Wisconsin Court of Appeals
Family – guardianship — competence
Where the circuit court held a hearing more than 90 days after a guardianship petition, the court lost competence.
“In Mikrut, our supreme court articulated the general rule, relied on by the foster parents here, that ‘challenges to the circuit court’s competency are waived if not raised in the circuit court.’ 273 Wis. 2d 76, ¶30. However, the Mikrut court noted a longstanding qualification to the general rule, namely, an exception for limitation periods within which courts must act as mandated by statutes: ‘“[W]e have consistently ruled that a court’s loss of power due to the failure to act within statutory time periods cannot be stipulated to nor waived.”’ Id., ¶25 (emphasis added) (quoting Green Cnty. Dep’t of Human Servs. v. H.N., 162 Wis. 2d 635, 657, 469 N.W.2d 845 (1991) (hereafter B.J.N.)). In B.J.N., the court cited authority dating back to 1938 for this exception to the general rule of waiver. B.J.N., 162 Wis. 2d at 657 & n.19.”
“Further, while the Mikrut court left open the question of whether there may be situations in which a party could waive a competency challenge based on a statutory limitation period, Mikrut, 273 Wis. 2d 76, ¶30, in the following year the court resolved the issue. In Sheboygan County Department of Social Services v. Matthew S., 2005 WI 84, 282 Wis. 2d 150, 698 N.W.2d 631, the court went a step further and held that ‘a competency challenge … based on the court’s failure to act within the statutory time periods listed within WIS. STAT. ch. 48 [(2003-04)], cannot be waived, even though it was not raised in the circuit court.’ Id., ¶30; see also State v. Michael S., 2005 WI 82, ¶73, 282 Wis. 2d 1, 698 N.W.2d 673 (explaining that the Mikrut waiver rule does not control the outcome of a case involving a statutory time period because Mikrut ‘left undisturbed’ this issue)”
Recommended for publication in the official reports.
2013AP2534 & 2013AP2600 Tina B. v. Richard H.
Dist. IV, Waupaca County, Hoffman, J., Blanchard, J.
Attorneys: For Appellant: Maroney, Thomas A., Waupaca; Parry, Arthur B., Waupaca; For Respondent: Schmieder, Theresa J., Green Bay