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COURT OF APPEALS DECISION DATED AND RELEASED October 22, 1996 |
NOTICE |
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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. 96-1970
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
IN THE INTEREST OF
MIYA L.A.,
A PERSON UNDER THE AGE
OF 18:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MIYA L.A.,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
MEL FLANAGAN, Judge. Affirmed.
FINE,
J. Miya L.A. appeals from a dispositional order entered by the
circuit court assigned to hear cases arising under Chapter 48 of the Wisconsin
Statutes.[1] Miya is a juvenile who was born on May 7,
1983. The dispositional order was
entered February 22, 1996, and, upon a finding that Miya violated the
provisions of §§ 947.01 and 939.63, Stats.,
disorderly conduct while armed, found her to be delinquent, placed her on
probation, and ordered that she be placed at the Sunburst Residential Treatment
Center. See § 48.02(3m), Stats. (with exceptions not here
relevant, a child who is twelve or older but under the age of eighteen is a
“delinquent” if he or she “has violated any state or federal criminal law”);
§ 48.12(1), Stats. (with
exceptions not here relevant, circuit court assigned jurisdiction under Chapter
48 “exclusive jurisdiction” over child alleged to be delinquent); § 48.34(2)
& (3)(d), Stats. (child
adjudged delinquent may be put on probation and placed at a residential
treatment center). Miya argues that the
dispositional hearing was not timely, and, therefore, that the circuit court
lost competency to enter the dispositional order. She also argues that the circuit court did not make the requisite
written findings to support her placement outside of her home. We affirm.
1. Timeliness
of dispositional order.
Section 48.30(6), Stats., provides, as relevant here,
that a dispositional hearing is to be held “no more than 30 days from the plea
hearing,” if the delinquency petition is not contested. This time limit is mandatory, and the
circuit court loses competency to exercise jurisdiction over the child unless
the deadline is met. In Interest
of R.H., 147 Wis.2d 22, 35, 433 N.W.2d 16, 22 (Ct. App. 1988), aff'd
by an equally divided court, 150 Wis.2d 432, 441 N.W.2d 233 (1989); In
Matter of J.R., 152 Wis.2d 598, 603–604, 449 N.W.2d 52, 54 (Ct. App.
1989). Nevertheless, the time limit in § 48.30(6) is not wholly
procrustean. Section 48.315, Stats., provides, as material here:
48.315
Delays, continuances and extensions. (1) The following time periods
shall be excluded in computing time requirements within this chapter:
(a) Any
period of delay resulting from other legal actions concerning the child,
including an examination under s. 48.295 or a hearing related to the child's
mental condition, prehearing motions, waiver motions and hearings on other
matters.
(b) Any
period of delay resulting from a continuance granted at the request of or with
the consent of the child and counsel.
....
(d) Any
period of delay resulting from a continuance granted at the request of the
representative of the public under s. 48.09 if the continuance is granted
because of the unavailability of evidence material to the case when he or she
has exercised due diligence to obtain the evidence and there are reasonable
grounds to believe that the evidence will be available at the later date, or to
allow him or her additional time to prepare the case and additional time is
justified because of the exceptional circumstances of the case.
....
(f) Any
period of delay resulting from the absence or unavailability of the child.
....
(2) A continuance
shall be granted by the court only upon a showing of good cause in open court
or during a telephone conference under s. 807.13 on the record and only for so
long as is necessary, taking into account the request or consent of the
district attorney or the parties and the interest of the public in the prompt
disposition of cases.
“[T]he
enumerated specific circumstances noted in sec. 48.315(1) do not provide the
exclusive grounds for time extensions.”
In Matter of J.R., 152 Wis.2d at 607, 449 N.W.2d at
56. Rather, “[a] continuance may be
granted directly under sec. 48.315(2), Stats.”
In Interest of G.H., 150 Wis.2d 407, 418, 441 N.W.2d 227,
232 (1989). Interpretation of this
statute is a question of law subject to de novo review on appeal, In
Matter of J.R., 152 Wis.2d at 603, 449 N.W.2d at 54, as is what
constitutes “good cause” for a continuance, In Interest of Jason B.,
176 Wis.2d 400, 407, 500 N.W.2d 384, 387 (Ct. App. 1993).
The plea hearing in this
case was held on November 16, 1995.
Miya did not contest the petition, and the circuit court adjudged her to
be delinquent. A dispositional hearing thus had to be held no later than
December 18, 1995.[2] The dispositional hearing was scheduled for
December 12, 1995. On November 24,
1995, Miya absconded from the non-secure facility at which she had been
placed. According to the judgment roll,
there was a “capias return” on November 29, 1995, and the proceedings indicate
that Miya was arrested at her home after Miya's mother contacted the social
worker. At the next court date,
December 1, 1995, Miya was placed in secure detention, which shortened the
time limit imposed by § 48.30(6), Stats.,
to ten days, or to December 11, 1995.
As permitted by § 48.315(1)(b), Stats.,
Miya's counsel agreed to the dispositional hearing remaining on
December 12, 1995.
On December 12, 1995,
the circuit court directed the social welfare worker to seek a
residential-treatment facility for Miya, and directed that, in the interim,
Miya be placed in a non-secure facility.
The dispositional hearing was adjourned to determine what facilities
would be appropriate for Miya and whether they would accept her. The social worker indicated in response to a
question from the circuit court that she did not “know how long” the process
would take, but that she would seek to have the answers “as soon as
possible.” The adjourned hearing was
set for December 28, 1995, for the convenience of Miya's lawyer, who indicated
that he would be at the Children's Court Center on that date.
On December 28, 1995,
the social worker told the circuit court that the plan to be recommended to the
court was that Miya be placed in a group home and that, pending final
arrangements, Miya should “stay in a group home until that placement occurs.” The circuit court agreed, and rejected the
suggestion by Miya's attorney that she be sent home in the interim. The matter was set for further review on
March 4, 1996.
On January 25, 1996,
Miya's case returned to court. The
facility at which Miya was to be placed pursuant to the circuit court's oral
order for probation refused to accept her.
In light of the need for further arrangements to find an appropriate
residential treatment center for Miya, the case was adjourned until February
22, 1996. As permitted by
§ 48.315(1)(b), Stats.,
Miya's lawyer consented to the adjournment.
Miya argues that the
circuit court lost competency to act in the case on December 15, 1995.[3] As we have seen, however, the trial court
held a dispositional hearing on December 12, 1995. The subsequent dates were adjournments for further and necessary
proceedings. Each of the adjournments
was necessary to effectuate the dispositional program outlined by the trial
court. The reason for each of the
adjournments was explicated “in open court” and “on the record.” See § 48.315(2), Stats.
It is irrelevant that the circuit court never used the magic words “good
cause” in explaining why the adjournments were needed. See Waukesha County v. Darlene
R., 201 Wis.2d 633, 643, 549 N.W.2d 489, 493 (Ct. App. 1996). Moreover,
each of the adjournments was made with at least Miya's tacit consent. See § 48.315(1)(b), Stats.
On our de novo review, each of the adjournments was for “good
cause.” See § 48.315(2).
2. Miya's
placement outside of her home.
Miya argues that the
circuit court did not comply with § 48.355(2), Stats., which specifies what the dispositional order must
contain:
Content of order; copy to parent.
(a) In 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, including
findings as to the child's condition and need for special treatment or care if
an examination or assessment was conducted under s. 48.295. A finding may not include a finding that a
child is in need of psychotropic medications.
(b) The
court order shall be in writing and shall contain:
....
6. If the child is placed outside
the home, the court's finding as to whether a county department which provides
social services or the agency primarily responsible for the provision of
services under a court order has made reasonable efforts to prevent the removal
of the child from the home or, if applicable, that 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.
Miya
does not contend, however, that her placement at the residential treatment
center is not supported by the evidence.
This is how her reply brief in this court frames her argument: “Appellant has not argued that the record
does not support an out-of-home placement for Miya, but rather that the court
has failed to comply with the mandatory requirement that its written order
include a finding that the county department `has made reasonable efforts to
prevent removal of the child from the home.'”
The circuit court's
findings made on the record, both on December 12, 1995, and on February 22,
1996, fully satisfy the requirements of § 48.355(2)(b)6, Stats.:
December
12, 1995:
Perhaps we could consider some in-home
treatment services, but I don't see that as a possibility at least initially
and I -- it's only with great reluctance that I consider an out-of-home
placement for someone as young as Miya and with a lack of background that she
has, but we have, during the course of this review of this disorderly conduct
while armed, tried a number of in-home services that have all failed. We tried In-house, we placed her in shelter,
she did not follow the in-house order, she ran from shelter, she -- Miya has
not shown that she can really buckle down and follow rules yet.
....
... And
she continues to engage in behavior which is indicated in the psychological and
the AODA assessment that's clearly very dangerous for her, and she does appear
to have some very significant treatment needs....
February 22, 1996:
[The
psychological] report is extremely compelling, and I can't imagine a much more
compelling argument for residential treatment than ... in that report, and it's
one that convinces the Court that we need to take that step. As drastic as that may be to the family
situation, the hope is that we get her home as soon as possible and maybe in
some outpatient counseling once she gets home, and then she can go home and
stay home.
The success of her going home now would be
extremely risky to impossible, and I don't think that there's any chance that
that would be in her best interest, so I am going to order that she be placed
in residential treatment and that she successfully complete the residential
treatment program, including educational and counseling components, that she
have no AWOLs or disruptive behavior, and that her successful completion be
determined by the treatment staff and the probation staff jointly, and that she
will have a concurrent period of one year probation, and she will follow the
regular rules of probation, including keeping in contact with the probation
agent....
It is
true that these findings, reduced to writing in the circuit court's written
verbatim transcript, were not repeated on the formal dispositional order
entered on February 22, 1996.
There was, however, no need to do so.
See Gumz v. Chickering, 19 Wis.2d 625, 636, 121
N.W.2d 279, 285 (1963) (trial court's “oral determination” on the record is,
when “reduced to writing,” equivalent to a “`memorandum decision'” required by
the rules). Moreover, Miya merely seeks
a remand so the circuit court can “consider whether specific findings required
by sec. 48.355(2)(b) can be made.” The
circuit court has already made that determination, and physical attachment of
the written transcripts to the formal dispositional order would satisfy even
the most crabbed reading of the statute.
Miya's substantial rights were not affected by the way the circuit court
reified its carefully reasoned and well-supported findings. See Rule
805.18, Stats. (any error or
defect to be disregarded unless substantial right affected).[4]
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Chapter 48 of the Wisconsin Statutes has been substantially revised by the Juvenile Justice Code, 1995 Wis. Act 77, generally effective July 1, 1996. See 1995 Wis. Act 77 § 9400. Miya does not contend that any of the provisions with earlier effective dates apply to this appeal. See also 1995 Wis. Act 275, which concerns neglected and abused children and termination of parental rights. All statutory provisions cited or referred to in this decision are to the 1993–1994 edition of the Wisconsin Statutes.
[2] Thirty days from November 16, 1995, is December 16, 1995, a Saturday. See § 990.001(4)(a), Stats. (first day of calculation is excluded; last day of calculation is included). Section 990.001(4)(c), Stats., provides that Saturdays are excluded from the calculation when the governmental office does not have office hours on a Saturday; in such a case, “the proceeding may be had ... on the next succeeding day that is not a Sunday or a legal holiday.”