S.D.R., In Interest of

• Decision Date: 02 December 1982
• Docket Number: No. 81-914,81-914
• Citation: 326 N.W.2d 762,109 Wis.2d 567
• Parties: In the Interest of S.D.R., a child under the age of 18 years. S.D.R., Appellant-Petitioner, v. STATE of Wisconsin, Respondent.
• Court: Wisconsin Supreme Court

Page 762

326 N.W.2d 762

109 Wis.2d 567

In the Interest of S.D.R., a child under the age of 18 years.

S.D.R., Appellant-Petitioner, v. STATE of Wisconsin, Respondent.

No. 81-914.

Supreme Court of Wisconsin.

Argued Nov. 3, 1982.

Decided Dec. 2, 1982.

Margaret A. Maroney, Asst. State Public Defender, for appellant-petitioner.

Sally L. Wellman, Asst. Atty. Gen. (argued), for respondent; Bronson C. La Follette, Atty. Gen., on brief.

BEILFUSS, Chief Justice.

This is a review of an unpublished decision of the court of appeals, 106 Wis.2d 772, 318 N.W.2d 26, which affirmed the circuit court's order, Judge William D. Gardner, presiding, extending a juvenile dispositional order for 30 days pending a full hearing on the extension pursuant to sec. 48.365(6), Stats.

On January 18, 1980, legal custody of the appellant, S.D.R., was transferred to the Department of Health and Social Services after he was adjudicated delinquent by Judge Gardner. The dispositional order, which placed S.D.R. at the Ethan Allen School for Boys, was for a period of one year, with an expiration date of January 18, 1981.

On January 12, 1981, six days prior to the expiration of the dispositional order, the assistant district attorney petitioned for an extension of the order pursuant to sec. 48.365, Stats. ¹ The extension petition was based upon, and accompanied by, a commitment extension report prepared by a social worker at the Ethan Allen School. This report related S.D.R.'s offense history, adjustment to Ethan Allen, and potential for family reintegration. The report stated that while S.D.R. had made "modest gains" at Ethan Allen, he continued to exhibit a need for a "high degree of structure and supervision." The report recommended that S.D.R.'s custody be extended for a period of one year in a highly structured alternate care facility such as a residential treatment center.

The court directed that the motion be heard on January 15, 1981, and notified the statutorily designated necessary parties. At this hearing defense counsel indicated that S.D.R. was contesting the extension and requested that a hearing on the merits of the extension be held prior to the expiration of the dispositional order to prevent a violation of S.D.R.'s right to liberty. The district attorney responded that the petition was timely filed, quoting sec. 48.365(6), Stats. Defense counsel complained that the court was unable to hear the case before the expiration of the dispositional order because of the failure of the district attorney's office to file a petition at an earlier date. She cited to the fact that the social worker's report was dated December 18, 1980, and that timely action on the part of the district attorney's office would have allowed a hearing before expiration of the disposition order. The district attorney did not know the exact date that his office received the report but stated that at most 10 or 12 working days passed from receipt of the report until the filing of the petition.

The court held that the petition was timely filed because sec. 48.365(6), Stats., provided authority to extend a dispositional order to up to 30 days in order to hold a hearing as long as the petition is filed before the expiration of the order. The court found that it was unable to hear S.D.R.'s case before the expiration of the order because it had not been given enough advance notice. The court set the case for hearing on February 12, 1981, and extended custody over S.D.R. through that date.

At the February 12th hearing on the merits of the petition for extension, S.D.R. moved to dismiss the petition because the hearing had not been held prior to the expiration of the dispositional order, thus violating S.D.R.'s right to due process. The court expressed concern over the fact that the State, by delaying the extension, can cause a juvenile to be kept in the custody of the State for an additional period of time. However, it found no evidence that the district attorney's office had intentionally delayed the hearing in this case. The court also recognized that part of the delay was due to its own crowded calendar. The court denied the motion to dismiss, finding that sec. 48.365(6), Stats., permitted an extension for up to 30 days pending hearing. The court then proceeded to conduct the hearing on the merits of the extension. At this hearing S.D.R. was represented by counsel, called witnesses on his own behalf, and was allowed to cross-examine the State's witnesses. At the close of the evidence the court ordered the disposition order extended for eleven months, with an expiration date of January 18, 1982, which was one year from the date the original order was to expire. The court found that S.D.R. was eligible to leave Ethan Allen and that he should be alternatively placed within three weeks.

S.D.R. appealed the extension of the dispositional order. He claimed that the temporary extension of custody pending a hearing pursuant to sec. 48.365(6), Stats., unconstitutionally deprived him of his liberty without due process. He also claimed that the statute was unconstitutionally vague because it failed to provide standards for the trial court to follow in determining when temporary extensions are permitted.

The court of appeals affirmed the trial court's orders concluding that pursuant to sec. 48.365(6), Stats., a juvenile does not have a liberty interest until one year and 30 days and that the statute was not vague. The court reasoned that sec. 48.355(4) and sec. 48.365(6) must be read together to permit the extension of a dispositional order for 30 days where the petition is filed before the expiration of the order and the trial judge is unable to hold a hearing. It found that this procedure was not fundamentally unfair. The court also reasoned that the inability to hold the hearing prior to expiration of the order was an adequate standard to guide the court in determining when such an extension may be granted. We granted S.D.R.'s petition to review. ²

The principal issue on appeal is whether sec. 48.365(6), Stats., which allows a 30-day extension of a dispositional order pending a hearing, deprives a juvenile of liberty without due process. Based on an examination of the Wisconsin Children's Code, ch. 48, Stats., we conclude that the statute does not violate due process because no liberty interest is violated until 30 days following the termination of a disposition order if the petition for extension is filed within the period of the dispositional order.

Procedural due process basically requires that the State afford the opportunity to be heard at a meaningful time in a meaningful manner. ³ But the procedural guarantees of the due process clause apply only to government action which deprives a person of interests encompassed by the Fourteenth Amendment's protection of liberty or property. ⁴ Therefore to determine in the first instance whether due process requirements apply, we must examine the nature of the interest at stake. ⁵ In order to have an interest which is protected by the due process clause

" 'a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.' " ⁶

S.D.R. claims that his liberty was unconstitutionally restrained because he was confined past the expiration date of the original dispositional order without being afforded due process protections. The liberty interest asserted here, freedom from involuntary confinement, is clearly an interest protected by the due process clause. However, whether this liberty interest is implicated in this case depends on whether S.D.R. had a legitimate expectation of liberty at the expiration of the dispositional order.

S.D.R. was adjudicated delinquent in a proceeding in which he was accorded full due process protections. Following such a constitutional deprivation of liberty he had no legitimate expectation of release except as provided by the Children's Code. Thus the determination of whether sec. 48.365(6), Stats., deprived S.D.R. of due process depends on the legislature's intent as to when juveniles have a legitimate expectation of freedom under ch. 48.

S.D.R. contends that a juvenile has a statutorily created liberty interest at the end of one year. He relies solely on sec. 48.355(4), Stats., which provides that all dispositional orders terminate at the end of one year unless the judge specifies a shorter time. We reject this analysis because it only looks to one subsection of ch. 48 in isolation. Rather an examination of the entire juvenile adjudication process under ch. 48 is appropriate.

The legislature in 1977 completely revised the Children's Code. Ch. 354, Laws of 1977. Under the Code as it existed prior to this revision, a juvenile who was transferred to the custody of the department remained subject to the original dispositional order until he or she reached the age of eighteen, unless the department discharged the child earlier. ⁷ The new Code completely revised this system and presently provides for a system which allows for at least yearly review of dispositional orders with procedural protections applicable at the original dispositions and any subsequent dispositions.

At the time the juvenile is originally adjudicated delinquent, he or she is afforded a hearing with full due process protections. ⁸ The Code then envisions yearly review of the original disposition by placing a one-year limit on such orders which can only be extended by a specific request for extension. ⁹ Such a request may be granted only after a due process hearing is held on the merits of the extension. ¹⁰ These protections include notice to all parties and the right of each party to present evidence. The judge must make findings of fact and conclusions of law based on the evidence. Further, the party responsible for the care of the child must submit a very particularized report stating...