G.L.K., In Interest of

• Decision Date: 08 November 1989
• Docket Number: Nos. 89-0936,s. 89-0936
• Citation: 450 N.W.2d 498,153 Wis.2d 245
• Parties: In the Interest of G.L.K., a/k/a J.L.K., A Child Under the Age of 18. K.K., Appellant, v. STATE of Wisconsin, Respondent. In the Interest of M.B.K., A Child Under the Age of 18. K.K., Appellant, d v. STATE of Wisconsin, Respondent. In the Interest of A.K., A Child Under the Age of 18. K.K., Appellant, v. STATE of Wisconsin, Respondent. to 89-0938.
• Court: Wisconsin Court of Appeals

Page 498

450 N.W.2d 498

153 Wis.2d 245

In the Interest of G.L.K., a/k/a J.L.K., A ChildUnder the

Age of 18.

K.K., Appellant, v.STATE of Wisconsin, Respondent.

In the Interest of M.B.K., A ChildUnder the Age of 18.

K.K., Appellant, ^d v.STATE of Wisconsin, Respondent.

In the Interest of A.K., A ChildUnder the Age of 18.

K.K., Appellant, v.STATE of Wisconsin, Respondent.

Nos. 89-0936 to 89-0938.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 17, 1989.

Opinion Released Nov. 8, 1989.

Opinion Filed Nov. 8, 1989.

Marla J. Stephens, Asst. State Public Defender, for appellant.

Peggy A. Hans-Kotkin, Asst. Corp.Counsel, for respondent.

Robert C. Kupfer, guardian ad litem, for appellant.

Before BROWN, P.J., and SCOTT and NETTESHEIM, JJ.

BROWN, Presiding Judge.

K.K. appeals an extension of CHIPS (Children in Need of Protection or Services) orders concerning her three children.She argues that the trial court lost competency to extend the orders because it failed to either conduct a hearing on the extension petition or temporarily extend the CHIPS orders before they expired.She acknowledges that this issue was not raised in the trial court but relies upon a recent court of appeals decision in arguing that issues of this nature may be raised for the first time on appeal.We disagree.We rule that the decision relied upon is inapposite and affirm on the basis that the issue was waived.

The recent court of appeals decision is In re L.M.C., 146 Wis.2d 377, 432 N.W.2d 588(Ct.App.1988).The case involved an original CHIPS order and a series of extensions.The trial court in that case dismissed the extension petition before it on grounds that there had been a one-year "gap" in a prior extension order because that earlier petition was a day late.The court of appeals reversed, holding that although the earlier extension was invalid, the parents were precluded from challenging the court's competency to proceed because the issue had not been timely raised in previous proceedings.

In deciding the issue, the court stated:

[B]ecause the parents could have litigated the trial court's competency to extend the dispositional order in 1986 and failed to do so either before the trial court at the time or by an appeal, they are precluded from raising the question in this litigation.[Emphasis added.]

Id. at 396, 432 N.W.2d at 596-97.

K.K. argues that the language in L.M.C. means that all questions regarding competency of the trial court to proceed because of failure to follow statutory time constraints may be raised for the first time on appeal.

We refuse to read the language in L.M.C. so literally where that court was addressing a fact situation so different from this case.L.M.C. involved parents attempting to relate back to an irregularity in an extension where the time for appeal of that extension had long expired.By writing that the parents could have litigated the issue in the trial court or by appeal, the court in L.M.C. was merely recognizing that the appeals court, at its discretion, could reach the merits even if there was waiver, since waiver is an administrative rule.Wirth v. Ehly, 93 Wis.2d 433, 444, 287 N.W.2d 140, 145-46(1980).

We do not read L.M.C. to say that this type of issue may be raised for the first time on...