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Failure to hold hearing within statutory time limit means circuit court lost competency to decide ch. 54 guardianship petition

Tina B. v. Richard H., 2014 WI App 123; case activity

The circuit court lost competency to decide a guardianship proceeding under § 54.34 because it failed to decide the case within the statutory time limit, but the circuit court’s decisions in a related guardianship proceeding under § 48.977 are affirmed.

Elizabeth H. is in a foster placement as part of a CHIPS proceeding under ch. 48. Her father, Richard, sought to have her placed back in his home under § 48.357, a move the County supported but the foster parents didn’t. The foster parents objected to his change of placement request, asked for a hearing under § 48.357 and § 48.64, filed a guardianship petition under § 54.34 and, a few months later, also filed a guardianship petition under § 48.977. The circuit court consolidated all the proceedings and, with the agreement of the parties, set them for a joint hearing. That hearing was held after the 90-day time limit for deciding the ch. 54 petition under § 54.44(1)(a). (¶¶5-14, 17).

The failure to decide the guardianship petition within the statutorily-mandated 90 days of filing caused the trial court to lose competency to proceed, and Richard’s lack of objection didn’t waive the issue, based on Village of Trempealeau v. Mikrut, 2004 WI 79, ¶30, 273 Wis. 2d 76, 681 N.W.2d 190, and Sheboygan County Department of Social Services v. Matthew S., 2005 WI 84, ¶37, 282 Wis. 2d 150, 698 N.W.2d 631. (¶¶19-32).

The court relies on an unpublished decision, Lipp v. Outagamie County DHHS, No. 2011AP152 (Wis. Ct. App. June 5, 2012), which likewise used Mikrut and Matthew S. to come to the same conclusion. (¶¶25-27). It rejects the foster parents’ argument that Matthew S. isn’t controlling authority because of an amendment to § 48.315, which provides that a court’s failure to act with a time period specified in ch. 48 doesn’t deprive a court of competency. As the court notes, however, Matthew S. was a ch. 48 case, and the statute governs ch. 48 cases, but the issue here involves a ch. 54 case. “The fact that the legislature made a subsequent policy decision to apply the waiver rule in the particular context of Chapter 48 highlights that the legislature is aware of its authority to enact a waiver rule. It has not done so in the Chapter 54 context, and the rule stated in Matthew S. continues to apply to Chapter 54 cases.” (¶29).

The court goes on to reject Richard’s challenges to the circuit court’s order denying his request for a change of placement. First, Richard claims the circuit court erred in holding a joint hearing on Richard’s petition to change placement, the foster parents’ objection to that petition, and the foster parents’ ch. 48 and ch. 54 petitions for guardianship, because the joint proceeding denied him his right to procedural due process “by impermissibly elevating the foster parents … to the status of a full party” in connection with the change of placement petition and impermissibly placed “his parenting in competition with that of the foster parents.” (¶34). The court holds this argument is forfeited because Richard affirmatively agreed to the joint hearing and, in any event, his argument in support of the claim is conclusory. (¶¶38-39).

Second, Richard claims the circuit court erred in applying the “best interests of the child” standard, but the court of appeals holds that is the correct standard when there is “a compelling reason” to use that standard based on a parent’s acts or omissions regarding the child, under Barstad v. Frazier, 118 Wis. 2d 549, 554, 348 N.W. 479 (1984), as “harmonized” by Richard D. v. Rebecca G., 228 Wis. 2d 658, 665, 599 N.W.2d 90 (Ct. App. 1999). (¶¶44-52).

¶50     Based on this case law, we conclude that the circuit court applied the correct legal standard in its decision not to change placement. The court explained that a compelling reason existed for allowing the foster parents to retain placement, namely, Elizabeth H.’s removal from and extended placement outside of Richard H.’s home under a CHIPS order. The court concluded that “a change of placement would not be in [Elizabeth H.’s] best interests” due to, among other factors, the length of time she has lived with her foster parents, her close relationship with them, the fact that she exhibited emotional problems attributed to visitation with Richard H., and Richard H.’s failure to meet certain conditions of return during that time.

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