In Interest of LAT

481 N.W.2d 493, 167 Wis. 2d 276
CourtCourt of Appeals of Wisconsin
DecidedFebruary 19, 1992
Docket90-2670
StatusPublished

This text of 481 N.W.2d 493 (In Interest of LAT) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Interest of LAT, 481 N.W.2d 493, 167 Wis. 2d 276 (Wis. Ct. App. 1992).

Opinion

167 Wis.2d 276 (1992)
481 N.W.2d 493

IN the INTEREST OF L.A.T.: SHEBOYGAN COUNTY, Appellant,
v.
D.T., Respondent.[†]

No. 90-2670.

Court of Appeals of Wisconsin.

Submitted on briefs August 19, 1991.
Decided February 19, 1992.

*277 On behalf of the appellant, the cause was submitted on the brief of James W. Frisch, district attorney, and James P. Van Akkeren, assistant district attorney.

On behalf of the respondent, the cause was submitted on the brief of Matthew H. Huppertz, of Carlson & Huppertz, S.C. of Waukesha.

Before Nettesheim, P.J., Brown and Snyder, JJ.

NETTESHEIM, P.J.

The county of Sheboygan appeals from an order dismissing its second amended *278 petition alleging that L.A.T. is a child in need of protection and services (CHIPS). The juvenile court concluded that the petition failed to give D.T., the father of L.A.T., reasonable notice as to the time frame when certain alleged sexual conduct occurred between D.T. and L.A.T.

THE STATUTE

The juvenile court premised the dismissal on the requirements of sec. 48.255, Stats., which addresses the form and content of a petition in a ch. 48, Stats., proceeding, including a CHIPS action. The statute provides in relevant part:

(1) A petition initiating proceedings under this chapter . . . shall set forth with specificity:
. . . .
(e) If the child is alleged to come within the provisions of s. 48.13(1) to (11) [CHIPS] or 48.14, 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 . . . . [Emphasis added.]

PROCEDURAL HISTORY

Although the issue in this case concerns the county's second amended petition, we also address the two prior petitions in order to provide the background necessary to an understanding of the appellate issue.

All three petitions were made by Jackie Erdmier, a social worker with the Sheboygan County Department of Human Services and an intake worker with the juvenile court. The introductory portions of all three petitions are similar and are based upon statements provided to Erdmier by L.A.T.'s mother: she and D.T., the father, *279 are divorced and have joint custody of L.A.T.; L.A.T. had resided with D.T. for most of September 1989; on September 29, L.A.T. was scheduled for a visit with her father, but expressed reluctance to do so. L.A.T.'s mother thought this strange because L.A.T. usually enjoyed visiting with her father. L.A.T.'s mother convinced L.A.T. to visit with her father by telling L.A.T. that she would be staying with her grandparents. When L.A.T. returned from this visitation, she complained to her mother about soreness in her labia.

At this point, the first petition dramatically differs from the later petitions. The first petition goes on to relate interviews with L.A.T. conducted by another social worker with the department and a detective with the Ozaukee County Sheriffs Department. In this interview L.A.T. related an incident when D.T. allegedly tied her hands behind her back and placed a mask over her face. L.A.T. also stated that there were bright lights and that D.T. had a camera. Using an anatomically correct doll, L.A.T. demonstrated where D.T. had touched her with his fingers.[1]

In response to this initial petition, D.T. brought various motions, including a "Motion To Make More Definite And Certain." The substance of the motion contended that the petition did not provide D.T. with "reasonable notice of the conduct or circumstances to be considered by the Court or jury, nor does the petition provide reasonable notice of the allegations upon which to prepare a defense . . .." The motion was brought pursuant to sec. 48.255(1)(e), Stats., and on various constitutional grounds.[2]

*280 On June 26, 1990, before any hearing on D.T.'s motions, the county brought a motion to amend the petition. The district attorney's affidavit in support of this request recited that L.A.T. had recently told Erdmier that her father had not touched her at the time of the "bondage/mask" episode. Instead, L.A.T. recited that her father had touched her private parts "a long time ago." The district attorney also stated that Erdmier had recently conducted a video taped interview with L.A.T. in which L.A.T. stated that D.T. had touched her vaginal area while they were lying on a bed in his bedroom. L.A.T. stated that this episode occurred during a visit with D.T.

The county set out these new allegations in greater detail in a proposed amended petition which accompanied the district attorney's motion. As we have previously noted, this proposed amended petition mirrored the introductory portions of the initial petition concerning the events of September 1989 when L.A.T. expressed reluctance to visit her father and complained of soreness in her labia. However, the amended petition did not allege the "bondage/mask " episode. Instead, the amended petition alleged an episode when D.T. touched L.A.T. between her legs while in his bedroom and while both were fully clothed. L.A.T. said that this happened "once when she stayed with her dad for a long time while her mom was fixing up Tanya's house." Again, using an anatomically correct doll, L.A.T. demonstrated and explained how D.T. had touched her in the vaginal area. She also stated that this occurred when she was "three years old." L.A.T. was born in September 1985.

The amended petition also recited that L.A.T.'s mother and D.T. lived together until February 1988. Thereafter, L.A.T. lived with her mother and L.A.T.'s visitations with D.T. were supervised through June *281 1989. Thereafter, L.A.T.'s visits with D.T. were unsupervised.

The juvenile court conducted a hearing which addressed both the county's request to file the amended petition and D.T.'s motions. Although D.T.'s motions were directed at the first petition, it appears that the parties and the court functionally treated these motions as also challenging the amended petition. After hearing the arguments of counsel, the juvenile court granted the county's request to file the amended petition. However, the court agreed with D.T. that the amended petition did not provide reasonable notice as to when the allegations occurred. The court permitted the county an additional five days to file a second amended petition with greater specificity.

The county did so on August 7, 1990. The second amended petition is a replica of the amended petition except for the final paragraph which alleges that until July 3, 1989, L.A.T.'s mother rented an apartment in a building she owns to Tanya Behr. After July 3, L.A.T.'s mother was performing extensive remodeling in the apartment and, as a result, L.A.T. spent many weekdays at her father's home. This arrangement continued through September 1989.

D.T. responded to the second amended petition with a motion to dismiss. D.T. again argued pursuant to sec. 48.255(1)(e), Stats., that the petition did not give him reasonable notice of the conduct or circumstances to be considered by the court at the trial of the action. At the motion hearing, the county and D.T. broadened the scope of inquiry to more than just the allegations of the petition.

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Sheboygan County v. D.T.
481 N.W.2d 493 (Court of Appeals of Wisconsin, 1992)

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Bluebook (online)
481 N.W.2d 493, 167 Wis. 2d 276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-interest-of-lat-wisctapp-1992.