T.H. v. La Crosse County

DYKMAN, J.

(<dissenting in part).

FACTS

T.H. is R.H.’s mother. At the fact-finding hearing in this case, the jury heard a La Crosse county social worker testify that relatives of R.H. called his agency in May 1987, after R.H. was hospitalized because he drank a substantial amount of paint thinner while T.H. was visiting with her boy friend. The social worker spoke with T.H., and told her that in his opinion, this incident was evidence that T.H. was not adequately supervising R.H. He further explained that continued instances of inadequate supervision or neglect could lead to a court referral. He testified that because of prior history with T.H., the paint thinner incident was of greater concern to him.

A nurse and parent aide testified that she was assigned to assist T.H. with her parenting skills. The nurse made seven to nine visits to T.H.’s apartment between July 13 and August 10, 1987. On August 7, 1987, at about 10 a.m., she saw R.H., nineteen months old, playing unattended at the top of a long, steep staircase. The door to T.H.’s apartment was not *41lockable. The nurse felt that R.H. could easily have suffered a fatal fall.

T.H. did not respond when the nurse knocked on her door. The nurse therefore picked R.H. up and took him into T.H.’s apartment. R.H. picked up and ate cereal which was scattered on the kitchen floor. While attempting to arouse T.H. by calling and yelling, the nurse observed that R.H. had had a diaper on for a prolonged period of time and had dried feces on his back. His shirt was too small and was filthy. She observed R.H.’s bed to be a bare mattress on a bedroom floor. After forty-five minutes, the nurse became angry and shouted at T.H. to get up. T.H. did so, and the nurse explained that R.H. needed cleaning and changing. T.H. did not respond.

On August 10, the nurse again visited T.H.’s apartment. Again she noticed that R.H.’s diaper had not been changed for a prolonged period, and that his clothing was urine soaked. She asked T.H. to change the diaper, but T.H. did not do so. The nurse attempted to get T.H. to recognize the need to keep R.H. clean, a matter she and T.H. had discussed since her first visit in July. As they were talking, the nurse noticed that R.H. was drinking a cup of what she assumed was apple juice, but that it had a foul odor. R.H. finished that cup, left and returned with more of the same liquid. The nurse asked T.H. what her son was drinking, and T.H. giggled. Then T.H. said to R.H.: "[R.H.] don’t do that. You’re such a pig.” The nurse asked: "What is this?” and T.H. answered: "He drinks out of the toilet.” T.H. then left the room, came back, and explained that the toilet contained fecal material because someone had not flushed it. The nurse explained that T.H. could not let that happen, but T.H. was apathetic about the situation. She believed R.H. *42had an excessive thirst. Because of T.H.’s reactions and answers, the nurse concluded that R.H. habitually drank from the toilet. The nurse never saw T.H. nurture, hug or kiss her son, or converse with him.

The jury deliberated for forty minutes and found that T.H. neglected, or refused or was unable for reasons other than poverty to provide necessary care, food, clothing, medical care or shelter so as to seriously endanger the physical health of R.H.

Thirty-two days after the jury’s verdict, the court held a dispositional hearing and signed an order transferring R.H.’s custody to the La Crosse County Human Services Department. The record does not explain why the hearing was not held within thirty days of the jury’s verdict except that the trial court said: "The parties can contact my secretary to get the date and time of that hearing that is mutually convenient to all parties.” Section 48.31(7), Stats., provides that the court shall set a date for the dispositional hearing no more than thirty days from the fact-finding hearing.

METHOD OF ANALYSIS

Karow v. Milwaukee County Civil Serv. Comm., 82 Wis. 2d 565, 263 N.W.2d 214 (1978) sets out the procedure appellate courts are to follow when determining the effect of a failure to follow statutory time limits. The factors we are to consider are:

(1) "shall” is presumed mandatory;
(2) the legislature’s clear intent;
(3) the legislature’s failure to state the consequences of noncompliance;
(4) whether the failure to observe time limits results in an injury or wrong;
*43(5) the consequences resulting from one construction or the other;
(6) the nature of the statute;
(7) the evil to be remedied and the general object to be accomplished by the legislature.

Id. at 570-72, 263 N.W.2d at 217-18.

These consolidated cases show that the Karow factors apply differently in CHIPS proceedings than in delinquency proceedings. The focus of a CHIPS proceeding is whether a child needs protection from conditions that pose a danger to the child. Delinquency proceedings add other considerations, including whether the public needs protection from a juvenile. A juvenile’s liberty interests are at risk in delinquency proceedings, but are little affected by ordinary CHIPS proceedings. I am therefore not persuaded that a statute which we conclude is mandatory in a delinquency proceeding must also be mandatory in a CHIPS matter. I therefore agree with the majority’s mandate in In the Interest of L.H., and limit this dissent to In the Interest of R.H.

"KAROW” FACTORS APPLICABLE HERE

The legislature’s intent is that the provisions of the Children’s Code "shall be liberally construed to effect the objectives contained in this section. The best interests of the child shall always be of paramount consideration, but the court shall also consider the interest of the parents _” Sec. 48.01(2), Stats. Construing "shall” as used in sec. 48.31(7) as directory carries out the legislature’s clear intent to consider paramount the best interests of the child. Also, the legislature did not provide that failure to follow the time limits in sec. 48.31(7) deprives a court of compe*44tency to exercise its jurisdiction. This omission supports construing the time limit as directory.

Because the majority construes the sec. 48.31(7), Stats., time limit as mandatory, R.H. will now be returned to T.H., even though the evidence is overwhelming that this will be harmful to R.H. and a jury found that T.H.’s neglect seriously endangered R.H.’s health. This results in an injury to R.H. and is contrary to the "paramount consideration” of ch. 48. The "evil to be remedied” is R.H.’s adjudicated dangerous situation. The "general object sought to be accomplished” is to remove R.H. from a dangerous environment and to provide T.H. with constructive directions on how to improve her role as R.H.’s mother in order to regain R.H.’s custody.

Construing the sec. 48.31(7), Stats., thirty day time limit as directory works an injury or wfong to R.H.’s "fundamental liberty interest ... in the care, custody, and management of [her] child [which] does not evaporate simply because [she has] not been [a] model parent []...." Santosky v. Kramer, 455 U.S. 745, 753 (1982). However, "where the parent’s interest and the child’s interest conflict, the child’s interest must control.” In Matter of Adoption of R.P.R., 95 Wis. 2d 573, 578, 291 N.W.2d 591, 594 (Ct. App.) (footnote omitted), rev’d on other grounds, 98 Wis. 2d 613, 297 N.W.2d 833 (1980). The injury which will result to R.H. upon his return to T.H. is greater than whatever injury the two-day delay caused to T.H., who failed to attend the dispositional hearing.

There are other consequences of the majority’s conclusion. La Crosse county paid R.H.’s guardian ad litem $670 in attorney fees. The corporation counsel’s salary, and the costs La Crosse county has expended for court personnel and jury fees are all wasted. If the *45county repeats in another CHIPS proceeding what it did in the first one, the ultimate consequence is that we have put R.H., T.H., La Crosse county, the trial court, the three attorneys and the jury through a costly and unnecessary dress rehearsal. The next trial will be much like the last, and, judging from the evidence presented and the speed with which the jury reached its verdict, there is little prospect of a changed result.

The legislature has considered whether it is wise to reverse judgments for insubstantial errors at trial, and has enacted a "harmless error” rule. Section 805.18, Stats., provides: -

(1) The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.
(2) No judgment shall be reversed or set aside or new trial granted in any action or proceeding on the ground of drawing, selection or misdirection of jury, or the improper admission of evidence, or for error as to any matter of admission of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure a new trial.

We test for harmless error by considering whether the result would have been different had the error not occurred. Helmbrecht v. St. Paul Ins. Co., 122 Wis. 2d 94, 131, 362 N.W.2d 118, 137 (1985). I find it difficult to believe that a different result would have occurred had the trial court entered its dispositional order two days earlier. The "consequences” factor of Karow *46therefore weighs heavily in favor of holding sec. 48.31(7), Stats., to be directory because the error is harmless but the cost is extensive.

The majority bases its conclusion in part on In Interest of S.D.R., 109 Wis. 2d 567, 326 N.W.2d 762 (1982), which holds that an untimely dispositional order infringes upon a juvenile’s liberty interest in being free from involuntary confinement. S.D.R., 109 Wis. 2d at 573 and 577, 326 N.W.2d at 765 and 767. The court’s reasoning in S.D.R. explains why we should conclude that sec. 48.31(7), Stats., is directory in CHIPS proceedings. R.H. has no interest at all in being returned to an environment where he will be neglected or abused, let alone a liberty interest in such a "right.” The majority ignores the reasons the S.D.R. court used in reaching its decision, and by doing so, inserts constitutional requirements into a statute where R.H.’s "rights,” constitutional or otherwise, are to avoid abuse and neglect.

Nor is uniformity a reason to subject children to abuse or neglect. Trial courts hear cases of all types. Time limits in different types of cases are anything but uniform. Though the majority finds non-uniformity unacceptable, it gives no reason for that finding, and there is no reason for it. Our trial courts are capable of working with a myriad of time limits now— one more variation will make no difference.

This is not the first time we have considered whether a trial court’s failure to comply with a time limit ousts the court of jurisdiction (or competency to exercise jurisdiction). In Village of Elkhart Lake v. Borzyskowski, 123 Wis. 2d 185, 193-94, 366 N.W.2d 506, 510 (Ct. App. 1985), we said:

Section 343.305(8)(b), Stats., merely directs trial courts to render a decision as to the issues *47involved within five days of the refusal hearing. The statute does not indicate that the trial court is divested of its jurisdiction if it fails to comply with the time requirement. The presumption in favor of retention of jurisdiction can be overcome only if the law in favor of divestiture is clear and unambiguous. Absent a clear and unambiguous indication from the legislature, we will not infer an intent on the part of the legislature to divest the trial court of jurisdiction when the time requirement of sec. 343.305(8)(b) is not met. (Citation omitted.)

Section 48.31(7), Stats., contains no clear and unambiguous indication that a thirty-two day wait between verdict and disposition divests the trial court of jurisdiction or competency to exercise jurisdiction.

CONCLUSION

After examining the relevant Karow factors, and Borzyskowski, I conclude that the sec. 48.31(7), Stats., time limit should be construed to be directory rather than mandatory.1 The trial court’s failure to hold a dispositional hearing within thirty days should therefore not affect its competency to enter a dispositional order.

However, the failure to meet the time limit is subject to an inquiry into whether there was a good faith effort to comply with the statute. See In re J.L. W., 143 Wis. 2d 126, 132, 420 N.W.2d 398, 400-01 (Ct. App. 1988) (efforts of intake workers to meet ch. 48 deadlines subject to good faith analysis, even where statute provides for dismissal with prejudice if time limit not met). In this case, T.H. makes no claim of bad faith, and I do not address that question.