source: Caselaw Access Project

author: DAVID T. PROSSER, J. N. PATRICK CROOKS, J.

license: Public Domain

text:
    In the Interest of Vairin M., a person Under the Age of 17: State of Wisconsin, Petitioner-Respondent, v. Vairin M., Respondent-Appellant.
    Supreme Court

      No. 01-0656.

      Oral argument April 30, 2002. —
    Decided July 10, 2002.

    2002 WI 96
    (Also reported in 647 N.W.2d 208.)

      For the respondent-appellant there were briefs (in the court of appeals) by Michael Yovovich, assistant state public defender, and Janice Balistreri, deputy first assistant state public defender, and oral argument by Michael Yovovich.

      For the petitioner-respondent there was a brief (in the court of appeals) by Lana J. Mades, assistant district attorney, and oral argument by Joely Urdan, assistant attorney general.
   DAVID T. PROSSER, J.

¶ 1. This case is before the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (1999-2000). It is an appeal of a non-final order of the Circuit Court for Dane County, Diane M. Nicks, Judge. We restate the issue certified by the court of appeals as follows: "May a court with juvenile jurisdiction reconsider its order waiving a juvenile into adult court after the state has filed charges against the juvenile in adult court?" This question requires us to interpret Wis. Stat. § 938.18, the statute governing waiver into criminal court.

¶ 2. In this case, the juvenile court waived a juvenile into adult criminal court. After a criminal complaint had been filed, after the juvenile had made an initial appearance in criminal court, and after the juvenile had waived a preliminary examination, the juvenile filed a motion asking the juvenile court to reconsider its waiver order. The juvenile court determined that Wis. Stat. § 938.18(6) gives the criminal court "exclusive jurisdiction" after a waiver. As a result, the juvenile court did not have jurisdiction over the matter and did not have authority to grant the motion for reconsideration. Therefore, the court denied the motion.

¶ 3. The juvenile appealed, and the court of appeals certified the case to this court. We hold that a juvenile court has jurisdiction to reconsider its waiver order or to stay its waiver order pending appeal only until the filing of a complaint in criminal court. After the filing of a criminal complaint, the juvenile court loses jurisdiction and the criminal court has exclusive jurisdiction.

f 4. In this case, criminal proceedings were commenced before the motion for reconsideration was filed. The criminal court assumed exclusive jurisdiction, and the juvenile court lost jurisdiction to reconsider its waiver order. The juvenile court's subsequent determination that it could not reconsider its waiver order was correct. Accordingly, we affirm the decision of the circuit court (juvenile court).

¶ 5. Because of our answer to the restated question, we are presented with a second question: Is there some means by which a juvenile may seek prompt review of an order waiving him or her into criminal court after the criminal court has assumed exclusive jurisdiction over the case?

¶ 6. We conclude that a juvenile seeking prompt review of a waiver order, after the criminal court has assumed jurisdiction, has two options. First, the juvenile may bring a timely interlocutory appeal under Wis. Stat. § 809.50 and may move the court of appeals or the criminal court to stay the criminal proceedings pending appeal.

¶ 7. Second, if the juvenile has compelling new grounds bearing on waiver, he or she may file a motion with the criminal court asking the court to relinquish its jurisdiction by transferring the matter to juvenile court. As grounds for the motion, the juvenile must allege a new factor that:

(1) was not in existence at the time of the waiver decision or, if it was in existence, was unknowingly overlooked by all parties;
(2) is highly relevant to the criteria for waiver under Wis. Stat. § 938.18(5); and
(3) likely would have affected the juvenile court's determination that it would be contrary to the best interests of the juvenile or of the public for the juvenile court to hear the case.

f 8. After reviewing the motion, the criminal court may, in its discretion, conduct a hearing. If the court finds good cause, it may relinquish jurisdiction by transferring jurisdiction to the juvenile court. The juvenile may then file a motion for reconsideration with the juvenile court, which will have regained exclusive jurisdiction to entertain the motion.

I. BACKGROUND

¶ 9. Vairin M. (Vairin), then 15 years old, was the subject of two juvenile delinquency petitions filed by the state, one on November 17, 2000, and the other on December 7, 2000. The November 17 petition (00-JV-1140) alleged that Vairin had committed four delinquent acts. The December 7 petition (00-JV-1198) alleged that Vairin had committed three additional delinquent acts. The State petitioned for waiver into adult criminal court for both cases. The juvenile court, Judge Nicks presiding, held a waiver hearing on December 18 and 20.

¶ 10. On December 21, the court signed an order waiving Vairin into adult criminal court in both cases. Vairin filed with the juvenile court a motion for stay pending appeal, and the juvenile court scheduled a January 31, 2001 hearing to decide the motion.

¶ 11. The state filed criminal charges against Vai-rin shortly after he was waived into adult court. The young defendant made his initial appearance on December 26, 2000, and waived a preliminary hearing on January 3, 2001. On the same day, Vairin's counsel filed a motion for reconsideration of the waiver, on grounds that, at the waiver hearing: (1) the court had heard "misleading" evidence regarding the possibility of a sixteen-year-old convicted as an adult being placed in Ethan Allen School; (2) the court had improperly limited Vairin's cross-examination of three witnesses; and (3) the court had improperly limited Vairin's questioning of a witness regarding Vairin's relationship with his father.

¶ 12. On January 23, 2001, Vairin's counsel asserted in a letter to the juvenile court that the attempted arson count against Vairin should have been charged as arson. Counsel further asserted that if the charge against Vairin were for arson, Vairin might qualify for the serious juvenile offender (SJO) program, pursuant to Wis. Stat. § 938.538.

¶ 13. On January 31, 2001, the juvenile court held a hearing on the motion to reconsider. At the hearing, defense counsel presented as a witness another attorney with the State Public Defender's office, who testified about the possibility of Vairin being deported if he were convicted in adult criminal court of the crimes with which he had been charged. The witness further opined that if Vairin were not deported, he might be considered "stateless" by the Immigration and Naturalization Service because he was not a citizen of the United States and could not prove he was a citizen of Thailand or Laos. Therefore, according to the witness, Vairin could be held "for indeterminate amounts of time in the immigration detention facilities." According to the witness, a finding that a person is "stateless" could "in essence ... be a life sentence."

¶ 14. Vairin's defense counsel asked the court to amend the juvenile delinquency petition so that it would allege arson rather than attempted arson. Defense counsel asserted that the court had the authority to amend the petition, pursuant to Wis. Stat. § 938.263. She also asserted that Vairin would be willing to plead guilty or no contest to arson and to agree to the serious juvenile offender program, affording the juvenile court five years of jurisdiction. See Wis. Stat. § 938.538.

¶ 15. The State urged the court to deny Vairin's motion for reconsideration. It asserted that Wis. Stat. § 938.263 does not give the court authority to amend a petition without approval of the District Attorney's Office. It further claimed that the possibility of deportation is not a criterion for consideration in a waiver petition and could not be considered by the court.

¶ 16. Before deciding the motion, the juvenile court expressed concerns over its decision to waive Vairin into adult court. It explained that at the waiver hearing, it initially understood the charge against Vai-rin to be for arson, and it believed Vairin would be subject to the SJO law, giving the juvenile court jurisdiction for five years. The court realized near the end of the waiver hearing that Vairin had been charged with attempted arson and would not be subject to the SJO law. At the hearing on the motion for reconsideration, the court stated that arson "wasn't the charge before me [at the waiver hearing] and the court was not, therefore, able to consider serious juvenile offender status and the.. . variety of doors that that would open in weighing whether or not a waiver . .. was in the public's best interests or [Vairin's] interest. It just was not available to me."

¶ 17. The juvenile court also noted that the issue of potential deportation would have been relevant to its waiver decision. It ordered briefing on two issues. The court stated that while it had "an interest in all of the grounds that have been brought before me for reconsideration," it had a "genuine question of whether or not I have jurisdiction to take any action in this matter" because a crime had "been charged and the criminal court has criminal jurisdiction." The court noted that in virtually every other situation, a court could reconsider its decision, but "[I]f I don't have jurisdiction, it makes no difference what else I would find or would do — my hands are tied." It further stated that:

[I]f I do not have jurisdiction at this point, it may be that jurisdiction could be conveyed back to me.... I just want to emphasize the importance of the difference between the statute that was before me, the charge that was before me and a charge that carries the expanded supervision, treatment and incarceration as well, all three for a much more extended period.

¶ 18. The court also ordered briefing on the issue of "the court's discretion to amend the charge itself." It noted that "I've probably indicated here that if... that motion had been made when the court was certain it had jurisdiction and the court were certain it had that authority, I would have amended the petition and I would examine this case with the serious juvenile offender status in mind."

¶ 19. On February 21, 2001, two months after it waived Vairin into adult court, the juvenile court denied Vairin's motion for reconsideration in an oral decision. The court stated, "After again reviewing the briefs and the cases cited by the counsel, I have concluded that I do not have jurisdiction to reopen this matter. I believe that the language in Sec. 938.18(6), most specifically, the statutory provision that the court of criminal jurisdiction thereafter has exclusive jurisdiction, compels me to conclude that after the waiver order was entered I lost subject matter jurisdiction."

¶ 20. Vairin appealed, and court of appeals certified the case to this court.

II. ANALYSIS

A. Wisconsin Stat. § 938.18

¶ 21. The certified question in this case is whether a juvenile court, which has determined that hearing the case would be contrary to the best interests of the public or' the juvenile and which has entered an order waiving the juvenile into criminal court, retains jurisdiction to reconsider its waiver order. At issue is subsection (6) of Wis. Stat. § 938.18, which provides in part that after the court has made its determination, "the court shall enter an order waiving jurisdiction and referring the matter to the district attorney for appropriate proceedings in the court of criminal jurisdiction, and the court of criminal jurisdiction thereafter has exclusive jurisdiction." Wis. Stat. § 938.18(6).

¶ 22. Statutory interpretation presents a question of law that we review de novo, Teague v. Bad River Band of the Lake Superior Tribe of Chippewa Indians, 2000 WI 79, ¶ 17, 236 Wis. 2d 384, 612 N.W.2d 709. Our goal in interpreting a statute is to discern and give effect to the intent of the legislature. County of Jefferson v. Renz, 231 Wis. 2d 293, 301, 603 N.W.2d 541 (1999). In interpreting a statute, we look first at the statute's plain language to determine if it clearly and unambiguously sets forth the legislative intent. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997).

¶ 23. Wisconsin Stat. § 938.18 governs waiver of juveniles into adult criminal court. Subsection (1) of Wis. Stat. § 938.18 provides that a juvenile may be waived if the juvenile is "alleged to have violated any state criminal law" on or after the juvenile's 15th birthday. Wis. Stat. § 938.l8(l)(a)3.

¶ 24. Waiver may be sought by the juvenile, a district attorney or in some circumstances, a juvenile judge. Wis. Stat. § 938.18(l)(a) and (b). To initiate a waiver proceeding, the party seeking waiver must file a petition alleging delinquency and stating the facts in support of waiver. Wis. Stat. § 938.18(2). The court may authorize an agency to prepare a report, and the court may rely on the report in determining waiver. Wis. Stat. § 938.18(2m).

¶ 25. The juvenile is entitled to a waiver hearing to the court. Wis. Stat. § 938.18(3)(c). At the waiver hearing, "[t]he juvenile shall be represented by counsel." Wis. Stat. § 938.18(3)(a). The juvenile is also entitled to notice and access to any report prepared in the case and may present testimony and cross-examine witnesses. Wis. Stat. § 938.18(3)(a) and (b).

¶ 26. If the petition for waiver of jurisdiction is contested, the district attorney presents testimony. Wis. Stat. § 938.l8(4)(b). After hearing the testimony and considering the evidence, the court must determine whether the case has prosecutive merit. Wis. Stat. § 938.18(4)(a). If it does, the court must then determine whether to waive jurisdiction. § 938.18(4)(b) and (c).

¶ 27. Wisconsin Stat. § 938.18(5) provides four criteria upon which the court must base its decision whether to waive jurisdiction. These criteria include the personality and prior record of the juvenile, the type and seriousness of the offense, the adequacy and suitability of facilities, services and procedures available within the juvenile system, and the desirability of consolidating the case with a pending proceeding of another person in criminal court.

¶ 28. The statutory provision at issue in this case, subsection (6) of Wis. Stat. § 938.18, states:

(6) After considering the criteria under sub. (5), the court shall state its finding with respect to the criteria on the record, and, if the court determines on the record that it is established by clear and convincing evidence that it would be contrary to the best interests of the juvenile or of the public to hear the case, the court shall enter an order waiving jurisdiction and referring the matter to the district attorney for appropriate proceedings in the court of criminal jurisdiction, and the court of criminal jurisdiction thereafter has exclusive jurisdiction.

Wis. Stat. § 938.18(6) (emphasis added).

¶ 29. The parties disagree as to the meaning and effect of the italicized language in § 938.18(6). Vairin asserts that § 938.18(6) must be interpreted to allow a juvenile court to reconsider its own waiver order, if it is to be consistent with the legislative intent behind Chapter 938 of the Wisconsin Statutes, the Juvenile Justice Code (JJC). He acknowledges that the statute transfers to the criminal court exclusive jurisdiction over the criminal matter, but he asserts that the statute allows the juvenile court to retain jurisdiction to reconsider its own waiver order for the 14-day period for appeals of non-final orders under Wis. Stat. § 809.50, even if the criminal court has assumed exclusive jurisdiction.

¶ 30. The State argues that the plain language of Wis. Stat. § 938.18(6) means that:

[0]nce a waiver order has been entered, and adult proceedings have begun, the juvenile court no longer has any jurisdiction whatsoever to take any further action on the case. As jurisdiction is necessary for the juvenile court to decide any issue in a case, the State asserts that this statute specifically prohibits reconsideration of a waiver decision as it removes all jurisdiction from the juvenile trial court once proceedings have been initiated in adult court.

It notes that allowing reconsideration after the filing of a complaint in criminal court would impermissibly result in two courts of equal power having concurrent and potentially conflicting jurisdiction.

¶ 31. We agree with the State's interpretation of the statute. By using the words "the court shall enter an order waiving jurisdiction and referring the matter to the district attorney for appropriate proceedings in the court of criminal jurisdiction, and the court of criminal jurisdiction thereafter has exclusive jurisdiction," Wis. Stat. § 938.18(6) clearly and unambiguously calls for a transfer of exclusive jurisdiction to the criminal court.

¶ 32. Vairin's contention that the juvenile court should be able to entertain a motion for reconsideration of its waiver order for 14 days, even after proceedings have been commenced in criminal court, is untenable. It would result in the juvenile court retaining jurisdiction after a second court, with equal jurisdiction, has assumed jurisdiction. This is impermissible. "In a case in which two courts are given concurrent jurisdiction over a particular subject matter, and one of such courts has assumed jurisdiction, it is reversible error for the other to also assume jurisdiction." State ex rel. White v. District Court, 262 Wis. 139, 143, 54 N.W.2d 189 (1952) (citing Kusick v. Kusick, 243 Wis. 135, 138, 9 N.W.2d 607 (1943), and Cawker v. Dreutzer, 197 Wis. 98, 129, 221 N.W. 401 (1928)).

¶ 33. We therefore conclude that after the state has filed a criminal complaint, and the criminal court has assumed jurisdiction, the juvenile court may not reconsider its waiver order so long as the criminal court retains jurisdiction. The juvenile may seek a stay of proceedings in order to file an interlocutory appeal during the 14-day-period for motions pursuant to Wis. Stat. § 809.50. However, after the criminal court has assumed jurisdiction, the juvenile must file the motion with the criminal court or the court of appeals.

¶ 34. The remaining issue with regard to § 938.18(6) is whether the juvenile court may reconsider its waiver order before the commencement of criminal proceedings.

¶ 35. We conclude that the juvenile court retains jurisdiction and may reconsider its own waiver order until a criminal complaint is filed. Wisconsin Stat. § 938.18(6) contemplates the juvenile court waiving jurisdiction and the criminal court assuming jurisdiction. As soon as the criminal court assumes jurisdiction, it assumes exclusive jurisdiction, and the juvenile court loses jurisdiction to reconsider its own waiver order. However, until the criminal complaint is filed, the juvenile court retains jurisdiction, and the problems of concurrent jurisdiction, or of one court dismissing an action that is before another court, are not presented.

¶ 36. The State asserts that reconsideration is unavailable in the context of waiver into adult court because Wis. Stat. § 806.07 — "Relief from judgment or order" — applies only to civil actions, not to criminal or juvenile cases. There is some logic £o the State's argument. After all, Chapter 806 of the Statutes is entitled "Civil Procedure — Judgment." However, in H.N.T. v. State, the court of appeals specifically stated:

If newly discovered evidence existed on the question, the state's remedy was to seek relief from the order and request a new hearing. See sec. 806.07(l)(b), Stats. If the adult court ruling was obtained as a result of H.N.T.'s fraud, misrepresentation, or other misconduct, the state's remedy again was to seek relief from such order on these grounds. See sec. 806.07(l)(e).

H.N.T. v. State, 125 Wis. 2d 242, 252, 371 N.W.2d 395 (Ct. App. 1985) (emphasis added).

¶ 37. In any event, in Fritsche v. Ford Motor Credit Co., 171 Wis. 2d 280, 294-95, 491 N.W.2d 119 (Ct. App. 1992), the court suggested that motions for reconsideration are "part of our common law." See also Wis. Stat. § 805.17(3).

¶ 38. The statutes provide avenues to reconsider issues in both civil and criminal cases. We doubt that the legislature intended to foreclose altogether the reconsideration of issues in the juvenile court. In the absence of a clear statutory prohibition, we conclude that juveniles and the state may offer appropriate motions for reconsideration in juvenile court.

¶ 39. The State also asserts that Wis. Stat. § 806.07 is inapplicable because the statute sets out times for filing that are different from those applicable to criminal cases, and because the statute uses terms such as "equitable" that are not related to criminal matters. The state acknowledges, however, that a waiver hearing under the JJC is not a criminal proceeding. Moreover, § 806.07(2) requires that a motion for relief under the statute be filed within a reasonable time. What constitutes a "reasonable time" is undefined by the statute and may differ depending on context. In the context of a motion for reconsideration of a waiver into adult court, we determine that a reasonable time is the time the criminal court assumes jurisdiction as the result of the filing of a criminal complaint.

B. Other Means of Appeal or Review

¶ 40. Having determined that a juvenile may ask the juvenile court to reconsider a waiver order, but only until the filing of a criminal complaint, we are left with a second question: How may a juvenile obtain prompt review of a waiver into criminal court after the criminal court has assumed exclusive jurisdiction?

¶ 41. The parties agree that even after the criminal court has asserted exclusive jurisdiction, juveniles should have some means of raising new grounds — new factors — that might have affected the juvenile court's waiver decision. They do not agree, however, on what options a juvenile has after criminal proceedings have commenced.

¶ 42. We note initially two means of review that are not applicable after the criminal court assumes exclusive jurisdiction. First, the criminal court may not reconsider the juvenile court's decision to waive the juvenile into criminal court. As Chief Justice Dixon stated in 1868, "The impropriety, I might say the utter absurdity, of applying to one court to restrain, modify or correct the orders or decrees of another court of coordinate jurisdiction, is also apparent. I think it is wholly inadmissible to do so." See H.N.T., 125 Wis. 2d at 252 (citing Platto v. Deuster, 22 Wis. 482, 484-85 (1868)).

¶ 43. Second, a criminal court that has assumed jurisdiction as the result of a waiver from juvenile court may not return the juvenile to juvenile court by reverse waiver, under Wis. Stat. § 938.183(lm)(b).

¶ 44. Keeping in mind the types of review a juvenile may not seek in challenging a waiver order, we turn to what means of review a juvenile may utilize.

¶ 45. First, the parties agree that a juvenile may pursue an interlocutory appeal pursuant to Wis. Stat. § 809.50, within 14 days of the waiver order. The juvenile may seek a stay of the juvenile court's waiver from the juvenile court to permit an interlocutory appeal before the juvenile court jurisdiction has transferred; and the juvenile may seek a stay of his or her case in criminal court to accommodate an appeal of the waiver order after the criminal court has assumed jurisdiction. Wis. Stat. § 808.07(2). Nothing in the statute restricts the juvenile from filing an appeal under § 809.50 before or after the criminal court assumes jurisdiction, so long as the appeal is filed within 14 days after the issuance of the waiver order. Wis. Stat. § 809.50(1). Once the § 809.50 motion is filed, either the court of appeals or the circuit court with exclusive jurisdiction may grant a stay of proceedings pending appeal. Id.

¶ 46. Additionally, the juvenile may bring a direct appeal after conviction in criminal court.

¶ 47. The State asserts that a juvenile waived into adult court has only these two means of appealing the waiver — an interlocutory appeal or a direct appeal after conviction. The State argues that reconsideration of a waiver order is unnecessary because a waiver hearing consistent with Wis. Stat. § 938.18 affords a juvenile all the fundamental fairness to which he or she is entitled, and an interlocutory or a direct appeal affords sufficient appellate review.

¶ 48. Vairin acknowledges that he could have pursued an interlocutory appeal and could later file a direct appeal if he is convicted of a crime, but he asserts that neither type of appeal offers him an adequate remedy. Vairin points out that he is not claiming ineffective assistance of counsel or that the juvenile court erroneously exercised its discretion. Rather he is claiming the existence of new grounds not considered by the juvenile court. He argues that an interlocutory appeal would not accommodate such a claim. In addition, Vairin contends that a direct appeal would not be practical because it occurs only after conviction, and because a waiver order cannot be appealed after a juvenile defendant pleads guilty pursuant to a plea bargain.

¶ 49. We agree with Vairin that in many cases, an interlocutory appeal or a direct appeal is simply not an adequate remedy. We further conclude that in some cases, particularly in small counties, the requirement that a juvenile appeal a waiver decision to the court of appeals is impractical. It is not difficult to imagine a judge in a single-judge county entering a waiver order as a juvenile court, and then, after assuming jurisdiction as a criminal court, learning of new evidence that would have changed his or her waiver decision. In such an instance, the judge might wish he or she could reconsider the waiver order, and transfer jurisdiction back to the juvenile court. Requiring an appeal to the court of appeals to afford a remedy would be absurd. Moreover, if 14 days had passed after waiver before new information came to light, the only remedy would be to wait for a direct appeal after the juvenile was convicted in criminal court. The appeal process embraced by the State would be unworkable in many cases.

¶ 50. We conclude that some meaningful remedy must be available when 14 days have passed since the waiver order, and a criminal complaint has been filed, but the juvenile wishes to raise new grounds not considered at the waiver hearing.

¶ 51. As we stated in D.H. v. State, 76 Wis. 2d 286, 292, 251 N.W.2d 196 (1977), "The transfer of the juvenile to the adult criminal process is a grave step, and there should be a way for the juvenile to obtain immediate review of the decision."

¶ 52. We further stated in D.H. that:

Review in cases where the juvenile court has waived jurisdiction must be speedy and efficient. Legislation could establish the necessary procedures but it does not. "When an adequate remedy or forum does not exist to resolve disputes or provide due process, the courts, under the Wisconsin Constitution, can fashion an adequate remedy."

Id. at 294 (quoting Hortonville Ed. Assn. v. Joint School Dist. No. 1, 66 Wis. 2d 469, 497, 225 N.W.2d 658 (1975)).

¶ 53. Statutory authority already exists to transfer cases from criminal court to juvenile court, via reverse waiver. Wis. Stat. § 938.183(lm). Although the reverse waiver statute does not apply to this situation, it establishes that a reverse waiver concept is not unprecedented. Wisconsin Stat. § 938.18(7) is even more on point. Under this statute, a juvenile who has been waived to adult court after he or she absconded and failed to appear at the waiver hearing, may subsequently contest the waiver in criminal court. The juvenile may contest the waiver:

by showing the court of criminal jurisdiction good cause for his or her failure to appear. If the criminal court finds good cause for the juvenile's failure to appear, it shall transfer jurisdiction to the court assigned to exercise jurisdiction under this chapter and ch. 48 for the purpose of holding the waiver hearing.

Wis. Stat. § 938.18(7) (emphasis added).

¶ 54. We think that if a juvenile has compelling new grounds bearing on waiver, he or she may file a motion with the criminal court asking the court to relinquish its jurisdiction by transferring the matter to juvenile court. As grounds for the motion, the juvenile must allege a new factor that:

(1) was not in existence at the time of the waiver decision or, if it was in existence, was unknowingly overlooked by all parties;
(2) is highly relevant to the criteria for waiver under Wis. Stat. § 938.18(5); and
(3) likely would have affected the juvenile court's determination that it would be contrary to the best interests of the juvenile or of the public for the juvenile court to hear the case.

¶ 55. After reviewing the motion, the criminal court may, in its discretion, conduct a hearing. If the court finds good cause, it may relinquish jurisdiction by transferring jurisdiction to the juvenile court. The juvenile may then file a motion for reconsideration of the waiver order with the juvenile court, which will have regained exclusive jurisdiction to entertain the motion.

¶ 56. The procedure we have outlined should be regarded as extraordinary. It should be strictly limited to compelling new factors. Previously considered or cumulative evidence may not form the basis of such a motion.

III. CONCLUSION

¶ 57. In summary, we conclude that the circuit court (juvenile court) in this case properly determined that it did not have jurisdiction to reconsider its waiver order after a complaint was filed in criminal court. We therefore affirm the circuit court decision. We also conclude that a juvenile court has jurisdiction to reconsider its waiver order until a criminal complaint is filed and the criminal court assumes jurisdiction, but it has no jurisdiction after criminal proceedings have begun. Finally, we conclude that a juvenile has two options for obtaining prompt review of a waiver order after the commencement of criminal proceedings: the juvenile may, within 14 days of the waiver order, seek an interlocutory appeal pursuant to Wis. Stat. § 809.50; or the juvenile may file a motion asking the criminal court to relinquish jurisdiction, in accordance with this opinion.

By the Court. — The order of the circuit court is affirmed.

N. PATRICK CROOKS, J.

¶ 58. (concurring). I agree with the majority's conclusion that the circuit court (the branch having juvenile court jurisdiction, hereinafter the "juvenile court") does not have jurisdiction to reconsider its waiver order after a complaint has been filed in the criminal court. Majority op. at ¶ 33.1 further agree that the juvenile court may reconsider its waiver order before the commencement of criminal proceedings. Majority op. at ¶ 35. I write separately, however, because I cannot join the majority's judicially created remedy for review of the waiver order after the criminal court has assumed exclusive jurisdiction.

¶ 59. I respectfully disagree with the majority's judicially created additional means of seeking review of the juvenile court's waiver decision after the criminal court assumes exclusive jurisdiction. The majority concludes that in many cases interlocutory appeal and direct appeal, though available, are inadequate remedies, and consequently creates a new procedure that asks the criminal court to relinquish jurisdiction. Majority op. at ¶ 49. While I believe that there must be a remedy available, I respectfully disagree with this judicially created remedy, because the current remedies are adequate in this case. Furthermore, if another remedy is desired, it is most appropriately provided by the legislature or by following this court's rule-making procedures to amend the Criminal Procedure Code and/or the Juvenile Justice Code.

¶ 60. The majority concludes that interlocutory appeal and direct appeal are in some cases inadequate remedies for reviewing a juvenile court's waiver order. Majority op. at ¶ 49. Specifically, the majority points to a situation, such as here, where the juvenile claims that there is new evidence not considered at the waiver hearing. Id. I respectfully disagree with the majority's conclusion because the majority completely overlooks the court of appeals' power to reverse a circuit court's order not only for error, but also in the interest of justice.

¶ 61. Wisconsin Stat. § 752.35 explicitly gives the court of appeals authority to examine the record and in the interest of justice, reverse the order appealed from, regardless of whether the proper motion or objection appears in the record. See State v. Murdock, 2000 WI App 170, ¶ 40, 238 Wis. 2d 301, 617 N.W.2d 175 (granting a new trial in the interest of justice on the issue of mental responsibility). Section 752.35 certainly applies on interlocutory or direct appeal of a juvenile court's waiver decision. In the interest of justice, therefore, the court of appeals may, in my opinion, consider the proposed new evidence and decide if there is a substantial probability that the new factor would produce a different result. See Murdock, 2000 WI App 170, ¶ 31 (citing State v. Darcy N.K., 218 Wis. 2d 640, 667, 581 N.W.2d 567 (Ct. App. 1998)); see also Vollmer v. Luety, 156 Wis. 2d 1, 16, 456 N.W.2d 797 (1990) (citing State v. Wyss, 124 Wis. 2d 681, 370 N.W.2d 745 (1985), and discussing the court of appeals' discretionary reversal power). If so, the court of appeals has authority to reverse the juvenile court's waiver decision or remit the case to the juvenile court for entry of the proper order. See § 752.35. Based on the court of appeals' statutory power to reverse the juvenile court's waiver decision in the interest of justice, therefore, I conclude that the majority's judicially created remedy is unnecessary. Interlocutory appeal and direct appeal appear to be adequate remedies for review of the juvenile court's waiver decision.

¶ 62. Assuming that I were to agree with the majority, however, I would still take the position that an opinion by this court is not the proper avenue to create a new procedure for review of a juvenile court's waiver decision. This is a remedy properly provided either by legislative enactment or .by following this court's established rule-making procedures.

¶ 63. The legislature enacted Wis. Stat. ch. 938. If a new remedy in that chapter is desired, therefore, the legislature most appropriately should provide it. The majority opinion acknowledges that the legislature enacted a statutory procedure for reverse waiver, see Wis. Stat. § 938.183, and a statutory procedure for a waiver hearing when a juvenile has absconded, see § 938.18(7). Majority op. at ¶ 53. Significantly and correctly, the majority then notes that neither statute applies here. Still, however, the majority uses those statutes to create a new remedy because "a reverse waiver concept is not unprecedented." Majority op. at ¶ 53. Essentially the majority creates a new procedure out of whole cloth, and attempts to justify it by analogy to other legislatively enacted statutory remedies that do not apply.

¶ 64. I cannot join such reasoning. The majority plainly ignores that the legislature is the proper branch of government to enact statutes. This is evidenced by the fact that the majority opinion seems to me to be more like a statutory enactment rather than a judicial decision. As demonstrated by Wis. Stat. § 938.183 and § 938.18(7), the legislature has provided for remedies other than interlocutory and direct appeal in certain situations. Tellingly, however, the legislature has not provided for a remedy, other than interlocutory and direct appeal, in the situation we are faced with today.

¶ 65. Moreover, if this court feels that it must provide an additional procedural remedy, a judicial opinion is not the appropriate way to do so. See Nelson v. Travelers Ins. Co., 102 Wis. 2d 159, 173, 306 N.W.2d 71 (1981) ("If the court claims the power to amend the statute as a rule of practice and procedure, case law is not the way to do it.") (Coffey, J., dissenting). Pursuant to Wis. Stat. § 751.12 and this court's Internal Operating Procedures, the proper avenue to create or amend rules governing procedure in judicial proceedings, such as the one under review, is through a petition and public hearing. The majority's decision today clearly amends Chapter 938 and the judicial procedure for review of a juvenile court's waiver decision. This kind of significant amendment to juvenile court and criminal court procedure should, if not addressed by the legislature, appropriately be the subject of a rules petition, and not enacted by judicial fiat. Consistent with established procedures, we should hold a public hearing and engage in open discussion about the proposed amendment. Wis. S. Ct. IOP (May 24, 1984). We should engage in informed, open discussion regarding whether there should be a remedy other than interlocutory appeal and direct appeal, and if so, then adopt the new remedy for reviewing the waiver decision, in accord with § 751.12 and our Internal Operating Procedures. At the same time, we should address whether there is a need for a procedural rule, in future cases, for supplementing the record to include the new evidence offered. By creating an avenue of judicial review here that asks the criminal court to relinquish jurisdiction to the juvenile court, the majority seems to be ignoring established rule-making procedures; consequently, I cannot join that portion of the opinion.

¶ 66. In conclusion, I agree with the majority's holding that the juvenile court may reconsider its waiver order before commencement of proceedings in the criminal court. I cannot join the majority's opinion in its entirety, however, because I object to the creation of a new remedy, such as the one here, by judicial fiat. Whether to provide an additional remedy is a policy choice most appropriately left to the legislature, or to this court, but only by following established procedures involving a petition and public hearing. Moreover, I conclude that interlocutory appeal and direct appeal are adequate remedies for review of the juvenile court's waiver decision. Even where the juvenile is claiming significant new evidence, the court of appeals may consider that claim, and decide if there is a substantial probability of a different result. If so, the court of appeals can reverse the juvenile court's waiver order in the interest of justice. For the reasons stated, therefore, I respectfully concur.

¶ 67. I am authorized to state that Justices JONE WILCOX and DIANE S. SYKES have joined this concurrence.

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 statutes unless otherwise indicated.

       Petition 00-JV-1140 alleged that Vairin had violated Wis. Stat. § 943.10(l)(a), burglary; Wis. Stat. § 943.03, arson of property other than a building; Wis. Stat. §§ 939.32 and 943.02(l)(a), attempted arson of buildings; and Wis. Stat. §§ 943.01(2) and 939.05, damage to property as party to the crime.

       Petition 00-JV-1198 alleged that Vairin had twice violated Wis. Stat. § 943.10(l)(a), burglary, and also violated Wis. Stat. § 943.23(2), operating vehicle without owner's consent.

       It is not clear from the record exactly when criminal charges were filed against Vairin, but the parties agree that they were filed shortly after the juvenile court entered the waiver order, and before Vairin filed his motion for reconsideration.

       Vairin's counsel clarified that Vairin was not pursuing an appeal of the court's waiver decision, but would instead seek reconsideration of the order. The motion was heard on January 31, 2001, at the time originally scheduled for the hearing on the motion for a stay pending appeal.

       Vairin allegedly had a green card and alien status.

       Vairin was allegedly born in a refugee camp in Thailand and had no papers indicating Laotian citizenship.

       The juvenile court further noted that it believed the facts of the case supported a charge of arson.

       The juvenile court also heard and denied a motion to dismiss other charges against Vairin, which were based on allegations of crimes committed in Iowa.

       The court issued a written decision denying the motion on March 23, 2001.

       Juveniles who are at least 14 years old may be waived if they are alleged to have committed certain enumerated felonies, or under certain other circumstances. Wis. Stat. § 938.18(1) (a) 1 and 2.

       If the petition for waiver is uncontested, the court must determine if the juvenile "knowingly, intelligently and voluntarily decided not to contest the waiver of jurisdiction." Wis. Stat. § 938.18(4) (c).

       Wisconsin Stat. § 938.18(5) reads in part:
      (a) The personality and prior record of the juvenile, including whether the juvenile is mentally ill or developmentally disabled, whether the court has previously waived its jurisdiction over the juvenile, whether the juvenile has been previously convicted following a waiver of the court's jurisdiction or has been previously found delinquent, whether such conviction or delinquency involved the infliction of serious bodily injury, the juvenile's motives and attitudes, the juvenile's physical and mental maturity, the juvenile's pattern of living, prior offenses, prior treatment history and apparent potential for responding to future treatment.
      (b) The type and seriousness of the offense, including whether it was against persons or property, the extent to which it was committed in a violent, aggressive, premeditated or wilful manner, and its prosecutive merit.
      (c) The adequacy and suitability of facilities, services and procedures available for treatment of the juvenile and protection of the public within the juvenile justice system, and, where applicable, the mental health system and the suitability of the juvenile for placement in the serious juvenile offender program under s. 938.538 or the adult intensive sanctions program under s. 301.048.
      (d) The desirability of trial and disposition of the entire offense in one court if the juvenile was allegedly associated in the offense with persons who will be charged with a crime in the court of criminal jurisdiction.
      Wis. Stat. § 938.18(5)(a)-(d).

       Wisconsin Stat. § 938.01(2) provides in part that:
      (2) It is the intent of the legislature to promote a juvenile justice system capable of dealing with the problem of juvenile delinquency, a system which will protect the community, impose accountability for violations of law and equip juvenile offenders with competencies to live responsibly and productively.

       The parties both refer to a 10-day period for filing an interlocutory appeal under Wis. Stat. § 895.50. This reference was accurate under the 1999-2000 Statutes. However, the time limit has been changed from 10 to 14 days by order of the Supreme Court. S.Ct. Order 00-02, § 2 (April 30, 2001). We will therefore consider the parties' references to a 10-day time limit as if they were to a 14-day time limit.

       Wisconsin Stat. § (Rule) 809.50, Appeal from judgment or order not appealable as of right, provides for appeal of non-final orders when a party shows that:
      [R]eview of the judgment or order immediately rather than on an appeal from the final judgment in the case or proceeding will materially advance the termination of the litigation or clarify further proceedings therein, protect a party from substantial or irreparable injury, or clarify an issue of general importance in the administration of justice.
      Wis. Stat. § (Rule) 809.50(l)(c).

       The State asserted in oral argument that a juvenile court that enters a waiver order relinquishes jurisdiction whether or not criminal proceedings are commenced. For the reasons stated in this opinion, we agree with the position of the State in its brief, not its position in oral argument.

       Wisconsin Stat. § 808.07 provides in part:
      (2) Authority of a court to grant relief pending appeal, (a) During the pendency of an appeal, a trial court or an appellate court may:
      1. Stay execution or enforcement of a judgment or order;
      2. Suspend, modify, restore or grant an injunction; or
      3. Make any order appropriate to preserve the existing state of affairs or the effectiveness of the judgment subsequently to be entered.

       The State contends that even if this court were to accept Vairin's argument that he can seek reconsideration for 14 days after the waiver order, Vairin waived his right to seek reconsideration by not raising the issue of new evidence in his January 3, 2001 motion for reconsideration. The State also asserts that the potential for deportation is not properly considered in the context of a waiver hearing.
      We decline to address either issue. We instead leave decisions on the factors to consider on a motion for reconsideration, and the merits of Vairin's claim, to the discretion of the circuit court.

       Although we agree with the concurrence that in appropriate cases, the court of appeals may grant permission to supplement the record, appellate review is usually time-consuming and an unusual way to evaluate new evidence.

        D.H. v. State, 76 Wis. 2d 286, 251 N.W.2d 196 (1977), has often been referred to as "In Interest of D.H."

       The statutes at issue in D.H. have changed, but the rationale behind the need for meaningful, timely review has not.

       For a discussion of "new factors" in the context of sentence modification, see State v. Hegwood, 113 Wis. 2d 544, 546, 335 N.W.2d 399 (1983) (citing Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975)).

       The majority opinion is inconsistent. At paragraph 6, the majority concludes "that a juvenile seeking prompt review of a waiver order, after the criminal court has assumed jurisdiction, has two options" one of which is interlocutory appeal. Later, however, the majority concludes that it must create an additional remedy because interlocutory appeal is not meaningful.

       Wisconsin Stat. § 752.35 states in full:
      In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.

       1 further disagree with the majority's judicially created remedy because it reminds me of judicial review by a court of co-equal jurisdiction. See State v. Schroeder, 224 Wis. 2d 706, 721, 593 N.W.2d 76 (Ct. App. 1999) (noting that after court reorganization the term 'juvenile court" means the circuit court adjudicating a case under the juvenile code). Prior to the 1977 constitutional amendment restructuring the Wisconsin Court System, the legislature had authority to establish courts of limited jurisdiction inferior to circuit courts. The constitutional amendment created the intermediate court of appeals and eliminated the distinction between county and circuit courts. See Dane County v. C.M.B., 165 Wis. 2d 703, 711, 478 N.W.2d 385 (1992). The majority's new procedure here seems contrary to the current structure of the court system, because it essentially creates review of the juvenile court's decision in the criminal court.
      Furthermore, although the majority discusses the impact of requiring a juvenile to appeal a waiver decision in a single-judge county, see majority op. ¶ 49, the majority ignores the practical effect of its new remedy in that same situation. In a single-judge county, the judge acting as the criminal court judge will, himself or herself, consider new factors. Then, based on review of the new factors, the judge will grant or deny the motion. The practical impact is that the majority's procedure asks the judge, acting in the criminal court, to relinquish jurisdiction to himself or herself, acting in the juvenile court.

       Wisconsin Stat. § 751.12 states in relevant part:
      The state supreme court shall, by rules promulgated by it from time to time, regulate pleading, practice and procedure in judicial proceedings in all courts, for the purpose of simplifying the same and of promoting the speedy determination of litigation upon its merits. The rules shall not abridge, enlarge or modify the substantive rights of any litigant.. .. All statutes relating to pleading, practice and procedure may be modified or suspended by rules promulgated under this section. No rule modifying or suspending such statutes may be adopted until the court has held a public hearing with reference to the rule. . .. This section shall not abridge the right of the legislature to enact, modify or repeal statutes or rules relating to pleading, practice or procedure. The judicial council shall act in an advisory capacity to assist the court in performing its duties under this section.
      (Emphasis added.)

       Supplementing the record is not an issue here because the juvenile court, the Honorable Diane M. Nicks, presiding, addressed the proposed new evidence in this case in the context of the motion to reconsider.


author: DAVID T. PROSSER, J.

text:
    In re the Termination of Parental Rights to Prestin T.B., a Person Under the Age of 18: Sheboygan County Department of Health & Human Services, Petitioner-Appellant-Petitioner, v. Julie A.B., Respondent-Respondent.
    Supreme Court

      No. 01-1692.

      Oral argument April 9, 2002. —
    Decided July 10, 2002.

    2002 WI 95
    (Also reported in 648 N.W.2d 402.)

      For the petitioner-appellant-petitioner there was a brief and oral argument by Mary T. Wagner, assistant district attorney, with whom on the brief was Robert J. Wells, Jr., district attorney.
    For the respondent-respondent there was a brief by Ronald J. Sonderhouse and Kay & Kay Law Firm, Brookfield, and oral argument by Ronald J. Sonder-house.

   DAVID T. PROSSER, J.

¶ 1. This is a review of an unpublished single-judge decision of the court of appeals which affirmed an order of the Circuit Court for Sheboygan County, James J. Bolgert, Judge. The issue presented in this appeal is: What standards must the circuit court apply in determining the appropriate disposition of a petition for termination of parental rights, after the court or a jury has found that statutory grounds for termination exist?

¶ 2. In this case, a jury found that a child placed in foster care because of parental neglect had a continuing need of protection or services. This finding was made at a fact-finding hearing under Wis. Stat. § 48.424 (1999-2000). A "continuing need of protection or services" is one of the 11 grounds for termination of parental rights listed in § 48.415. The circuit court then found the parent unfit, pursuant to § 48.424(4), after concluding that the evidence supported the verdict. However, at the dispositional hearing, the court determined that the conduct of the parent was not sufficiently egregious to warrant termination of parental rights and that termination was not essential to the child's safety or welfare. It therefore dismissed the termination petition without ever considering the best interests of the child.

¶ 3. On appeal, the court of appeals affirmed, concluding that the standards applied by the circuit court were correct, based on language in B.L.J. v. Polk County Department of Social Services, 163 Wis. 2d 90, 103, 470 N.W.2d 914 (1991), and State v. Kelly S., 2001 WI App 193, 247 Wis. 2d 144, 634 N.W.2d 120, a case decided by the court of appeals earlier in the year. Sheboygan County DHHS v. Julie A.B., No. 01-1692, unpublished slip op. at ¶¶ 1, 11-13 (Wis. Ct. App. Sept. 5, 2001).

¶ 4. We conclude that the standards applied by the circuit court and court of appeals were not correct because a portion of our B.L.J. opinion was not correct. The statutes governing petitions for termination of parental rights require the court, in the exercise of its discretion, to consider the best interests of the child as the prevailing factor in a disposition under Wis. Stat. § 48.427. After a jury or the court has found one of the grounds for termination listed in the statute and the court has found the parent unfit, the focus shifts to the child's best interests. At the dispositional hearing, the court must consider any agency report submitted and the six factors enumerated in § 48.426(3) in determining the best interests of the child. The court may also consider other factors, including factors favorable to the parent; but all factors relied upon must be calibrated to the prevailing standard: the best interests of the child. The best interests of the child is the polestar for the court in a dispositional hearing, and a failure to apply that standard is an error of law.

¶ 5. Because the circuit court understandably applied incorrect legal standards, it erroneously exercised its discretion. Accordingly, we reverse the decision of the court of appeals and remand the case to the circuit court. Because the disposition standards set forth in B.L.J. and Kelly S. are inconsistent with this opinion, we modify B.L.J. and overrule Kelly S.

FACTS

¶ 6. This case involves a petition for termination of the parental rights of Julie A.B. (Julie) and James T. (James) to Prestin T.B. (Prestin), who was born April 11,1998. The Sheboygan County Department of Health and Human Services (Department) initiated a petition for termination of parental rights (petition) bn December 4, 2000, alleging that Julie and James were unfit parents and positing two grounds for termination: "abandonment" and "continuing need of protection or services."

¶ 7. The Department had received previous referrals about Julie's parenting of Prestin. On November 12, 1998, when Prestin was seven months old, the Department received a referral alleging neglect. It was not substantiated. On October 12, 1999, when Prestin was 18 months old, the Department received a second referral. It alleged that Julie was homeless, drank alcohol on a daily basis, moved from house to house to find shelter, and would often leave Prestin with people who were "drunk, high, or on cocaine." The Department investigated but was unable to locate Julie or Prestin.

¶ 8. On January 20, 2000, the Department received a third referral, also alleging that Julie was neglecting Prestin. The third referral alleged that Julie continued to have problems with alcohol and that her lodgings were "filthy."

¶ 9. A Department social worker contacted Julie the next day at the apartment where she and Prestin were staying. The social worker found that the apartment contained no milk, virtually no edible food, no crib or child bedding, and little clothing suitable for a child. She noted old, inedible food in the refrigerator and on the stove, and that the apartment had dirty dishes, beer cans, and cigarette butts throughout, along with "dirty clothes, tools, dirt, and miscellaneous clutter which presented a safety hazard for a [21]-month-old child." The social worker observed Prestin pick up a nail and try to place it in his mouth, and also try to eat food items found on the floor. The social worker deemed the apartment "unsuitable to meet the needs of Prestin."

¶ 10. The Department's court report stated that Julie admitted to having a problem with alcohol and to drinking alcohol on "almost a daily basis." She denied having a drug problem but admitted using cocaine once in the previous six months. Julie allegedly stated that she and Prestin had lived in the apartment "off and on for several months" and that two males who were severe alcoholics and drank on a daily basis also resided there. Prestin was taken into custody that day and placed in foster care.

¶ 11. After a child in need of protection or services (CHIPS) petition was filed, Julie failed to appear at the hearing. On April 14, 2000, Sheboygan County Circuit Judge John B. Murphy determined that Prestin was in need of protective services pursuant to Wis. Stat. § 48.13(10), thereby finding that he was a child whose parent neglects, refuses or is unable for reasons other than poverty to provide necessary care, food, clothing, medical or dental care or shelter so as to seriously endanger the physical health of the child. Judge Murphy ordered Prestin placed in a foster home under supervision of the Department for one year. The dispo-sitional order also placed a number of conditions upon Julie. She was ordered to undergo an alcohol and other drug assessment (AODA), submit to a psychological evaluation and follow through with treatment, participate in a regularly scheduled visitation program, make reasonable efforts to obtain employment, and establish and maintain a residence suitable to Prestin's needs. Additionally, Julie and James were directed to meet with and cooperate with Prestin's social worker.

¶ 12. Julie did not meet most of these conditions, and James satisfied none. Hence, on December 4, 2000, the Department initiated termination of parental rights proceedings against them on grounds of abandonment and continuing need of protection or services. Prestin's social worker attached to the petition a statement explaining that the Department had attempted to help Julie and James comply with the April 14, 2000 dispo-sitional order, but that James had not met with or cooperated with Prestin's social worker and Julie had not followed through with her AODA outpatient program, had not submitted to a psychological evaluation, had missed numerous appointments with the social worker and visits with Prestin, and had been unable to maintain employment or a suitable residence. The social worker attributed some of Julie's failure to comply with the order to her being in jail, absconding from jail, and being "on the run from jail."

¶ 13. On March 6, 2001, Judge Bolgert conducted a fact-finding jury trial to determine whether a statutory ground existed for terminating the parental rights of Julie and James. The ground ultimately alleged by the Department was that Prestin had a "continuing need of protection or services." See Wis. Stat. § 48.415(2). To determine that Prestin had a continuing need of protection or services, the jury had to find that the state had proven each of four elements by clear and convincing evidence. The questions for the jury were:

(1) Has [Prestin] been adjudged to be in need of protection or services and placed outside the home for a cumulative total of six months or longer pursuant to one or more court orders containing the termination of parental rights notice required by law?
(2) Did the Sheboygan County Department of Health and Human Services make a reasonable effort to provide the services ordered by the court?
(3) Has [Julie] failed to meet the conditions established for the safe return of [Prestin] to [Julie's] home?
(4) Is there a substantial likelihood that [Julie] will not meet those conditions within the twelve-month period following the conclusion of this hearing?

¶ 14. The court answered the first question for the jury, stating that Prestin had been placed outside the home for six months or more. In fact, he had lived with the same foster family for 14 months. The jury unanimously answered the remaining three questions "yes," thereby finding that Prestin remained a child in need of protection or services. The court determined that there was an evidentiary basis for the jury's finding, and found on "that basis that the mother is unfit." The court then set a dispositional hearing for April 6, 2001.

¶ 15. At the hearing, the court heard testimony from Julie and from the social worker who had filed the earlier reports. The social worker testified that Prestin was adoptable and that the foster parents with whom he had lived since January 21, 2000, when he was first taken into custody, were interested in adopting him. The social worker recommended that the court terminate Julie's parental rights. The guardian ad litem assigned to Prestin's case agreed with the social worker's recommendation.

¶ 16. At the close of the dispositional hearing, the court dismissed the petition. The court stated:

I do not think that the findings warrant termination. Under Section 48.427(2) it provides, "The court may dismiss the petition if it finds ... the evidence does not warrant the termination of parental rights."
Here's the legal issue: Is the evidence of unfitness so egregious as to warrant termination of parental rights? That's from .. . the B.L.J. case, 163 Wis. 2d 90 at 103. A finding of unfitness that warrants termination is not merely a find[ing] that termination is better for the child, "but essential to their safety or welfare, in some very serious and important respect.". . . After this finding regarding unfitness warranting termination, then look to the best interests of the child ... (emphasis added).

¶ 17. After the court discussed Julie's alcoholism and treatment needs and the relationship of Julie's jail stays to her failure to visit Prestin, it concluded that termination was not warranted:

Therefore, this court finds the termination of contact between Julie [A.B] and Prestin is not essential to the child's safety or welfare. The evidence of unfitness does not warrant termination.... I think it's obvious to all of us the child is still in need of protection and services now. I fully anticipate that the CHIPS order will be renewed....

¶ 18. The Department appealed, asserting that the court had applied the wrong legal standards in dismissing the petition. The court of appeals affirmed in a single-judge decision by Judge Snyder, determining that the circuit court had properly applied the standards established in B.L.J. and Kelly S. Julie A.B., No. 01-1692, unpublished slip op., ¶¶ 1, 11-13. The court stated the standards as follows:

After a jury has found evidence supporting termination of parental rights, the trial court must then determine whether such evidence is sufficiently egregious to support a termination of parental rights... .
In arriving at the appropriate disposition, the court must first contemplate whether the parental unfitness is so great that it undermines the ability to parent. The trial court must then consider whether that inability to parent is seriously detrimental to the child.

Id. at ¶¶ 9-10 (citation omitted).

¶ 19. The Department appealed again, and we granted its petition for review to determine whether the standards for termination set forth in B.L.J. and Kelly S., and relied upon in this case, are correct.

ANALYSIS

¶ 20. This case concerns the standards to be applied by the circuit court in exercising its discretion at a dispositional hearing under Wis. Stat. § 48.427, after the court or a jury has found that grounds exist for termination of parental rights.

¶ 21. Termination of parental rights is governed by Subchapter VIII of Chapter 48 of the Wisconsin Statutes, the Children's Code. The "best interests of the child" represents a consistent legislative objective throughout the Children's Code. Wisconsin Stat. § 48.01(1) provides in part: "In construing this chapter, the best interests of the child.. . shall always be of paramount consideration." Wis. Stat. § 48.01(1); see State v. Margaret H., 2000 WI 42, ¶ 33, 234 Wis. 2d 606, 610 N.W.2d 475.

¶ 22. Notwithstanding this broad language, the "best interests of the child" standard does not dominate every step of every proceeding, because other vital interests must be accommodated. When the government seeks to terminate parental rights, the best interests of the child standard does not "prevail" until the affected parent has been found unfit pursuant to Wis. Stat. § 48.424(4). "[A] parent's desire for and right to 'the companionship, care, custody, and management of his or her children' is an important interest that 'undeniably warrants deference and, absent a powerful countervailing interest, protection.'" Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). This fundamental liberty interest of parents "does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer, 455 U.S. 745, 753 (1982). "Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life." Id. Thus, when the state moves to terminate parental rights, "it must provide the parents with fundamentally fair procedures." Id. at 754.

¶ 23. " 'Termination of parental rights' means that, pursuant to a court order, all rights, powers, privileges, immunities, duties and obligations existing between parent and child are permanently severed." Wis. Stat. § 48.40(2). The profound consequences of termination have necessitated the development of detailed statutory requirements. They are set out in Subchapter VIII of Chapter 48. This subchapter provides the procedures to follow and the standards to apply. In its brief, the Department explains that "a parent is afforded numerous rights intended to safeguard his or her interests." These rights include:

a right to a written petition with a statement of the grounds for involuntary termination of parental rights [Wis. Stat. § 48.42(1)]; a right to be personally served with the summons and petition [Wis. Stat. § 48.42(2) and (4)]; a right to have a hearing on the petition within 30 days [Wis. Stat. § 48.422(1)]; a right to a jury trial of twelve jurors and to have the allegations proven by clear and convincing evidence [Wis. Stat. §§ 48.31(1) and 48.422(4)]; a right to subpoena witnesses [Wis. Stat. §§ 48.31(2) and 805.07(1)]; and a right to an attorney [Wis. Stat. § 48.23(2)].

¶ 24. After the petition has been filed and the preliminaries have been completed, a contested termination proceeding involves a two-step procedure. Eve lyn C.R. v. Tykila S., 2001 WI 110, ¶ 22-23, 246 Wis. 2d 1, 629 N.W.2d 768. The first step is the fact-finding hearing "to determine whether grounds exist for the termination of parental rights." Wis. Stat. § 48.424(1). "During this step, the parent's rights are paramount." Id. at ¶ 22 (citing Minguey v. Brookens, 100 Wis. 2d 681, 689, 303 N.W.2d 581 (1981)). During this step, the burden is on the government, and the parent enjoys a full complement of procedural rights.

¶ 25. Wisconsin Stat. § 48.415 sets out 11 different grounds for termination. These grounds include abandonment, child abuse, homicide or solicitation to commit homicide of parent, and continuing need of protection or services.

1 26. At the close of the fact-finding hearing, the jury or the court determines "whether any grounds for the termination of parental rights have been proven." Wis. Stat. § 48.424(3). If the jury or court determines that the facts alleged in the petition have not been proven, the court dismisses the petition. Conversely, "[i]f grounds for the termination of parental rights are found by the court or jury, the court shall find the parent unfit." Wis. Stat. § 48.424(4) (emphasis added).

¶ 27. We recognized in B.L.J. that, notwithstanding a jury verdict, the court may dismiss a petition if it finds that the evidence "does not sustain any one of the jury's individual findings." B.L.J., 163 Wis. 2d at 103. This statement is consistent with the sufficiency-of-evidence principles in Wis. Stat. § 805.14.

¶ 28. When the fact-finding step has been completed and the court has made a finding of unfitness, the proceeding moves to the second step, the dispositional hearing. Wis. Stat. § 48.427. The outcome of this hearing is not predetermined, but the focus shifts to the interests of the child. At the dispositional hearing, the court may enter an order terminating the parental rights of one or both parents, Wis. Stat. § 48.427(3), or it may dismiss the petition if it finds the evidence does not warrant the termination of parental rights. Wis. Stat. § 48.427(2). Either way, "[t]he best interests of the child shall be the prevailing factor considered by the court in determining the disposition" under section 48.427. Wis. Stat. § 48.426(1) and (2) (emphasis added). "The court shall decide what disposition is in the best interest of the child." Wis. Stat. § 48.424(3).

¶ 29. The circuit judge is not an automaton. The decision whether to terminate a parent's rights to a child can be one of the most wrenching and agonizing in the law. "Any party may present evidence relevant to the issue of disposition, including expert testimony, and may make alternative dispositional recommendations to the court." Wis. Stat. § 48.427(1). The court should welcome this evidence. It may consider factors favorable to the parent, including prognosis for the parent's markedly changed behavior. But the court shall consider any report submitted by an agency under § 48.425, and it shall consider the six factors set out in § 48.426(3):

(3) FACTORS. In considering the best interests of the child under this section the court shall consider but not be limited to the following:
(a) The likelihood of the child's adoption after termination.
(b) The age and health of the child, both at the time of the disposition and, if applicable, at the time the child was removed from the home.
(c) Whether the child has substantial relationships with the parent or other family members, and whether it would be harmful to the child to sever these relationships.
(d) The wishes of the child.
(e) The duration of the separation of the parent from the child.
(f) Whether the child will be able to enter into a more stable and permanent family relationship as a result of the termination, taking into account the conditions of the child's current placement, the likelihood of future placements and the results of prior placements.

Wis. Stat. § 48.426 (emphasis added).

¶ 30. The court should explain the basis for its disposition, on the record, by alluding specifically to the factors in Wis. Stat. § 48.426(3) and any other factors that it relies upon in reaching its decision. In every case the factors considered must be calibrated to the prevailing standard. The "best interests of the child is the polestar of all determinations under ch. 48." David S. v. Laura S., 179 Wis. 2d 114, 149, 507 N.W.2d 94 (1993). "The court shall decide what disposition is in the best interest of the child." Wis. Stat. § 48.424(3) (emphasis added).

¶ 31. We think the statutory requirements are clear and unambiguous. Nonetheless, in this case, the circuit court dismissed the petition without ever considering the best interests of the child.

¶ 32. Julie asserts that the circuit court was correct, that it faithfully followed the standards established in B.L.J. Several passages in B.L.J. clearly imply that the circuit court is to consider standards other than the best interests of the child at the dispositional hearing. The court of appeals heavily relied on these passages when it decided Kelly S. As a result, we Eire bound to reexamine the B.L.J. decision.

¶ 33. B.L.J. was decided in 1991. It desdt with a parental termination that occurred five months after a significant change in the termination statute. Prior to May 3, 1988, Wis. Stat. § 48.424(4) read in part: "If grounds for the termination of parental rights are found the court shall proceed immediately to hear evidence and motions related to the dispositions enumerated in s. 48.427." Wis. Stat. § 48.424(4) (1985-86). In 1988, the legislature enacted 1987 Wis. Act 383, amending subsection (4) to read in part: "If grounds for the termination of parental rights are found by the court or jury, the court shall find the parent unfit. A finding of unfitness shall not preclude a dismissal of a petition under s. 48.427(2)." Wis. Stat. § 48.424(4) (emphasis added).

¶ 34. In B.L.J. the mother whose parental rights were terminated challenged the constitutionality of revised subsection (4). In upholding the statute, the B.L.J. court rejected the mother's argument that the circuit court had to make its own independent finding of unfitness. It observed that, "The legislature has determined that where those facts are established [that is, where the jury finds grounds for termination], it shows that a parent is unfit." B.L.J., 163 Wis. 2d at 110.

¶ 35. The court took pains, however, to emphasize that significant discretion remained with the circuit court. It pointed to the new sentence in subsection (4) of Wis. Stat. § 48.424: "A finding of unfitness shall not preclude a dismissal of a petition under sec. 48.427(2)," and it quoted § 48.427(2): "The court may dismiss the petition if it finds that the evidence does not warrant the termination of parental rights." Id. at 103. The court then reasoned:

This means that even though the jury finds the "facts" that would constitute "grounds" for termination, the court may still dismiss the petition if the court finds either that the evidence does not sustain any one of the jury's individual findings or that even though the findings may be supported by the evidence, the evidence of unfitness is not so egregious as to warrant termination of parental rights. This conclusion follows from the wording of sec. 48.427 (2), Stats., that the evidence "does not warrant the termination of parental rights." Thus, it seems clear that in spite of what the evidence may show, whether such evidence warrants termination, is a matter within the discretion of the court. This is so because the word "warrant" implies an overview of the evidence, the findings, and also the implication of what is in the best interest of the child.

Id. at 103-04 (emphasis added).

¶ 36. The court's arresting phrase — "the evidence of unfitness is not so egregious as to warrant termination of parental rights" — is unfortunate because it implies degrees of "unfitness" that have legal significance. In addition, it has been interpreted as requiring an intermediate step between fact-finding by the jury and disposition by the court, in which the court must decide whether the parent's already established unfitness is "egregious" enough to warrant considering termination as a disposition. This interpretation cannot be squared with the statutory language.

¶ 37. Once a basis for termination has been found by the jury and confirmed with a finding of unfitness by the court, the court must move to the second-step, the dispositional hearing, in which the prevailing factor— the polestar — is the best interests of the child.

¶ 38. The termination statute does not require the termination of parental rights, but it does require the court to consider the best interests of the child. Hence, at a dispositional hearing, the court must explore the child's best interests and then determine whether maintaining the parent's rights serves the child's best interests. A court should not dismiss a petition for termination at a dispositional hearing unless it can reconcile dismissal with the best interests of the child. The best interests of the child standard "is to be defined in relation to the child." Sallie T. v. Milwaukee County DHHS, 219 Wis. 2d 296, 311, 581 N.W.2d 182 (1998).

¶ 39. B.L.J. contains additional problematic language. The court quoted language from Lemmin v. Lorfeld, 107 Wis. 264, 266, 83 N.W. 359 (1900), a turn-of-the-last-century termination case, to the effect that termination "is not merely better for the children, but essential to their safety or to their welfare, in some very serious and important respect." B.L.J., 163 Wis. 2d at 113. The B.L.J. court said it agreed with this "standard," to be applied in the exercise of discretion in terminating parental rights. Id. The court summed up as follows:

Even if the jury finds all of the grounds for termination of parental rights, and the judge thereby enters the statutory finding of unfitness, the evidence must still support the jury findings. If not, the judge may dismiss the petition for lack of clear and convincing evidence. If the evidence supports the jury's findings, the judge, pursuant to Lemmin, makes a determination of whether termination of contact between the parent and the child is essential to the child's safety or welfare, in a very serious and important respect. If it does not then the judge may determine, pursuant to the statute, that termination is not warranted and may dismiss the petition. The discretion that the statute vests in the court to dismiss the petition for termination if it finds termination is not warranted under the standards assures full, substantive due process.

Id. at 115 (emphasis added).

¶ 40. Given this language, it is not surprising that the court of appeals wrote in Kelly S. that:

We conclude that B.L.J. sets forth a two-part sequential test in determining whether the parent's unfitness was to such an egregious degree that it warranted termination. First, the trial court must answer whether the ability to function as a parent has been undermined. Second, if so, then the trial court must determine whether further contact between child and parent will be detrimental to the child.

Kelly S., 2001 WI App 193, ¶ 10.

¶ 41. The additional standards and procedures set. out in B.L.J. and Kelly S. are simply at war with the standards and procedures set out in Chapter 48 of the Wisconsin Statutes. This court's fidelity to outdated precedent in the face of a new statute and its exuberant effort to defend the new statutory scheme from constitutional attack, have together created doctrinal error that cannot stand. We withdraw from B.L.J. any language, standards, or implied procedures not consistent with this opinion, and we overrule Kelly S.

¶ 42. No inference should be drawn from this opinion that, at a dispositional hearing, dismissal is the exception and termination is the rule. The best interests of the child will always drive the court's inquiry. The facts of record should influence the result. Ultimately, however, the wise and compassionate discretion of the court will determine whether termination will "promote the best interests of the child." Mrs. R. v. Mr. and Mrs. B., 102 Wis. 2d 118, 131, 306 N.W.2d 46 (1981) (quoting Ira re Johnson, 9 Wis. 2d 65, 75, 100 N.W.2d 383 (1960); Termination of Parental Rights of Kegal, 85 Wis. 2d 574, 271 N.W.2d 114 (1978)).

¶ 43. We now turn to this case. A circuit court properly exercises its discretion when it employs a rational thought process based on an examination of the facts and an application of the correct standard of law. David S., 179 Wis. 2d at 150. For understandable reasons, the circuit court in this case did not apply a correct standard of law at the dispositional hearing, and we must conclude that it erroneously exercised its discretion. We therefore reverse the decision of the court of appeals and remand this case to the circuit court for a new dispositional hearing consistent with this opinion. The court should take into account the circumstances at the time of the new hearing, not those in existence at the time it dismissed the petition. Margaret H., 2000 WI 42, ¶ 39 n.6.

CONCLUSION

¶ 44. We conclude that the circuit court in this case applied incorrect legal standards in dismissing the petition for termination of parental rights, and therefore erroneously exercised its discretion. We further conclude that the court of appeals applied the same incorrect standards in affirming the circuit court decision. We therefore reverse the decision of the court of appeals, and remand the case to the circuit court so that it may conduct a new dispositional hearing focused on the best interests of the child, and enter a dispositional order consistent with that standard. We also modify the legal standards set forth in B.L.J. and overrule Kelly S.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded.

        Sheboygan County DHHS v. Julie A.B., No. 01-1692, unpublished slip op. (Wis. Ct. App. Sept. 5, 2001).

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 statutes unless otherwise indicated.

       James T. had moved out of state and effectively abandoned Prestin. He was never engaged as a parent.

       Julie waived a placement hearing, in writing.

       Julie acknowledged at trial that she had been convicted of "Operating under influence of intoxicant or other drug," fourth offense, and was to report to jail on March 20, 2000, to serve a 180-day sentence. Julie failed to do so, and was subsequently picked up by police on April 21. She had work release privileges, but on May 27, she failed to report back to jail. When she was picked up by police on June 13, she "was intoxicated" and "had a fight with the police."
      Julie pled no contest to four felonies that she committed between March 20, 2000, and September 16, 2000. She was convicted of "Failure to report to jail," contrary to Wis. Stat. § 946.425(lm)(b); "Battery to a Law Enforcement Officer," contrary to Wis. Stat. § 940.20(2); and two counts of "Escape," contrary to Wis. Stat. § 946.42(3)(a).

       The court granted the petition to terminate the parental rights of James, who did not voluntarily relinquish his parental rights but who did not actively contest the petition or appear at the fact-finding or dispositional hearings.

       The circuit court's reference was to B.L.J. v. Polk County Dep't of Soc. Servs., 163 Wis. 2d 90, 470 N.W.2d 914 (1991).

       " 'Unfitness' is an absolute requirement before parental rights may be terminated.... Parental rights may only be terminated if the parent is unfit." 163 Wis. 2d at 110.

       The grounds for involuntary termination of parental rights set forth in Wis. Stat. § 48.415 are: (1) abandonment; (2) continuing need of protection or services; (3) continuing parental disability; (4) continuing denial of periods of physical placement or visitation; (5) child abuse; (6) failure to assume parental responsibility; (7) incestuous parenthood; (8) homicide or solicitation to commit homicide of parent; (9) parenthood as a result of sexual assault; (9m) commission of a serious felony against one of the person's children; and (10) prior involuntary termination of parental rights to another child.
      Wis. Stat. § 48.415(1)-(10).

       The court explained this proposition as follows:
      [Wjhere a jury finds all of the grounds for termination and the court enters its mandatory finding of unfitness pursuant to sec. 48.424 Stats., if the court determines the evidence for any one of the .. . findings does not support the jury finding, that would be reason to dismiss the petition because a "finding" of unfitness cannot be sustained if one of the ... required findings is not, in the court's opinion, supported by "clear and convincing evidence."

        B.L.J., 163 Wis. 2d at 105.

       The court in Lemmin v. Lorfeld, 107 Wis. 264, 266, 83 N.W 359 (1900), actually quoted from an earlier decision, Markwell v. Pereles, 95 Wis. 406, 69 N.W. 798 (1897), which in turn was quoting from an English case.