B.J.N., In Interest of, No. 89-1357

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: HEFFERNAN
• Citation: 162 Wis.2d 635,469 N.W.2d 845
• Parties: In the Interest of B.J.N. and H.M.N., Persons Under the Age of 18. GREEN COUNTY DEPARTMENT OF HUMAN SERVICES, Appellant-Petitioner, v. H.N., Respondent.
• Docket Number: No. 89-1357
• Decision Date: 07 June 1991

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469 N.W.2d 845 162 Wis.2d 635 In the Interest of B.J.N. and H.M.N., Persons Under the Age of 18.
GREEN COUNTY DEPARTMENT OF HUMAN SERVICES, Appellant-Petitioner,
v.
H.N., Respondent. No. 89-1357. Supreme Court of Wisconsin. Submitted on Briefs Jan. 25, 1991.
Decided June 7, 1991.

[162 Wis.2d 638] Henry J. Plum, Wauwatosa, on briefs (Charmian Klyve-Wood, Madison, of counsel), for appellant-petitioner.

Jack C. Hoag, Janesville, for respondent.

HEFFERNAN, Chief Justice.

This is a review of an unpublished decision of the court of appeals filed February 15, 1990, affirming orders of the circuit court for Green county, John K. Callahan, circuit judge, which dismissed a petition

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filed by Green County Department of Human Services to extend a dispositional order affecting B.J.N. and H.M.N. We affirm.

[162 Wis.2d 639] Both the circuit court and the court of appeals held that the circuit court lost its competency to exercise jurisdiction because no hearing was held within 30 days of the expiration of the previous one-year extension of dispositional order as provided in sec. 48.365(6), Stats. ¹ [162 Wis.2d 640] Both courts ruled that the 30-day period could not be extended by any "continuance" under sec. 48.315 ²

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and [162 Wis.2d 641] that H.N., one of the parties contesting Green county's extension petition, did not waive her right to object to the circuit court's lack of competency.

We agree with the courts below that a circuit court loses its competence to exercise jurisdiction when a hearing is not held within the maximum 30-day extension period allowable under sec. 48.365(6). We hold that sec. 48.315 cannot be used to enlarge this 30-day extension period. We also hold that a circuit court's loss of competency in such a situation cannot be waived by the parties and, accordingly, we affirm the decision of the court of appeals affirming the circuit court's dismissal of the extension petition.

The material facts of this case are basically undisputed. On January 10, 1983, B.J.N. and H.M.N., together with other children of H.N., were found by a Green county circuit court, pursuant to sec. 48.13(10), to be in need of protection and services due to neglect, and dispositional orders were entered. While several of [162 Wis.2d 642] H.N.'s children have since been returned home, the dispositional order affecting B.J.N. and H.M.N. has been extended annually, with the last extension order scheduled to expire on February 1, 1989. ³

On January 18, 1989, Green county's corporation counsel petitioned the Rock county circuit court for another extension of the dispositional order, believing that it would not be in the children's best interest to return home. At a January 30, 1989, hearing, counsel for the mother H.N. and child B.J.N. contested the petition. A 30-day extension of the dispositional order was granted pursuant to sec. 48.365(6), Stats. (extending the order to March 1), and a hearing was scheduled for February 15, 1989.

Although the exact time cannot be determined from the record, at some point prior to February 15, H.N.'s attorney contacted Rock county's calendar clerk and requested that the hearing be rescheduled because he had a three-day jury trial beginning on that date. No new specific date was requested by H.N.'s attorney. A few days prior to February 15, counsel for Green county and the guardian ad litem representing the children received phone messages that the hearing had been rescheduled to March 21, 1989. Written notices of the change were sent out on February 16, 1989, and again on February 20, 1989. Thereafter the hearing was again rescheduled, and written notice of the new March 14, 1989, hearing date was sent out on February 27, 1989.

Counsel for the interested parties appeared at the March 14 hearing before the Rock county circuit court. ⁴ In response to the court's own observation that no one [162 Wis.2d 643] had voiced any objection to the hearing date being moved beyond the 30-day extension, H.N.'s attorney stated that, when he agreed to continue the case, he was "not aware of recent decisions." The court immediately thereafter noted sua sponte that venue properly belongs in Green county pursuant to sec. 48.185, Stats. Counsel for all parties agreed that the case should be transferred there, and the Rock county circuit court went on record as prepared to proceed with the extension hearing. An order transferring venue to Green county was then filed on April 13, 1989.

On April 26, 1989, H.N. filed a motion to dismiss the petition in the Green county circuit court on grounds that the court had

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lost its jurisdiction due to the lapse of the 30-day extension. On that same date, counsel for Green county filed new CHIPS (children in need of protection or services) petitions concerning B.J.N. and H.M.N. alleging the court's jurisdiction under sec. 48.13(10). A court hearing was scheduled for May 12, 1989, but moved back to May 10, 1989, due to a new conflict with H.N.'s attorney's schedule.

On May 10, the Green county circuit court, Judge John K. Callahan, granted H.N.'s motion to dismiss. Relying on In Interest of L.M.C., 146 Wis.2d 377, 432 N.W.2d 588 (Ct.App.1988) (review denied), the circuit court held that a dispositional order cannot be extended beyond the 30-day extension provided in sec. 48.365(6), Stats., even by reason of a continuance. According to the circuit court, the delays or continuances allowable under sec. 48.315 were only applicable to extend a plea, fact-finding, or dispositional hearing, but not an extension of a dispositional hearing beyond the maximum of 30 days. The court also ruled that, because the matter was before [162 Wis.2d 644] it for the first time, it could not acquiesce in the fact that H.N.'s attorney waived the time limits before the Rock county circuit court. ⁵

Counsel for Green county then moved the court at the May 10 hearing to stay enforcement of the dismissal pending appeal. The parties agreed to continue the hearing on May 23, 1989. On that date the court ruled that, pursuant to its inherent powers, it would stay enforcement of the dismissal. ⁶ On June 28, 1989, the circuit court denied Green county's motion to amend the conclusions of law and findings of fact entered on June 5, 1989, regarding the dismissal of the extension petition. Green county appealed these orders.

The circuit court's orders dismissing the extension petition were affirmed by the court of appeals. The court of appeals noted that, under sec. 48.365(1), Stats., a dispositional order could only be extended as provided in that section and that, under sec. 48.365(6), an order could be temporarily extended for no more than 30 days. Relying further on this court's decision in In Interest of S.D.R., 109 Wis.2d 567, 577, 326 N.W.2d 762 (1982), wherein we stated that "under no circumstances may the dispositional order be temporarily extended for more than 30 days," the court of appeals concluded that an extension hearing could not be held beyond the 30-day period even by reason of a continuance.

[162 Wis.2d 645] The court of appeals also rejected Green county's contention that H.N. waived her right to object to the extension beyond the 30-day period. The court of appeals ruled that H.N.'s request for a continuance of the February 15, 1989, hearing was not a waiver, because the rescheduled hearing date was not chosen by H.N. but rather by the court. The court of appeals also held that H.N. did not waive her right to object to the circuit court's lack of competency at the March 14, 1989, hearing, because H.N. stated on the record that recent case law indicated a problem with extensions beyond a 30-day period. ⁷

Whether a continuance pursuant to sec. 48.315, Stats., can apply to a 30-day-extension period granted under sec. 48.365(6) is an issue of statutory interpretation. We need not defer to the determinations of the courts below on such questions of law. See Richards v. Young, 150 Wis.2d 549, 555, 441 N.W.2d 742 (1989).

The legislative history of ch. 48, The Children's Code, has previously been discussed in great detail and will not be

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repeated here. See In Interest of R.H., 147 Wis.2d 22, 433 N.W.2d 16 (Ct.App.1988), aff'd per curiam by an equally divided court, 150 Wis.2d 432, 441 N.W.2d 233 (1989). We do point out, however, some of the more important revisions of ch. 48 made in the 1970's in order to implement major United States Supreme Court decisions and assure the constitutional rights of children:

Chapter 48 is considered a carefully drawn legislative enactment which circumscribes judicial and administrative[162 Wis.2d 646] action in juvenile matters. See State ex rel. Harris v. Larson, 64 Wis.2d 521, 527, 219 N.W.2d 335 (1974). Prior to the 1977 code revisions, however, a child was basically subject, at the court's discretion, to the original dispositional order until his or her eighteenth birthday. For children adjudged neglected or dependent, the court could set its orders for any specified length of time and the orders were renewable prior to their expiration. See sec. 48.35(2), Stats.1975. In general, there were "no statutorily authorized time limits for the processing of cases in the juvenile court," the lack of which often resulted in an abuse of detention. See Wisconsin Council on Criminal Justice, Juvenile Justice Standards and Goals 81 (Dec.1975).

In 1977 the legislature substantially revised ch. 48. See ch. 354, Laws of 1977. Numerous time limitations were established for the protection of a child's due process rights. Of central importance to this case, courts thereafter were only empowered to issue dispositional orders for one-year periods and a formal hearing had to be held before an order could be extended for another year. See secs. 48.355, Stats.1977. See also S.D.R., 109 Wis.2d at 574, 326 N.W.2d 762.

Initially, pursuant to sec. 48.365(3), Stats.1977, a dispositional order could be temporarily extended...