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Protective Services – Competence of Court following Untimely Probable Cause Hearing

Kindcare, Inc. v. Judith G., 2002 WI App 36


¶3 The issue presented by this appeal is whether the circuit court loses competence to adjudicate a person’s need for protective placement if the probable-cause hearing is not held within seventy-two hours after the person was taken into custody, or whether, as the trial court determined, the seventy-two-hours clock can be reset by the simple expedient of filing a new petition for protective placement. We hold that the circuit court loses competence if the probable-cause hearing is not held within seventy-two hours after the person is first taken into custody, and that the mere filing of a new petition does not start the clock anew. Accordingly, we reverse…..

¶18 As we have seen, WIS. STAT. § 55.06(7) prevents the detention of the subject of a protective-placement petition unless there has been a finding by clear and convincing evidence that the person ‘is in need of placement,’ ‘[e]xcept for emergency placement or temporary placement under’ WIS. STAT. 55.06 (11). (Emphasis added.) Here, and unlike the situation in B.S.L., there was no compliance with the ‘time limits required by [the] statute [here, § 55.06(11)(b)] … during the first proceeding for continued detention.’ See B.S.L., 115 Wis. 2d at 621, 340 N.W.2d at 570. Rather, as in Sandra D., a successive petition was filed here only to avoid the time limits. But § 55.06(11)(b) requires that ‘[u]pon detention … a preliminary hearing shall be held within 72 hours … to establish probable cause to believe the grounds for protective placement under sub. (2).’ Thus, the hearing must be held within seventy-two hours of the detention, not the filing of the petition. The filing of the successive petition was a nullity because Ms. G., by then, had been in custody for more than seventy-two hours without a probable-cause hearing. See N.N., 140 Wis. 2d at 69, 409 N.W.2d at 390-391.

¶19 This comports with the legislature’s intent to limit significantly the time the subject of a protective-placement petition must spend in involuntary detention without court approval. SeeSandra D., 175 Wis. 2d at 500, 498 N.W.2d at 896. Timing the running of the seventy-two hours from either the filing of the initial petition or, as was done here, from the filing of a successive petition would either dilute or destroy the protection afforded by § 55.06(11)(b). See Heritage Credit Union v. Office of Credit Unions, 2001 WI App 213, ¶18, 247 Wis. 2d 589, ___, 634 N.W.2d 593, 600 (‘When construing statutes we are to give them their common sense meaning to avoid unreasonable and absurd results.’). Ms. G. did nothing to delay the probable-cause hearing beyond the required seventy-two hours; thus, her continued detention beyond that period was unlawful. See County of Milwaukee v. Edward S., 2001 WI App 169, ¶¶5-11, 247 Wis. 2d 87, 90-94, 633 N.W.2d 241, 243-245 (subject of an involuntary commitment petition under WIS. STAT. ch. 51 who creates delay may not argue that hearing held beyond mandatory time limit deprived court of competence). Accordingly, we reverse.


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