COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 27, 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. 96-2572-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
In re the Termination
of
Parental Rights of
Tyler B., a child
under
the age of 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
TRACY O.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Langlade County:
JAMES P. JANSEN, Judge. Affirmed.
CANE, P.J.
Tracy O. appeals a trial court order that terminated her
parental rights to Tyler B. It is
undisputed that counsel filed a timely notice of intent to appeal. However, the notice of appeal was not filed
timely. Her counsel has filed a no
merit report under Anders v. California, 386 U.S. 738 (1967),
after missing the fifteen-day deadline for filing a TPR notice of appeal under Rule 809.107(5), Stats.
Consequently, this court required her counsel to file a memorandum on
whether the late notice of appeal deprived this court of appellate jurisdiction
under Gloria A. v. State, 195 Wis.2d 268, 536 N.W.2d 396 (Ct.
App. 1995). Tracy O. has not responded
to her counsel's no merit report and jurisdictional memorandum. After reviewing the record, this court
concludes that further proceedings in this appeal would have no merit.
Although this court has
misgivings about the validity of the analysis in Gloria A.
denying this court the authority to extend the time to file a notice of appeal
in a TPR appeal, it is binding precedent.
See § 752.41(2), Stats.[1] Therefore, this court must follow the holding
in Gloria A. and conclude
it has no authority to extend the time for filing the notice of appeal. However, in spite of the holding in Gloria
A., this court has considered the merits of Tracy O.'s appeal. Here, counsel's no merit report raises four
basic arguments: (1) the State did not
prove abandonment; (2) the ending of Tracy O.'s parental rights did not serve
her child's best interests; (3) the Langlade County Department of Social
Services violated its duty to help Tracy O. reunite with her child; and
(4) the child no longer qualifies as a CHIPS child. Upon review of the record, this court is satisfied that the no
merit report properly analyzes these issues and that the appeal has no arguable
merit. Accordingly, this court also
adopts the no merit report, affirms the dispositional order, and discharges
Tracy O.'s counsel of his obligation to represent her further in this
appeal. This court notes that the same
basic result is reached under either approach.
Accepting the holding in Gloria A., the appeal must be
dismissed, thereby leaving the TPR order unabated. If this court rejects the holding in Gloria A., the
no merit is considered and adopted, thereby affirming the TPR order.
By the Court.—Order
affirmed.
[1]
Gloria A. v. State, 195 Wis.2d 268, 536 N.W.2d 396 (Ct.
App. 1995), holds the appellate court has no power to extend the deadline for
filing a TPR notice of appeal under Rule
809.107(5), Stats. The court in Gloria A. applied
a rule promulgated in 1978 and 1981 by the Wisconsin Supreme Court to the new
TPR procedure enacted by the legislature in 1993. Rule 809.82(2)(b),
promulgated by the court in 1978 and 1981, provides that this court may not
extend the time to file notices of appeal, except for appeals under Rules 809.30 and 809.40. From 1978 until 1993, TPR appeals proceeded
under Rules 809.30 and 809.40,
and the time to file a TPR notice of appeal was extendable. In 1993, however, the legislature created a
new TPR appeals procedure. See Rule 809.107, Stats. In Gloria
A.'s view, the new enactment removed TPR notices of appeal from Rules 809.30 and 809.40, and their
deadlines were therefore no longer extendable.
The l993 legislative
enactment altered several aspects of the former supreme court created TPR
appellate procedure. As part of these
changes, the enactment expressly denied this court the authority to extend the
time to file a notice of intent to appeal.
See § 808.04(7m), Stats. At the same time, the enactment made the
notice of intent the document that initiated the appeal. See § 808.04(7m) and Rule 809.107(2), Stats.
This heightened status for TPR notices of intent is unique in this
state's appellate procedure. See
Rule 809.10(1), Stats.
Further, the 1993 enactment did not expressly deny this court the power
to extend the time to file a notice of appeal, which the notice of intent had
displaced as the appeal initiating document.
Under these circumstances, this court is persuaded that the legislature
may have intended to remove the new Rule
809.107 TPR notice of appeal deadline not only from Rules 809.30 and 809.40, but also from the former reach of
the supreme court promulgated Rule
809.82(2)(b), limiting the extendibility of various deadlines for notices of
appeal.
This court may construe provisions enacted together to form a consistent statutory scheme, independent of related enactments passed at another time. See State ex rel. Van Dyke Ford, Inc. v. Cane, 70 Wis.2d 777, 784, 235 N.W.2d 672, 676 (1975). The more recent and specific enactment often prevails. See Green Bay Educ. Ass'n v. DPI, 154 Wis.2d 655, 663-64, 453 N.W.2d 915, 918 (Ct. App. 1990). Here, the legislature established a new specific and comprehensive scheme for TPR appeals. It made the notice of intent the jurisdictional document and specifically denied this court the power to extend the deadline for the notice of intent. The enactment did not expressly bar extension of the now nonjurisdictional Rule 809.107(5), Stats., notice of appeal deadline. Under the circumstances, this court doubts the continuing validity of the Gloria A. analysis applying a supreme court rule from 1978 and 1981 to a new legislatively enacted procedure from 1993. Under the holding in Gloria A., both the notice of intent to appeal and the notice of appeal must be filed timely to establish jurisdiction in the appellate court. This is unique in the appellate system and certainly not intended by the legislature.