County of Dunn v. Goldie H.

JON P. WILCOX, J.

¶ 47. (concurring). I write separately because, while I concur with the majority's disposition of this case, I disagree in part with its reasoning. I agree with the majority insofar as it concludes that in light of the guardian ad litem's (GAL) thorough report which served as the basis for the circuit court order continuing Goldie H.'s protective placement, there is no reason to remand this case to the circuit court for a hearing. However, I disagree with the majority that State ex rel. Watts v. Combined Community Services Board, 122 Wis. 2d 65, 362 N.W.2d 104 (1985), invariably requires circuit courts to hold a hearing during every annual review.

¶ 48. This court held in Watts, 122 Wis. 2d at 84, that "there must be an annual review of each protective placement by a judicial officer." We then established the two procedures that, at a minimum, circuit courts must undertake during each review.

¶ 49. First, the circuit court should appoint to each protectively-placed individual a GAL, whose duty it is to examine the placement. Id. at 84. Pursuant to this duty, the GAL must: (1) "meet with the placed individual"; (2) "review the annual report made by the protective services agency under sec. 55.06(10)(a)"; (3) *554"explain to the placed individual and his or her guardian the right to have an attorney appointed, to an independent evaluation, and to request a full due process hearing on the need for continued protective placement or on the appropriateness of the present placement facility"; (4) if necessary, request an additional evaluation of the placed individual; and (5) using all of the information gathered while fulfilling the preceding duties,

make a report to the court concerning whether the [placed] individual continues to meet the standards for protective placement, whether the current placement is the least restrictive environment consistent with the individual's needs, whether the individual or guardian requests a change in status or placement, whether counsel should be appointed, and whether a full due process hearing should be held.

Id. at 84-85.

¶ 50. Second, the circuit court must review the GAL's report. Id. at 85. Upon review of the report, the court must make at least three decisions: (1) "whether to order additional information"; (2) "whether to appoint defense counsel"; and (3) "whether to hold a full due process hearing under sec. 55.06(6), Stats., or a summary hearing." Id.

¶ 51. In the present case, the circuit court dutifully followed these procedures, thus ensuring that Goldie H. received not only the precise placement which she had requested,1 but also the precise place*555ment necessary to meet her needs. Nonetheless, the majority of this court holds that the circuit court did not do enough. According to the majority, the circuit court also was required to hold a hearing on the record so Goldie H.'s GAL could recite to the circuit court the facts and recommendations in his annual report.

¶ 52. The majority's holding is based on an erroneous interpretation of a single phrase in Watts. The majority interprets the phrase "whether to hold a full due process hearing.. .or a summary hearing" in Watts to mean that the circuit court must hold one of the two types of hearings during every annual review. Id.

¶ 53. Contrary to the majority's interpretation, however, this phrase does not require the circuit court to hold a hearing in every case. Rather, it provides that the circuit court, in its sound discretion, may hold a full due process hearing, a summary hearing, or no hearing at all.

¶ 54. Unlike the majority's interpretation, this reading of Watts harmonizes the meaning of the word "whether" in each of the three clauses delineating the decisions that the circuit court must make while reviewing the GAL report — "whether to order additional information, whether to appoint defense counsel, and whether to hold a full due process hearing. . .or a summary hearing." Id. In the first and second clauses, *556there is no dispute that the word "whether" is being "[u]sed in indirect questions to introduce one alternative." The American Heritage Dictionary of the English Language 2033 (3d ed. 1992). That is, as used in those clauses, "whether" introduces a question that the circuit court must decide: Should it "order additional information" and/or "appoint defense counsel"? Watts, 122 Wis. 2d at 85. And while each clause indicates an option that the court may choose to pursue, it leaves open the possibility that the court may choose an alternative option — not to order additional information and/or not to appoint defense counsel. Thus, as used in the first two clauses, the word "whether" essentially means "whether or not."

¶ 55. Had the majority applied the same definition of the word "whether" to the last clause — "whether to hold a full due process hearing. . .or a summary hearing" — it would have correctly understood the Watts court's mandate: Upon review of the GAL report, the circuit court must decide whether or not to hold a full due process hearing or a summary hearing. Watts, 122 Wis. 2d at 85. That is, had the majority applied a consistent definition of the word "whether" in all three clauses, it would have acknowledged that Watts held that the circuit court has discretion to decide to have a full due process hearing or a summary hearing or, in the alternative, no hearing at all.

¶ 56. To reach its conclusion that the last clause requires a hearing in every case, the majority necessarily applies a different definition of the word "whether" in the last clause than it does in the other two clauses. Specifically, it reads "whether” in the last clause to be "[u]sed to introduce alternative possibilities." The American Heritage Dictionary of the English Language 2033 (3d ed. 1992). Thus, applying this second defini*557tion of the word "whether," the majority interprets the last clause to mean that the circuit court must choose one of two alternative possibilities: a full due process hearing or a summary hearing.

¶ 57. The majority fails to explain, however, why the word "whether" should be read differently in that last clause than it is in the other two clauses.2 Indeed, the majority's interpretation conflicts with both the Watts holding and the majority's disposition of the present case.

¶ 58. This court indicated in Watts that a hearing is not necessary in every case. In the paragraph directly following the paragraph containing the clauses at issue, the Watts court explained that "the annual review of the necessity for a hearing and the hearing, if necessary, may be conducted by a court commissioner. . .." Watts, 122 Wis. 2d at 85 (emphasis added). This indicates by negative implication that the Watts court recognized that in at least some annual reviews, a hearing will not be necessary.

¶ 59. Further, in the case presently at hand, despite its interpretation of Watts, the majority acknowledges that a hearing is not necessary in every case. Noting the overwhelming amount of evidence that the circuit court had before it when it signed Goldie H.'s continuation order, the majority holds that "[u]nder the specific facts of this case, nothing would be gained by remanding this case to the circuit court" for a *558hearing.3 Majority op. at ¶ 45. Had the majority adhered to its interpretation of Watts, however, it could not have concluded that "nothing would be gained" by remanding Goldie H.'s case for a hearing. It therefore seems that even the majority recognizes that in some cases, a hearing merely would be a redundant procedural formality.

¶ 60. This does not mean that hearings never should be required. See majority op. at ¶ 30. To be sure, for exactly the reasons that the majority posits in *559¶¶ 30-31 of its opinion, many — if not most — cases will require a hearing. But it does not follow from this fact that a hearing is necessary in every case.

¶ 61. In accordance with Watts, I would leave the decisions of whether to hold a hearing and, if a hearing is necessary, what type of hearing to hold, within the sound discretion of the circuit court. Where, as in the present case, the GAL provides the circuit court with a report supported by overwhelming evidence in favor of continued placement and there is absolutely no contested issue before the court, a hearing merely would involve the GAL reciting to the court the evidence in his or her annual report. I see no need to spend our limited court resources and taxpayer money for this type of superfluity. In such circumstances, the interests of judicial economy outweigh the need for what ultimately will be an empty formality. Watts does not compel circuit courts to hold hearings on the record merely to hold hearings on the record.

¶ 62. For the reasons set out above, while I agree with the majority that this case need not be remanded for a hearing on Goldie H.'s continued placement, I do not agree with the court's holding that — with the exception of the present case — a hearing is necessary in every annual review. Accordingly, while I concur with the majority's disposition of the present case, I disagree in part with its reasoning.

Because the circuit court order extending Goldie H.'s placement granted the precise placement that Goldie H. had requested, I strongly question whether Goldie H. even has standing to appeal the order. See County of Dunn v. Goldie H., *555Case No. 00-1137, unpublished slip op. at 2-4 (Wis. Ct. App. Sept. 19, 2000) (holding that Goldie H. had no standing to appeal); State ex rel. Opelt v. Crisp, 81 Wis. 2d 106, 113, 260 N.W.2d 25 (1977) (explaining that in order to have standing to appeal, the party seeking to appeal must have been adversely affected by the judgment or order from which he or she seeks to appeal); Auer Park Corp. v. Derynda, 230 Wis. 2d 317, 322, 601 N.W.2d 841 (Ct. App. 1999) ("A party cannot complain about an act to which he or she deliberately consents").

I note that if these three clauses had been grouped in a single statutory provision, this court would entertain a presumption that the word "whether" should be interpreted the same in each clause. See Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 663, 539 N.W.2d 98 (1995) ("attributing the same definition to a word both times it is used in the same statute follows.. .[a] basic principle of statutory construction").

The majority also bases it holding on the fact that the circuit court held a motion hearing on Goldie H.'s case. See majority op. at ¶¶ 6, 36, 42-45. According to the majority, this hearing "supplemented" the GAL report and examined the "relevant issues." Id. at ¶ 6. The majority mischaracterizes this hearing.

The hearing to which the majority refers was an eight-minute hearing on the issue presently before this court: whether Watts requires a hearing on the record during every annual review. At no time during this hearing did the court ask Goldie H.'s GAL any questions regarding the propriety of Goldie H.'s placement or about the facts or recommendations in the annual report. Similarly, at no time during this hearing did the GAL or opposing attorney offer any additional information or recommendations regarding Goldie H.'s placement. And at no time during this hearing did the circuit court make any findings of fact relating to Goldie H.'s continued placement.

In contrast to the majority, I fail to see that this hearing provided Goldie H. with any additional protection against wrongful placement. If a hearing such as this — which in no way addresses the propriety of the protectively-placed individual’s continued placement — is all that is necessary to meet the hearing requirement that the majority grafts onto Watts, I cannot help but conclude that the majority's hearing requirement ultimately may benefit no one but the attorneys paid to be present at such hearings.