PUBLISHED OPINION
Case No.: 95-1697
†Petition for
review filed
Complete Title
of Case:
In the Interest of Victoria R.,
A Child Under the Age of 18:
WAUKESHA COUNTY,
Petitioner‑Respondent,
v.
DARLENE R.,
Respondent‑Appellant.†
Submitted on Briefs: January 1, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: April 10, 1996
Opinion Filed: April
10, 1996
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Waukesha
(If
"Special", JUDGE: J. MAC DAVIS
so indicate)
JUDGES: Anderson, P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the respondent-appellant, the cause was
submitted on the briefs of Susan E. Alesia, assistant state public
defender.
Respondent
ATTORNEYSOn behalf of the petitioner-respondent, the cause was
submitted on the brief of Margaret M. Zimmer, assistant corporation
counsel.
Other
ATTORNEYS A brief was submitted by Janice M. De
Witt of De Witt Law
Offices of West Bend as advocate counsel for the child.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED April
10, 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. 95‑1697
STATE OF WISCONSIN IN
COURT OF APPEALS
In the
Interest of Victoria R.,
A
Child Under the Age of 18:
WAUKESHA
COUNTY,
Petitioner‑Respondent,
v.
DARLENE
R.,
Respondent‑Appellant.
APPEAL
from an order of the circuit court for Waukesha County: J. MAC DAVIS, Judge. Affirmed.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
NETTESHEIM,
J. Darlene R., the mother of Victoria R.,
appeals from a juvenile court dispositional order in a child in need of
protection or services proceeding (CHIPS).
On appeal, Darlene argues that the trial court lost competency to
exercise its jurisdiction because both the factfinding hearing and the
dispositional hearing were held outside the statutory time limits without a
showing of good cause on the record. We
disagree. We affirm the CHIPS
dispositional order.
Background
Because
the procedural history in this case governs the appeal, we set it out in
detail.
On
November 18, 1993, Waukesha County filed a petition alleging that Victoria was
a child in need of protection or services and that Darlene refused or was
unable for reasons other than poverty to provide the necessary care, food,
clothing, medical or dental care or shelter so as to seriously endanger
Victoria's physical health pursuant to § 48.13(10), Stats.
On
December 7, within the requisite thirty-day deadline, the juvenile court
conducted a plea hearing. See §
48.30(1), Stats.[1] This hearing was reported by the court
reporter. Darlene appeared
telephonically without counsel. She
advised the court that she intended to obtain counsel. The court entered a denial to the petition
on Darlene's behalf and continued the case to December 20 for a pretrial
hearing. The court also tolled the
applicable time limits until the pretrial.[2]
The
December 20 pretrial was not reported by the court reporter. However, the clerk did make minutes of this
proceeding. These minutes reveal that
Darlene attended and that the County requested the juvenile court to appoint a
guardian ad litem for Darlene. The
minutes also indicate that the pretrial was continued to January 18, 1994. However, the minutes do not indicate that
the statutory time limits were tolled.
A further notation at the foot of these minutes indicated that Attorney
Laura Lau was appointed as Darlene's guardian ad litem the next day, December 21.[3]
At
the continued January 18 pretrial hearing, Darlene did not appear. However, Lau did appear as Darlene's
guardian ad litem. This proceeding was
not reported by the court reporter, but again the clerk recorded minutes of the
proceeding. These minutes reveal that
the County would be filing a motion seeking a psychological examination for
Darlene. In addition, the minutes
reveal that the juvenile court tolled the applicable time limits.
On
February 3, the County filed its notice of motion and motion asking the
juvenile court to order a psychological examination of Darlene pursuant to §
48.295(1), Stats. The notice of motion scheduled the hearing
for February 18.
On
the scheduled date, February 18, the juvenile court conducted the hearing on
the County's motion. Darlene did not
appear, but Lau again appeared as her guardian ad litem. This proceeding was reported by the court
reporter. The juvenile court granted
the County's motion and tolled the statutory time limits until the
psychological examination was completed.
However, Darlene never submitted to the examination. The court also continued the matter to April
4 for a continued pretrial hearing.
At
the April 4 continued pretrial, Darlene did not appear, but again Lau appeared
as her guardian ad litem. This
proceeding was not reported by the court reporter, but the clerk again recorded
minutes of the proceeding. These
minutes indicate that the matter was scheduled for a further pretrial on May 9
and that the juvenile court again tolled the applicable time limits.
On
May 9, the juvenile court conducted the continued pretrial proceeding. As with the prior proceedings, Darlene did
not appear, but Lau did. This
proceeding was not reported by the court reporter, but again the clerk recorded
minutes of the proceedings. These
minutes reveal that the court scheduled the matter for factfinding to the court
on June 27 and again tolled the applicable time limits.
On
June 27, the juvenile court conducted the factfinding proceeding. Darlene appeared as did Lau. The proceeding was reported by the court
reporter. Although this proceeding
began as a contested matter, eventually Darlene stipulated that the court could
enter a CHIPS finding and the court did so.
Instead of setting a dispositional hearing date, the parties all agreed
that a dispositional pretrial would first be advisable. The court scheduled the pretrial for July
13. The court did not expressly state
on the record that the applicable time limits were tolled.
The
dispositional pretrial was conducted on July 13. Both Darlene and Lau appeared.
This proceeding was not reported by the court reporter, but the clerk
did record minutes. These minutes
reveal certain recommendations by the Waukesha County Department of Health and
Human Services. The minutes also reveal
that the matter was continued to August 15 for the dispositional hearing. These minutes do not reveal that the
juvenile court tolled the applicable time limits.
Thereafter,
the record reveals a letter from the assistant corporation counsel handling the
matter stating that she would be out of town on the date of the scheduled
hearing. She asked for an adjourned
dispositional hearing date, stating that all of the other attorneys had no
objection to the request. The juvenile
court clerk responded with a letter dated August 3, which adjourned the
dispositional hearing to August 25, and the matter was adjudicated on that
date. Darlene appeals.
Discussion
Both
the factfinding and the dispositional hearings in this case were held beyond
the applicable thirty-day time limits set out in §§ 48.30(7) and 48.31(7), Stats., respectively. These time limits may be continued, but
“only upon a showing of good cause in open court ¼ on the record and only for so long as is
necessary.” Section 48.315(2), Stats.
Darlene contends that the juvenile court failed to comply with this
statute. As a result, she contends that
the court lost its competency to proceed.
Whether the time limits in these statutes were complied with under the
undisputed facts of this case presents an issue of statutory
interpretation. We review such
questions of law independently. See
Green County Dep't of Human Servs. v. H.N., 162 Wis.2d 635, 645,
469 N.W.2d 845, 848 (1991).
The
Children's Code, ch. 48, Stats.,
contains numerous time requirements to which the trial court must adhere during
the predispositional stage. Green
County, 162 Wis.2d at 657, 469 N.W.2d at 854. The time requirements for holding a factfinding hearing and a
dispositional hearing under §§ 48.30(7)[4]
and 48.31(7), Stats.,
respectively, are mandatory. See
T.H. v. La Crosse County, 147 Wis.2d 22, 35-38, 433 N.W.2d 16,
22-23 (Ct. App. 1988), aff'd, 150 Wis.2d 432, 441 N.W.2d 233
(1989). The failure to observe these
mandatory provisions causes a court to lose its competence to proceed and
requires the dismissal of a CHIPS petition.
See id.; Green County, 162 Wis.2d at
657, 469 N.W.2d at 854. The Children's
Code contains no provision for the waiver of time limits, and the only
provisions for delays, continuances and extensions are set forth in § 48.315, Stats.
Green County, 162 Wis.2d at 657, 469 N.W.2d at 854.
Subsection
(2) of § 48.315, Stats.,
specifies the procedure a court must follow when it grants a continuance:
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. [Emphasis added.]
On
December 7, the juvenile court conducted the plea hearing within the requisite
thirty-day deadline when a child is not in secure custody as required by §
48.30(1), Stats. At this hearing, which was reported by the
court reporter, the court entered a denial to the CHIPS petition for Darlene,
continued the case to December 20 for a pretrial conference and also tolled the
applicable time limits. To this point,
Darlene does not challenge the juvenile court's jurisdiction. Darlene contends, however, that the
thirty-day time limit for the factfinding hearing commenced running following
the December 20 pretrial conference.
As
our recital of the facts reveals, the December 20 pretrial proceeding and all
of the subsequent continued pretrial proceedings were documented by the clerk's
minutes but were not reported by the court reporter. Darlene concludes that because the factfinding hearing was not
held until June 27, the time limits had already been expired for more than six
months after the pretrial hearing on December 20.
We
reject Darlene's threshold argument that the clerk's minutes cannot constitute
evidence of an “on the record” proceeding within the meaning of § 48.315(2), Stats.
We begin by observing that the statute does not expressly require that
the continuance event be reported by a court reporter. Rather, the statute says that the proceeding
must be “in open court ¼ on the record.”
Id.
The
Supreme Court Rules draw a distinction between the “reporting” of a proceeding
and the “recording” of a proceeding.
Supreme Court Rule 71.01(1) defines “reporting” as “the making of a
verbatim record.” This rule sets out
those proceedings which must be reported. These include: (1) all
testimony; (2) preliminary examinations; (3) arguments of counsel on motions
made during trial; (4) opening and closing arguments upon request of a party or
upon order of the court; (5) guilty pleas, sentencing and judgments in certain
criminal cases; and (6) other court proceedings as are necessary in the
discretion of the trial court to ensure an adequate record. Id. None of these specifically includes a proceeding at which the
court grants a continuance.
On
the other hand, SCR 71.02(2) requires “a recording of all court
proceedings.” We take particular note
that this rule speaks of “recording,” not “reporting.” This rule defines a “recording” as “the
making of a record comprised of notes or minutes prepared by the clerk or other
person directed by the court.” SCR
71.02(1). Comparing the two rules, it
is obvious that “reporting” and “recording” are two different concepts. Not only are they defined in different
terms, but “recording” is mandatory as to all proceedings, whereas “reporting”
is not.
Because
§ 48.315(2), Stats., speaks of a
“record” and does not expressly require verbatim reporting of the juvenile
court's grant of a continuance, we conclude that a clerk's minutes of such a
proceeding satisfy the “on the record” provision of the statute.[5]
Darlene
further contends, however, that the clerk's minutes of the December 20
proceeding and thereafter fail to satisfy the “good cause” component of §
48.315(2), Stats. These minutes consistently reveal the
juvenile court tolling the applicable time limits as the pretrial hearing was
repeatedly continued to a future date.
We
conclude that the juvenile court's scheduling of a pretrial reflects good cause
for a continuance under § 48.315(2), Stats. A pretrial serves a number of salutary
purposes. For instance, a pretrial
permits the parties and the court to:
(1) explore the prospect of settlement; (2) address discovery-related
issues; (3) define, and perhaps limit, the issues for trial; and (4) explore
stipulations which might expedite the trial.
In short, absent settlement, a pretrial readies the case for trial and
seeks to assure an organized and “surprise-free” trial. Because these purposes and benefits of a pretrial
are universally recognized and self-evident to the bar and bench, we hold that
the juvenile court need not specifically recite them as factors supporting
“good cause” for a continuance of the statutory time limits under §
48.315(2). A continuance for purposes
of the pretrial is itself sufficient.
In
this case, the pretrial process consisted of not only the initial pretrial, but
a series of continued pretrial proceedings on January 18, April 4 and May
9. Our experience teaches that a
pretrial often requires a number of hearings to complete. But this does not change the fact that there
was but one collective pretrial in this case which was not completed until the
final pretrial on May 9. Thus, under
ordinary circumstances, the thirty-day time limit for the factfinding hearing
would have begun running on that date.
However,
prior to that date, on February 18, the juvenile court had ordered Darlene to
undergo a psychological evaluation.
Section 48.315(1)(a), Stats.,
provides:
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.[6]
Although none of the parties[7]
analyzes in detail the exclusion provision of § 48.315(1)(a), we conclude that
the court-ordered psychological examination of Darlene qualified under this
statute and served to toll the running of the time limits.
In
its opening phrase, the statute excludes periods of delay resulting from “other
legal actions concerning the child.” Id. We acknowledge that there is no evidence of
any other action concerning Victoria.
Thus, the time limits were not tolled under this portion of the
statute. However, in the very next
phrase, the tolling provision is extended to “an examination under s. 48.295”
and various other proceedings related to the pending case. Section 48.295(1), Stats., authorizes the juvenile court to order a
psychological examination, inter alia, “of a parent ¼ whose ability to
care for a child is at issue before the court.” Id. That, of
course, was the very situation in this case.
As such, the ordering of the examination tolled the time limits for the
further proceedings in this case until the examination was completed and the
results reported to the court. See
Shawn B.N. v. State, 173 Wis.2d 343, 371-72, 497 N.W.2d 141,
151-52 (Ct. App. 1992).
Our
conclusion is not altered by the fact that Darlene never submitted to the
examination ordered by the court.
Instead, we conclude that when a time limit has been properly tolled,
the party seeking to terminate such tolling is properly charged with the burden
to accomplish that end. Cf. Hartman
v. Buerger, 71 Wis.2d 393, 397, 238 N.W.2d 505, 507 (1976). Here, Darlene never took any steps to
terminate the tolling period and to reinstate the running of the time limits
which would otherwise apply.[8] Moreover, this is a not a case in which the
psychological examination was ordered and then forgotten. To the contrary, as part of the
dispositional order, the juvenile court again directed Darlene to submit to a
psychological examination and made such compliance a condition of Victoria's
return to Darlene's custody.
By
the Court.—Order affirmed.
[1] Prior to the
plea hearing, Juvenile Court Commissioner Linda McKenzie-Georgeson conducted a
detention hearing for Victoria. This
proceeding does not affect the time limit issues in this case.
[2] When the
juvenile court in a reported proceeding, or the clerk in the minutes, addressed
the statutory time limits, they variously used the terms “waived,” “continued”
or “tolled.” We construe all of these
terms to mean a continuance pursuant to § 48.315(2), Stats.
[3] Following this
hearing, the juvenile court conducted an initial proceeding on the CHIPS
petition regarding Victoria's father.
This proceeding does not bear on the time limit issues in this
case.
[4] The time-limit
language in subsec. (7) is similar to the language in subsec. (6) of § 48.30, Stats.; therefore, it is also construed
as mandatory. J.R. v. State,
152 Wis.2d 598, 603-04, 449 N.W.2d 52, 54 (Ct. App. 1989).
[5] Despite our
holding, we urge the juvenile courts of this state to memorialize juvenile
pretrial proceedings by the use of a court reporter. We do not suggest that the pretrial itself must be reported since
such a proceeding does not lend itself to the reporting process. But we do suggest that if the pretrial
proceeding creates the need for a continuance under § 48.315(2), Stats., the court place the continuance
on the reported record, including the showing of good cause under the statute.
[6] Since
§ 48.315(1)(a), Stats.,
automatically excludes any delay resulting from a psychological examination,
the juvenile court's further directive that the statutory time limits were
tolled was unnecessary. Nonetheless, we
commend the court for its thoroughness.
[8] While the record
does not unequivocally establish that Darlene refused to submit to the
examination, it carries a strong inference that such was the case. We say this because at the dispositional
hearing, Darlene strongly resisted the department's recommendation that the
dispositional order include a provision that Darlene undergo a psychological
examination. Despite Darlene's
resistance, the juvenile court ordered the evaluation.