Racine County v. Skow

SHIRLEY S. ABRAHAMSON, J.

(concurring in part). The order in this case raises an issue of law, which the majority treats too broadly, and an issue of judicial administration which the majority does not treat at all. The issue of law is whether Judge Skow exceeded his statutory authority in the order in this case. The issue of judicial administration is how a judge of a juvenile court should proceed when the judge identifies potentially far-reaching systemic *496problems in an agency’s supervision of a program, in this case, the foster care system, which affects the functioning of the juvenile court. I write separately to address these issues.

HH

Framing the issue as whether gives ch. 48 gives a juvenile court judge the power to require a county human services department to prepare a comprehensive report,” the majority holds that ch. 48 gives the judge of juvenile court power to order a comprehensive report "if the order is triggered by information received while handling a particular case before the judge.”1

The majority opinion treats the issue too broadly by labeling Judge Skow’s order as one to produce a "comprehensive” report. The word comprehensive is so general that it may mislead the reader into thinking that the judge of a juvenile court has the power to issue an order much different from the one in this case. Judge Skow ordered the department to provide him with nine items of information concerning each child placed in the county foster care system *497pursuant to a juvenile court dispositional order.2 Judge Skow did not, as the Racine county brief asserts, seek information about the administrative functioning of the agency or about the administration and licensing of foster homes. The judge did not demand information on the internal workings of the agency, order the agency to investigate itself or generally order the agency to provide a comprehensive account of itself.

*498Sec. 48.08 (1) authorizes the judge to order the county department to make investigations and reports but does not spell out the purpose, scope, and proper subject matter of the investigations and reports. The legislative history behind the bill of which sec. 48.08 was a part, however, indicates that the drafters hoped to ensure that the investigating agency would provide information to the court about the child and the possible dispositions for that child in order to assist the court in deciding on an appropriate disposition for that child. 5 Wis. Leg. Counc. pt. 2, Research Report on Child Welfare, p. 112 (1955).

Each item of information requested by Judge Skow relates to a case within the continuing jurisdiction of the juvenile court. Judge Skow explained that he issued the order to get an "immediate update” on each child presently in the foster care system pursuant to a juvenile court dispositional order to make sure that each child was being adequately protected and served.3 Judge Skow’s request for information *499appears to relate to his authority to review periodically the provision of services to a child placed pursuant to a permanency plan in the foster care system and to propose on his own motion a revision of a dispositional order or a change in placement of a child. Secs. 48.357(2m), 48.38(5)(a), 48.363, Stats. 1985-86.

Thus, insofar as each update on a particular child was to form the basis for Judge Skow’s decision whether to propose a change in the placement of that particular child, Judge Skow was arguably within his statutory authority under sec. 48.08 (1) in issuing the order in this case. Construed in this way, the order arguably demanded the production of information within the scope of legitimate inquiry in cases before the juvenile court and demanded the information to assist in making a decision — whether to propose a change in a dispositional order — the judge was authorized by statute to make.

Judge Skow, however, had other reasons for ordering the information in this case. He stated that he wanted to "figure out what in heaven’s name makes this foster network tick, if anything, by way of responsible monitoring.” Thus, it appears that Judge Skow planned to use the information he requested not just to assist him in making statutorily authorized decisions about particular children, but also to shed light on the functioning of the agency. This case thus presents the broader issue of what a judge of a juvenile court should do when confronted with infor*500mation raising doubts in that judge’s mind about the adequacy of a county department’s supervision of the foster care system. Once the judge discovers a problem which rises to a systemic level and involves the court’s responsibilities under ch. 48 well as the functioning of an agency, I believe the judge should deal with the systemic problem through administrative channels rather than through a sua sponte order to the agency to produce information.

The tasks of the juvenile court and the agencies providing services in the juvenile court system are closely interwoven. In fact, these tasks are so closely interwoven that the dilemma of how to coordinate these tasks has engendered debate about whether "services” for the juvenile court should be provided by an arm of the court or by a separate executive agency.4 The state legislature of Wisconsin has chosen to divide the administrative from the adjudicative tasks, placing the responsibility for the former in executive agencies. Conflict between the juvenile court and an *501agency over services to children sometimes happens in such a system.5

When a judge of the juvenile court discovers potentially far-reaching systemic problems with the services provided by an agency with which the court must work, the American Bar Association (ABA) recommends that the judge act through court administrative channels to attempt to resolve the problem. The ABA also recommends that the judge consider pressing for improved agency services and facilities in a regular community forum that includes representatives from the agencies serving the court as well as representatives of the community. IJ A-ABA Juvenile Justice Standards, Standards Relating to Court Organization and Administration, Commentary to 3.2, pp. 30-31; Commentary to 3.4 (L), p. 39; Standard 3.5 (2) (1980). This vision of the judge’s role in urging improvement of agency services in the juvenile court *502system accords with the Children’s Code in Wisconsin. The Wisconsin statutes provide, for example, for the juvenile court to appoint an advisory board of citizens of the county. See sec. 48.11, Stats. 1985-86.6 Use of court administrative channels, such as the chief judge of the district or the Director of State Courts, and an advisory board, may prevent the conflict that might otherwise ensure if every juvenile court judge in a county, each sincerely hoping to improve the performance of an agency, unilaterally issues orders to an agency.

I believe this court should, in the exercise of its superintending and administrative authority over all courts, Wis. Const, art. VII, sec. 3 (1), encourage judges of juvenile court to use administrative channels, before sua sponte issuing judicial orders, to address a systemic problem posed by an agency which provides services to children within the jurisdiction of the juvenile court.

I am authorized to state that CHIEF JUSTICE NATHAN S. HEFFERNAN joins in this opinion.

The majority’s insistence that the judge’s order be premised on the receipt of information during the processing of a particular case seems inconsistent with the majority’s subsequent decision to remand the case despite the fact that Judge Skow no longer has jurisdiction over the case in which he issued the order. The court justifies remanding the "case” to Judge Skow on the grounds that the judge has continuing jurisdiction over other foster care placements in the county. If the judge’s power to issue the order rests on his continuing jurisdiction over foster care placements, it makes no difference whether the judge received the information alerting the judge to the existence of a problem during the processing of a particular case.

Judge Skow ordered:

"1. That Racine county is to provide the Court with the names of every child in Racine county presently in foster care. 2. That Racine county is to provide the Court with the names of all foster parents who are charged with the responsibility of caring for every child in foster care in Racine county. 3. That Racine county is to provide the Court with the names of the respective case managers for every child in foster care in Racine county.
4. That Racine county is to provide the Court with information detailing how long every foster parent in Racine county has been certified as a foster parent in any and all categories of foster care.
5. That Racine county is to provide the Court with information concerning the nature of each and every placement of foster children in Racine county in foster placement and if the child is in need of protection and services, the factual allegations that caused the child to be placed. 6. That Racine county provide the Court with the years of experience and nature of the experience in foster parenting for each foster parent in Racine county. 7. That Racine county provide the Court with the dates and types of training that was provided to all foster parents in Racine county, and the substance of all training and who provided said training.
8. That Racine county provide the Court with information concerning which foster parents of the foster parents in Racine county are related to the foster children, and what the relationship is. 9. That Racine county is to provide the Court with the dates of all contacts between the foster parents of Racine county and their foster children and the Human Services Department personnel monitoring the cases and the subject matter of that discussion, as well as all the problems discussed and the remedial steps taken by the case manager in every case.”

I would not remand this case, as the majority does, for Judge Skow to state his reasons for issuing the order in the order itself. Judge Skow set forth his reasons on the record, although not in the order itself. It may be better practice, in the future, to set forth the reasons for the issuance of an order in the order itself, but this court can evaluate the judge’s reasons on review.

The court’s refusing to review Judge Skow’s reasons in this case will not further the majority’s stated goals of discouraging "the issuance of unnecessarily broad information requests” and facilitating "appellate review of the court’s exercise of discretion.” Opinion at pages 492-493. It is unfair to the circuit court judge and an inefficient use of judicial resources for this court to remand for a new order the reasons underlying the present order are set forth in the record. In addition, by not reviewing the reasons for the issuance of the order in this case, the court leaves the litigants in the case, the circuit courts, and future litigants without *499guidance as to what constitutes a valid reason for demanding information such as that demanded in the instant case.

See generally, Keve, "Administration of Juvenile Court Services,” in Justice for the Child: The Juvenile Court in Transition (Rosenheim ed. 1962); Rubin, "Court-Administered Youth Services: One-Step-Up for Due Process,” Arthur, "Court Services: The Right Arm of the Juvenile Court,” Milligan, "Judges and Commissioners: A Shotgun Marriage,” Gilman, "The Constitutionality of Juvenile Court Administration of Court Services,” Foster, "Courts as Social Service Agencies: An Idea Carried to Its Illogical Extension,” all in Major Issues in Juvenile Justice Information and Training: Readings in Public Policy (Hall, Hamparian, Pettibone, and White, eds. 1981).

The American Bar Association has taken the position that the provision of services to children should be handled by an executive agency rather than the juvenile court. IJA-ABA Juvenile Justice Standards, Standards Relating to Court Organization and Administration, Standard 1.1 and Commentary (1980).

See, e.g., State ex rel. Weinstein v. St. Louis County, 451 S.W.2d 99 (Mo. 1970) (upholding authority of juvenile court to prevent county authorities from interfering with its inherent authority to select, appoint, and compensate employees providing services to children within its jurisdiction); In the Interest of J.N., 279 So. 2d 50 (Ct. App. Fla. 1973) (holding that juvenile court exceeded its authority in ordering Division of Youth Services to transfer a youth in its care to a state training school rather than a halfway house); In re Welfare of Lowe, 89 Wash. 2d 824, 576 P.2d 65 (1978) (holding that juvenile court may not impose specific requirements on executive agencies providing services to child but may require prior notice of specified actions by such agencies); Matter of L., 546 P.2d 153 (Ct. App. Ore. 1976) (court upholds juvenile court’s authority, under certain circumstances, to require an agency to provide specific treatment for a child or to certify to the juvenile court that it is unable to provide such treatment, but denies juvenile court’s authority to compel an agency to expend funds which the agency claims are not available).

Cf. Report of the National Advisory Committee for Juvenile Justice and Delinquency Prevention: Standards for the Administration of Juvenile Justice, 1.111 & 1.113 (Dept. Justice, July 1980) (recommending the establishment of planning authorities to coordinate efforts of different entities providing services to children); Weiner, One Approach to the Problem of Inter-Agency Communication and Cooperation — The Family Court Advisory Committee, 31 Juv. & Fam. Ct. J. 45 (August 1980).