COURT OF
APPEALS DECISION DATED AND
RELEASED July
25, 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. 96-0234
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN THE
INTEREST OF THORNON T.,
A
CHILD UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
THORNON
T.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Dane County: ROBERT PEKOWSKY,
Judge. Reversed and cause remanded.
DYKMAN,
J. This appeal is decided by one judge pursuant to
§ 752.31(2)(e), Stats. Thornon T. appeals from an order extending
his delinquency disposition for a one-year period. Thornon argues that:
(1) he was deprived of due process because he received inadequate
notice and (2) the court invalidly ordered the extension without the
inquiries, information and findings required by statute. We conclude that he received proper
notice. We also conclude that the
court's order did not contain the findings necessary under § 48.355, Stats.
We therefore reverse the order and remand to the court to make the
findings mandated by statute.
BACKGROUND
Thornon
T. was found delinquent several times from 1989 to 1992. On September 8, 1992, the juvenile court
entered a dispositional order under which Thornon was placed under delinquency
supervision at the Norris Adolescent Center for a one-year period ending
September 7, 1993. On November 13,
1992, after a hearing on a petition for a change of placement, the juvenile
court found that he was a danger to the community in his current state and
ordered that he be transferred to Ethan Allen School for Boys. The juvenile court extended the dispositional
order on both August 27, 1993 and August 23, 1994.
On
December 23, 1994, Thornon was released from Ethan Allen to the home of his
grandmother, who served as his guardian.
On February 23, 1995, Thornon's release was revoked and he was
transferred back to Ethan Allen because he committed three violations of his
juvenile supervision and aftercare conditions.
Thornon remained at Ethan Allen except for a six-week period during
which he was evaluated at Mendota Mental Health Institution.
On
July 17, 1995, Beth Remitz, a social worker at Ethan Allen, filed a petition
for extension of the dispositional order.
After a hearing on August 10, 1995, at which Remitz, Thornon, and
Thornon's grandmother testified, the court ordered Thornon's dispositional
order extended until August 9, 1996.
Thornon appeals.
NOTICE
Thornon
argues that he was denied due process because the State did not disclose in
advance the specific basis of its request for an extension. During Thornon's extension hearing, Remitz
testified from a report prepared by Ann Gielau, Thornon's probation and parole
agent.[1] Thornon argues that he did not have proper
notice that the State would rely on this report during the hearing.
It
is not disputed that a juvenile has due process rights during an extension hearing. The parties disagree, however, as to what
notice will satisfy Thornon's due process rights.
When
the state seeks to extend a dispositional order, the juvenile's liberty
interest is implicated. In
Interest of S.D.R., 109 Wis.2d 567, 572, 326 N.W.2d 762, 765
(1982). When government action deprives
a person of liberty, the procedural guarantees of the due process clause
apply. Id. at 572-73, 326
N.W.2d at 765. The Wisconsin Supreme
Court, after reviewing the juvenile process provided for in Chapter 48, Stats., concluded that juveniles
are entitled to "full procedural due process protections" on at least
a yearly basis. Id. at
575, 326 N.W.2d at 766.
In
In re Gault, 387 U.S. 1 (1967), the United States Supreme Court
discussed the notice necessary to satisfy due process when a juvenile is
charged with being delinquent. The
Court stated: "Due process of law ... does not allow a hearing to be held
in which a youth's freedom and his parents' right to his custody are at stake
without giving them notice, in advance of the hearing, of the specific issues
that they must meet." Id.
at 33-34. Thus, the State needed to
give Thornon notice of the specific issues that he must meet at the extension
hearing.
We
conclude that Thornon had adequate notice of the issues he needed to face at
the extension hearing. Under
§ 48.365(2g)(a), Stats.,
"the person or agency primarily responsible for providing services to the
child shall file with the court a written report stating to what extent the
dispositional order has been meeting the objectives of the plan for the child's
rehabilitation or care and treatment."
Remitz filed a report with the court pursuant to this statute. The report stated:
It is well
documented in the Field Services Supplementary Report presented by probation
and parole agent, Ann Gielau, that Thornon had three rule violations while on
aftercare and a decision was made to return him to Ethan Allen School as a
consequence to those rule violations.
The report also itemized the three rule violations:
Thornon T[.] was revoked for having failed to attend his
scheduled counseling appointments at Soport on 02/23/95. Thornon also refused to sign the new
aftercare conditions which were added to his rules of supervision. Thornon was also involved in new illegal
behavior, specifically entering a dwelling without permission and taking items
that did not belong to him.... After
Thornon discussed his current situation with his agent, Ann Gielau, and with
his social worker, Beth Remitz, he came to understand that he had three total
rules violations.
From
this report, it should have been clear to Thornon that the State sought to
extend his disposition in part because of the fact that he committed three rule
violations during his aftercare. The
report makes it clear that information pertaining to the rules violations is
contained in the records of Ann Gielau.
These records were in Thornon's case file at Ethan Allen, and Thornon
had access to the case file. We
conclude that the notice provided to Thornon satisfied due process
requirements.
FINDINGS
REQUIRED UNDER STATUTE
Thornon
argues that the court's order extending the disposition order did not satisfy
the requirements of §§ 48.355 and 48.365, Stats. The court's
order extending Thornon's disposition reads in pertinent part:
Based
on all the records, files, and proceedings herein and heretofore in the above
entitled matter, the Court finds as follows:
A
report has been filed with the Court pursuant to sec. 48.365(2g), Wis. Stats.,
which together with the testimony and evidence presented, shall serve as the
factual basis of this order.
The delinquency finding is affirmed and the Petition for
Extension is granted. Legal custody is
continued with the Dane County Department of Human Services for a period of one
(1) year through midnight August 9, 1996.
Supervision is transferred to the State Department of Health and Social
Services, Division of Youth Services with placement at Ethan Allen School for
Boys.
An
extension order can be entered only after compliance with § 48.365, Stats., which includes a requirement
that the court issue an order under § 48.355, Stats. See
§ 48.365(2m)(a), Stats. Section 48.355(2)(b) provides that the court
order "shall be in writing and shall contain" certain specific
information. In addition, §
48.355(2)(a) provides that "[i]n addition to the order, the judge shall
make written findings of fact and conclusions of law based on the evidence
presented to the judge to support the disposition ordered."
The
court's order does not meet the requirements of § 48.355, Stats.
Specifically, the court order does not contain "[t]he specific
services or continuum of services to be provided to the child and family"[2]
or "the court's finding as to whether ... the agency primarily responsible
for the provision of services under a court order has made reasonable efforts
to make it possible for the child to return to his or her home."[3]
The
State argues that the court, by ordering that Thornon be placed under
supervision of the State Division of Youth Services for placement at Ethan
Allen, specified the services to be provided to Thornon and his family. The court's obligation to make a placement
decision, however, is separate from its obligation to specify services to be
provided to the child and family.
Section 48.355(2)(b)2, Stats.,
provides that the court order shall contain the name of the place or facility
where the child shall be cared for or treated if the child is placed outside
the home. Section 48.355(2)(b)1
separately provides that the order shall contain the specific services to be
provided to the child and family. Thus,
the order did not satisfy the requirement that the court specify services by
providing that Thornon would be placed at Ethan Allen.
The
State also argues that the court specifically based its factual findings upon
the social worker's court report, which provided the specific services to be
given to the child and his family, a statement of conditions with which Thornon
must comply, and information as to whether reasonable efforts had been made to
make it possible for Thornon to return home.
However, the fact that the report, along with the testimony and evidence
presented, served as the factual basis of the court's order does not extinguish
the requirement of § 48.355(2)(b)1, Stats.,
that the services to be provided to the child and family be specified in
writing by a court order.
The
court also did not make written findings of fact and conclusions of law based
on the evidence presented to support the disposition ordered, as required by
§ 48.355(2)(a), Stats. The court stated that the report, evidence
and testimony shall serve as the factual basis for the order without making any
specific findings of fact.
The
purpose of Chapter 48, Stats., is
in part to "provide judicial and other procedures through which children
and all other interested parties are assured fair hearings and their
constitutional and other legal rights are recognized and enforced, while
protecting public safety." Section
48.01(1)(a), Stats. The procedural requirements of
§ 48.355, Stats., are a
legislative mandate and help protect a juvenile's constitutional right to due
process.
In
addition, section 48.355(1), Stats.,
states in pertinent part:
The disposition shall employ those means necessary to
maintain and protect the child's well‑being which are the least
restrictive of the rights of the parent or child and which assure the care,
treatment or rehabilitation of the child and the family, consistent with the
protection of the public.
The requirements of § 48.355 that the court's order be
in writing and contain specific findings and that the court make written
findings of fact and conclusions of law to support the disposition ordered help
to ensure that the judge's decision is consistent with the legislative intent
set forth in § 48.355(1). Because the
court's order does not satisfy the requirements of § 48.355, we reverse and
remand the proceeding so that the trial court can make findings consistent with
the requirements of § 48.355.[4]
By
the Court.—Order reversed and
cause remanded.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[1] Thornon characterizes the reading of this
report as the introduction of "double hearsay." Thornon does not explain, however, how the
introduction of hearsay implicates his due process rights.
[3] See § 48.355(2)(b)6, Stats.
In addition, § 48.355(2c)(b) provides as follows:
When a court makes
a finding under sub. (2)(b)6. as to whether the agency primarily responsible
for providing services to the child under a court order has made reasonable
efforts to make it possible for the child to return to his or her home, the
court's consideration of reasonable efforts shall include, but not be limited
to, the considerations listed under par. (a) 1. to 5. and whether visitation
schedules between the child and his or her parents were implemented, unless
visitation was denied or limited by the court.
Section 48.355(2c)(a)
states that the court's consideration of reasonable efforts shall include
whether:
1. A
comprehensive assessment of the family's situation was completed, including a
determination of the likelihood of protecting the child's welfare effectively
in the home.
2. Financial
assistance, if applicable, was provided to the family.
3. Services
were offered or provided to the family, if applicable, and whether any assistance
was provided to the family to enable the family to utilize the services....
4. Monitoring
of client progress and client participation in services was provided.
5. A
consideration of alternative ways of addressing the family's needs was provided,
if services did not exist or existing services were not available to the
family.
The court's order does not make any of these findings.
[4] The juvenile court ordered the one-year
extension of Thornon's dispositional order on August 11, 1995. Thornon's appellate counsel did not file a
notice of appeal until January 22, 1996.
On April 12, 1996, this court notified counsel that his brief in this
matter was delinquent. On April 16,
1996, counsel moved the court for an order extending the time for filing the
initial brief until April 30, 1996. The
motion was granted, and the brief was finally filed on April 30, 1996. On May 23, 1996, counsel moved the court for
an order extending the time for filing his reply brief until June 30,
1996. We regret that we granted this
extension which added about two weeks to the time this appeal was pending. Appellant's reply brief was filed on July 1,
1996, and the clerk sent all briefs to this court on July 3, 1996.
Almost
eleven months passed between Thornon's extended dispositional order and
Thornon's final brief. By the time this
court could consider the merits of Thornon's appeal, the issue was almost
moot. When we release this opinion, it
will be impossible for the trial court to comply with this court's mandate by
August 10, 1996, because remittitur will not occur for thirty-one days. Rule
809.26(1), Stats. The result is that this appeal is a total
waste of time and money.