waived, we noted some viability Mikrut, ¶76, of such case law. 273 Wis. 2d high- concern, n.4. Pursuant lighted to this the Mikrut court legislation, particularly recent Wis. Stat. 48.315(2xn)(b). § 48.315, This amendment dis- specifies comply Mikrut, cussed that "failure to (a) specified par. deprive time limits does not subject jurisdiction personal court of matter or of jurisdiсtion." competency to exercise that 48.315(2m)(b). appeals interpreted ¶ 29. The court of Mikrut as controlling Relying Mikrut, the case before us. court of challenge held that B.'s Rachel late,
came too because it not raised was Sheboygan County S., Matthew circuit court. v. No. App. (Wis. unpublished slip op., 2004AP901, Ct. 2004). Aug. extending The court's rationale for Mikrut as follows:
Mikrut holding to purported compe- not to extend its tency challenges mandatory based on violations statutory limitations, time at in which were not issue However, of that sweeping language that case. holding convinces us that the court would do so in a properly case where the issue was raised. Because we therefore conclude that it meant to sub silentio over- result, necessitating contrary rule all this court cases conscience decline to follow Mikrut good cannot in this case. (footnotes omitted).
Id., ¶ 25 agree ¶ 30. We with Rachel B. that the waiver rule adopted in In Mikrut does not extend to this case. progeny, Mikrut, we declined to overrule B.J.N. or its holding specifically extending and refrained from our to involving competency challenges based on viola cases statutory Mikrut, tions of time limitations. See 273 Wis. ¶76, "Thus, 3 n.1. the waiver rule of Mikrut does according Mikrut, not, control the outcome of this statutory present involves a time case. case S., 282 Wis. 2d that Mikrut left undisturbed." Michael ¶ conclude, therefore consistent with Michael 73. We challenge competency S., Mikrut, and that a here, such as the one based the court's failure to act periods within within the time listed though waived, ch. cannot be even it was not circuit court. raised changes 31. We also conclude that recent case, Children's Code do not affect our decision changes nor did the overrule and O: sub B.J.N. appeals Sheboygan silentio. Both the court County and decided, noted that since those cases were Legislature has amended Wisconsin Wis. Stat. 48.315 specify comply that the "failure with time limita- periods continuances, tions extensions of or delay deprive personal in Ch. 48 the court of 'does subject jurisdiction matter or of to exercise jurisdiction. Mikrut, .. .'" See 273 Wis. 2d doing 48.315(2m)(b). Sheboygan n.4; so, County legislature clearly contends that intended to any afford to courts after violations of limit within Wis. Stat. ch. 48. argues B., hand, 32. Rachel on the other properly interpret
the court of did not apply the recent amendment to Wis. Stat. 48.315 and competency. its effect on She contends that because language statutory text, omitted from the Mikrut appeals inappropriately the court of broadened the *16 scope agree. The left statute. We Mikrut court out 48.315(2m)(b) § line when it the first of discussed the legislation competency. new and effect on its first (2m)(b) statutory language line of the in subsection is limit any with time comply follows: "Failure as 48.315(2m)(a) (a). . in . Wis. Stat. par. specified added). Thus, a failure to only comply (emphasis (2m) (a) in 1. and 2. will limits subsection the time (2m) and (b), thus subsection trigger application subject jurisdiction or matter personal save the court's jurisdiction. to exercise that or competency 48.315(2m)(a) does The text of Wis. Stat. limit mandatory statutory pre- not mention the limit in is Here, question in this case. the time sented date, the March 27 where between 45-day period for termination of parental rights the petition contested, fact-finding hearing and the date that 48.315(2m)(a) contrast, was to be held. to the only applies following: limit in specified or extension of a time
No continuance may delay no chapter be (1) may computing be excluded specified sub. if chapter under this the continu- requirement ance, any extension, or exclusion would result following: making finding an initial under s.
1. The court 48.357(2v)(a)l. 48.21(5)(b)l., 48.355(2)(b)(6)., or prevent efforts have been made reasonable home, assuring that of the child from the while removal safety paramount are the con- the child's health and 48.21(5)(b)3., cerns, finding an initial under s. or 48.357(2v)(a)3. 48.355(2)(b)6r., efforts those made because a circumstance required to be were 48.355(2d)(b)l. applies, more than in s. specified removed the date the child was days after on which from the home. finding s. making an initial under 2. The court
48.38(5m) agency responsible primarily child has made reasonable services to the providing *17 goals permanenсy the of the child's efforts achieve more than 12 months after the date on which the plan making any home or child was removed from the 48.38(5m) findings under s. as to those subsequent 12 the date reasonable efforts more than months after previous finding of a as to those reasonable efforts. any express language incorporating Therefore, without 48.422(2) (a) § into subsection of Wis. Stat. Wis. Stat. (b) 48.315(2m), § of the same statute is not subsection triggered, inapplicable competency and thus it is to the challenge Moreover, in this recent amend- this case. not affect our reliance ment the Children's Code does on either or O. of those cases B.J.N. Neither trigger involved circumstances would 48.315(2m)(b). 48.315(2) § correctly ap- Section finding plied cases, those and the decisions loss changed would not have been even if this amendment had in effect. been plain reading 34. We are convinced the the legislature did not intend to extend statute that competency for all violations of time deadlines outlined truly intent, in the If this were it Children's Code. its have said as in the statute. See State ex rel. would much Court, ¶¶ 58, 45-46, Kalal v. 271 Circuit 2004 WI Wis. Although interpret N.W.2d we unambiguous, statute as our conclusion is bolstered language when we contrast of Wis. Stat. 48.315(2m) 938.315(3) § with that of Wis. Stat. legis- statute, Juvenile Justice Code.9 In the latter comply any lature stated: "Failure to time limit original array encompassed Children's Code a broad juvenile matters, including petitions, adoрtions, TPR However, delinquency petitions. legislature "[i]n cre Code, chapter governs ated Justice Juvenile which delinquent juveniles; chapter 48." CHIPS cases remain State chapter deprive specified the court of does not jurisdiction subject personal or of matter 938.315(3) jurisdiction." to exercise added). (emphasis 48.315(2m)(b) much uses While *18 938.315(3), § language it did as Stat.
of the same
Wis.
"any
competency
limit
for a violation of
time
not save
938.315(3).10
§
chapter.
specified in this
. .." Wis. Stat.
"any
scope
limit
limited
time
Instead, it
the statute's
(a)."
par.
important
specified
to note that
in
It is also
48.315(2m)(b)
years
§
after the
effective several
became
adopted
legislature
in
Code
1995.
the Juvenile Justice
legisla-
the
to conclude that
Therefore, it is reasonable
rejected,
adoption
the
of the
considered, and then
ture
§
language
used in
exact
that was
statutory language and
clear
Because of the
legislative
em-
statutes, we must
intent behind these
following
provi-
strictly
importance
phasize
the
the
recognize
need
the
Stat. ch. 48. While we
sions of Wis.
flexibility
Code, we believe the
in the Children's
for
problem
legislature
the enactment
this
with
addressed
example,
§
case,
In
48.315.
of Wis. Stat.
if
perhaps
it
continuance
could have
court
open
delay
recognized good
court or
for the
cause
had
during
telephone
on the record. Without
conference
S.,
(Statutory language) compels us to rеach a result in is, say least, this case that . [T]he unfortunate. .. object of the Children's Code protect is to the best interests of the children. empathize ... We good circuit court this is not a result for the However, may children. we not rewrite clear language....
April O.,
2d 663,
are satisfied,
We
however, that children
S.,
such as Joshua
and their
parents, clearly
process right
have a due
to have these
decisions determined within
limits set
legislature,
statutory provisions
unless
for a continu
*19
See B.J.N.,
are
ance
followed.
649; R.H.,
HHHH ¶ competency In sum, we conclude that a challenge based on the violation of the time 48.422(2) § limitation of Wis. Stat. waived, cannot be though even it was not in raised the circuit court. The appeals extending holding court оf erred in in mandatory statutory Mikrut to violations of such a time limitation under Wis. Stat. ch. 48. The circuit court did fact-finding hearing not hold the within the time limits §by 48.422(2), proper established and never pursuant extension or continuance to Wis. Stat. 48.315(l)(a) §§ (2), competency and and it thus lost to proceed before it ordered the termination of Rachel B.'s Accordingly, rights. of parental the decision we reverse appeals, of the order had affirmed which the court of court. the circuit
By court of of the decision the Court.—The reversed. is (dissenting). Wisconsin WILCOX, E J. 38. JON § 48.01(1) (2003-04)1 construing provides: "In
Stat. chapter, child or unborn the best interests always paramount consideration." be of child shall interpretation majority adopts an of Wis. Because 48.315(2m)(b) § the text with that is inconsistent Stat. of the best interests in contravention of the statute I children, dissent. of 48.315(2m)(b) pertinent provides, in
¶ 39. Section specified any comply part: limit with "Failure (a) personal deprive par. or the court of does jurisdiction subject exercise or of matter 48.315(2m)(a) gov- jurisdiction." Wisconsin that "of a granting extension or of a continuance erns the (Emphasis chapter. specified . . ." in this limit added.) Village was correct Thus, this court
Trempealeau Mikrut, n.4, 273 Wis. v. WI stated 190, when we 76, 681 N.W.2d 48.315(2m)(b) comply "specif[ies] that failure to or of time continuances, extensions time limitations deprive delay periods the court 'does not Ch. 48 jurisdiction subject personal or of matter or jurisdiction.'" Given exercise 48.315(2m)(a) granting applies continuances chapter," *20 specified in this limit "of a time extensions are to Statutes to the Wisconsin All references indicated. unless otherwise 2003-04 version 48.315(2m)(b) § stating in Mikrut was correct is § 938.315(3), apply similar to in that both any period respective chapter. in the Id. majority erroneously
¶ 41. The concludes that the 48.315(2m)(b) § operation of is limited to those time 48.315(2m)(a). periods specified § in subdivisions 1.-2. of Majority op., Contrary ¶ 32. to the assertion of the majority, says thing. the statute no such While 48.315(2m)(a) § provides may grant that a court continuance or extension if the continuance or extension specified in would result certain other time limits in being application subdivisions 1.-2. § violated, the 48.315(2m)(b) periods is not limited to those time 48.315(2m)(a). § in enumerated subdivisions 1.-2. of 48.315(2m)(b) § expressly applies Rather, the text of (a)." (a) "any specified par. paragraph time limit As governs granting of continuances and extensions "of specified chapter[,]" a time limit in this it is of no (a) consequence paragraph "does not mention the mandatory presented Majority time limit in this case." op., ¶ 33. being
¶ 42. In addition to inconsistent with the majority's interpretation statute, text of the 48.315(2m)(b) § legislative fails to adhere to the man- construing provisions chapter date that all 48, "the always best interests of the child or unborn child shall paramount be of consideration." Wisconsin Stat. The time case, at issue 48.222(2), large part was not met in due to scheduling parties' attorneys. conflicts between the See majority op., majority explain ¶¶ 6-7. fails to how 48.315(2m)(b) interpreting in such a manner so as to deprive adjudicate a circuit court of its (TPR) parental rights petition the termination of under these circumstances is in the best interests of Joshua S. *21 S., children, as Joshua are best such The interests (b) 48.315(2m)(a) interpreting by & in con- protected plain language formity as allow circuit so to their petition if a the TPR to over retain chapter period met. 48 has been within pursuant Accordingly, I hold that to would 48.315(2m)(a) (b), does not lose & circuit court comply with the it fails when interpretation This conforms forth in set statutory language plain interests of and the best petition. sought protected the TPR be the child circuit court. the order I affirm Therefore, would state that Justices I am authorized DRAKE and PATIENCE T. PROSSER DAVID join in this dissent. ROGGENSACK