State v. Michael S.

PATIENCE DRAKE ROGGENSACK, J.

¶ 77. (dissenting). The majority opinion concludes that because the hearing on the State's petition to extend the supervision of Michael S. and to change placement was held one day after the date on which the majority opinion determined that the dispositional order expired, the court lost the authority to issue further orders in regard to Michael. Majority op., ¶ 3. I disagree with the majority's conclusion because the dispositional order had not expired prior to the extension of Michael's supervision on December 3, 2002. Accordingly, I conclude the order extending supervision and changing Michael's placement was a valid order. Therefore, I would affirm the court of appeals, although on different grounds, and I respectfully dissent from the majority opinion.

I. BACKGROUND

¶ 78. The record shows that Michael was placed under court supervision by an order signed November 6, 2001.1 That order was entered by the clerk on November 8, 2001. The original supervision order *34stated as follows: "The juvenile [is] placed under the supervision of the Milwaukee County Department of Human Services for a period of one (1) year expiring October 23rd, 2002."

¶ 79. On September 10, 2002, the county moved to extend the dispositional order for a year and to change placement. The county filed an amended permanency plan and a hearing on the county's motion was held September 26, 2002. Michael, his lawyer, an assistant district attorney and others were present, and discussed the petition.2 When asked his position on the petition, Michael's lawyer said, "My client's position is he doesn't have a problem with extending probation, but he does not want to stay here in detention."

¶ 80. At the September 26 hearing, there was a request for a psychological exam for Michael, as he seemed unable to adapt to any of the previous placements — his aunt's home, his grandmother's home and his mother's home. The parties agreed the assessment should be done and the court so ordered. They then continued the hearing on the county's petition until October 2 to determine how best to proceed in light of the psychological exam.

¶ 81. The examination results were filed on September 30 and reviewed during the continued hearing on October 2. Because of the psychological report, the county made a primary recommendation of placement in "corrections" and a secondary recommendation of placement in a group home. The court then asked, "[W]hat are we setting this on for? Contest or what?" To which Michael's attorney responded, "I'm going to contest it at this point. ... I'd probably like to get another *35psych[] exam." The court, in consultation on the record with the attorneys, set October 24 as the date to continue the hearing. This was the first date the court had available on which all parties and their attorneys could attend.

¶ 82. At the hearing on October 24, 2002, all parties discussed possible placement options. No new psychological information was provided by Michael. However, the judge then presiding raised questions about the court's continuing jurisdiction. The matter was adjourned and rescheduled for a hearing on November 8, based on the court's calendar and the attorneys' availability. Again, questions of the court's authority were raised and the matter was rescheduled and adjourned, with the consent of all present, to November 26. On November 26, the circuit court made a definite decision on its authority to continue to make orders in regard to Michael and set an evidentiary hearing for December 3. At the conclusion of the December 3 hearing, the court extended supervision to October 23, 2003, and changed Michael's placement to the Ethan Allen School. An order to that effect was entered December 4, 2002.

II. DISCUSSION

A. Standard of Review

¶ 83. This case turns on questions of statutory interpretation to which we apply a de novo standard of review, but benefit from the analyses of both the circuit court and the court of appeals. State v. Cole, 2003 WI 59, ¶ 12, 262 Wis. 2d 167, 663 N.W.2d 700.

*36B. Statutory Interpretation

¶ 84. The majority opinion mainly relies on its interpretation of the term "time limit," found in Wis. Stat. § 938.315(3), as compared with this court's earlier interpretation of "time limit" in In re B.J.N., 162 Wis. 2d 635, 658, 469 N.W.2d 845 (1991), majority op., ¶¶ 52-62. In so doing, it assumed that the original dispositional order terminated October 23, 2002. I conclude that assumption is incorrect as a matter of law. In my view, the majority opinion failed to analyze the relevant statutes for determining when the order of supervision actually terminated; and therefore, it came to an incorrect conclusion about the validity of the order extending supervision and changing placement. Section 938.315(1) governs the date the original dispo-sitional order terminated, as I explain below.3

¶ 85. In interpreting Wis. Stat. § 938.315(1), because we are examining a dispositional order, I begin with Wis. Stat. § 938.355(4)(a), which sets the statutory parameters for the termination of a dispositional order. For my interpretation of these statutes, I rely on our criteria of statutory interpretation set out in State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110. In Kalal, we explained that our focus was to determine "statutory meaning." Id., ¶ 44. We explained that:

(¡Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We *37assume that the legislature's intent is expressed in the statutory language. Extrinsic evidence of legislative intent may become relevant to statutory interpretation in some circumstances, but is not the primary focus of inquiry. It is the enacted law, not the unenacted intent, that is binding on the public. Therefore, the purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect.

Id. As we have said many times, we begin with the language used in the statute and if that language is plain and clearly understood, we ordinarily stop our inquiry. Seider v. O'Connell, 2000 WI 76, ¶¶ 44-53, 236 Wis. 2d 211, 612 N.W.2d 659. Context is also important when determining the plain meaning of a statute, as is the purpose of the statute and its scope, if those qualities can be ascertained from the language of the statute itself. Kalal, 271 Wis. 2d 633, ¶¶ 46-48. These are all intrinsic sources for statutory interpretation. Id.

¶ 86. However, if the meaning of the statute is not plain and the statute "is capable of being understood by reasonably well-informed persons in two or more senses," then the statute is ambiguous. Id., ¶ 47. When a statute is ambiguous, we often consult extrinsic, "interpretive resources outside the statutory text," such as legislative history. Id., ¶ 50.

1. Wisconsin Stat. § 938.355(4)(a)

¶ 87. The original dispositional order that was entered November 8, 2001, placed Michael in the home of his aunt. The time requirement in regard to the order's duration is set out in Wis. Stat. § 938.355(4)(a):

an order under this section ... that places or continues the placement of the juvenile in. .. the home of a relative other than a parent shall terminate when the *38juvenile reaches 18 years of age, at the end of one year after its entry,.. . whichever is later, unless the court specifies a shorter period of time or the court terminates the order sooner.

As shown by the quote above, part of § 938.355(4)(a) that applies to a child placed outside of his or her home envisions dispositional orders that do not end until the child is 18 years of age because the statute directs that the order terminates at the later o/when the child is 18 or one year has passed. The statute also provides that a court may specify a different time period or may terminate the disposition at a date earlier than that specified in the order.

¶ 88. The order imposing supervision on Michael does not fall within the phrase in Wis. Stat. § 938.355(4) that would permit it to run until Michael turned 18 because the circuit court took advantage of an alternate choice. Instead, the order gave more specific directions in regard to its duration, as the statute permits. However, if we look only to the face of the order, its directives are ambiguous in regard to when supervision terminates. For example, the order states it is "for a period of one (1) year," which would cause it to expire on November 7, 2002, because the order has a stamp on it showing it was "entered" on November 8, 2001. However, the order also states that placement under supervision is, "expiring October 23rd, 2002," which arguably sets October 23, 2002 as the termination of supervision. This ambiguity does not require resolution, however, because the directives in the order do not answer the question of when the original supervision ended. And as I explain below, no matter which date one chooses, the order extending supervision and changing placement was timely. I look first to the effect of relevant tolling provisions of Wis. Stat. § 938.315(1) on the duration of the dispositional order.

*392. Wisconsin Stat. § 938.315(1)

¶ 89. Wisconsin Stat. § 938.315(1) states in relevant part:

The following time periods shall be excluded in computing time requirements within this chapter:
(a) Amy period of delay resulting from other legal actions concerning the juvenile, including an examination under s. 938.295 ...
(b) Any period of delay resulting from a continuance granted at the request of or with the consent of the juvenile and counsel.
(dm) Any period of delay resulting from court congestion or scheduling.

Section 938.315(1) excludes "time periods" that would otherwise apply when computing any "time requirement" found within ch. 938. Therefore, it is a tolling provision relating to ch. 938. As an initial matter, whether § 938.315(1) applies depends upon the meaning of "time periods" and "time requirements." These are not defined in ch. 938, nor are they technical terms. Accordingly, it is appropriate to consult dictionary definitions. Kalal, 271 Wis. 2d 633, ¶¶ 53, 54.

¶ 90. Black's Law Dictionary defines "time" as, "A measure of duration." Black's Law Dictionary 1520 (8th ed. 2004). Black's does not define "period" or "requirement." A dictionary of common usage defines "time" as, "the measured or measurable period during which an action, process, or condition exists or continues." Webster's New Collegiate Dictionary 1222 (1974 ed.). It fists "duration" as a synonym. Id. Webster's defines *40"period" as an "interval," id. at 852, and "requirement" as "something.. . needed," id. at 983.

¶ 91. I conclude that the plain meaning of "time periods" in Wis. Stat. § 938.315(1) is an interval or measure of duration set out in paragraphs (a) through (i) of subsection (1) because the statute directs that it is the "following time periods" to which the statute's tolling provision refers. Michael argues that the tolling effect of § 938.315(1) applies only to a temporary extension of a dispositional order. However, the plain meaning of the statute is inconsistent with his interpretation. This is so because the time periods described in paragraphs (a) to (i) concern many occurrences that would not be ordered or concluded within a 30-day extension.

¶ 92. Additionally, the plain meaning of "time requirements" is more broad than the plain meaning of "time periods" because the "time requirements" of Wis. Stat. § 938.315(1) encompass all measures of duration that are required by any part of ch. 938. Here, the measure of duration of a dispositional order is set by the combination of Wis. Stat. § 938.355(4)(a) and the circuit court's dispositional order entered in compliance with that statute. Therefore, although I do not disagree with Michael's conclusion that § 938.315(1) permits the tolling of a 30-day extension of a dispositional order as set out in Wis. Stat. § 938.365(6), there is nothing in the words chosen by the legislature that so limits its use. To the contrary, § 938.315(1) applies whenever the circuit court or a statute has set any time requirement within ch. 938.

¶ 93. In my review of the "time periods" listed in Wis. Stat. § 938.315(1), I have concluded that the facts presented in the record implicate the tolling provisions of paragraphs (a), (b) and (dm). Paragraph (a) speaks to *41"periods of delay" for an examination under Wis. Stat. § 938.295, which includes psychological examinations. Paragraph (b) speaks to "periods of delay" that result from continuances granted either at the request of the juvenile and his counsel or with their consent, and paragraph (dm) addresses "periods of delay" resulting from court congestion or scheduling.

¶ 94. In order to determine whether a Wis. Stat. § 938.315(1) "period of delay" occurred, I examine the record subsequent to September 10, 2002, when the county filed its petition to extend Michael's supervision and to change his placement. First, a hearing was held ón'thé county's petition on September 26, 2002, well within the date the majority opinion chose for the expiration of the dispositional order. At that hearing Michael's counsel explained that he did not object to the extension of supervision. However, all agreed that a psychological exam of Michael was necessary in order to assess an appropriate placement. The court ordered the examination and October 2 was selected, before the hearing was adjourned, as the date to determine whether placement would be contested. The adjournment and the date to reconvene were agreed to by Michael and his attorney. Accordingly, I conclude that the "period of delay" in deciding the petition, from September 26 to October 2, was the result of a continuance granted with the consent of Michael and his counsel. Therefore, § 938.315(1)(b) applies, and the dispositional order is tolled from September 26 until October 2, a period of 6 days.4 If nothing further had *42occurred, the order for supervision could not have terminated earlier than October 29, 2002.5

¶ 95. When the hearing was reconvened on October 2, based on the results of the report of psychological examination, the county requested placement at Ethan Allen School. Because Michael did not want to be placed at Ethan Allen School, his counsel contested placement. The court then worked with counsel and the court's calendar and scheduled October 24 as the date to reconvene the hearing on the county's petition. The October 24 time and date were agreed to by Michael and his counsel. It was also the first date the court's calendar permitted sufficient time for a contested hearing on which the attorneys could attend. Wisconsin Stat. § 938.315(l)(dm) tolls the order of supervision for "Any period of delay resulting from court congestion or scheduling." It is uncontested that court congestion and scheduling were the reasons for the choice of October 24 as the adjourned date for the pending petition.6 Accordingly, the dispositional order was tolled for 22 more days. If nothing further had occurred, the order for supervision could not have terminated earlier than November 20, 2002.

*43¶ 96. When the hearing was reconvened on October 24, the judge who presided at that hearing questioned whether the court had the power to order an extension of supervision and a change in placement, as the majority opinion notes. Majority op., ¶ 17. Accordingly, no testimony was presented on the pending petition. However, later on October 24, the original presiding judge reviewed the record and concluded the court had jurisdiction. The court then immediately set a hearing date for November 8, to which Michael and his attorney agreed. Accordingly, the dispositional order was tolled for 15 more days. If nothing further had occurred, the order for supervision could not have terminated earlier than December 5, 2002.

¶ 97. However, when the hearing was reconvened on November 8, the original presiding judge was not able to be present so a second substitute judge presided. That judge also questioned whether the court had the power to make further orders. He determined he could not decide that question without a transcript. After considerable discussion with Michael, his counsel and the calendar clerk for the original presiding judge, the then-presiding judge had the matter rescheduled with the original presiding judge for November 26. In regard to choosing this date, the then presiding judge stated, "We'll try to get a date real quick in front of Judge Foley." The clerk suggested, "November 25th at 10?" However, Michael's attorney was not available on November 25 so the November 26 date was chosen as the first date all would be available to reconvene the hearing on the county's petition. Accordingly, the dis-positional order was tolled for 18 more days. If nothing further had occurred, the order for supervision could not have terminated earlier than December 23, 2002.

*44¶ 98. When the hearing reconvened on November 26, the court first made a conclusive determination that it had the power to continue to make orders in regard to Michael's supervision. It relied on its interpretations of Wis. Stat. § 938.365(6) and Wis. Stat. § 938.315(1). The circuit court explained, "I think as of October 24th, each and every delay has been governed by 938.315(1), 938.315 probably (1) and (2)." The court then scheduled December 3 to reconvene for an evidentiary hearing. All parties again agreed to the date on the record. Accordingly, the dispositional order was tolled for 7 more days. If nothing further had occurred, the order for supervision could not have terminated earlier than December 30, 2002.

¶ 99. When the hearing reconvened on December 3, evidence regarding an appropriate disposition was presented. There was no evidence presented that Michael should not be continued in supervision. Instead, in closing argument Michael's attorney said, "there is no doubt that he needs additional help, guidance, counseling, therapy, whatever. I think we all agree with that. The whole point is where?" At the conclusion of the hearing, the court ordered supervision extended to October 23,2003 and changed Michael's placement to the Ethan Allen School. The court's order was reduced to writing and entered on December 4, 2002, well before the dispositional order's termination date of December 30, 2002.

III. CONCLUSION

¶ 100. While I do not disagree with the majority opinion's statement that the "expiration date of a dis-positional order was to ensure the protection of a juvenile's due process rights," majority op., ¶ 51, it begs *45the question for a juvenile who is in serious need of assistance from the juvenile court and the county is actively attempting to obtain what it has determined he needs. Here, the circuit court, the county and all attorneys were diligent in trying to determine what services would best help Michael. However, that determination could not be made in one hearing. The legislature recognized that there would be times when flexibility in scheduling would be required, as the plain meaning of Wis. Stat. § 938.315(1) shows. Because I conclude that the order extending supervision and changing placement was timely made, it is a valid order.

¶ 101. Therefore, I respectfully dissent from the majority opinion that simply assumes the original order of supervision had expired before the order extending supervision and changing placement was made.

¶ 102. I am authorized to state that Justices JON E WILCOX and DAVID T. PROSSER join this dissent.

Michael was found delinquent for a weapons violation under Wis. Stat. § 948.60(2)(a) (2001-02). All further statutory references are to the 2001-02 version unless otherwise noted.

Michael was then being held in detention because he was "AWOL" from his last court placement.

The applicability of Wis. Stat. § 938.315(1) was briefed by Michael. Additionally, I am aware that the State chose not to analyze the statute. However, we are not bound by concessions on legal issues that a party makes. See Fletcher v. Eagle River Mem'l Hosp., Inc., 156 Wis. 2d 165, 178-80, 456 N.W.2d 788 (1990).

The time period from the September 26 hearing to the filing of the psychological exam report on September 30 is also tolled under Wis. Stat. § 938.315(1)(a); however, that provision is not necessary to my decision because § 938.315(1)(b) applies and covers a longer period of time.

I realize that Wis. Stat. § 938.315(2) requires a showing of good cause in open court or during a telephone conference in order for a continuance to be granted. The circuit court later spoke to good cause, but even if the court had not done so, the record is sufficient to find good cause for the adjournment as a matter of law. See Vocational, Technical & Adult Educ., Dist. 13 v. DILHR, 76 Wis. 2d 230, 240, 251 N.W.2d 41 (1977) (concluding that when there is only one reasonable inference to be drawn that inference becomes a question of law).

When re-examining what occurred on October 2 on November 26, the court said, "we just said next available date is October 24th and October 24th turned out one — to be one day beyond the expiration of the order. ... So clearly one of the good causes in .315(1), kicks in."