In Re Artavia B.

731 N.W.2d 360
CourtCourt of Appeals of Wisconsin
DecidedMarch 29, 2007
Docket2006AP2919
StatusPublished

This text of 731 N.W.2d 360 (In Re Artavia B.) 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 Re Artavia B., 731 N.W.2d 360 (Wis. Ct. App. 2007).

Opinion

731 N.W.2d 360 (2007)

In re The TERMINATION OF PARENTAL RIGHTS TO ARTAVIA B., a person under the age of 18:
Dane County Department of Human Services, Petitioner-Respondent,
v.
Dyanne M., Respondent-Appellant.[†]

No. 2006AP2919.

Court of Appeals of Wisconsin.

Submitted on Briefs February 12, 2007.
Opinion Filed March 29, 2007.

*361 On behalf of the respondent-appellant, the cause was submitted on the briefs of Philip J. Brehm, Janesville.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Eve M. Dorman and John C. Tails, Assistant Corporation Counsels for Dane County.

Before LUNDSTEN, P.J., VERGERONT and BRIDGE, JJ.[1]

¶ 1 LUNDSTEN, P.J.

Dyanne M. appeals the circuit court's order terminating her parental rights to her daughter, Artavia B. She argues that the circuit court lost competency by failing to enter a disposition within 10 days of the dispositional hearing, as required by WIS. STAT. § 48.427(1). In addition, Dyanne argues that she received insufficient termination warnings under WIS. STAT. § 48.356(2). We conclude that the circuit court did not lose competency and that the termination warnings were sufficient. We affirm the circuit court's order.

Background

¶ 2 The Dane County Department of Human Services (the "department") petitioned for termination of Dyanne's parental rights to Artavia, alleging that Artavia was in continuing need of protection or services (CHIPS). Artavia had previously been placed outside the home under a *362 CHIPS dispositional order dated January 30, 2003.

¶ 3 Dyanne contested the petition to terminate her parental rights. After a fact-finding hearing, a jury found grounds to terminate. On June 20, 2006, the circuit court held a dispositional hearing. At the conclusion of the hearing, the circuit court found that terminating Dyanne's parental rights to Artavia was in the child's best interests. The court orally ordered that Dyanne's parental rights to Artavia be terminated and that custody and guardianship of Artavia be transferred to the state department of health and family services for purposes of adoptive placement.

¶ 4 The department submitted a proposed written order on June 23, 2006. Dyanne submitted a list of objections to the proposed order on June 28. The department responded to the objections and submitted a revised proposed order on June 30. The circuit court signed the revised proposed order and filed it with the clerk of court on July 10. We reference additional facts as needed below.

Discussion

Circuit Court's Competency

¶ 5 Dyanne relies on the general rule that "[c]ompliance with statutory time limits in parental rights termination proceedings is mandatory; a failure to comply with these time limits, absent an applicable exception, results in the circuit court losing competency to proceed." Dane County Dep't of Human Servs. v. Susan P.S., 2006 WI App 100, ¶ 63, 293 Wis.2d 279, 715 N.W.2d 692, review denied, 2006 WI 126, ___ Wis.2d ___, 724 N.W.2d 205 (Nos. 2005AP3155 through 2005AP3158). Dyanne argues that the circuit court here lost competency by failing to comply with the 10-day time limit in WIS. STAT. § 48.427(1).

¶ 6 Dyanne's reasoning proceeds as follows:

• WISCONSIN STAT. § 48.427(1) requires that the court "enter" a TPR disposition "within 10 days" after the court receives "evidence related to the disposition."[2]
• It is undisputed here that the written order terminating Dyanne's parental rights to Artavia was not signed and filed with the clerk of court within this 10-day time limit.
• Under WIS. STAT. § 806.06(1), "enter" in § 48.427(1) means "filed in the office of the clerk of court."[3]
• Time limits in WIS. STAT. ch. 48, including the 10-day limit at issue here, may be extended for good cause under WIS. STAT. § 48.315, but the facts here do not meet the criteria for extending the time limit under that statute.
*363 • When the 10-day time limit passed without "entry" of a disposition, the circuit court lost competency to proceed.
• Because the circuit court lost competency, the order terminating Dyanne's parental rights to Artavia must be vacated.

Thus, if Dyanne is correct, we would be compelled to reach a decision "`that is, to say the least, unfortunate'" and "`not a good result for the child[].'" Sheboygan County Dep't of Soc. Servs. v. Matthew S., 2005 WI 84, ¶ 36, 282 Wis.2d 150, 698 N.W.2d 631 (quoting State v. April O., 2000 WI App 70, ¶ 12, 233 Wis.2d 663, 607 N.W.2d 927). So far as we can tell, if the circuit court lost competency, the department must file a new termination petition, and all stages of the TPR proceeding must be repeated.

¶ 7 We agree with Dyanne that, in general, the failure to comply with time limits in parental rights termination cases results in the circuit court losing competency. However, we do not agree that the circuit court here lost competency.[4]

¶ 8 A circuit court loses competency in a termination proceeding when it fails to comply with a time limit "between critical stages within the adjudication process." The supreme court has explained:

When the Children's Code was first enacted, "there were `no statutorily authorized time limits for the processing of cases in the juvenile court,' the lack of which often resulted in an abuse of detention." In 1977 and 1979, however, the Code was substantially revised to include numerous time limitations, which were established to protect constitutional due process rights. "The legislative history of the Children's Code shows that the legislature considers that strict time limits between critical stages within the adjudication process are necessary to protect the due process rights of children and parents."

Matthew S., 282 Wis.2d 150, ¶ 17, 698 N.W.2d 631 (citations omitted; emphasis added); see also Green County Dep't of Human Servs. v. H.N., 162 Wis.2d 635, 656, 469 N.W.2d 845 (1991) (referring to the lack of competency in the WIS. STAT. ch. 48 context as preventing the circuit court from "adjudicating" the case before it); cf. Village of Trempealeau v. Mikrut, 2004 WI 79, ¶ 10, 273 Wis.2d 76, 681 N.W.2d 190 ("Only when the failure to abide by a statutory mandate is `central to the statutory scheme' of which it is a part will the circuit court's competency to proceed be implicated.").

¶ 9 While we do not attempt to compile a comprehensive listing of which steps in a TPR proceeding constitute critical stages within the adjudication process, case law makes clear that a number of steps in the proceeding are "critical" to the circuit court's adjudication of the matter. The failure to meet the following time limits, absent a proper extension under WIS. STAT. § 48.315, causes a circuit court to lose competency:

• The 30-day time limit for holding an initial hearing. WIS. STAT. § 48.422(1); Brown County v. Shannon R., 2005 WI 160 ¶¶ 2, 74, 81-82, 286 Wis.2d 278, 706 N.W.2d 269; April O., 233 Wis.2d 663, ¶¶ 1, 4-5, 7-10, 607 N.W.2d 927.
• The 45-day time limit for holding a fact-finding hearing. WIS. STAT. § 48.422(2); State v. Robert K., 2005 *364

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Bluebook (online)
731 N.W.2d 360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-artavia-b-wisctapp-2007.