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COURT OF APPEALS DECISION DATED AND RELEASED July
12, 1995 |
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. 95-0316-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
In re
the Interest of Derrick J.
A
Child Under the Age of 18 Years:
STATE
OF WISCONSIN,
Petitioner-Appellant,
v.
ZITA
B.,
Respondent-Respondent.
APPEAL
from an order of the circuit court for Racine County: NANCY E. WHEELER,
Judge. Affirmed.
SNYDER,
J. The
State seeks to vacate an order dismissing a Children in Need of Protection or
Services (CHIPS) petition that it filed regarding Derrick J. The circuit court dismissed the petition on
the grounds that Derrick was not residing in the state during the pendency of
the CHIPS action. The State argues that
Derrick's physical absence is irrelevant to the court's competency to exercise
its jurisdiction and act on the CHIPS petition. We conclude that the circuit court lacked competency to act on
the petition because there were no services which it could have ordered as
required under § 48.13, Stats. Accordingly, we affirm the order dismissing
the CHIPS petition.
On
October 12, 1994, the State filed CHIPS petitions on each of Zita B.'s five
children, including Derrick. According
to the petitions, the five children were taken into protective custody on
October 8, 1994, and placed in foster care after having been left alone by Zita. The petitions for each child contained the
same factual allegations, and contended that the children were in need of
protection or services pursuant to subsecs. (2), (8) and (10) of § 48.13, Stats.[1]
However,
the undisputed evidence presented at the plea and dispositional hearing
revealed that Derrick had not been taken into custody on October 8 but instead
had been living with his alleged father in Illinois. It is further undisputed that Derrick resided outside Wisconsin,
presumably with his alleged father, throughout the pendency of the CHIPS
proceedings.
On
December 22, 1994, a plea and dispositional hearing was held on the
petitions. Neither Derrick nor his
alleged father was present at this hearing, and his appearance was waived by
the court-appointed guardian ad litem.
The circuit court sua sponte raised the issue of its jurisdiction over
the petition regarding Derrick and solicited arguments from the parties. The court then dismissed the petition
regarding Derrick, concluding that there were no services which it could order
for a child who had been absent from the state during the CHIPS proceeding and
who remained absent. However, the court
ordered Zita to notify the Racine County Department of Human Services within
twenty-four hours if Derrick returned.[2] The State appeals.
Section
48.13, Stats., gives the circuit
court “exclusive original jurisdiction over a child alleged to be in need of
protection or services which can be ordered by the court.” Because this jurisdiction is conferred by
statute, it is among the lesser powers of a circuit court referred to as the
court's “competency” to act, which is the ability to adjudicate a specific case
before the court. Michael J.L. v.
State, 174 Wis.2d 131, 137, 496 N.W.2d 758, 760 (Ct. App. 1993). Whether the court had competency to exercise
its jurisdiction in this matter pursuant to § 48.13 is a question of law
which we review de novo. See State
ex rel. R.G. v. W.M.B., 159 Wis.2d 662, 666, 465 N.W.2d 221, 223 (Ct.
App. 1990).
For
a CHIPS petition to be sufficient, it must provide “reliable and credible
information which forms the basis of the allegations necessary to invoke the
jurisdiction of the court.” State
v. Courtney E., 184 Wis.2d 592, 600, 516 N.W.2d 422, 425 (1994)
(quoting § 48.255(1)(e), Stats.). Pursuant to § 48.13, Stats., a court has jurisdiction over a
child alleged to be in need of protection or services which can be ordered by
the court and who meets one of the fourteen criteria set forth in
§ 48.13. Courtney E.,
184 Wis.2d at 600 & n.5, 516 N.W.2d at 425. Therefore, in order for the petition in this case to be
sufficient, it must allege and provide information that: (1) Derrick is in need of protection or
services which can be ordered by the court; and (2) Derrick has been abandoned,
see § 48.13(2), is receiving inadequate care during his parent's
absence, see § 48.13(8), or is a child whose parent neglects,
refuses or is unable to provide daily necessities so as to seriously endanger
his health, see § 48.13(10).
We
conclude that the trial court lacked competency to exercise its jurisdiction
over the CHIPS petition because the petition failed to meet the first criteria
of § 48.13, Stats.—that
Derrick was in need of protection or services which can be ordered by the
court. As the circuit court
recognized, because Derrick had not been living in Wisconsin at any time during
the pendency of the CHIPS proceeding, it was at a loss as to any services it
could order for Derrick. The State argued
at the hearing that the court could order that Zita cooperate with establishing
paternity and that this would constitute a “tremendous service to [Derrick] so
that he is legitimatized and is then able to receive benefits from his
father.” We are unconvinced that this
is the type of service contemplated by § 48.13.
Further,
our supreme court has held that a “CHIPS petition is not sufficient unless it
contains information which at least gives rise to a reasonable inference
sufficient to establish probable cause that there is something that the court
could order for the child that is not already being provided.” Courtney E., 184 Wis.2d at
602, 516 N.W.2d at 426. Here, the
factual allegations in the petition do not apply to Derrick because it is
undisputed that he was not present during the relevant time period. The State concedes in its argument that
Derrick's father's fitness to care for him is unknown. It is entirely possible that Derrick is
receiving all of the protection and services that he needs from his father in
Illinois. See id.
at 602, 516 N.W.2d at 426.
Accordingly, we conclude that the petition was not sufficient and the
circuit court properly dismissed it.
The
State also relies on the Uniform Child Custody Jurisdiction Act (UCCJA), ch.
822, Stats., to argue that the
child's residency controls and therefore the court has jurisdiction to act on
the CHIPS petition. The State contends
that Derrick's undisputed place of residency was Racine, Wisconsin, and his
temporary absence does not deprive the court of jurisdiction. We agree with Derrick that the State's
reliance on the UCCJA is misplaced. We
are mindful that the UCCJA applies to CHIPS proceedings. N.J.W. v. State, 168 Wis.2d
646, 652, 485 N.W.2d 70, 72 (Ct. App. 1992).
However, if a court lacks competency to act on a CHIPS petition because
the petition is insufficient under § 48.13, Stats., the UCCJA does not act to render the court
competent. We fail to see the relevance
of the UCCJA to the appellate issue here.
The
State also makes a veiled public policy argument, asserting that Derrick “is
now essentially abandoned by his state of residence, the state that is
obligated by law to protect him.” We
disagree. The trial court ordered that
Zita notify the county within twenty-four hours of Derrick's return, presumably
so that the State could monitor the situation and provide any necessary
protection or services.
Last,
the State asserts that the circuit court cannot, on its own motion, dismiss a
CHIPS petition “without a fact finding.”
The State also concludes its arguments by making vague constitutional
complaints, stating that Derrick has been “deprived ¼ of the protection
afforded him by virtue of his residency,” “discriminated against” and was
“stripped of his citizenship.” The
State fails to develop any argument in support of these bold assertions. An issue raised but not argued or briefed is
deemed abandoned. Reiman Assocs.,
Inc. v. R/A Advertising, Inc., 102 Wis.2d 305, 306 n.1, 306 N.W.2d 292,
294 (Ct. App. 1981).
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[1] Section 48.13, Stats., states in relevant part:
The court has exclusive original jurisdiction over a
child alleged to be in need of protection or services which can be ordered by
the court, and:
....
(2) Who
has been abandoned;
....
(8) Who is receiving inadequate care
during the period of time a parent is missing, incarcerated, hospitalized or
institutionalized;
....
(10) Whose parent ...
neglects, refuses or is unable for reasons other than poverty to provide
necessary care, food, clothing, medical or dental care or shelter so as to
seriously endanger the physical health of the child. ...