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Competency objections to time limits not waived

By: dmc-admin//June 29, 2005//

Competency objections to time limits not waived

By: dmc-admin//June 29, 2005//

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“The interests of children … are best protected by interpreting sec. 48.315(2m)(a) & (b) in conformity with their plain language so as to allow a circuit court to retain competency over the TPR petition if a time period within Chapter 48 has not been met.”

Hon. Jon P. Wilcox dissenting

The Wisconsin Supreme Court on June 22 issued two juvenile law cases holding that a failure to object to the court’s competency did not waive the objection, because the competency objections were based on statutory time limits.

In the first case, In re the Termination of Parental Rights to Joshua S., the parents never objected to extensions of the fact-finding hearing beyond the statutory limit; nevertheless, the court reversed the terminations of their parental rights, holding the objections could not be waived.

In the second case, In the Interest of Michael S., a juvenile adjudged delinquent did not object when a hearing was set on the calendar on a date past the expiration of his supervision. Nevertheless, the court held that his supervision terminated, because the objection could not be waived, and supervision could not be retroactively extended.

Joshua S.

In Joshua S., TPR proceedings were commenced against the boy’s parents, Rachel B. and Matthew S., on March 7, 2003, and the initial hearing as held on Mar. 27.

Pursuant to sec. 48.422(2), a factfinding hearing was required within 45 days, and one was scheduled well within the time period. However, the hearing was repeatedly moved back for various reasons. The court never made findings, however, that the extensions were for good cause.

Matthew S.’s hearing was not held until Sept. 17, and Rachel B.’s was not held until Oct. 15. The jury found grounds existed for termination and, at a disposition hearing on Oct. 30, both had their parental rights terminated.

Rachel B. appealed, arguing for the first time that the court lost competency to proceed on May 12 — 45 days after the initial hearing. The court of appeals affirmed, holding that, pursuant to Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis.2d 76, 681 N.W.2d 190, she waived any objection to the court’s competency.

The Supreme Court granted review, and reversed, in a decision by Justice N. Patrick Crooks. Justice Jon P. Wilcox dissented, in an opinion joined by Justices David T. Prosser and Patience Drake Roggensack.

The majority held that the competency challenge was not waived by the failure to raise it in circuit court, noting that in Mikrut, the court backed off from adopting a categorical rule that all competency objections must be made in the circuit court or be waived.

In Mikrut, the court wrote, "there is an established line of cases holding, in conclusory fashion, that competency challenges premised upon noncompliance with mandatory statutory time limitations cannot be waived. Because the competency challenge in this case is not premised upon noncompliance with statutory time limitations, we do not address the issue of waiver in this context except to note that these cases appear to simply perpetuate by rote the rule in older case law that statutory time limitations are ‘jurisdictional’ and therefore cannot be waived." Mikrut, 273 Wis. 2d 76, par. 3 n.1.

In addition, the court in Mikrut declined to overrule In re B.J.N., 162 Wis.2d 635, 469 N.W.2d 845 (1991), which concerned statutory time limits, and in which the court held that a party cannot waive the right to object to a court’s loss of competence on that basis.

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“The expiration date of a dispositional order is not a ‘time limit’ contemplated in Wis. Stat. sec. 938.315(3).”

Hon. Shirley S. Abrahamson Wisconsin Supreme Court

Accordingly, the court held that a competency challenge based on the court’s failure to act within a statutory time period cannot be waived, even though it is not raised in the circuit court.

The court acknowledged that, in Mikrut, the court specifically noted that an amendment to Chapter 48 explicitly provides that a failure to comply with time limitations in Chapter 48 does not deprive the court of competency. Upon closer examination of the statute, however, the court found that the only the time limits in subsection (2m)(a) of sec. 48.315 are subject to the amendment.

The court wrote, "The Mikrut court left out the first line of sec. 48.315(2m)(b) when it discussed the new legislation and its effect on competency. The first line of the statutory language in subsection (2m)(b) is as follows: ‘Failure to comply with any time limit specified in par. (a). . . .’ Wis. Stat. Sec. 48.315(2m)(a). Thus, only a failure to comply with the time limits in subsection (2m)(a)1. and 2. will trigger the application of subsection (2m)(b), and thus save the court’s personal or subject matter jurisdiction or competency to exercise that jurisdiction."

Justice Wilcox dissented, concluding that subsec. (2m)(b) applies to all of ch. 48.

Wilcox reasoned, "While sec. 48.315(2m)(a) provides that a court may not grant a continuance or extension if the continuance or extension would result in certain other time limits specified in subdivisions 1.-2. being violated, the application of sec. 48.315(2m)(b) is not limited to those time periods enumerated in subdivisions 1.-2. of sec. 48.315(2m)(a). Rather, the text of sec. 4
8.315(2m)(b) expressly applies to ‘any time limit specified in par. (a).’ As paragraph (a) governs the granting of continuances and extensions ‘of a time limit specified in this chapter[,]’ it is of no consequence that paragraph (a) ‘does not mention the mandatory time limit presented in this case.’"

Wilcox added, "The majority fails to explain how interpreting sec. 48.315(2m)(b) in such a manner so as to deprive a circuit court of its competency to adjudicate the termination of parental rights (TPR) petition under these circumstances is in the best interests of Joshua S. The interests of children, such as Joshua S., are best protected by interpreting sec. 48.315(2m)(a) & (b) in conformity with their plain language so as to allow a circuit court to retain competency over the TPR petition if a time period within chapter 48 has not been met."

Michael S.

In the second case, the court held that a circuit court may not extend a juvenile’s dispositional order temporarily for 30 days if the 30-day extension order is entered after the one-year dispositional order has expired, because the competency objection cannot be waived.

In the case, Michael S. was adjudged delinquent, and the circuit court entered a dispositional order placing him on supervision until Oct. 23, 2002. On Sept. 10, 2002, the State petitioned the circuit court for a change in placement and a one-year extension. At a hearing on Oct. 2, it was discovered that, because of scheduling conflicts, a contested hearing could not be held until Oct. 24. Michael’s counsel did not object.

At the hearing, the judge noticed that the supervision order had expired the previous day, and the following exchange took place:

"Judge Malmstadt: It means you have two choices right now. Okay? Choice Number One … you are off Probation, that we have no more authority over you, and it’s ‘Good Bye, Michael.’ … The other option is for you to say: ‘You know what? I think I want this Judge to extend my Probation so I can work with the people from Running Rebels.’ I can only do that if you say, ‘Judge, I want to you to do that.’ I can’t make you do that. That’s up to you. Those are your two options.

"[Michael S.]: The first."

However, instead of saying, "Good Bye, Michael," the court responded, "Fine. Back to Detention."

Ultimately, Michael’s dispositional order was extended, and he was placed at Ethan Allen School. Michael appealed, and the court of appeals affirmed in an unpublished decision.

What the court held

Case: In re the Termination of Parental Rights to Joshua S., No. 2004AP901 & In the Interest of Michael S., No. 2003AP2934.

Issue: Can a competency challenge based on failure to comply with statutory time limits be waived by the failure to raise it in circuit court?

Holding: No. In Village of Trempeleau v. Mikrut, the court backed off from adopting a categorical rule that competency objections based on time limits must be made in the circuit court or be waived.

Counsel: For Sheboygan County, Mary T. Wagner; for Rachel B., John J. Grau; for State of Wisconsin, Sally L. Wellman; for Michael S., Susan E. Alesia.

The Supreme Court granted review and reversed in a decision by Chief Justice Shirley S. Abrahamson. Justice Roggensack dissented, in an opinion joined by Justices Prosser and Wilcox.

The majority concluded that Michael’s failure to object to setting the court date on Oct. 24 — a day after the expiration of the original dispositional order — did not constitute a waiver, notwithstanding sec. 938.315(3).

The statute provides: "Failure to comply with any time limit specified in this chapter does not deprive the court of personal or subject matter jurisdiction or of competency to exercise that jurisdiction. Failure to object to a period of delay or a continuance waives the time limit that is the subject of the period of delay or continuance."

As in the other case, however, the court relied on B.J.N., which held, "An objecting party’s failure to expressly raise the loss of competence at the earliest available moment cannot revive an order which has expired and no longer carries any force of law."

The court found sec. 48.315(3) irrelevant, distinguishing between a "time limit" and the "expiration of a dispositional order" as follows: "The expiration date of a dispositional order is not a ‘time limit’ contemplated in Wis. Stat. sec. 938.315(3). The B.J.N. court explained this conclusion, stating, ‘The length of time a dispositional order can remain in effect, however, is not really a "requirement" or "deadline" by which something must be done to proceed to the next step.’ Accordingly, we conclude that sec. 938.315(3) does not apply in the present case to extend the one-year dispositional order."

The court explained, "’Time limits’ are those constraints that require action within a set period of time. In contrast, when a one-year dispositional order expires, it simply ceases to be in effect. Unless an order is entered extending the one-year dispositional order before the dispositional order expires, nothing in secs. 938.315(3) or 938.365(6) extends the validity of the one-year dispositional order."

As in the other case, the court concluded that Mikrut was inapplicable, because the court had left open the question whether a challenge to competency based on noncompliance with a statutory time period can be waived. Accordingly, the court reversed.

Justice Roggensack dissented, relying on sec. 938.315(1), which provides: "The following time periods shall be excluded in computing time requirements within this chapter:

Related Links

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Case Analysis

(a) Any period of delay resulting from other legal actions concerning the juvenile, including an examination under s. 938.295…

(b) Any period of delay resulting from a continuance granted at the request of or with the consent of the juvenile and counsel. …

(dm) Any period of delay resulting from court congestion or scheduling."

Finding each of the three grounds for tolling the time periods to be applicable, Roggensack wrote, "While I do not disagree with the majority opinion’s statement that the ‘expiration date of a dispositional order was to ensure the protection of a juvenile’s due process rights,’ majority op., par. 51, it begs the question for a juvenile who is in serious need of assistance from the juvenile court and the county is actively attempting to obtain what it has determined he needs. Here, the circuit court, the county and all attorneys were diligent in trying to determine what services would best help Michael. However, that determination could not be made in one hearing. The Legislature recognized that there would be times when flexibility in scheduling would be required, as the plain meaning of Wis. Stat. sec. 938.315(1) shows. Because I conclude that the order extending supervision and changing placement was timely made, it is a valid order."

Click here for Case Analysis.

David Ziemer can be reached by email.

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