Tuesday, July 10, 2012

Court Competency To Act in Probate & Children's Court Actions

     There are many statutes that set forth time lines that must be met in order for the court to have competency to act and jurisdiction to proceed.
     In Chapter 48, there are time lines for both CHIPS (Children in Need of Protection or Service) cases as well as TPR (Termination of Parental Rights) cases.  If their time lines cannot be met, they can be extended for "good cause" under provisions set forth in 48.315.  Furthermore the failure of a party to object to a period of delay or a continuance waives any challenge to the court's competency to act during that time period.
     In Chapter 51, there are time lines for Involuntary Commitment cases.  While there are strict time lines for timely conducting hearings, there are provisions for some limited extensions of time as well as the ability to waive of some of the time lines.
     In Chapter 938, there are time lines for delinquency cases. Similar to the provisions in Chapter 48, time lines can be extended upon consent or for good cause as set forth in 938.315.
     In Chapter 54 Guardianship cases and in Chapter 55 Protective Placement cases there are time lines holding the final hearings. However, unlike the time line provisions in Chapter 48, 51 and 938, there are no provisions for good cause extensions in Chapter 54 and Chapter 55.  If the time lines in Chapter 54 and 55 are not met, the court loses competency to act and the case must be dismissed.  In this blog, I would like to look some of the statutory provisions at issue.

                                                                     CHIPS cases

1)   When a CHIPS case is filed, a plea hearing must be held within 10 days of the filing of the petition if the child is in secure detention and within 30 days if not in secure detention.
2)   If at the plea hearing, the petition will be contested, a fact finding hearing must be held within 20 days if the child is in secure detention and 30 days if not in secure detention.
3)   If grounds for a CHIPS order are found after a fact finding hearing, a dispositional hearing is to be held  within 10 days if the child is within secure detention or within 30 days if not in secure detention.  The parties can stipulate to proceed immediately to the dispositional hearing.
4)   These time lines can be extended by consent or for good cause. see 48.315.

                                                                   TPR cases

1)   When a TPR petition is filed, the court shall conduct an initial appearance within 30 days.
2)   A fact finding hearing -- Jury or court trial  -- shall be held within 45 days of the initial appearance.
3)   If grounds are established, a dispositional hearing should proceed immediately although it can be adjourned for up to 45 days.
4)    These time lines can be extended by consent or for good cause. see 48.315.

                                                          Involuntary Commitment cases

1)    When an Involuntary Commitment petition is filed, the court shall conduct a probable cause hearing within 72 hours of the time the subject was detained.  This time period may be postponed for up to 7 days from the date of detention upon request of the subject or subject's attorney.
2)   If probable cause is found and the subject is in detention, the final hearing must be within 14 days of the date of detention provided no jury is demanded or within 14 days where a jury is demanded within 5 days from date of detention.  A final hearing must be held within 14 days of .a jury demand if the demand was made more than 5 days from the date of detention.
3)   If probable cause is found but the subject is not in detention, the final hearing must be held within 30 days of the probable cause hearing.
4)   With respect to final hearings, the court loses competence to act after the expiration of time limits. Time constraints cannot be waived.  However, reasonable extension of 14 day deadline may be allowed where the extension is caused solely by the conduct and manipulation of the detained subject. see County of Milwaukee v. Edward S., 247 Wis.2d 87 (Ct. App. 2001).

                                                          Protective Placement cases

1)   A final hearing on a Chapter 55 petition for protective placement of an incompetent person must be held within 60 days of the filing of the petition.  Upon request, the court can grant one 45 day extension.
2)   Failure to conclude the hearing within the 60/105 day time line deprives the court of competency to act.  see State ex rel Sandra D. v. Getto, 175 Wis. 490 (Ct. App. 1993)
3)  There are no provisions for any extensions by consent or even for good cause.

                                                             Guardianship cases

1)    A final hearing on a Chapter 54 petition for guardianship must be held within 60 days of the filing of the petition if the ward is in a nursing home or community based residential facility under 50.06.
2)   If the person is not in a nursing home or community based residential facility under 50.06, the final hearing must be held within 90 days of the filing of the petition.
3)   Failure to conclude the hearing within the 60/90 day time line deprives the court of competency to act.
4)   There are no provisions for any extensions by consent or even for good cause. see In re: Guardianship/Protective Placement of Elizabeth L.  (unpublished Court of Appeals case released on June 5, 2012)


                                                                   Conclusion

1)   Competency is the court's power to exercise subject matter jurisdiction.  However, competence is a narrower concept than subject matter jurisdiction.  see Amy Z. v. Jon T., 272 Wis.2d 662 (Ct. App. 2004).     2)   Generally, a challenge to a court's competency to act is waived if not raised in the trial court.  see Village Trempealeau v. Mikrut, 273 Wis.2d 76 (2004).  However, the waiver rule does not apply to noncompliance with statutory time limits absent a statutory provision for extension or good cause.
3)   It is incumbent on the practitioner in Chapter 48, 51, 54, 55 and 938 cases to be aware of the case law and statutory provisions governing time lines in these cases.

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