Waukesha County v. E.B.V. ( 2022 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 20, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2021AP1910 Cir. Ct. No. 2021JV33
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
IN THE INTEREST OF E.B.V., A PERSON UNDER THE AGE OF 18:
WAUKESHA COUNTY,
PETITIONER-RESPONDENT,
V.
E. B. V.,
RESPONDENT,
J. C. V.,
APPELLANT.
APPEAL from an order of the circuit court for Waukesha County:
MARIA S. LAZAR, Judge. Affirmed.
No. 2021AP1910
¶1 GROGAN, J.1 J.C.V. appeals from an order dismissing a truancy
petition against her son, E.B.V. The circuit court dismissed the petition upon
Waukesha County corporation counsel’s motion because, as stated in the dismissal
order, “dismissal is in the best interest of the child/juvenile and public” and
“Other: Juvenile has entered into a Deferred Prosecution Agreement with HHS.”
J.C.V. wants the dismissal order vacated and the truancy petition dismissed on
other grounds—namely: (1) alleged violations of statutory time limits; (2) the
petition’s alleged insufficiency; and (3) facts in the petition were not proven.
Because the circuit court did not erroneously exercise its discretion in dismissing
the petition, this court affirms.
I. BACKGROUND
¶2 On April 21, 2021, Waukesha County, by its corporation counsel,
filed a petition alleging E.B.V. needed protection or services under WIS. STAT.
§ 938.13(6) (habitual truancy). The petition alleged E.B.V. was truant on three
days in September 2020, ten days in October 2020, eleven days in
November 2020, and ten days in both December 2020 and January 2021. E.B.V.
has been diagnosed with autism, anxiety disorder, and post-traumatic stress
disorder. The state public defender appointed Attorney Priya Barnes on
April 28, 2021, to represent E.B.V. Attorney Molly Jasmer, who serves as
E.B.V.’s guardian ad litem (GAL) in the family’s ongoing post-divorce custody
and placement proceedings, asked the circuit court to appoint her to serve as
E.B.V.’s GAL for this truancy matter. The circuit court appointed
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
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No. 2021AP1910
Attorney Jasmer as requested. J.C.V. objected to Attorney Jasmer’s appointment
and contested the truancy petition. E.B.V. also contested the petition, requested
adversary counsel, and objected to Attorney Jasmer’s appointment and “continued
participation” as GAL. Attorney Barnes, E.B.V.’s adversary counsel, noted that
the statutes require appointment of a GAL in a juvenile matter when the minor is
“less than 12 years of age” or incompetent—neither of which “exist for [E.B.V.].”
Attorney Barnes explained that having both adversary counsel and a GAL may
create conflicts, as it did here when Attorney Jasmer informed the circuit court
E.B.V. would not contest the truancy petition, whereas E.B.V. told
Attorney Barnes he wanted to contest the petition. Attorney Barnes asked the
circuit court to remove the GAL or limit the GAL’s role “to an observer for
purposes of fulfilling GAL duties in the family case.” The circuit court denied the
motion to remove the GAL and clarified that “advocate counsel speaks for
[E.B.V.], expresses his wishes and his desires. The guardian ad litem defers to
that advocate counsel if there is a dispute.”
¶3 In August 2021, J.C.V.’s attorney filed a motion to dismiss the
petition based on a lack of sufficient grounds. The circuit court denied the motion.
It ruled:
In a petition to dismiss the allegations in the petition are
taken, and a motion to dismiss, the allegations are taken as
true. Therefore, based upon all of that and based upon the
arguments today, the Court the [sic] denying the motion to
dismiss the petition based on lack of sufficient grounds.
I’m not saying nor am I ruling or concluding that
[E.B.V.] was in fact truant on those days in the petition, but
that’s the argument to bring in at fact finding. Those are
arguments to bring in before the Court to show that
[E.B.V.] actually was there. [E.B.V.] was trying to log in.
[E.B.V.] has other disabilities that weren’t taken into
account.
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¶4 In September 2021, J.C.V. filed a pro se motion to “dismiss deficient
petition.”2 Waukesha County corporation counsel opposed the motion. A
factfinding hearing was scheduled for October 13, 2021, and November 1, 2021.
¶5 On October 7, 2021, the circuit court held a hearing to address the
motions J.C.V. had filed, J.C.V.’s attorney’s motion to withdraw, and E.B.V.’s
request to substitute attorneys. The circuit court granted J.C.V.’s attorney’s
motion to withdraw. There was also discussion about a proposal to resolve the
truancy petition with a six-month consent decree. Corporation counsel reported
that E.B.V. had been “attending school every day[,]” “is doing fantastic[,]” and is
“participating in extracurricular activities.” He further reported E.B.V. was “doing
well at home. His affect is good. His behavior is good.” Corporation counsel
advised that “[t]his is a case where the public believes it’s appropriate to have a
consent decree entered, but I can’t make [J.C.V.] do that[,]” and “that [a] consent
decree [could] be entered without an admission, without a plea by [E.B.V.]”
“because of how well he’s doing.” Corporation counsel stated: “I know [J.C.V.]
disputes [that E.B.V.] didn’t attend school in 2020-2021[.]”
¶6 J.C.V. told the circuit court she had not seen the proposed consent
decree, E.B.V. was contesting the petition, and she filed motions because the
truancy petition was not “factual” and should be dismissed.
¶7 E.B.V.’s counsel confirmed that E.B.V. had entered a plea
contesting the petition in May 2021, but since that time, she had “numerous
2
J.C.V. also filed motions to reconsider the ordered psychological evaluation of J.C.V.
and E.B.V., the denial of the request to depose E.B.V., and a request to replace E.B.V.’s attorney
with another attorney who has experience working with children who have autism.
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No. 2021AP1910
conversations with [E.B.V.]” and “he really wanted to have this case go away. He
wanted this case to be settled. He wanted to see less strife between parents.”
E.B.V.’s counsel told the court “a settlement would be an appropriate resolution,”
and she believed that is “what [E.B.V.] wants as well.”
¶8 The circuit court then personally addressed E.B.V., who was present
at the October 7 motion hearing, about what he wanted. He told the circuit court
he was essentially disputing the claim that he was habitually truant. In addressing
E.B.V.’s request for new counsel, E.B.V. explained he had retained a new lawyer
but that Attorney Barnes had not yet been contacted by the new lawyer. The
circuit court held off on deciding the remaining motions because “there’s some
question about the facts” and proposed that the parties meet again on October 13
to try resolving the case because it would not be able to hold the factfinding/trial
on that date as J.C.V. needed time to obtain new counsel. The court noted that if
resolution did not occur on October 13, it would hold the factfinding/trial on
November 1. Additionally, the circuit court noted that although this case involved
certain deadlines under the statutes, “everything in this case was extended for
good cause” and reiterated that it:
finds and tolls all deadlines and statutory time limits. I
know the statutes say there are things that have to be done
within a certain amount of time. They also say that due to
good cause, court’s calendar being one, party’s motions
being another, attorney’s calendar being a third,
information not being there, the fact that you asked for a
fact-finding hearing.
That gives me cause under the statutes. I control my
calendar, and I’ve moved this to there. So you can
disagree. I’m just telling you my decision.
¶9 Resolution did not occur at the October 13 hearing, but the circuit
court confirmed that E.B.V.’s new lawyer, Attorney Erika L. Bierma would
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No. 2021AP1910
substitute in as E.B.V.’s counsel. The circuit court set the matter for a status
hearing on October 25 with November 1 still set for the factfinding hearing/trial.
Corporation counsel subsequently moved to dismiss the truancy petition, as it
believed any truancy had resolved and because E.B.V. had agreed to a Deferred
Prosecution Agreement (DPA). The circuit court heard the motion at the October
25 hearing. J.C.V. objected to the dismissal. E.B.V.’s counsel advised the circuit
court that “[E.B.V.] really wants to put this case behind him. You know, he
doesn’t want to continue the court process. He’s obviously doing what he’s
supposed to be doing, and we [w]ould respectfully request that the Court actually
dismiss the petition today.” The circuit court dismissed the truancy petition,
explaining:
So the motion in front of the Court right now is a motion by
the party that filed the case, the prosecutor, asking that I
dismiss a petition. The petition was for truancy. The
motion in front of the Court says that it should be dismissed
because it’s in the best interest of the child or the juvenile
and the public and that there’s a deferred prosecution
agreement.
The Court considers what is in the best interest of a
child or juvenile. It is always in the best interest of a child
or juvenile to resolve matters and not have delinquency
findings on their record. The public in this case is the party
-- well, the public, the Court, the county, has an interest in
children going to school. Since this matter has been in
front of the Court, [E.B.V.] has been doing well.
This year he’s started school this fall. He’s gone past
the midterms. He’s attending school. He’s doing well in
school. There’s no concerns that he’s missing school or
un-excused absences.
….
The Court’s considered the best interest of the public and
determines it’s better to have a child going to school
because they want to, and they have an agreement. The
Court therefore, despite the requests and the objections and
a contest by the mother who does not have custody of this
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No. 2021AP1910
child, who has raised issues saying, one, that the case
should be dismissed on its own anyway.
Two, that the child actually was truant-- the Court
therefore orders that this petition -- that the petition is
dismissed today. The Court is signing that order now. This
case is dismissed. There is no more petition. The matter’s
resolved in this Court.
There will be no hearings, no other matters. It’s signed.
Every party has the ability to appeal.
¶10 J.C.V. filed motions to vacate the dismissal order and objecting to
the DPA. The circuit court denied J.C.V.’s motions. It explained:
There is no basis to vacate that [dismissal] decision
solely to dismiss the petition on other grounds. There is
also no basis to vacate a dismissal, enter another dismissal
and then hold any type of hearing, fact-finding or otherwise
….
Since the petition was filed, [E.B.V.] has been attending
school and doing well there in his classes. He is on a much
better track and trajectory. The short-term option of a six-
month DPA (in a case that has been lingering for months
due to all of the fighting between the parties) is favorable to
[E.B.V.].
There is no rational, logical basis to continue this
petition. There is no basis for the current Motion filed by
[J.C.V.]. The petition has been dismissed and it will
remain so.
J.C.V. appeals.
II. DISCUSSION
¶11 The dispositive issue in this case is whether the circuit court
erroneously exercised its discretion when it dismissed this truancy petition. See
Lawrence v. MacIntyre, 48 Wis. 2d 550, 554-55, 180 N.W.2d 538 (1970).
Although J.C.V. and Waukesha County disagree about whether J.C.V. is even an
aggrieved party who has standing to appeal the dismissal order, it is not necessary
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No. 2021AP1910
for this court to resolve that dispute. The circuit court told J.C.V. she had the right
to appeal the dismissal. Accordingly, this court assumes without deciding the
standing issue and chooses to address the merits.
¶12 “[T]he ability of the juvenile court to hear and decide matters under
the juvenile code is conferred by statute.” State v. Dawn M., 189 Wis. 2d 480,
485, 526 N.W.2d 275 (Ct. App. 1994). WISCONSIN STAT. § 938.25(1) sets forth
who is authorized to file a petition under ch. 938, the Juvenile Justice Code. It
provides:
REQUIREMENTS; WHO MAY FILE. A petition initiating
proceedings under this chapter shall be signed by a person
who has knowledge of the facts alleged or is informed of
them and believes them to be true. The district attorney
shall prepare, sign, and file a petition under [§] 938.12.
The district attorney, corporation counsel, or other
appropriate official specified under [§] 938.09 may file a
petition under [§§] 938.125 or 938.13. The counsel or
guardian ad litem for a parent, relative, guardian, or
juvenile may file a petition under [§§] 938.13 or 938.14.
The district attorney, corporation counsel or other
appropriate person designated by the court may initiate
proceedings under [§] 938.14 in a manner specified by the
court.
Sec. 938.25(1) (emphasis added). Interpretation of a statute presents a question of
law reviewed de novo. State v. Hinkle, 2018 WI App 67, ¶12, 384 Wis. 2d 612,
921 N.W.2d 219, aff’d, 2019 WI 96, 389 Wis. 2d 1, 935 N.W.2d 271. However, a
circuit court’s decision to dismiss an action is reviewed under the erroneous
exercise of discretion standard of review. See Lawrence, 48 Wis. 2d at 554-55.
“A circuit court erroneously exercises its discretion if it applies an improper legal
standard or makes a decision not reasonably supported by the facts of record.”
260 N. 12th St., LLC v. DOT, 2011 WI 103, ¶38, 338 Wis. 2d 34, 808 N.W.2d
372.
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No. 2021AP1910
¶13 Here, the circuit court applied the proper legal standard to the
pertinent facts and reached a reasonable decision. Accordingly, this court
concludes that the circuit court properly exercised its discretion when it dismissed
the truancy petition. WISCONSIN STAT. § 938.25(1) says “corporation counsel …
may file a [truancy] petition[.]” (Emphasis added.) The “may file” language
provides corporation counsel with the discretion of whether it will file a truancy
petition. See, e.g., Heritage Farms, Inc. v. Markel Ins. Co., 2012 WI 26, ¶32,
339 Wis. 2d 125, 810 N.W.2d 465 (“The word ‘may’ is ordinarily used to grant
permission or to indicate possibility. Accordingly, when interpreting a statute, we
generally construe the word ‘may’ as permissive.” (internal citation omitted)).
Here, corporation counsel filed a truancy petition but later decided it was
unnecessary to prosecute the petition because the alleged truancy had resolved and
therefore asked the circuit court to dismiss the petition. Corporation counsel
explained his reason for dismissal, including both that E.B.V. was attending
school and had agreed to a DPA with the Department of Health and Human
Services. E.B.V. signed a DPA where he agreed to comply with certain conditions
for six months, including attending “all classes with no unexcused absences.”
E.B.V. expressed, through his attorney, that he wanted to resolve the truancy
petition and be done with the legal proceedings.
¶14 The circuit court, as set forth above, explained in a reasoned decision
why, under these circumstances, it would be in E.B.V.’s best interest to dismiss
the truancy petition. Specifically, the alleged truancy had resolved, the subject of
the truancy—E.B.V.—agreed to a resolution that terminated the action, and
corporation counsel decided there was no reason to continue to prosecute.
¶15 J.C.V. fails to provide this court with any legal authority that
prohibits a circuit court from dismissing a truancy petition under these
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No. 2021AP1910
circumstances, and she also fails to establish that the circuit court erroneously
exercised its discretion when it granted Waukesha County’s motion to dismiss.
J.C.V.’s objection to the circuit court’s dismissal based on her insistence that the
petition should have been dismissed on different reasons—specifically, the reasons
she raised in her own motion seeking dismissal of the petition—does not somehow
transform the circuit court’s proper exercise of discretion into error.3 Regardless
of the actual reason for the dismissal, E.B.V. is no longer subject to a truancy
petition. He is doing well in school and no longer needs to miss school in order to
attend legal proceedings. E.B.V. was not adjudicated truant as the petition was
dismissed without proceeding to a factfinding hearing/trial. Perhaps if corporation
counsel persisted in taking the petition to trial instead of moving to dismiss it, the
circuit court would have ultimately dismissed the petition when it heard J.C.V.’s
motions. But those are not the facts of this case. The petition was dismissed and
presumably E.B.V. will have completed the six months required under the DPA
shortly after this opinion is released.4 As the circuit court stated: “It is always in
the best interest of a child or juvenile to resolve matters and not have delinquency
3
In its Response, Waukesha County explained that the circuit court extended all
statutory time deadlines for “good cause.” It also explained why State v. Lindsey A.F., 2003 WI
63, 262 Wis. 2d 200, 663 N.W.2d 757, the case J.C.V. relied upon, is inapplicable. J.C.V.’s
failure to file a Reply to refute these points concedes them. See Charolais Breeding Ranches,
Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). In any event,
Lindsey A.F. does not support J.C.V.’s position. Moreover, the Record confirms that all time
deadlines were extended for good cause as authorized by WIS. STAT. § 938.315(2).
4
The DPA’s six-month time period expires on April 25, 2022.
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No. 2021AP1910
findings on their record.” The circuit court’s decision did not constitute an
erroneous exercise of discretion.5
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
5
Post-briefing, J.C.V. filed a motion for sanctions against corporation counsel and the
GAL. In essence, she argues these attorneys prosecuted the truancy petition against E.B.V.
without any legitimate basis for doing so in violation of WIS. STAT. § 802.05(2)(a) and WIS.
STAT. § 809.801(12)(e). Although J.C.V. may be frustrated with the truancy proceedings, the
requisite standards for imposing sanctions have not been satisfied, and the motion is therefore
denied.
11