PUBLISHED OPINION
Case No.: 95-0621
Petition for
Review pending†
Complete
Title
of
Case:IN THE INTEREST OF
THOMAS F.,
a person under the age of 18:
STATE OF WISCONSIN,
Petitioner-Respondent,†
v.
THOMAS F.,
Respondent-Appellant.
Submitted
on Briefs: July 10, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: August 3, 1995
Opinion
Filed: August
3, 1995
Source
of APPEAL Appeal from
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Portage
(If
"Special" JUDGE: Frederic
Fleishauer
so
indicate)
JUDGES: Eich,
C.J., Gartzke, P.J., Vergeront, J.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the respondent-appellant the
cause was submitted on the briefs of Sally A. McDonald of McDonald
Law Office of Stevens Point.
Respondent
ATTORNEYSFor the petitioner-respondent the
cause was submitted on the brief of Susan E. Alesia, assistant state
public defender, of Madison.
|
COURT OF APPEALS DECISION DATED AND RELEASED August
3, 1995 |
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. 95-0621-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
IN THE
INTEREST OF THOMAS F.,
a
person under the age of 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
THOMAS
F.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Portage County: FREDERIC FLEISHAUER, Judge. Affirmed.
Before
Eich, C.J., Gartzke, P.J., and Vergeront, J.
EICH,
C.J. After Thomas F., age 10,
accidentally shot and killed another child, he was adjudged to be in need of
protection or services under § 48.13(12), Stats., which gives the juvenile court jurisdiction over
children who commit "a delinquent act." He appeals, claiming that In re Courtney E., 184
Wis.2d 592, 516 N.W.2d 422 (1994), a case decided midway through the
proceedings,[1] requires the
State to allege and prove that the court is able to order services for him
before he is adjudged in need of protection or services under the statute. He claims this was not done and seeks
reversal of the trial court's order. We
affirm.
The
facts are not in dispute. Thomas took his
father's gun from a gunbelt hanging in a bedroom closet and placed a bullet in
one of the cylinders. Intending to
frighten his friend, A.S., he pointed the gun and pulled the trigger three
times, thinking that none of the three cylinders he was "firing"
contained the bullet. When he pulled
the trigger the third time the pistol discharged and A.S. was killed.
After
the shooting, Thomas's parents removed all firearms from the house and retained
a therapist, Lynne Oswald, to assist Thomas in dealing with the trauma
resulting from the shooting. Oswald met
with Thomas twice a week for the first several weeks, eventually reducing the
sessions to one every two weeks. She
testified at the dispositional hearing that Thomas's parents cooperated with
her and followed her suggestions, and that she believed they were motivated by
a sincere desire to help Thomas through his ordeal.
Several
weeks after the shooting, the State filed a petition alleging that Thomas was a
child in need of protection or services (CHIPS) under § 48.13(12), Stats.
Section 48.13 gives the juvenile court jurisdiction over children
"alleged to be in need of protection or services which can be ordered by
the court," and who fit one or more categories listed in eighteen
succeeding subsections, including children who are orphaned, abandoned or
abused or whose parents are institutionalized or otherwise unable to care for
them. The category at issue in Thomas's
case is specified in subsection (12), which gives the juvenile court
jurisdiction over a child who, "being under 12 years of age, has committed
a delinquent act ...."[2] A "delinquent" act is one that
"violate[s] any state or federal criminal law." Section 48.02(3m), Stats.
The
State's petition sets forth at length the facts surrounding the fatal accident
and alleges that Thomas is in need of protection and services under
§ 48.13(12), Stats., because
the shooting was a delinquent act--an act that, if committed by someone over
the age of eighteen, would constitute a felony: homicide by negligent handling
of a dangerous weapon in violation of § 940.08, Stats. The petition
did not list or state any specific services that the juvenile court could
provide for Thomas.
Between
the plea hearing and the fact-finding hearing, the supreme court decided Courtney
E., which concludes that CHIPS petitions[3]
must "allege and contain information which at least gives rise to a
reasonable inference sufficient to establish probable cause that the child is
in need of protection or services which can be ordered by the court." Courtney E., 184 Wis.2d at
595-96, 516 N.W.2d at 423.
The
trial court rejected Thomas's argument that Courtney E. requires
the State to both allege and prove the availability of court-ordered services
suitable to his needs, and eventually entered the final CHIPS dispositional
order. Thomas's appeal, arguing the
interpretation of several statutes and the applicability of Courtney E.
to the facts of the case, raises issues of law which we review de novo.[4]
Courtney
E. began with a
petition alleging that the child was in need of protection or services under
§ 48.13(3), Stats., which
gives the court CHIPS jurisdiction over children who have been victims of
sexual or physical abuse. The factual
allegations were simply that the child was under the age of sixteen and was
pregnant, and the trial court dismissed the petition for its failure to explain
why the child was believed to be in need of protection or services.
The
supreme court agreed, concluding that the petition's limited factual
allegations were inadequate. Id.
at 601, 516 N.W.2d at 426. The court
stated that, while the allegation that the child was under sixteen and pregnant
was sufficient to give rise to an inference that she had been a victim of
sexual abuse, "[t]his, however, is not enough." Id.
[T]he petition must also allege and contain information
which at least gives rise to a reasonable inference sufficient to establish
probable cause that Courtney is in need of protection or services which can
be ordered by the court. The
petition in this case states only that Courtney "is a child in need of
protection or services, within the meaning of Wis. Stat. 48.13(3), in
that she is the victim of sexual abuse."
The petition offers no information, aside from the facts relating to her
age and pregnancy, to support the allegation that Courtney is in need of
protection or services that the court can provide.
Id. (emphasis added) (citation omitted).
Seizing
on the italicized phrase--which, as may be seen, is taken from the introductory
language to § 48.13, Stats.,
granting the juvenile court jurisdiction over children "alleged to be in
need of protection or services which can be ordered by the court"--Thomas
argues that both the statute and Courtney E. require the State to
allege and prove in CHIPS cases that "there are services the court can
provide for the child."
We
are satisfied that Courtney E. does not compel such a
conclusion. We begin by noting that the
Courtney E. court was not called upon to address--and did not
address--whether the petition was insufficient for failure to allege or specify
the types of services the court could provide.
As appears from the language quoted immediately above, the court's
decision was grounded on the inadequacy of the petition's recitation of the
facts to establish, prima facie, that the child was in need of
protection or services. The court felt
that the petition did not provide an adequate statement of the
"information which forms the basis of the allegations necessary to invoke
the jurisdiction of the court" as required by § 48.255(1)(e), Stats., and dismissed it.[5] Courtney E., 184 Wis.2d at
600, 516 N.W.2d at 425.
Section
48.255(1)(e), Stats., however, is
inapplicable to CHIPS petitions that arise from the commission of a delinquent
act under § 48.13(12), as is the petition in this case. By its express terms, § 48.255(1)(e) is
limited to petitions filed under subsections (1)-(11) of § 48.13. Subsection (12) is plainly not included in
the "information" requirements of § 48.255(1)(e).
Section
48.255(1)(d), Stats., on the
other hand--the statute applicable to Thomas's petition--sets forth only
limited requirements for the petition: "If violation of a criminal statute
... is alleged, [the petition must set forth] the citation to the appropriate
law or ordinance as well as facts sufficient to establish probable cause that
an offense has been committed and that the child ... committed the
offense." There is no question in
this case that the petition alleged facts "sufficient to establish
probable cause" that Thomas committed an offense; that is all that
§ 48.255(1)(d) requires.
We
think Courtney E. is distinguishable not only because it was
expressly limited to consideration of a jurisdictional statute not at issue in
this case but also because that jurisdictional statute, § 48.13(3), Stats.--like all other subsections
of § 48.13 except subsection (12), the one at issue here--is
directed to children who are subject to harm. Subsection (12), however, is directed toward the child who, by
committing a delinquent act that but for his or her youth would be a crime, has
caused harm to another. This
distinction is reflected in the separate and distinct treatment § 48.255 gives
to subsection (12) petitions and petitions under other subsections of §
48.13. We thus conclude that Courtney
E. is inapposite.[6]
Citing
In re T.M.S., 152 Wis.2d 345, 357, 448 N.W.2d 282, 287 (Ct. App.
1989), Thomas asserts that CHIPS proceedings should "emphasize the child's
future well-being and family values, not [his] culpability." We note first that T.M.S. was
a termination-of-parental-rights case based on the parent's failure to comply
with a CHIPS order; it was not a CHIPS proceeding based on the child's
commission of delinquent acts. Second,
while it is true that the legislature has stated that "[t]he best
interests of the child shall always be of paramount consideration" in
construing and applying provisions of the juvenile code, § 48.01(2), Stats., the statute states that
"the public safety" and "the interests of the public" are
also to be considered. Sections
48.01(1)(a) and 48.01(2). We believe
such "public-interest" considerations are even more forcefully
present in cases where the proceedings are based on the commission of
delinquent acts.
There
is no question that causing the death of another child is an intensely
traumatic event for a ten-year-old such as Thomas. Nor can there be any question that, as a central figure in the
process, the juvenile court must be concerned in a case such as this with the
protection and advancement of not only Thomas's individual interests but the
public's as well. And we think the
distinction drawn in § 48.13, Stats.,
between children who are subject to harm and those who cause harm is
important--even though the child who causes harm may himself or herself be
harmed by the act.
Under
the circumstances of this case, Thomas is
unquestionably a child in need of assistance in his own right--to aid
him in dealing with the trauma of the shooting. But he is also one who, by his own acts, has inflicted grievous
harm on others; and because of that, there is a significant public interest
present in the case, as the State ably explains in its brief:
Even though Thomas ... may need services, the public
also needs, as does the family of A.S., to be assured that they will be
protected. The Court can do that. Such protection should go beyond [statements
by Thomas's parents and his therapist] that they are doing everything to
[e]nsure [that] such an act ... does not happen again. A community has the right to know, and the
State has the obligation to provide, supervision over Thomas as a precaution to
confirm that everything is being done to [e]nsure [that] such an incident ...
does not happen again ....
Still
disagreeing, Thomas asserts that the "services" that the State
recommended in its report to the court--and which the court adopted in its
order--do little more than what his parents are doing for him on their own:
prohibiting him from access to firearms, providing him with therapy and closely
supervising his activities. Thus, says
Thomas, the proceeding was a waste and the State completely failed to establish
that there were any needed services that the court could order for him. We disagree.
The
dispositional order places Thomas under the "supervision" of the
county human services department for one year and sets several conditions that
he, his parents and others are to meet.
As Thomas points out, some of the conditions--that he not possess
weapons, that he continue in therapy and that his parents closely supervise his
activities--are "rules" he and his parents have been following on
their own. The order, however, goes on
to require that Thomas's parents participate in recommended counseling and
cooperate and provide necessary information about his progress to the social
worker supervising his case; that the therapists and professionals working with
Thomas and his family provide "progress reports" on his situation;
and that his school report any behavioral or disciplinary problems to the
social worker.
These
requirements bear an obvious relation to the trial court's obligation to
consider the public interest in cases such as this. In its oral decision at the conclusion of the dispositional
hearing, the court emphasized that it was an unusual case: a "very
young" child, who has had no prior contacts with the juvenile justice
system and has a "very supportive" family, has committed a "very
serious offense." For those
reasons, the court felt it necessary to involve a county social worker as
"a supervisory contact for the court." The court explained:
The
court isn't required to accept a parent's viewpoint nor a psychologist['s] or a
therapist's viewpoint of a proper response to a particular situation .... It's ... the responsibility of that worker
to [evaluate] whether ... the circumstances are appropriate and improving or
perhaps they're not improving and need some additional attention.
... Quite frankly,
you all work with the best intentions and cooperate with [each other] in
providing services for th[e] child. But
in the long run, the social worker is the court supervisory contact not so much
different than a probation or parole service ....
We
believe the "services" ordered by the court--which comprise, in
essence, a system of rules and reporting requirements supervised by a
court-appointed agency--are well within the court's powers under ch. 48, Stats.
By
the Court.—Order affirmed.
[1] The "retroactivity" of Courtney
E. is not raised as an issue on this appeal; both parties assume it is
applicable.
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:
(1) Who is without a parent ...;
(2) Who has been abandoned;
(3) Who has been the victim of sexual or physical abuse
...;
(3m) Who is at substantial risk of becoming the victim of
sexual or physical abuse ...;
(4) Whose parent ... is unable to care for ... the child
...;
(5) Who has been placed for care or adoption in violation
of law;
(6) Who is habitually truant from school ...;
(6m) Who is a school dropout ...;
(7) Who is habitually truant from home ...;
(8) Who is receiving inadequate care [while] a parent is
missing, incarcerated ... or institutionalized;
(9) Who ... is in need of special care ... which the
parent ... is unwilling to provide;
(10) Whose parent ... seriously endanger[s] the [child's]
physical health ...;
(10m) Whose parent ... is at substantial risk of ...
endanger[ing] seriously the [child's] physical health ...;
(11) Who is suffering emotional damage for which the
parent ... is unwilling to provide treatment ...;
(11m) Who is suffering from [a severe] alcohol and other
drug abuse impairment ...;
(12) Who, being under 12 years of age, has committed a
delinquent act ...;
(13) Who has not been immunized as required by [law]; or
(14) Who has been determined ... to be not responsible
for a delinquent act by reason of mental disease or defect ....
[3] The Courtney E. court uses the
broad term "CHIPS petitions" at several places in its opinion. Elsewhere, however, it states quite plainly
that its discussion is strictly limited to petitions under § 48.13(3), Stats., alleging sexual abuse. In re Courtney E., 184 Wis.2d
592, 600 n.5, 516 N.W.2d 422, 425 (1994).
[4] The interpretation and application of
judicial authority can be no less a question of law than the interpretation and
application of statutes, and we have long held that the interpretation and
application of statutes raise a legal question to be decided independently on
appeal. See State v.
Michels, 141 Wis.2d 81, 87, 414 N.W.2d 311, 313 (Ct. App. 1987).
[5] Section 48.255(1)(e), Stats., provides:
If the child is
alleged to come within the provisions of s. 48.13(1) to (11) ... [the petition
must set forth] reliable and credible information which forms the basis of the
allegations necessary to invoke the jurisdiction of the court and to provide
reasonable notice of the conduct or circumstances to be considered by the court
together with a statement that the child is in need of supervision, services,
care or rehabilitation.
Section
48.255(3) states, "If the information required under sub. (1)(d) or (e) is
not stated the petition shall be dismissed ...."
[6] We also disagree with Thomas's reading of the
"tag-end" phrase in § 48.13, Stats.
(giving the court jurisdiction over children alleged to be in need of
protection or services "which can be ordered by the court"), as
requiring the State to put on evidence of the array of available
"services" at the dispositional hearing. Would the State in this case be required to put on evidence that
the court could order a social worker to supervise Thomas's progress in
required therapy--or to order periodic reports on his progress? We think not. The allegations in the State's petition in this case set forth in
detail the terrible events giving rise to its assertion that Thomas is in need
of court-ordered protection or services under the provisions of the juvenile
code. And it is the State's obligation
under the code to provide a report to the court in advance of the dispositional
hearing setting forth, among other things, "[a] description of the
specific services or continuum of services which the agency is recommending
that the court order for the child or family ...." Section 48.33(1)(c), Stats.
Such a
report was prepared and presented in this case, and the court adopted the
agency's recommendations. To read the
introductory language to § 48.13, Stats.,
as requiring such information to be presented in the very first document filed
in the case--before the agency has had the opportunity to fully investigate the
matter--makes no sense. The same may be
said for the assertion that the language requires the State to come forth at
the dispositional hearing with some sort of "proof" of available
services in addition to the report required by § 48.33(1). Courtney E. imposes no such
requirement, nor, in our opinion, does § 48.13.