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COURT OF APPEALS DECISION DATED AND FILED September 19, 2001 Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL from an order of the circuit court for Kenosha County: Bruce e. Schroeder, Judge. Affirmed.
¶1 BROWN,
J.[1] This is an appeal from an order terminating
the parental rights of Brian C. to his natural daughter, Nicole M.C. The sole issue is whether the trial court
lost competency to proceed when it failed to hold the fact-finding hearing
within the mandatory 45-day time limit.
We hold that there was good cause for adjourning the fact-finding
hearing past the 45-day limit and affirm.
BACKGROUND
¶2 On September 6,
2000, the State filed a Petition for Termination of the Parental Rights of
Brian to his biological daughter Nicole.
An initial appearance hearing was scheduled for October 6. The biological mother, Shelly C., was
present at this hearing; however, her attorney was not. Brian was present by telephone, as he was
incarcerated at the time. His attorney
was also present. The guardian ad litem
was not present due to vacation. No
pleas were taken at this hearing due to the absence of the parties’
representatives. The attorney for Brian
explained to the court that he had just been appointed to the case and needed
time to prepare. He did not object to
the adjournment. Brian also did not
object. In fact, he had filed a pro se
motion asking the court to extend the initial hearing in order to allow him
time to prepare with his attorney. The
adjournment was granted.
¶3 The initial
appearance hearing was October 19.
Through his attorney, Brian acknowledged receipt of the petition, waived
reading, entered a denial, and requested a jury trial. The court ordered that a pretrial and a jury
trial be scheduled within 45 days of that date, November 27 to be exact.
¶4 A pretrial
hearing was held on November 20. The
State had previously filed a motion for adjournment because its expert witness,
a clinical psychologist, was unavailable for trial on November 27. His evaluations had been ordered as a condition
of return and the State intended to call him as an expert witness. None of the attorneys objected to the
motion. The court then personally
addressed Brian and confirmed that he understood the request for the
adjournment, and that the adjournment would cause time limits established by
law to be extended. Brian stated that
he was willing to extend the time limits.
The next date that everyone was available, due to the holidays, was
January 22, 2001.
¶5 Another
pretrial hearing was held on January 8, 2001.
At this hearing, the attorney for Shelly indicated that he was moving to
withdraw as counsel because he had an ethical conflict. Brian was not present at this hearing. No objections were made to this motion. Because of this development, it was agreed
that another adjournment was necessary.
¶6 A status
conference was held on January 22.
Shelly had hired a new attorney.
The State informed the court that the next available date for all
parties was March 19. The court
expressed a conflict with that date and the State provided an alternate date of
April 16. That date was not acceptable
to the court. The State then requested
a date before the month of April. After
much discussion of the calendars of all parties, the jury trial was scheduled
for February 26, 2001.
¶7 At the February
26 jury trial, Brian pled no contest to the Petition for Termination of
Parental Rights. The court found that
the plea was voluntarily, freely, and intelligently entered and accepted the
plea. Brian was then excused from the
rest of the jury trial.
THE LAW
¶8 Brian now
argues that the trial court lost competency to proceed when it failed to hold
the fact-finding hearing within 45 days of the initial hearing. There was in fact a 143-day period between
the two. The statute provides that
“[i]f the petition is contested the court shall set a date for a fact-finding
hearing to be held within 45 days of the hearing on the petition .…” Wis.
Stat. § 48.422(2).
Wisconsin appellate courts have held that these time limits are
mandatory and that failure to comply results in the loss of the circuit court’s
competency to proceed. State v.
April O., 2000 WI App 70, ¶5, 233 Wis. 2d 663, 607 N.W.2d 927.
¶9 However, Wis. Stat. § 48.315 provides
exceptions to the rule. Of particular
relevance to the case at hand, § 48.315(2) establishes that the 45-day time
limit may be extended “upon a showing of good cause … 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.”
¶10 Whether the trial
court complied with the required time limits presents a legal question of
statutory interpretation. Jason
B. v. State, 176 Wis. 2d 400, 407, 500 N.W.2d 384 (Ct. App. 1993). We review questions of law
independently. Green County Dep’t
of Human Servs. v. H.N., 162 Wis. 2d 635, 645, 469 N.W.2d 845
(1991).
DISCUSSION
¶11 Brian first
contends that there was not good cause for the adjournment of the October 6,
2000 hearing. Brian himself filed a pro
se motion asking for a continuance in order to have time to prepare with his
attorney who had been appointed only a few days earlier. Wisconsin
Stat. § 48.422(5) states:
“Any nonpetitioning party, including a child, shall be granted a
continuance of the hearing for the purpose of consulting with an attorney on
the request for a jury trial or concerning a request for the substitution of a
judge.” The October 6 hearing would
have been the appropriate time to request a jury trial. Sec. 48.422(4). Because the statute requires an adjournment
when a nonpetitioning party asks for one before a request for a jury trial is
made, good cause existed. Case law
supports our interpretation. A
continuance to insure that an objecting parent has counsel and is able to
properly exercise his or her rights to a jury trial is for good cause. See M.W. and I.W. v. Monroe
County Dep’t of Human Servs., 116 Wis. 2d 432, 439-40, 342 N.W.2d 410
(1984).
¶12 Moreover, since
Brian himself asked for the adjournment, he cannot now argue that there was not
good cause for it. This court
recognizes the doctrine of judicial estoppel.
The supreme court has held that “[i]t is contrary to fundamental
principles of justice and orderly procedure to permit a party to assume a
certain position in the course of litigation which may be advantageous, and
then after the court maintains that position, argue on appeal that the action
was error.” State v. Gove,
148 Wis. 2d 936, 944, 437 N.W.2d 218 (1989).
Thus, while time limits in TPR cases are not waivable, the doctrine of
judicial estoppel is a species apart from waiver. Therefore, although there is ample reason why good cause exists
for us to reject Brian’s argument, this alternative ground is just as viable.
¶13 Brian next argues
that while there was good cause for the adjournments of the November 27, 2000
and the January 22, 2001 hearings, the length of the delay was too long. The record contains references to the
conversations among the parties’ representatives in order to find a date that
was available for all of the parties.
The trial court went into detail with Brian at the November 27, 2000
hearing in order to make sure that he understood the length of the delay, and
he gave consent to this delay after hearing that January 22, 2001, was indeed
the next available date for all of the parties.
¶14 At the January
22, 2001 hearing, Brian again did not object to the adjournment. The record shows extensive discussion to
schedule the fact-finding hearing as early as possible. The State insisted on it. The court mentioned dates in March and April
which were not available to all parties, and the court then scheduled the
hearing for the earliest possible date that everyone was available, February
26, 2001. Brian did not ask the court
to more fully explain the reasons why the hearing was not scheduled until
February 26 and cannot now complain that the record is insufficient to support
the court’s conclusion that the hearing should be held on February 26. The record shows the extensive conversations
among all of the parties’ representatives and that February 26 was indeed the
earliest available date.
¶15 Brian argues that
this adjournment was the result of “court congestion” but there was no proof
submitted that the calendar was indeed congested. Brian’s premise is wrong.
The adjournment was made to accommodate the schedules of everyone
involved, not just the court. It is important
that lawyers have a block of time in their calendars to give serious thought in
preparing their cases for trial. Good
cause exists when a court accommodates a lawyer’s schedule for this purpose.
CONCLUSION
¶16 Because good cause was shown for the October 6, 2000 adjournment, and the record shows that the length of delay due to the November 27 and January 22 adjournments was only as long as necessary, the decision of the trial court is affirmed. We reiterate that Brian himself asked for the October 6, 2000 adjournment. We further reiterate that the record shows how all parties were attempting to work with each other’s schedules to obtain dates as early as possible. The order of the trial court is affirmed.
By the Court.—Order affirmed.
This
opinion will not be published. See
Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(e) (1999-2000). All references to the Wisconsin Statutes are to the 1999-2000 version.