|
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.
95-1767
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN THE INTEREST OF CHOICE W.E.,
A PERSON UNDER THE AGE OF 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
CHOICE W.E.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Rock County: JAMES WELKER, Judge. Reversed
and cause remanded with directions.
SUNDBY,
J. This court[1]
believes that placement at Ethan Allen is the more appropriate disposition for
Choice W.E. However, whether a particular
disposition is more appropriate is not the statutory test. Section 48.355(1), Stats., provides:
In any order under s. 48.34 or 48.345 the
judge shall decide on a placement and treatment finding based on evidence
submitted to the judge. The disposition
shall employ those means necessary to maintain and protect the child's
well-being which are the least restrictive of the rights of the parent
or child and which assure the care, treatment or rehabilitation of the child
and the family, consistent with the protection of the public. Wherever possible, and, in cases of child
abuse and neglect, when it is consistent with the child's best interest in
terms of physical safety and physical health the family unit shall be preserved
and there shall be a policy of transferring custody from the parent only
where there is no less drastic alternative. If information under s. 48.331 has been provided in a court
report under s. 48.33, the court shall consider that information when deciding
on a placement and treatment finding.
(Emphasis added.)
Whether
a disposition is the "least restrictive" is a mixed question of fact
and law. See Adoption of
Randolph, 68 Wis.2d 64, 69, 227 N.W.2d 634, 637 (1975). The trial court finds the facts and we
review those facts to determine whether the statutory standard has been
met. See Lifedata Medical
Servs. v. LIRC, 192 Wis.2d 663, 670, 531 N.W.2d 451, 454 (Ct. App. 1995).
Choice
was thirteen years old when he was charged with possession of cocaine with
intent to deliver within 1,000 feet of a Beloit school, contrary to §§
161.41(1m)(cm) and 161.49, Stats. He lives with his mother in Chicago although
he frequently stays with his grandmother who also resides in Chicago. Choice's mother informed the probation
officer that she did not know how Choice got to Beloit or who he stayed with on
this occasion. However, she knew that
he sometimes stayed with relatives but she couldn't tell the probation officer
who they were because they were the father's relatives. The trial court concluded that Choice was
"leading a lifestyle of, in effect, an adult criminal." We do not believe the record supports that
conclusion but is an educated, intuitive inference drawn by the trial court,
which has experience sufficient to require us to give considerable weight to
the court's conclusion. However, the
record evidence is not sufficient to support the inference drawn by the court.
First,
this is Choice's first delinquency determination. Second, while his offense was serious, it was not violent. Third, he has a mother and her significant
other and three siblings with whom he lives.
The probation officer reported that the mother's significant other tries
to parent Choice. Finally, he appears
to be living a life not greatly dissimilar from the lives of most children his
age: the family is involved with church;
he gets along well with his mother, her significant other and siblings; he likes
to ride his bike and be with friends; and his habitual truancy has lessened.
The
probation officer recommended: (1)
formal supervision by the human services agency having jurisdiction; (2) rules
and sanctions advised by the court; (3) an Interstate Compact with Illinois;
and (4) he not be allowed to return to Wisconsin.
The
probation officer's recommendations more nearly satisfy the "least
restrictive" requirement than does the trial court's disposition.[2] We consider the question very close and
would have preferred that the trial court have more information on which to
base its decision. For example,
Choice's mother reported that he has begun associating with the "wrong
crowd." The court should have had
more evidence as to what that means.
Uprooting a child of Choice's tender years
from home and family can have serious consequences. The record herein did not provide the judge with the information
he needed to make a reasoned decision.
We
conclude that we must reverse the dispositional order and remand these
proceedings for the trial court to enter a dispositional order which satisfies
§ 48.355, Stats. The court may take additional evidence and
base its decision upon that record and the record herein. We remind the court that it may specify a
shorter period than one year for a dispositional order. See § 48.355(4)(a), Stats.
By
the court.--Order reversed and
cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.