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Circuit court’s power to dismiss under § 48.21(7) applies only to minors in custody

Ozaukee County DHS v. J.R. and S.R., 2804-2809, 6/3/15, District 2 (one-judge opinion, ineligible for publication); click here for docket

Sec. 48.21(7) allows the circuit court to dismiss or informally dispose of a CHIPS petition, if doing so would be in the best interests of the child and the public. The court of appeals reversed the circuit court’s dismissal of several CHIPS petitions in this case because the children at issue were not in custody. The statute, said the court of appeals, applies only to children who are in custody.

The court of appeals gave several reasons for its interpretation of §48.21(7) , including these:

¶8 Considering Wis. Stat. § 48.21(7) along with subsec. (6)—again, which immediately precedes subsec. (7) and refers only to children who are in custody—we conclude that use of the term “the child” in subsec. (7) also refers only to children who are in custody.  If the legislature had intended subsec. (7) to be interpreted as broadly as Respondents assert—to also apply to children who are not in custody—it would have utilized the words “a child” and “a judge or circuit court commissioner” instead of “the child” and “the judge or circuit court commissioner.”

¶11 Respondents . . .  contend the Lindsey A.F. court’s conclusion that a similar statutory provision, Wis. Stat. § 938.21(7), applies to juveniles who are both in and out of custody, see Lindsey A.F., 262 Wis. 2d 200, ¶¶7, 25, requires us to conclude here that Wis. Stat. § 48.21(7) also must apply to children who are both in and out of custody.  We are not bound by Lindsey A.F., however, in that the Lindsey A.F. court specifically stated that its holding was “confined to the applicability of § 938.21(7) to delinquency petitions.”  Lindsey A.F., 262 Wis. 2d 200, ¶9 n.6.

¶13 Because we conclude that the plain language of Wis. Stat. § 48.21 shows that § 48.21(7) applies only to children who are in custody, we need not resort to statutory titles to aid our interpretation.  See State v. Black, 188 Wis. 2d 639, 645, 526 N.W.2d 132 (1994) (a statutory title may be used to resolve doubt as to the meaning of an ambiguous statute).  Nonetheless, we note that our interpretation is bolstered by the fact that the title for § 48.21 reads “Hearing for child in custody” and that this statute is located in the subchapter entitled and addressing “HOLDING A CHILD OR AN EXPECTANT MOTHER IN CUSTODY.”  See Wis. Stat. ch. 48, subch. IV.

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