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COURT OF APPEALS DECISION DATED AND FILED April 20, 2004 Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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����������� APPEAL from an order of the circuit court for Milwaukee County:� Christopher R. Foley, Judge.� Affirmed.�
�1����������������������� SCHUDSON, J.[1] Michael S., Jr., appeals from the circuit court�s December 4, 2002 order extending and revising his dispositional order and changing his placement to the Ethan Allen School.� Michael argues that �because the juvenile court ha[d] no authority to retroactively extend the time limits, the court lost its competency to proceed when the original dispositional order expired� and, therefore, that the order must be vacated.� This court concludes, however, that the circuit court complied with the statute, extending the time limit for the hearing.� Accordingly, the order is affirmed.
�2����������������������� The facts relevant to resolution of this appeal are undisputed.� Although the procedural history is extensive, the critical dates and events are few:
� November 8, 2001: the juvenile court enters a dispositional order placing Michael on supervision until October 23, 2002.
� September 10, 2002: the State files a petition for extension, revision, and change of placement.
� October 2, 2002: the court sets the date of October 24, 2002 for what the parties advised would be a contested hearing.
As Michael writes in his brief to this court, at the October 2 hearing, when the October 24 date was set, �Although no one noted it at the time, the hearing was scheduled for one day after the original order expired.�� No one objected.
�3����������� At the conclusion of the October 24 hearing, the court (Judge Michael Malmstadt) noticed that Michael�s dispositional order had expired the day before.� Later that day, however, the court (Judge Christopher Foley) concluded that it still had jurisdiction �to, in effect, retroactively grant the thirty days� extension,� under Wis. Stat. � 938.365(6), extending the original dispositional order from what would have been its October 23 expiration date and allowing the hearing to go forward.� Subsequently, Judge Foley elaborated:
We couldn�t conduct the hearing within the time left on the order in part because of the nature of � the � crowded conditions of our calendar, and in part because [defense counsel] didn�t like the first psychological; so we set it over to a date that is one day beyond the original expiration, but well within the temporary thirty days� extension, that I should have formally ordered � but in effect ordered by inference and by virtue of tolling the time limits we�re still within that thirty days� period � my best guess is I still have the authority to entertain this petition.
�4����������������������� Although the parties focus on whether the juvenile court erred in retroactively granting a temporary extension for hearing, the issue more precisely is whether the juvenile court complied with Wis. Stat. � 948.365(6).� See Saenz v. Murphy, 162 Wis. 2d 54, 57 n.2, 469 N.W.2d 611 (1991) (�this court is not bound by the issues as they are framed by the parties�), overruled on other grounds by State ex rel. Anderson-El v. Cooke, 2000 WI 40, 234 Wis. 2d 626, 610 N.W.2d 821.� This issue involves a question of statutory construction, which this court reviews de novo.� State v. Dawn M., 189 Wis. 2d 480, 484, 526 N.W.2d 275 (Ct. App. 1994).�
�5����������������������� The Juvenile Justice Code provides that all dispositional orders shall terminate at the end of one year unless the judge specifies a shorter period of time.� Wis. Stat. � 938.355.� A dispositional order may be extended by motion of any agency bound by that order, the district attorney or the court on its own motion.� See �Wis. Stat. � 938.365.� However, no order under � 938.355 may be extended except as provided in � 938.365.� Wis. Stat. � 938.365(1m).
�6����������������������� Wisconsin Statute � 948.365(6) provides:
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, not including any period of delay resulting from any of the circumstances specified in s. 938.315(1).� The court shall grant appropriate relief as provided in s. 938.315(3) with respect to any request to extend a dispositional order on which a hearing is not held within the time limit specified in this subsection.� Failure to object to a hearing is not held within the time limit specified in this subsection waives that time limit.
�7����������� Michael argues that �the 30-day extension must be requested prior to the order�s expiration.�� This court cannot agree.� Under the plain language of the statute no such requirement exists.� The statute, on its face, requires neither that a request be filed, nor that a request be in a specific form or contain specific information.� Compare Wis. Stat. � 938.365(6) to Wis. Stat. � 938.255(1) (specifying the form and content of a �petition� to initiate a CHIPS action).� Only two prerequisites are required to trigger an extension.� First, a request or petition for extension of the order must be made prior to the expiration of the order.� See Green County Dep�t Human Servs. v. H.N., 162 Wis. 2d 635, 646-47, 469 N.W.2d 845 (1991).� Second, an inability to handle the hearing on the extension before the termination of the order must exist.� Id.� Once these prerequisite are satisfied, the court may grant an extension for up to thirty days.
�8����������� Thus, applying the statute, the result is clear�the court maintained jurisdiction.� First, the State filed the petition to extend the order forty-three days before the October 23, 2002 expiration of the dispositional order.� Second, the court explicitly noted that the calendar was full and that no �quick hearing� could be held.� Although neither the State nor the court used any �magic words� explicitly extending the order, their actions had the effect of doing so.� Accordingly, the circuit court retained jurisdiction and competency to extend and revise the order, and change Michael�s placement, one day after what otherwise would have been the expiration date of the underlying dispositional order.�
����������� By the Court.�Order affirmed.�
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.�
[1] This opinion is decided by one judge pursuant to Wis. Stat. � 752.31(2)(e) (2001-02).� All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.�