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Competency of Court and Time Limit, § 48.422(2)

Sheboygan County DSS v. Rachel B., 2005 WI 84, reversing unpublished decision
IssueWhether competency challenge to a TPR proceeding is waived under § 48.422(2) if not first raised in circuit court.


¶2        We conclude such a competency challenge based on the violation of the statutory time limitation of Wis. Stat. § 48.422(2) cannot be waived, even though it was not raised in the circuit court.  The court of appeals erred in extending the holding in Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190, to violations of such a mandatory statutory time limitation under Wis. Stat. ch. 48. The circuit court did not hold the fact-finding hearing within the time limits established by § 48.422(2), and never granted a proper extension or continuance pursuant to Wis. Stat. §§ 48.315(1)(a) and (2), [2] and thus it lost competency to proceed before it ordered the termination of Rachel B.’s parental rights. Accordingly, we reverse the decision of the court of appeals, which had affirmed the order of the circuit court.…

¶31      We also conclude that recent changes to the Children’s Code do not affect our decision in this case, nor did the changes overrule B.J.N. and April O. sub silentio….

¶36     Because of the clear statutory language and legislative intent behind these statutes, we must emphasize the importance of strictly following the provisions of Wis. Stat. ch. 48. While we recognize the need for flexibility in the Children’s Code, we believe the legislature addressed this problem with the enactment of Wis. Stat. § 48.315. In this case, for example, the court perhaps could have granted a continuance if it had recognized good cause for the delay in open court or during a telephone conference on the record. Without such action, however, there is no choice for us but to follow the plain language of the statutes, and to hold that the court lost competency to proceed before it ordered the termination of Rachel B.’s parental rights. …

[2] “The general requirements of § 48.315(2) control all extensions of time deadlines under the Children’s Code.” State v. April O., 2000 WI App 70, ¶5, 233 Wis.  2d 663, 607 N.W.2d 927.

Wisconsin Stat. § 48.315(2) states: “A continuance shall be granted by the court only upon a showing of good cause in open court or during a telephone conference under s. 807.13 on the record and only for so long as is necessary, taking into account the request or consent of the district attorney or the parties and the interest of the public in the prompt disposition of cases.”

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