COURT OF APPEALS DECISION DATED AND RELEASED April 9, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3285-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
In the Interest of
Kristopher G.,
A Child Under the Age
of Eighteen:
State of Wisconsin,
Petitioner-Respondent,
v.
Kristopher G.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
THOMAS P. DONEGAN, Judge. Reversed
and cause remanded with directions.
WEDEMEYER, P.J.[1] Kristopher G., a minor, appeals from an
order granting the State's petition to extend a dispositional order for a
period of one year which would require Kristopher to remain in a residential
treatment center. Kristopher claims
that the trial court failed to make a mandatory finding pursuant to
§ 48.365(2m)(a), Stats.,
that the agency made reasonable efforts to return Kristopher to his home. Because § 48.365(2m)(a) requires such a
finding under the facts of this case, and because the record does not
demonstrate that such a finding was made, this court remands this case to the
trial court for further proceedings.
I. BACKGROUND
In April 1993,
Kristopher was adjudged delinquent of criminal damage to property. As a result, the court ordered placement in
a residential treatment center for a period of one year with concurrent
probation. In August 1994, the original
order was revised and Kristopher was committed to Lincoln Hills until April
1995. In February 1995, the State
petitioned for an extension of the dispositional order for a one-year period,
requesting that Kristopher remain at Lincoln Hills.
In April 1995, an
extension hearing was held and the trial court extended the original
dispositional order until April 1996.
Kristopher filed a postconviction motion challenging the validity of the
extension order, which was denied. He
now appeals.
II. DISCUSSION
Kristopher claims that
the trial court failed to make a mandatory finding pursuant to
§ 48.365(2m)(a), Stats.,
that reasonable efforts were made by the agency to return him to his home. He claims that this error should result in
dismissal of the order. Although this
court agrees that the trial court failed to make a finding according to the
proper “reasonable efforts” standard set forth in § 48.365(2m)(a), this
court concludes that the proper procedure is to remand this case to the trial
court to consider this case in light of the proper standard.
Section 48.365(2m)(a), Stats., provides in pertinent part:
Any
party may present evidence relevant to the issue of extension. The judge shall make findings of fact and
conclusions of law based on the evidence, including a finding as to whether
reasonable efforts were made by the agency primarily responsible for providing
services to the child to make it possible for the child to return to his or her
home.
This
statute unambiguously requires the judge to make a “finding as to whether
reasonable efforts were made by the agency primarily responsible for providing
services to the child to make it possible for the child to return to his or her
home.” The use of the term “shall”
makes this finding a mandatory one. Karow
v. Milwaukee County Civil Service Comm'n, 82 Wis.2d 565, 570, 263
N.W.2d 214, 217 (1978). Instead of
making a finding under this specific standard, however, the trial court found
that “reasonable efforts to prevent removal have been made and less restrictive
placement alternatives are not appropriate.”
The State argues that
the mandatory finding was not applicable in this case because Kristopher was
not being returned to his mother's home, but was being considered for
independent living. This court is not
persuaded. The statute does not define
“his or her home.” Accordingly, if the
juvenile is being considered for independent living rather than a return to a
parent's home, “home” under such a circumstance means the juvenile's
independent home.
The State also argues
that the trial court's finding regarding “reasonable efforts” essentially means
the same thing as the mandatory finding.
Although this may be true, it does not alter the fact that the statute
mandates a specific finding regarding reasonable efforts to return the juvenile
home. Accordingly, this court concludes
that the appropriate action is to remand this case to the trial court with
instructions that the trial court consider whether the record supports a
finding as mandated by the statute.[2]
By the Court.—Order
reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] Kristopher argues
that a remand is not the appropriate remedy.
He argues that a violation of a mandatory statutory provision should
result in dismissal of the order. He
relies on C.A.K. v. State, 154 Wis.2d 612, 453 N.W.2d 897
(1990) for his argument. In C.A.K.,
the Wisconsin supreme court dismissed a delinquency petition for failing to
comply with the mandatory 20-day rule under § 48.25, Stats.
Id. at 614, 453 N.W.2d at 897-98. This court rejects Kristopher's argument.
Contrary to C.A.K., Kristopher's case does not involve the violation of a mandatory time limit. It involves the failure of the trial court to make a specific finding of fact. Accordingly, the proper procedure is to remand the case to the trial court to allow it to consider whether the specific finding can be made. State v. McKenzie, 139 Wis.2d 171, 407 N.W.2d 274 (Ct. App. 1987).