State v. ROBERT K.

Rights In re Termination of Parental Age Person Under the of 18: K., Moriah Wisconsin, State Petitioner-Respondent,

v. Robert K., Respondent-Appellant-Petitioner. Rights

In re the Termination to Briar of Parental Age of 18: a Person Under the K., Wisconsin, State Petitioner-Respondent,

v. K., Robert Respondent-Appellant-Petitioner. Court

Supreme 2004AP2330, argument 2004AP2331. Oral Nos. September 2005. Decided November 152 WI 257.) (Also in 706 N.W.2d reported For the there were respondent-appellant-petitioner Waukesha, briefs John J. Grau and Grau Law Office, and oral John J. Grau. argument by

For the the cause was petitioner-respondent argued Havas, by Michelle Ackerman assistant attor- district McCann, with on the ney, whom brief was E. Michael attorney. district

An amicus curiae brief was filed Carol C. Legal Society Petersen, Milwaukee, on of the Aid behalf argument by of Milwaukee, Inc., and there oral was Carol C. Petersen. ABRAHAMSON, is a SHIRLEY S. C.J. This unpublished opinion appeals1 of an of of

review the court affirming the order of the circuit court for Milwaukee Judge, terminating County, Malmstadt, Michael G. parental rights K, the father Robert of Briar Moriah K. affirm We the decision of the appeals. challenges

¶ 2. Robert K. the order of termination. argues He that because the held days plea hearing, more than 45 after the contested § contrary 48.422(2),2 requirements to the Stat. Wis. exception applies, and no under 48.315 competency proceed circuit court lost the fact- with hearing. finding provides Wisconsin Stat. petition rights parental that if con- to terminate is tested, the circuit court set date for shall the fact- finding days hearing to be held within 45 on petition.3 delays, provides Wisconsin Stat. 48.315 statutorily extensions, and continuances of the man- periods. dated time K., v. State Robert 2004AP2330, 2004AP2331, Nos.

unpublished (Wis. 2004). slip op. App. Ct. Nov. 2 All references to the Wisconsin Statutes are to the 2003-2004 version unless otherwise noted. petition [to Wisconsin Stat. "If the states: parental rights] terminate is the court contested shall set a date hearing for a days to be held within on petition ...." im- that the circuit court K. asserts 3. Robert 48.315(l)(b)4 § interpreted allow properly to Stat. Wis. guardian to children to consent ad litem for the the days setting more than 45 after hearing. plea that the asserts He further contested good under Wis. cause insufficient to establish record is 48.315(2)5 continuing fact-finding § hear- Stat. period. 45-day ing beyond the time appeals of the court of affirm the decision 4. We court, on different but order of the circuit and the by upon grounds conclude courts.6 We than relied those may granted Stat. under Wis. a continuance be 48.315(2), grounds § independent for a of the other 48.315(1), specified in and that continuance good present under cause case establishes record hearing beyond holding 4 "(1) 48.315(l)(b) following The Stat. states: Wisconsin computing require the time be excluded period shall (b) delay resulting Any chapter: this ... ments within of or with the granted request at the from a continuance the unborn child or her counsel or of of the child and his consent litem." by guardian child's ad the unborn 5 provides: Wisconsin only upon showing granted by the court A continuance shall be during telephone open conference under court or necessary, taking only long as is for so s. 807.13 on record attorney request or the of the district account the or consent into prompt disposition public parties in the and the interest cases. 6 of the circuit court may judgment affirm a or order We grounds than appeals on different a decision of Scheidell, Wis. 2d courts. State v. 227 upon relied those those (1999) Pollard, n.14, (citing Koestler v. 595 661 311 N.W.2d n.8, (1991), Liberty 2d 471 N.W.2d DIHLR, 331, 342, 2d 204 N.W.2d 57 Wis. Trucking Co. v. (1973)). Therefore, period. we conclude that the

circuit court did not lose competency proceed with the fact-finding hearing. Because we hold that good cause existed to hold the fact-finding hearing more than 45 days after the contested we do not plea hearing, address ruled, issue which the upon is, circuit court that whether a ad litem's guardian acquiescence the circuit court's setting fact-finding hearing beyond the 45-day fulfills the requirement consent of Wis. 48.315(l)(b). Stat. undisputed The facts are follows. as Robert K.

is the biological father twins Briar and Moriah K, 22, Moriah, born June 2001. Briar and along with four (who other children are involved in TPR proceedings but subject not appeal),7 to this were placed foster care by 25, social workers on 2001. On September July 2002, the circuit court found Briar Moriah to be children in need or protection (CHIPS), services 48.13(10). to Wis. On pursuant July 17, 2003, the State of Wisconsin filed a Petition Termination (TPR of Parental Rights petition), that requesting parental rights of Robert K. to Briar and Moriah be terminated. biological Robert K. is also father Justin K. and

Cody K., proceedings Colt for whom TPR were commenced addition, at the same time for Briar K. In as those and Moriah B., proceedings, another child was in the TPR Isiah involved of Briar son and Moriah's mother but not of Robert K. The four other children were involved in TPR proceedings but are not subject to this review. grounds asserted two for termina- 6. The State rights: continuing parental CHIPS8 of Robert K.'s

tion responsibility.9 parental failure to assume hearing involving parents plea four 7. An initial subject August petitions held on TPR was hearing plea September 19, rescheduled The K. does not contest this continuance 2003. Robert beyond period prescribed by Wis. Stat. 48.422(1).10 September plea

¶ 8. at the Present attorney, lawyers six for the were the assistant district (on issues), parents TPR and two both visitation and parties, guardians In with the ad litem.11 consultation be circuit determined that cases should separate into for the three children divided two trials each mother. The circuit court also determined complete. trial take one to each would week suggested initially ¶ 9. The circuit court the week 3 for the trial. November 3 would of November first days hearing, plea been 45 of the contested have within satisfying the time established in 48.422(2). prior

¶ 10. No dates to November 3 were offered the week of November 3 was first available because County week in the Milwaukee Children's Court trial every calendar; are in the six trials scheduled 8 48.415(2). Wis. Stat.

9 48.415(6). Wis. Stat. on the provides: Wisconsin Stat. "The be parental rights to terminate shall held within petition days after the is filed." petition guardian appointed One ad litem to Justin represent Cody guardian repre K. and and Colt K. The other ad litem K. Isiah B. and Briar Moriah sented weeks.12Neither trial could be held the week of Novem- attorney ber 3 because the assistant district and one guardian ad litem had other court matters scheduled.

¶ 11. The next available trial week after Novem- ber 3 was the week of 15, December but the assistant attorney district was scheduled in a trial in another attorney court; children's an for one of the birth moth- ers was scheduled to he in trial; another and one of the guardians country. ad litem was to be out of the

¶ 12. The next available trial week in the circuit began January court's six-week schedule on 26, 2004. proceeding The TPR for Robert K.'s older children, Cody Justin K. and K, Colt was scheduled for this lawyer trial date. The for Moriah and Briar's mother January had two other cases scheduled five-day would have been unable to attend the full trial.

¶ 13. The circuit court then scheduled the fact- finding hearing parents for the TPR for the of Moriah, half-sibling Briar, and their Isiah on the next available trial date, March 8, 2004. At that time, neither Robert attorney objected K. nor scheduling his to the fact- finding hearing in March.13

12Apparently eight each of the courts comprising the Mil County waukee intake, Children's Court set aside one week for one week for initial appearances, trial, one week for and so on. party No waived the statutory time period by failing object in circuit court to the circuit court's hearing in March. A competency challenge based on a court's failure statutory to act within a period time cannot be waived object failure to in circuit court. Sheboygan County Dep't S., Social Servs. v. Matthew 2005 WI 84, 30, (TPR 150, 282 2d ¶ Wis. 698 N.W.2d 631 involving case period between plea hearing contested and fact- finding hearing).

151 five-day ¶ from March 8 to March 14. After trial jury required support the facts to 13, 2004, the found parental grounds termination of Robert K.'s hearing April rights. dispositional 23, on held At the the termination 2004, the circuit court ordered parental rights. K.'s Robert appealed ¶ order. this termination 15. Robert K. guardian appeals held that the ad litem's The court hearing acquiescence March 8 date was to the suffi- satisfy requirements cient to Wis. Stat. 48.315(l)(b) by request (governing or continuances or the and the child's counsel consent of the child child) guardian affirmed an ad litem for unborn terminating K.'s court Robert the order of circuit rights. parental fact-finding hearings 16. The timelines applicable petitions in to the

contested TPR Wisconsin governed by are instant case Wis. § 48.315.

Wis. Stat. 48.422(2) provides a circuit 17. Section hearing a date for a within court shall set hearing days petition on the unless agree necessary parties on to commence the immediately. comply Failure to with this statu- merits losing may tory circuit result proceed.14 competence S., v. April 36; See State 150, 16, Matthew 282 Wis. 2d ¶¶

O., T.H. 663, 927; 2d 607 N.W.2d App 2000 WI 22, 27-31, 33, County, v. La Crosse 2d 433 N.W.2d 147 Wis. (Ct. 1988). App. Having periods time established various proceedings legislature Code, under the Children's recognized importance permitting also of circuit flexibility periods courts some to extend the time in appropriate situations.15 48.315(1) periods Section sets forth "time computing requirements"

that shall be excluded in time Chapter provides 48. Section further granted by only upon "a continuance shall be the court showing open during a of or telephone s. conference under 807.13 on the record and only long necessary, taking for so as is into account the request parties attorney or consent district or public prompt disposition and the interest of the in the of cases." undisputed

¶ 20. It is that the hear- ing days, plea in this case did not occur within 45 48.422(2).16 required by as complied

¶ 21. Whether the circuit court with setting Wis. Stat. when for the the date fact-finding hearing beyond 45-day period presents S., ("Because Matthew 282 Wis. 2d the clear statutory language legislative statutes, intent behind these emphasize we the importance strictly following must provisions recognize of Wis. Stat. ch. 48. While we the need for flexibility Code, legislature Children's we believe the problem addressed this with enactment of Wis. Stat. 48.315."). The the plea hearing September between on 19, 2003, 8, 2004, and the on March months, approximately almost six four and one-half months beyond period. statutory interpre- interpretation.17 question The undisputed application facts of a statute

tation ordinarily question this court deter- of law that is a independently of of circuit court and court mines analysis benefiting appeals, from the of both.18 but by ¶ the action taken 22. first address whether We 48.315(2), governed circuit court is Wis. only to "continuances." refers which present is ¶ does not involve what 23. The case thought The as a continuance. often 45-day period hearing and then was not set within the 45-day period. beyond Rather, the fact- continued beyond 45-day initially finding hearing set period. ordinary usage

¶ "continu- 24. of the word The just encompasses for and more than events set ance" beginning to a later on a fixed date and then continued postponement, encompasses a A also date. continuance delay a has no set date until is, a of an event that date.19 future the Children's Code Indeed, cases under 48.315(2) applied like the to situations

have present Wis. Stat. initially court schedules case in which circuit statutorily prescribed period.20 hearing beyond 17 (TPR O., 663, 30-day relating 2d 6 April 233 Wis. 45-day filing plea statutory petition period between fact-finding hearing disposition statutory period between hearing).

18 300, 5, 19, 674 2004 268 2d Morford, State v. WI N.W.2d any dictionary. See D., See, Quinsanna 318, App v. WI e.g., State (TPR case; 25-26, at 2d 655 N.W.2d 752 259 Wis.

¶¶ court dis- fact-finding hearing, circuit scheduled conclusion The has written that Wis. Stat. is applicable to "all extensions time under Children's Code."21

¶ 26. Were we to define "continuance" Wis. Stat. narrowly, a circuit court would have to aset statutorily for a date within the period, knowing mandated place. not take At the would scheduled date the circuit grant court would receive and a motion for a continuance process great to another date. This entail a would waste of time and resources and favors form over substance. legislature The could not have intended this result. Defining

¶ 27. the word "continuance" to include legislative postponement comports purpose. with In County Department, v. La M.G. Crosse Human Services (1989), 150 Wis. 2d N.W.2d 227 the court applicability declared that "the of section 48.315 to suggests entire Children's Code a that restrictive inter- pretation general provision appropriate. of this is not Although express conditions this section should carefully they given construed, be be a must reasonable reading."22

¶ 28. We therefore conclude that the word "con- § sufficiently in tinuance" Stat. is Wis. broad encompass to situations which the hear- ing originally beyond statutory 45-day is scheduled period. time

position proceeding beyond time under Wis. § scheduling hearing). Stat. disposition 21 County M.G. v. Dep't, La Crosse Human Servs. 150 Wis. case). (1989) (CHIPS 407, 418, 2d 441 N.W.2d 227

22M.G., (holding good 150 Wis. 2d at 418 cause existed for case). extension of time in CHIPS

155 a whether, to as matter turn now 29. We calendar and lawyers' a court's statutory interpretation, cause under may good conflicts constitute scheduling 48.315(2). §in 48.315 explic- § No provision Wis. Stat. a schedule or or lawyers' states that circuit court's itly amount court dates difficulties litigants' or continuance under extension, delay, to cause good 48.315(2).23 § the conclusion that law- 30. Case law supports constitute may litigant scheduling problems

yer 48.315(2). State v. In § cause under Wis. Stat. good D., Quinsanna 2d 2002 WI 259 Wis. Code) (in the Children's Although Wis. Stat. 48.315 (in Code) are Stat. 938.315 the Juvenile Justice substan

Wis. 938.315(l)(dm) similar, § §in tially counterpart has no 48.315. 938.315(l)(dm) Section reads as follows: following periods computing The shall be excluded requirements chapter: in this Any period delay resulting congestion or . . . from court scheduling. Act Chapter by 938 was created 1995 Wis. 77. Wisconsin 938.315(l)(dm) added Act 354. The was 938.315(l)(dm) drafting history reveals that Wis. Stat. State, 598, 607, codify ruling in J.R. v. 152 Wis. 2d added the (Ct. 1989), juvenile justice holding case App. a N.W.2d adjournment fact-finding hearing by "[a] congestion proper due to court is a sponte trial court sua fact-finding hearing." Letter adjourn method to See from Representa County Attorney Racine District Robert Flancher to 13, 1996, Drafting Ladwig, Feb. Records to 95 Wis. tive Bonnie (available Madison, Bureau, Legislative Act 352 at Reference Wis.). history legisla- the

Nothing legislative in the indicates that trying distinguish in this manner Wis. Stat. ture was §§ 938.315 and 48.315. 45-day concerning period the time between 752,

N.W.2d plea hearing dispositional and a hear- an uncontested appeals recognized lawyers' ing, sched- the court good uling difficulties constitute cause under Wis. Stat. 48.315(2).24 hHhHhH ¶ 31. We must now decide whether the facts of good justi- present in record fying the case constitute cause setting fact-finding hearing beyond 45-day time in established Wis. Stat. 48.315(2), whether, in accordance the con- with only necessary, taking long

tinuance was for so as was request account the or of the district into consent attorney parties public or the and the interest of the in prompt disposition of cases.25 By plain language,

¶ 32. its Wis. Stat. provides granted, "only alia, a continuance be inter showing good during upon open court or a telephone under on the record." In conference s. 807.13 45-day present open court, time case, within the period, parties present, circuit court and with all beyond fact-finding hearing for a date scheduled the 45-day period.26 The court did not mention circuit D., 429, Quinsanna 2d 259 Wis. arguments The from Robert K.'s State's motion to strike relating brief to whether there was cause to hold hearing 45-day outside of the time limit and whether necessary denied. only long was continued for so as is present case with other cases which We contrast S., In good cause was not found. Matthew 282 Wis. 2d ¶¶ 6, 36, fact-finding hearing beyond the involving it period, competency the circuit court lost because 48.315(2) § and never stated that explicitly Wis. Stat. fact-finding cause existed for hear- good 45-day statutory after the time ing applicable ended. establishes, however, law that a circuit 33. Case

court need not refer to Wis. Stat. open court in and need not scheduling fact-finding hearings words or deliver utterances any magic any special utter 48.315(2). The court of as appeals explained to invoke follows: a ample support

Where the record "contains evidence finding good cause" for a continuance of a termina- hearing, statutory tion the trial court's "incantation of unnecessary" court to conclude that phrases [is] for this continuance, beyond a what otherwise would have been statutory limits, deprive time does not the trial competence.27 court of A examine the record reviewing may court under

to determine whether cause existed Wis. good grant failed to a extension or continuance on the record proper in open court. The circuit court rescheduled the hearing by deputy attorney based on letters written district contrast, attorney requesting and the father's a continuance. In granted the record this case shows that the circuit court in open prior expiration continuance court to the period. O., 3, 11, In 2d April appeals Wis. ¶¶ competency dispositional held that the circuit court lost properly because "it did not extend the limit 48.424(4)] finding, expired [under before the time limit court, open cause existed." (a D., Quinsanna case; 259 Wis. 2d TPR State, 106, 113, v. 2d 458 N.W.2d823 quoting R.A.C.E (Ct. 1990)). App. delay only and whether the so long necessary. reviewing as A court "will affirm deci- if sions of the trial court that court reached a result that finding specific sup- evidence had a would sustain porting Although good that result been made."28 cause ample can inferred when the record be contains evi- support urges, determination, dence to such a the court explained below, as that a circuit court state on the reasoning continuing, delaying record its or extend- ing fact-finding hearing beyond 45-day period a the plea hearing between the and the proceeding. in a TPR Although good

¶ 35. determination may many empha- on factors, be based courts have following evaluating good sized the four factors when (1) (2) good moving party; preju- faith of cause: the (3) opposing party; prompt dice to remedial action (4) dilatory party; and of the best interest child.29 Regarding evaluating good

¶ 36. the first factor in any party cause, no evidence exists the record that seeking fact-finding to extend the date of the requisite without faith. The discus- scheduling suggest on record sions about that the litigants, lawyers court, circuit did their best to scheduling par- accommodate the needs of the various ticipants, working calendaring while con- within County straints of the Milwaukee circuit court. State, R.A.C.P. v. 106, 113, 157 Wis. 2d 458 N.W.2d 823 (Ct. 1990)(a case). App. TPR (CHIPS M.G., case; quoting 150 Wis. 2d at 418 n.12 with State, approval F.E.W. v. 856, 861, 143 Wis. 2d 422 N.W.2d 893 (Ct. 1988) case)). App. (delinquency hearings The for the had 37. dates The fit circuit court's calendar. Milwaukee to County operates on a six-week trial Children's Court cycle, cycle one to trials. with week devoted cycle According record, to six-week to the to adhere jury not trial the circuit court could schedule before November persons The number of involved in the sheer ability significantly

hearings affected the circuit court's guardians ad to the matter. There were two schedule attorney, parents, litem, the assistant district four attorneys representing parents. Several had six obligations that the hear- interfered with ings. attorney obligations had to Each other clients already appear at scheduled trials. other courts Requiring attorneys to reschedule other trials to accom- present no modate the case would do more than force (and proceeding circuit court in another the another therein) delay perhaps parties and to the burden of bear statutory fail to meet time deadlines. by 3, the first date offered the 39. November statutory period. The court, was within the

circuit guardian one would ad litem for set children have day week-long the final been unable to attend 3, the trial had it been held week of November 2003. attorney had a The district trial scheduled assistant during this week. The next circuit court trial date 40. available During

after the November 3 was December 2003. attorney December the district week of assistant attorney for one of the mothers were the both guard- addition, In one of the scheduled to be trial. ians ad litem was unavailable. proceeded The circuit court to schedule the January dates, trial

trials for the next two available assigned March Robert K.'s other children were January lawyer 29 date the because Moriah and mother had two Briar's other cases scheduled on that long date. Each trial was scheduled be one week required presence Working each of Robert K. within restrictions, these circuit scheduled the trials back-to-back, within the confines of trial its six-week cycle. practicable These were the dates first for all dates involved.30 following exchange

¶ 42. The is illustrative of the by parties faced difficulties and the circuit court in setting fact-finding hearings. a date December objections: following 15 met with the Okay. THE COURT: date I Next have available is December 15th.

MS. ACKERMAN [ASSISTANT DISTRICT ATTOR- I'm NEY]: in trial. JUSTIN, [GUARDIAN SMITH AD LITEM FOR

MS. COLT, country. CODY]: AND I'm out MR. [ATTORNEY ROTHSTEIN FOR MOTHER OF jury AND in a MORIAH]: BRIAR I'm trial. description supports

¶ 43. The record the State's of the dilemma faced the circuit court in periods within of Wis. 48.422(2): stymied by complexity The efforts of the court were family structure, and size of Robert K.'s which resulted multiple in the need for counsel to be appointed for the argues Robert K. that the court could have scheduled one judge. of the to trials be heard front another The record show, however, does not whether another court was available. children, the need separate mothers of his to his groups so that the trials could be as children into two (using straight possible forward as the GALfor each set in the CHIPS represented of children that had them case), history and the proceedings and knew the given the volume of need for a full week of trial [Bu- of the BMCW produced documents work behalf. Welfare] Child on Robert K.'s reau Milwaukee on a date 44. Rather than a continu- absent, risking be at which some would absence, the circuit court found ance based their upon The circuit court dates suitable to all involved. parties dates, to declaring they was then committed those were "written in stone." 45. The circuit court made clear that it would an once adjournment request by any party

not consider dates were set: K.]: FOR ROBERT [ATTORNEY MR. McLINDEN going stay? dates are to These changing THE You bet. are not COURT: We —the going change eight is to dates. Wehave substitution not making judges rope out here. I will one of them into dates, they doing this case on those sure that will be doing going I calendar. are not to and will be their We me, change dates.... there is a substitution filed on [I]f stay the dates would the same... . We all know that if stay happen, going that should the dates are judge gets because the civil who this case— same judges to do because we have in effect nine available case, ten, Okay? this so the dates are written stone. we faced with a case which the Were circuit court's calendar was not based on six-week attorneys in which were not cycle, parties required different trials, for two and in which the requests valid concerns than con- dates were on less premised might flicting appearances, persuaded we not be acting good given faith, were the that the individuals importance statutory period. where, of the But as scheduling unusually made here, the circumstances supports good troublesome, the record the existence of faith. evaluating good

¶ 47. The factor in second objecting party prejudiced. is has been whether fact-finding hearing, plea hearing Between the and the rights Robert K. did not have visitation to his children. prejudiced by delay He that he contends based inability during upon his to see his children of time. concern, are 48. While we not insensitive to this relating prejudice

Robert K. has shown no to the by scheduling proceedings outcome of the caused 45-day statutory after the period ran. delay hearing might Indeed, in the have

afforded Robert K. time to meet the conditions for safe of the return of the children within twelve months considering fact-finding hearing.31 When whether to jury parental rights, "all terminate must consider bearing including question, on that evidence evidence occurring filing and conduct events since petition during delay, K. Thus, ... ."32 Robert had jury opportunity change that a his behavior such meet the conditions could be convinced that he would children months of for safe return his within twelve fact-finding hearing. evaluating 50. The third factor cause is dilatory party prompt remedial ac- whether the took 48.415(2)(a)3. Wis JI —Children applicable not here. There was no tion. This factor is every dilatory party. offered each and The circuit court September plea available trial week between hearing and the scheduled expressed dif- March. Each individual who open at the next ficulties made an effort to be available trial date. evaluating good

¶ The fourth factor in cause is 51. fact-finding Scheduling interest of the child. the best hearing parent, lawyer, guardian each and ad when present promotes litem can be an accurate determina- parental rights present tion of termination of and in the case in the best interest of the children. was all 52. Thus conclude that four factors were we evaluating good cause under met 48.315(2). delay longer no than Furthermore, 53. the was necessary. complexity case, In the instant the and size of family necessary multiple made it to have Robert K.'s lawyers guardians present. By scheduling ad litem beyond fact-finding hearing 45-day the for a date the period, appearance time the circuit court ensured the representation parties for all in this case. The facts given that, of the case show the circuit court's instant cycle scheduling problems trial and the six-week many attorneys, delay longer the was no than was necessary. support

¶ all cases will a six-month time Not plea hearing fact-finding period the and the between Scheduling hearing. or the conflicts the circuit court attorneys litigants always good or will not constitute pressures This court understands the docket cause. well pressures not, however, do in the circuit courts. Such responsibility relieve circuit courts of their to follow the prescribed limits time in the Children's Code and strict legislative requirement these matters be prescribed periods. handled within the present In the satisfy case, the circumstances 48.315(2). requirement of Wis. Stat. urge Before conclude, we we each circuit on that relies Wis. Stat. to cite concluding

statute on the good to state record; the basis for delay continue,

cause exists to or extend fact- finding hearing beyond between plea hearing and the ain TPR proceeding; explain and to that the delayed longer necessary.33 was not than other In words, the record should reflect circuit court's meeting mandatory statutory concern with periods protecting rights parents, children, by making public and the clear under delay, continue, factors that influence its decision to or hearing beyond mandatory periods. extend a the time a circuit on 56. When court states the record its finding good parties reviewing cause, basis for the and are courts assured that the circuit court has considered legislative disposition prompt the of directive TPR appeals likely record, cases. such a With fewer are to ensue on based whether cause existed under Wis. 48.315(2). recognize procedure While we such a might slight place a court, burden on the circuit this outweighed by burden is parties, the to substantial benefit public, legal system. and the 33 preference explicit previously This has stated its continuances, granting on the reasoning record when exten sions, delays: suggest judges addressing or "We trial when [concerning questions directly these to time] extensions of refer M.G., statutory and cite appropriate provision." 150 Wis. 2d (CHIPS case). at 418

165 of complying reiterate the importance We time Circuit statutorily period.34 mandated with legisla- take seriously periods courts must in the Children's Code. A child's ture has established calculation of time differs from an adult's. "What seems like a to an adult can be an intolerable short wait can to a child to whom a week seem separation young Therefore, it like a and a month forever."35 is year to minimize the uncer- incumbent circuit court upon in a child's life and to constitutional tainty protect on termination of by rights concluding proceeding A circuit court's failure to rights with parental dispatch. may with the result comply statutory periods loss of competency proceed. recognized The federal courts have that Milwaukee

County adoption-related of disposing has had difficulties cases County quickly effectively. The Milwaukee foster care system currently supervision under of a operated is consent decree entered a federal court. See Jeanine B. v. (E.D. McCullum, 93-C-0547, consent decree Wis. June No. 2001). premised Adoption The consent decree is on the (ASFA). ASFA, Families Act of For of see Safe discussions Walsh, Ticking: Thomas J. The Clock Is Do the Time Limits Rights Termination Parental Serve the Wisconsin's Cases Children?, (2000); Marq. Best Interests L. Rev. 743 Freundlich, Madelyn Expediting Termination Parental Sowing a Problem a New Rights: Solving or Seeds of Predicament?, (1999); Jill Cap. Stephanie U. L. Rev. 97 Gendell, Permanency: A on the First 3 In Search of Reflection Adoption Implementation, Years Families Act Safe (2001). 39 Fam. Ct. Rev. 35 433 County, T.H. v. La Crosse 147 Wis. 2d N.W.2d 1988) (Ct. case; App. (delinquency citing The Model Statute Rights, reprinted for Termination of Parental in The National (rev. 1979)). Bench Book Juvenile Courts 154 ed. ap- the the decision of court affirm 58. We peals on different court, of the circuit but and order upon grounds conclude those courts. We than relied may granted under Stat. be Wis. a continuance that 48.315(2), grounds independent § for a of the other 48.315(1), § specified in and that the continuance good present cause under case establishes record in the hearing beyond holding the period. that Therefore, we conclude the proceed competency with lose court did not circuit good fact-finding hearing. hold that Because we fact-finding hearing more than existed to hold plea hearing, days dowe not the contested after upon ruled, which the circuit court address issue acquiescence guardian ad litem's is, whether setting be- the circuit court's yond requirement 45-day period fulfills the consent 48.315(l)(b). Accordingly, we affirm the decision appeals. court appeals

By of the court of the Court.—The decision is affirmed. agree (concurring). I WILCOX, E J. 60. JON may granted majority that a continuance be

with the (2003-04).1 directly Fur- under Wis. Stat. agree proper thermore, that a continuance I granted case, as the record establishes this 48.315(2). sepa- good requisite I write cause under my majority rately does not concern that the to address congestion recognize problems adequately congestion may, appropriate instances such and that cause for continuance. this, as constitute such are to the Wisconsin Statutes subsequent All references to indicated. unless otherwise 2003-04 version problems conducting ¶ 61. The hearing beyond 45-day by time limit mandated Wis. 48.422(2) lawyer litigant Stat. scheduling problems. were not limited to significant problem,

Another but only majority, discussed offhand lack of Notably, in the available dates court's calendar. properly court needed a week trial full time to hear given evidence, all of the the volume of documents produced by the Bureau of Milwaukee Child Welfare.

¶ 62. The 3, 2003, week November was the first available fact-finding hearing frame on the circuit court's calendar. The

would have been within the period required under on date. this attorney When assistant district and one of the guardians scheduling ad litem notified court of argues conflicts, K. Robert that there was no reason given why prior dates to November 3 were never considered. readily apparent

¶ I 63. believe that it is that congestion significant delay court was a factor in the simply prior this case. There were no other dates November 3 available for a full week of trial time. The County tight Milwaukee Children's Court on a is six- system extremely week that makes it diffi- complicated cult in TPR such one, cases as this to meet timing the strict demands Children's Code de- spite the best efforts of a sometimes overwhelmed judiciary. recognized Indeed, 64. Wisconsin case has law congestion may legitimate

that court be a reason granting appeals a continuance. As the court has granted by "A stated: continuance can be a to a party congestion provided under for court that shown is and the trial court does so in timely on J.R., manner the record." In re 2dWis. (Ct. 1989); App. accord State v. 598, 607, 449 N.W.2d App April O., 663, 2d 233 Wis. WI N.W.2d congestion It is no secret that court is County problem plagues the Milwaukee

serious ability its to meet the Children's Court statutory affects Chapter congestion Granted, deadlines of every may instance, not constitute but congestion clearly important an factor case, this beyond that on the decision to extend the time bore petition on the limit between the fact-finding hearing. such, As the court should take acknowledge congestion may opportunity this good cause sufficient for a continuance under constitute appropriate instances. I am authorized to state that Justices T. DRAKE DAVID PROSSER PATIENCE join ROGGENSACK this concurrence.

Case Details

Case Name: State v. ROBERT K.

Court Name: Wisconsin Supreme Court

Date Published: Nov 18, 2005

Citation: 706 N.W.2d 257

Docket Number: 2004AP2330, 2004AP2331

Court Abbreviation: Wis.