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Competency of Court and Time Limit, § 48.422(2) — Continuance Beyond Time Limit for Fact-Finding Hearing – Factors

State v. Robert K., 2005 WI 152, affirming unpublished opinion

Issue: Whether a TPR court lost competency to proceed because the fact-finding hearing was held more than 45 days after the contested plea hearing, the time limit set by § 48.422(2).

Holding: A continuance of the fact-finding hearing beyond the 45-day limit may properly be granted under § 48.315(2), as to which good cause was established on this record, on the basis of lawyer and litigant scheduling problems.

Recent lost-competency cases distinguished, ¶32 n. 26: Sheboygan County DSS v. Matthew S., 2005 WI 84 (extension not granted on record in open court); State v. April O., 2000 WI App 70 (time limit extended by circuit court only after it expired); in this instance, the trial court granted the extension before the time limit expired, in open court and on the record. As to the exercise of discretion itself, the four factors applicable to evaluating good cause for continuance are “(1) good faith of the moving party; (2) prejudice to the opposing party; (3) prompt remedial action by the dilatory party; and (4) the best interest of the child,” ¶35. The court stresses the “sheer number of persons involved in the hearings,” along with the trial “cycles” in Milwaukee County, which limited available dates, ¶¶37-38. The court’s conclusion then, for these and other reasons, may be fairly said to be fact-specific. Indeed, the court “reiterate(s) the importance of complying with the statutorily mandated time period…. Therefore, it is incumbent upon a circuit court to minimize the uncertainty in a child’s life and to protect constitutional rights by concluding a proceeding on termination of parental rights with dispatch.” ¶57. Too fact-specific, apparently, for the 3-Justice concurrence, which expressed “concern that the majority does not adequately recognize the problems of court congestion and that such congestion may, in appropriate instances such as this, constitute good cause for a continuance,” ¶60. Congestion alone, it may therefore be said in light of this express concern, isn’t enough. The court, incidentally, holds open “the issue upon which the circuit court ruled, that is, whether a guardian ad litem’s acquiescence in the circuit court’s setting the fact-finding hearing beyond the 45-day period fulfills the consent requirement of Wis. Stat. § 48.315(1)(b),” ¶4.

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