T.H. v. La Crosse County

SUNDBY, J.

In these appeals under the Children’s Code we construe secs. 48.30(6) and 48.31(7), Stats. We conclude that the thirty-day time limit in each section is mandatory. In each case the trial court lost competency to exercise its jurisdiction to hear the petition initiating proceedings under ch. 48 because it did not observe the time limit. In In the Interest of L.H. v. State, we also decide that L.H. did not consent to a continuance of the dispositional hearing. We remand with directions to vacate the dispositional orders and dismiss the petitions.

HH

BACKGROUND

L.H. pled no contest to a delinquency petition. Her dispositional hearing was held thirty-eight days after the plea hearing. Section 48.30(6), Stats.,1 provides that the trial court "shall set a date for the dispositional hearing which ... is ... no more than 30 days from the plea hearing for a child who is not held in secure custody.” In In Interest of R.H., III. v. La Crosse County, the court, after a fact-finding hearing before a jury, found that R.H., T.H.’s son, was a child in need of protection and services. The dispositional hearing was held thirty-two days after the fact-finding *25hearing. Section 48.31(7)2 provides that the trial court ~shall set a date for the dispositional hearing which is ... no more than 30 days from the fact-finding hearing for a child not held in secure custody." Neither R.H. nor L.H. waS held in secure custody. In neither case was a continuance ordered under sec. 48.315.

If the thirty-day time limit in each section is mandatory, failure of the trial court to observe the time limit deprived it of competency to exercise its jurisdiction to hear the matter. State v. Rosen, 72 Wis. 2d 200, 208, 240 N.W.2d 168, 172 (1976). We conclude that the time limit in each statute is mandatory.

IL

RULE OF CONSTRUCTION: WHEN TIME LIMITS ARE MANDATORY

The general rule is that the word `~shal1" in a statute setting a time limit is presumed to be mandatory. Karow v. Milwaukee County Civil Serv. Comm., 82 Wis. 2d 565, 570, 263 N.W.2d 214, 217 (1978). Statutes setting time limits have, however, often been held to be directory despite the use of the word ~shall." Id. at 571, 263 N.W.2d at 217. The Wisconsin Supreme Court has said that ~a statute prescribing *26the time within which public officers are required to perform an official act is merely directory, unless it denies the exercise of power after such time, or the nature of the act, or the statutory language, shows that the time was intended to be a limitation.” State v. Industrial Comm., 233 Wis. 461, 466, 289 N.W. 769, 771 (1940), quoted in Karow, 82 Wis. 2d at 571, 263 N.W.2d at 217.

The language in secs. 48.30(6) and 48.31(7), Stats., that the court shall set a hearing date which "is no more than” a specified number of days from the previous event, implies that the time is intended to be a limitation. Where a time limit has been held to be directory, the statute simply provided that the act "shall” be done within a specified time. See, for example, Galewski v. Noe, 266 Wis. 7, 16, 62 N.W.2d 703, 708 (1954) (decision of trial court "shall be ... filed” within sixty days after submission), State ex rel. Johnson v. Nye, 148 Wis. 659, 669, 135 N.W. 126, 129 (1912) (governor "shall appoint” on or before specified date), cited in Karow, 82 Wis. 2d at 571 n.6, 263 N.W.2d at 217.

When similar language has been used in other statutes, the context of the legislation has suggested an urgency in accomplishing the directed task. See sec. 40.06, Stats, (payments to public employee trust fund of department and agency delinquencies), sec. 66.024, Stats, (filing petition for annexation referendum in circuit court), secs. 101.22,. 101.222, Stats, (filing petitions alleging discrimination in housing and public places of accommodation and amusement), sec. 196.795, Stats, (reporting by public utility holding company of formation, etc. of nonutility affiliate). As we will shortly show, the legislative history of the Children’s Code shows that the legislature considers *27that there is an urgency in the prompt disposition of ch. 48 petitions affecting children and their parents.

We recognize, however, that statutory time limits may be construed as directory if necessary to carry out the legislature’s clear intent. Karow, 82 Wis. 2d at 571, 263 N.W.2d at 217. We therefore turn to the legislative history of secs. 48.30(6) and 48.31(7), Stats., to determine whether the time limit in either of these sections must be construed as directory in order to carry out the intent of the legislature.

HH HH HH

LEGISLATIVE HISTORY OF CHILDREN’S CODE

Chapter 48, the Children’s Code, was substantially revised by ch. 354, Laws of 1977 (1977 Assembly Bill 874). The revision culminated efforts over several legislative sessions. Charles M. Hill, Sr., Executive Director, Wisconsin Council on Criminal Justice, Analysis of AB 795/Assembly Substitute Amendment 1, Proposed Children’s Code Revisions, "Historical Background and Current Status,” March 5, 1976. Legislative History Record, 1975 Assembly Bill 795, Folder 1, Wisconsin Legislative Council. 1975 AB 795 was drafted by a coalition of the Governor’s Advocacy Committee on Children and Youth, the Board of Juvenile Court Judges, the Council on Human Concerns, the state department of health and social services, child welfare agencies, and legal services attorneys. Id. The bill was introduced at the request of the state Judicial Council and the Governor’s Advocacy Committee. The drafting records of the Wisconsin legislative reference bureau show that 1975 AB 795 was the document from which 1977 AB 874 was *28drafted. Many of the 1975 revisions were included without change in 1977 AB 874.

In the development of the revised Children’s Code, input was received from numerous other interested organizations and individuals. See Statement of State Representative Peter Tropman to Assembly Judiciary Committee, July 19, 1975 and Tropman, Background Information on Assembly Bill 795 and a Description of Changes Incorporated in Assembly Substitute Amendment 1, February 2, 1976, Legislative History Record, 1975 AB 795, Folder 1, Wisconsin Legislative Council; Staff Memorandum, Description of Engrossed 1977 Assembly Bill 874, The Proposed Revision of the Children’s Code, Legislative History Record, 1977 AB 874, Wisconsin Legislative Council.

Contemporaneous with the earlier legislative activity the Wisconsin Council on Criminal Justice considered and adopted juvenile justice standards and goals. Special Study Committee on Criminal Justice Standards and Goals, Wisconsin Council on Criminal Justice, Juvenile Justice Standards and Goals (December 1975). A comparison of these standards and goals with 1977 AB 874 makes it evident that their general objectives were considered in the drafting of 1977 AB 874.3 Concern for the protection of the child’s due process rights is reflected in these standards and goals. Subgoal No. 12.4: Time Limits, states:

*29To ensure speedy adjudication of juvenile matters, time limits shall be set as to the maximum time allowed between identified critical stages within the adjudication process.

Juvenile Justice Standards and Goals, supra, at 80.

The proponents of revision of the Children’s Code perceived that changes were needed to modernize an inoperable juvenile justice system, to treat children who are not law violators in the least drastic placement, and to protect the child’s constitutional rights, including the right to due process. Tropman, Background Information on Assembly Bill 795, supra, at 2-3.

It is apparent from several sources that the legislature accepted that it was necessary to revise the Children’s Code to assure the constitutional rights of children.4 In his analysis of 1975 AB 795, the executive director of the Wisconsin Council on Criminal Justice, stated: "The revision [of the Children’s Code] reflects an attempt to codify the four major U.S. Supreme Court decisions of Kent v. U.S., 383 U.S. 541 (1966), In re Gault, 387 U.S. 1 (1967), In re Winship, 397 U.S. 358 (1970), and McKeiver v. Pennsylvania, 403 U.S. 528 (1971), along with the numerous state and lower federal court decisions made during the last decade. The present Children’s Code in no way reflects the philosophical shift toward due process that has oc*30curred as a result of these decisions.” Hill, Analysis of AB 795, supra p.2.

The principal legislative proponent of revision of the Children’s Code stated: "In the wake of these decisions [Gault, Winship, and Kent], not only is much of Wisconsin’s present Children’s Code inoperable, but many new procedures are required that are not explicitly provided for in our statutes.” Tropman, Statement to Assembly Judiciary Committee, supra.

The legislative council’s introduction to its description of engrossed 1977 AB 874 states: "Assembly Bill 874 is a proposal to bring statewide uniformity to the operation of the juvenile court and to update the current statutes by codifying federal and state court decisions rendered during the past twenty-two years.” Description of Engrossed Assembly Bill 874, supra.

The analyses of 1977 AB 874 by the legislative council and the legislative reference bureau confirm that the legislature intended to protect the child’s right to procedural due process, which it believed was mandated by judicial decision, by ensuring a speedy disposition of allegations affecting the child. The legislative council’s memorandum describing 1977 engrossed AB 874 includes the following:

4. COURT PROCEDURES.
B. Time Limits—
A standard clause throughout the bill controls the maximum time allowed from one hearing to the next ....
L. Delays — The bill facilitates the orderly administration of the court by requiring a showing of *31good cause on the record before the court may grant a continuance.

Description of Engrossed Assembly Bill 874, supra, at 4, 5.

The analysis of the bill by the legislative reference bureau includes the following:

D. COURT PROCEDURES
4. Time Limits. Strict statutory time periods are imposed controlling initiation of a petition as well as the amount of time which can elapse between one hearing and the next.

Engrossed 1977 AB 874, Analysis by the Legislative Reference Bureau, p. 3.

The legislative histories of secs. 48.30(6) and 48.31(7), Stats., strongly suggest that "shall” in each section is to be construed as mandatory.

IV.

ADDITIONAL AIDS TO CONSTRUCTION

A. Legislative Statement of Consequence of Failure to Observe Time Limits

In L.H., the state argues that the legislature’s statement that dismissal with prejudice is the consequence of failure to observe the time limits in sec. 48.24(5), Stats., negates an intent that other provisions of ch. 48 impose mandatory time limits. Section 48.24(5) requires that the intake worker process referral information within forty days.

A legislative statement as to the consequences of untimeliness is one factor to consider in determining *32whether the statute is mandatory or directory. Karow, 82 Wis. 2d at 572, 263 N.W.2d at 217. The state points out that sec. 48.30(6), Stats., does not state the consequence of failure to observe its time limits [nor does sec. 48.31(7)] while sec. 48.24(5) requires dismissal with prejudice if a petition initiating ch. 48 proceedings is not timely referred or filed.

When the legislature decided that with-prejudice dismissal was the appropriate consequence of failure to timely process referral information,5 it was necessary to spell that out because the general rule is that failure to observe a mandatory time limit only requires dismissal without prejudice. See State v. May, 100 Wis. 2d 9, 11, 301 N.W.2d 458, 459 (Ct. App. 1980) (failure to file criminal information within statutory time period entitles defendant to have action dismissed without prejudice). We do not, therefore, give sec. 48.24(5), Stats., the significance the state suggests in construing sec. 48.30(6). Nor do we give sec. 48.24(5) significance in construing sec. 48.31(7).

*33B. Other Factors

Other factors to be considered in deciding whether the legislature intends a statutory time limit to be mandatory or directory are (1) the consequences of one construction or the other, (2) the nature of the statute, and (3) "the evil to be remedied, and the general object sought to be accomplished” by the legislature. Karow, 82 Wis. 2d at 572, 263 N.W.2d at 217 (quoting Worachek v. Stephenson Town School Dist., 270 Wis. 116, 120, 70 N.W.2d 657, 659 (1955)).

First, the consequences resulting from a construction of the thirty-day time limit in each sec. 48.30(6) and 48.31(7), Stats., as mandatory are ameliorated by sec. 48.315. Section 48.315 excludes from those time limits many periods of delay resulting from other legal actions concerning the child and consideration of other matters which may require a continuance of the dispositional hearing. The child is protected because he or she may obtain a discretionary continuance under sec. 48.315(l)(b).

The consequences of a construction of the time limit in each sec. 48.30(6) or 48.31(7), Stats., as directory, however, are serious. The Wisconsin Supreme Court has said that a time limit may be construed as directory when allowing something to be done after the time prescribed will not result in an injury. Appleton v. Outagamie County, 197 Wis. 4, 9, 220 N.W. 393, 396 (1928), cited in Karow, 82 Wis. 2d at 572, 263 N.W.2d at 217. The legislative history of the Children’s Code shows that the legislature considers that strict time limits between critical stages within the adjudication process are necessary to protect the due process rights of children and parents. The *34dispositional hearing on a delinquency petition or a CHIPS (child in need of protection or services) petition is a critical stage within the adjudication process.

Second, there is nothing in the nature of either sec. 48.30(6) or 48.31(7), Stats., which suggests that the legislature intended that the thirty-day time limit contained therein shall be directory.

Third, "the evil to be remedied, and the general object sought to be accomplished” by the revision of the Children’s Code confirm that the legislature intended the thirty-day time limit in each sec. 48.30(6) and 48.31(7), Stats., to be mandatory. Section 48.01(1) provides that one of the express legislative purposes of the Children’s Code is: "(a) To provide judicial and other procedures through which children and all other interested parties are assured fair hearings and their constitutional and other legal rights are recognized and enforced, while protecting the public safety.” This is consistent with the legislative history of the Code and with the juvenile justice goals of insuring for juveniles and parents due process in the juvenile court. See Juvenile Justice Standards and Goals, No. 12, supra, at 77. The Wisconsin Council on Criminal Justice’s commentary as to this goal states:

The Sixth Amendment to the U. S. Constitution guarantees that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ...” Courts which have faced the question of the applicability of the right to the juvenile have uniformly agreed that speedy trial guarantee should be accorded to juveniles. Piland v. Clark County Juvenile Court, 457 P.2d 523 (Nev. 1969), State v. Henry, 434 P.2d 692 (N.M. 1967).

*35Id. at 81. This goal could be undercut if the time limits between the identified critical stages within the adjudication process are not observed.

In construing sec. 48.365(6), Stats., permitting the court, after hearing, to extend a dispositional order the Wisconsin Supreme Court stated: "This review of the juvenile process provided for in ch. 48, Stats., leads us to the conclusion that the legislature intended the process to be viewed as a continuum. The process begins with full procedural due process protections and such protections are also provided at least on a yearly basis —” In Interest of S.D.R., 109 Wis. 2d 567, 575, 326 N.W.2d 762, 766 (1982).

For these reasons we construe as mandatory the thirty-day time requirement in each sec. 48.30(6) and 48.31(7), Stats. Because the dispositional hearing in each case before us was not held within the time required by the statute, the trial court lost competency to exercise its jurisdiction to hear the petition.

V.

CHIPS TIME LIMIT AS DIRECTORY

The dissent agrees that we have reached the right result in In the Interest of L.H., who is alleged to be delinquent, but argues that the time limit in sec. 48.31(7), Stats., when applied to R.H., should be directory rather than mandatory because his liberty interests are "little affected.” The most obvious objection to this construction is the resulting lack of uniformity in setting dates for dispositional hearings. If a fact-finding hearing is required on a delinquency petition, the thirty-day time limit in sec. 48.31(7) in which to set the dispositional hearing would be *36mandatory. If, however, a fact-finding hearing is required on a CHIPS petition, the time limit would be directory. This result is unacceptable.

The reasons for observance of strict time limits are at least as compelling in CHIPS proceedings as in delinquency proceedings. In CHIPS proceedings the child frequently, as is R.H.’s situation, has been removed from the home. The Wisconsin Supreme Court stated in Adoption of Tachick, 60 Wis. 2d 540, 554-55, 210 N.W.2d 865, 872 (1973):

The literature on the problem of separation trauma of a young child is vast and interesting. It is stated the important thing is not the mother in a biological sense but the mother figure, for it is the mother figure with which the child becomes totally identified and it is the mother figure whoever that might be that the child constantly turns to for nourishment and other physical comforts, love and security. It is stated that separation during the early years of an infant’s life from the mother figure causes apprehension, depression, withdrawal, and rejection of environment, slow movement, and stupor, anorexia, and weight loss, insomnia, eczema, and respiratory infections, and continued separation may bring on further withdrawal, persistent autoerotic activity, frozen rigidity, catatonia and cachexia. [Footnotes omitted.]

It has also been stated:

The risks [to the child] are greatest when intervention results in removal of a child from his family. It is well recognized by psychiatrists that "so far as the child’s emotions are concerned, interference with [parental] tie[s], whether to a 'fit’ or 'unfit’ psychological parent, is extremely painful.” Continuity of relationships is extremely im*37portant to children. Removing a child from his family may cause serious psychological damage— damage more serious than the harm intervention is supposed to prevent. [Footnotes omitted.]

Wald, State Intervention on Behalf of Neglected” Children: A Search for Realistic Standards, 27 Stan. L. Rev. 985, 993-94 (1975) (quoting J. Goldstein, A. Freud & A. Solnit, Beyond the Best Interests of the. Child pp. 5-6 (1973)).

Children often view foster-home placement as a punishment for something they have done. Goldstein, supra, at 11-12. A guideline these authors suggest is that placement decisions should reflect the child’s, not the adult’s, sense of time. Id. at 40. Goldstein, et al. say: "[T]o avoid irreparable psychological injury, placement, whenever in dispute, must be treated as the emergency that it is for the child.” Id. at 43.

"A child’s time is not an adult’s time.” J.R. Milligan and E. Loth, Permanency Planning for Children (A New Ballgame in Appellate Courts),6 4 Appellate Court Administration Rev. 37, 38 (1982-83).

The Model Statute for Termination of Parental Rights provides:

Unlike adults, who measure the passing of time by clocks and calendars, children have their own built-in time sense based on the urgency of their instinctual and emotional needs. What seems like a short wait to an adult can be an intolerable separation to a young child to whom a week can seem like a year and a month forever.
*38Section 1. The purpose of this act is ... to acknowledge that the time perception of children differs from that of adults. ...

National Bench Book for Juvenile Courts 154 (Hon. L.G. Arthur rev. ed. 1979).

By concluding that the time limit for holding a dispositional hearing is mandatory, we do not interfere with the right of the appropriate authority to take a child into custody when the welfare of the child demands it. All that our decision requires is that after the child is taken into custody the time limit imposed by the legislature on a critical stage of the adjudication process be observed.

The dissent is properly concerned that it may not be in R.H.’s best interest to be returned to his mother. Because the question is not before us, we express no opinion as to whether vacating the disposition order and dismissing the CHIPS petition will automatically restore custody of R.H. to his mother.

The dissent errs in deciding the important question of whether the time limit in sec. 48.31(7), Stats., is directory or mandatory solely upon the facts of this case. That question should not be decided on an ad hoc basis. The best interests of the child will be protected if the time within which the dispositional hearing shall be set is mandatory, whether the petition is a delinquency petition or a CHIPS petition.

hH >

CONSENT TO CONTINUANCE

In L.H., the state contends that by her silence L.H. consented to a continuance. Section 48.315, Stats., provides:

*39(1) The following time periods shall be excluded in computing time requirements within this chapter:
(b) Any period of delay resulting from a continuance granted at the request of or with the consent of the child and counsel.
(2) A continuance shall be granted by the court only upon a showing of good cause in open court 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.

A continuance can be granted only "on the record” for good cause. There was no such showing in this case.7

VII.

OTHER ISSUES

In view of our holding, it is not necessary to consider the effect in L.H. of the trial court’s failure to *40properly take her plea. In R.H., our conclusion that the trial court lacked competency to exercise its jurisdiction over the CHIPS petition extends to its oral finding of physical abuse and consequent written order. We therefore do not consider R.H.’s argument that the trial court could not make such finding when the jury was the factfinder.

By the Court. — Causes remanded with directions to vacate the dispositional orders and dismiss the petitions without prejudice.

Section 48.30(6), Stats., provides:

If a petition is not contested, the court shall set a date for the dispositional hearing which allows reasonable time for the parties to prepare but is no more than 10 days from the plea hearing for the child who is held in secure custody and no more than 30 days from the plea hearing for a child who is not held in secure custody. If all parties consent the court may proceed immediately with the dispositional hearing. If a citation is not contested, the court may proceed immediately to enter a dispositional order.

Section 48.31(7), Stats., provides:

At the close of the fact-finding hearing, the court shall set a date for the dispositional hearing which allows a reasonable time for the parties to prepare but is no more than 10 days from the fact-finding hearing for a child in secure custody and no more than 30 days from the fact-finding hearing for a child not held in secure custody. If all parties consent, the court may immediately proceed with a dispositional hearing.

The report of the Special Study Committee adopted by the Wisconsin Council on Criminal Justice states: "The Juvenile Justice Standards and Goals ... are not merely policy tools for the WCCJ. This report is, in essence, a mandate to the State legislature, local police departments, municipalities, judges, and the private sector to look towards new approaches in their relationships with juveniles.” Juvenile Justice Standards and Goals, supra, at 13. (Emphasis added.)

We do not imply that the legislature in enacting the revised Children’s Code was not concerned with the due process rights of parents. The legislative history makes plain, however, that the legislature was primarily motivated to address the concerns expressed in numerous court decisions that the parens patriae approach to adjudicating the rights of children denied the child procedural due process.

The reason for the drastic consequence of with-prejudice dismissal under sec. 48.24(5), Stats., is revealed in the commentary of the Wisconsin Council on Criminal Justice to the intake standard, 12.4(c), which imposes a time limit on filing a petition upon receipt of referral information. The Council’s commentary states:

Standard 12.4(c) is designed to eliminate the opportunity for the prosecutorial abuse of not bringing charges until several acts have beejn committed in order to increase the chance of a more severe disposition.

Juvenile Justice Standards and Goals, supra, at 81.

Permanency planning was mandated by the legislature in 1984. Sec. 48.38, Stats., 1983 Wis. Act 399.

We note that a publication of the State Bar of Wisconsin states that ch. 48, Stats., time limits cannot be waived.

It has been the practice in some jurisdictions for parties, their counsel, or the guardian ad litem to "waive” time limits. There is no provision under the Children’s Code for the waiver of time limits. The only provision for delays, continuances, or extensions are those set forth in section 48.315. Even under the provisions of this statute [sec. 48.315], a waiver is not permitted, as continuances are to be granted by the court "only for so long as is necessary.” Wis. Stats, sec. 48.315(2).

J. Alschuler, S. Bach, R. Froemming, T. Glowacki, D. Greenley, and J.S. Newton, ATS-CLE: The Guardian ad Litem Handbook, sec. 4.18, p. 4-17, State Bar of Wisconsin (1987).