COURT OF APPEALS DECISION DATED AND RELEASED OCTOBER 1, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0863
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN THE MATTER OF THE
GUARDIANSHIP AND
PROTECTIVE
PLACEMENT OF FLORENCE
S.:
DOUGLAS COUNTY,
Petitioner-Respondent,
v.
FLORENCE S.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Douglas County:
MICHAEL T. LUCCI, Judge. Reversed.
LaROCQUE, J. Florence S. appeals an order continuing her
protective placement for a year. She
challenges the failure to conduct the annual review hearing within a year of
the original placement. This court
agrees that the failure to conduct the hearing violated her right to due
process and equal protection and reverses the order continuing placement.
Florence's original
placement occurred pursuant to an order filed June 6, 1994. The required annual hearing to determine
whether the placement should continue as mandated by State ex rel. Watts
v. Combined Community Services Bd., 122 Wis.2d 65, 362 N.W.2d 104
(1985), did not take place until almost sixteen months later, on September 29
and October 3, 1995.
The County takes the
position that Watts did not contemplate a dismissal for failure
to conduct the required annual hearing strictly within a twelve-month time
frame. It rejects cases that Florence
cites as authority for the proposition that failure to meet time limits
deprives the trial court of competency to proceed.
Due process is a
flexible concept and not static, and depends upon the interests involved and
the nature of subsequent proceedings. Lessard
v. Schmidt, 349 F. Supp. 1078, 1086 (E.D. Wis. 1972). While the County is correct in noting that Watts
did not establish the consequences of failing to provide an annual review, this
court concludes that due process would require a review hearing to be held
within a period less than that provided here.
The record does not reveal the reason for the length of the delay
following the expiration of Florence's original commitment. The order entered appointing a guardian ad
litem for the annual review was not made until August 18, 1995. The GAL's report filed on September 6, 1995,
indicated doubt concerning whether Florence was still a proper subject for
placement.
Further, while the
analogy between the cases Florence cites is not perfect, there is a sufficient
nexus to conclude those cases are not irrelevant. In re G.O.T., 151 Wis.2d 629, 445 N.W.2d 697 (Ct.
App. 1989), held that the trial court lost competency to proceed with the
hearing to extend a ch. 51, Stats.,
(mental health) commitment when the hearing was not held within the statutory
six months after the initial extension.
Similarly, there is an
equal protection problem if persons subject to continued treatment following a
mental commitment are required to have strict compliance with statutory time
limits while persons protectively placed are not. This court concludes that the procedure followed in this case
compels the dismissal of the proceedings against Florence and reversal of the
recommitment order.
Because the preceding
opinion resolves the appeal, it is unnecessary to address Florence's challenge
to the sufficiency of the evidence to continue placement and to the decision
regarding the least restrictive placement.
By the Court.—Order
reversed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.