L.M.C., In Interest of
| Decision Date | 12 July 1988 |
| Docket Number | Nos. 88-0521,s. 88-0521 |
| Citation | 432 N.W.2d 588,146 Wis.2d 377 |
| Parties | In the Interest of L.M.C., a Person Under the Age of 18. Carolyn P. SCHOENWALD, as Guardian ad Litem for L.M.C., Appellant, v. M.C., and L.C., Respondents, * In the Interest of H.L.C., a Person Under the Age of 18. Carolyn P. SCHOENWALD, as Guardian ad Litem for H.L.C., Appellant, v. M.C., and L.C., Respondents, * In the Interest of E.S.C., a Person Under the Age of 18. Carolyn P. SCHOENWALD, as Guardian ad Litem for E.S.C., Appellant, v. M.C., and L.C., Respondents. * to 88-0523. |
| Court | Wisconsin Court of Appeals |
Carolyn P. Schoenwald, Madison, on the briefs, for appellants.
Richard J. Auerbach and Auerbach & Porter, Madison, on the brief, for respondent, M.C.
Charles Bennett Vetzner, Asst. State Public Defender, on the brief, for respondent, L.C.
Before GARTZKE, P.J., and DYKMAN and EICH, JJ.
The guardian ad litem for each of three children has appealed from an order dismissing petitions to extend the dispositional order as to each child entered in Child in Need of Protection or Services proceedings (CHIPS). The issues are (1) whether previous extensions of dispositional orders are invalid because the dispositional orders had expired before the extensions were granted and (2) whether the trial court nevertheless is competent to grant the petitions to extend because the court's competency was not challenged in previous proceedings. We conclude that one extension is invalid, but because the competency of the court to enter that extension was not timely raised in previous proceedings, the parents are precluded from challenging the court's competency in this proceeding.
We summarize our construction of the pertinent statutes and case law as follows:
(1) An order extending a dispositional order under secs. 48.355 and 48.365, Stats., is effective if orally rendered before termination of the dispositional order even if not reduced to writing until after termination of the order;
(2) While an extension order is effective when rendered before termination of the dispositional order, it extends the order for one year from the termination date of the dispositional order or from the termination date of an extension for thirty days or less under sec. 48.365(6), Stats., not from the date the extension order is rendered;
(3) A trial court cannot temporarily extend a dispositional order beyond thirty days past its termination date to hold a hearing on an extension petition by consent or by continuing the extension hearing under sec. 48.315(1)(b), Stats;
(4) Objections to the trial court's failure to abide by the time limits for extending dispositional orders under secs. 48.355 and 48.365, Stats., must be raised in the trial court at the time the extension is under consideration or by timely appeal from the order granting the extension. Failure to do so precludes a party from asserting such objections in subsequent litigation.
We begin with the statutory and case law background. The juvenile court has exclusive original jurisdiction over a child alleged to be in need of protection or services. Sec. 48.13, Stats. The custody of a child adjudged to be in such need may be transferred to an agency. Sec. 48.345. Transfer is effected by a dispositional order entered pursuant to sec. 48.355.
A dispositional order entered under sec. 48.355, Stats., before the child reaches the age of majority terminates at the end of one year from entry of the order unless the judge specifies a shorter time, and extensions also terminate at the end of one year unless a shorter time is ordered. Sec. 48.355(4). A dispositional order may be extended only as provided in sec. 48.365. Sec. 48.365(1). Extension orders cannot exceed one year. Sec. 48.365(5). "If a request to extend a dispositional order is made prior to the termination of the order, but the court is unable to conduct a hearing on the request prior to the termination date, the court may extend the order for a period of not more than 30 days." Sec. 48.365(6).
The provisions of sec. 48.365, Stats., governing extension of dispositional orders apply to juveniles adjudicated delinquent and to children adjudicated in need of protection or services. We therefore may look to the case law in both types of proceedings for guidance.
In Interest of S.D.R., 109 Wis.2d 567, 326 N.W.2d 762 (1982), involved the extension of a dispositional order in a juvenile delinquency proceeding. The S.D.R. court noted that dispositional orders "terminate at the end of one year unless the order is extended by the court for up to 30 days pending a plenary hearing, or for up to a year following such a hearing." Id. at 575-76, 326 N.W.2d at 766 (emphasis in original). A temporary extension under sec. 48.365(6), Stats., Id. at 575, 326 N.W.2d at 766 (emphasis in original). Id. at 577, 326 N.W.2d at 767.
The factual history of this case is undisputed. L.C. and M.C. are the parents of L.M.C., H.L.C. and E.S.C. In December 1983 the oldest child told school officials that his father had hit him. The parents admitted to the police that the oldest child had been beaten about every other day. CHIPS petitions were filed for each child in December 1983, and the children were removed from the home and placed in foster care. Amended petitions were filed in late December 1983, providing additional information regarding alleged physical and sexual abuse. The petitions were amended further to allege that the children were victims of physical abuse only. The court accepted the parents' pleas of no contest to the amended CHIPS petitions and found the children in need of protection or services.
The court signed a single dispositional order on April 12, 1984 placing the children under the protective supervision of the Dane County Department of Social Services for one year. "An order is entered when it is filed in the office of the clerk of court." Sec. 807.11(2), Stats. The order bears the clerk of court's date stamp of April 27, 1984. The order was entered on April 27, 1984. The order is effective for one year from the date of entry. Sec. 48.355(4), Stats.
On March 5, 1985, the court signed an order reciting that it had been advised that the department would be petitioning for an extension which would be contested. The court extended the dispositional orders for thirty days from April 12, 1985. 1 Extension petitions were filed on April 11, 1985, and heard on April 25, 1985, when the parents pled no contest to the allegations. The propriety of this procedure is challenged.
At the hearing the court orally ordered one-year extensions. By June 20, 1985 the court had signed one-year extension orders as to each child. The court signed amended orders on July 18, 1985. None of the orders specified the date from which the one-year extensions ran. That date is one of the issues we resolve.
On March 20, 1986, petitions to extend the dispositional orders were again filed. A hearing was held on April 17, 1986, at which the court orally ordered that the matter be scheduled for an extension hearing on May 20, 1986 and extended supervision for thirty days. We infer that the court's intent was to extend supervision for thirty days from April 27 to May 27, 1986. 2
The parents and their attorneys and the guardian ad litem were present at the May 20, 1986 hearing. The court's calendar was such that the matter could not be concluded that day. The parents by their attorneys did not object to continuing the extension hearing to June 18, 1986, and to extending supervision to June 18, 1986. On May 21, 1986, the court signed an order so providing. The propriety of the extension to June 18, 1986 is at issue.
At the June 18, 1986 hearing, the parties agreed to a one-year extension, with the current placements. Other matters were contested. The court indicated it would order the extension, including the current placements, but did not issue its findings orally. During the balance of the hearing the parties litigated the remaining issues. On July 16, 1986, the court signed and entered orders extending supervision for the children for one year, without specifying when the year began. That date and the court's subject matter jurisdiction or competency to exercise it are at issue.
On May 26, 1987, petitions to extend the dispositional orders for an additional one year were filed. On June 18, 1987 a hearing was held, at which pursuant to the parties' stipulation, the court signed an order extending supervision for thirty days and continued the hearing to July 14, 1987. On June 29, 1987, the parents moved to dismiss the petitions, contending the court had lost jurisdiction. At the July 14, 1987 hearing, the trial court orally extended the dispositional orders for one year. On August 10, 1987 the court signed one order nunc pro tunc to July 14, 1987, extending supervision for one year for the children. The order was entered on August 17, 1987. By August 31, 1987, each parent had filed a notice of intent to pursue postconviction relief.
On October 15, 1987, the court rescinded its July order which had extended supervision for one year and dismissed the petitions for extensions. It stayed this order pending appeal. The court concluded it had lost subject matter jurisdiction due to various gaps in the proceedings.
The court analyzed the jurisdiction issue as follows: On April 25, 1985 the court had subject matter...
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