author: ¶ 1. JON E WILCOX, J. ¶ 36. N. PATRICK CROOKS, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. David C. Polashek, Defendant-Respondent-Petitioner.
    Supreme Court

      No. 00-1570-CR.

      Oral argument April 10, 2002.

    Decided June 26, 2002.

    2002 WI 74
    (Also reported in 646 N.W.2d 330.)

      For the defendant-respondent-petitioner there was a brief by Nila Jean Robinson and Robinson, Peterson, Berk & Cross, S.C., Appleton, and oral argument by Nila Jean Robinson.

    For the plaintiff-appellant the cause was argued by Sandra L. Nowack, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
    An amicus curiae brief was filed by Thomas R. Schrimpf, Charles David Schmidt and Hinshaw & Culbertson, Milwaukee, on behalf of the Wisconsin Association of School District Administrators.

      An amicus curiae brief was filed by Teresa M. Elguézábal and Rebecca L. Ferber on behalf of the Wisconsin Education Association Council.

       Motion for reconsideration denied 9/26/02.

   ¶ 1. JON E WILCOX, J.

In this case we review a published decision of the court of appeals, State v. Polashek, 2001 WI App 130, 246 Wis. 2d 627, 630 N.W.2d 545. In that case, the court of appeals interpreted several requirements for a prosecution under Wis. Stat. § 48.981(7) (1999-2000), the statute that provides a criminal penalty for the unauthorized disclosure of confidential information relating to reports of suspected child abuse or neglect. The court of appeals held that when the State charges a defendant with a violation of § 48.981(7), the State is not required to prove that the recipient of the confidential information had no prior knowledge of the information, and the State is not required to prove the defendant's mental state because § 48.981(7) creates a strict liability offense. We disagree with the court of appeals on the first issue, but agree with the court of appeals on the second issue.

¶ 2. David C. Polashek was charged with a violation of § 48.981(7). Before trial, Polashek offered a jury instruction, which stated that to prove that the defendant "disclosed" the confidential information, the State must show that the recipient did not know the confidential information at the time the information was conveyed. The proposed jury instructions further provided that the State would be required to prove that the disclosure was intentional. The Oconto County Circuit Court, Larry L. Jeske, Judge, accepted Polashek's proposed instructions.

¶ 3. The State was granted leave for an interlocutory appeal, and the court of appeals reversed the circuit court's decision. We accepted Polashek's petition for review, and we now affirm the holding of the court of appeals in part, and reverse in part. First, we hold that the term "disclose" in § 48.981(7) requires that the recipient not have knowledge of the information communicated. However, we agree with the court of appeals that the statute creates a strict liability offense. We thus remand the case to the trial court for further proceedings consistent with this opinion.

I

¶ 4. In March 1999, Reporter A noticed a mark on a student's forehead, and suspected it was the result of child abuse. Reporter A removed the student from the classroom and informed Reporter B, who was a required reporter of suspected child abuse under Wis. Stat. § 48.981(2). Reporter B then notified the Oconto County Department of Human Services about the suspected abuse. A social worker arrived, spoke with the student, and apparently determined that abuse was unlikely.

¶ 5. The student's parents, upset with the handling of the incident, met with the student's teacher and then with the school principal. Finally, the parents met with Polashek, who is the superintendent of the Oconto Falls Area School District. After the parents met with Polashek, Polashek met with Reporter A and Reporter B to discuss the incident. Following that meeting, Polashek wrote a letter to the student's parents, explaining the situation; copies of the letter were mailed to Reporter A and Reporter B. In the text of the letter, Polashek allegedly used the names of Reporter A and Reporter B.

¶ 6. A criminal complaint was filed against Polas-hek, alleging that, by including the names of the reporters in the letter, Polashek violated Wis. Stat. § 48.981(7)(e) and (f). Polashek pleaded not guilty to the charge and requested a jury trial.

¶ 7. Because there are no model jury instructions for a charge of violating § 48.981(7), Polashek and the State each submitted proposed jury instructions on the elements of the crime. After a series of amendments, the court accepted Polashek's proposed instructions. Those instructions, with respect to the third element of the crime, read:

The third element requires that David Polashek communicated the identity of the reporter [to the parents] so as to disclose that identity. Before you may find that Mr. Polashek disclosed the identity of a reporter, you must find that he exposed to view, or revealed, information of identity which was previously secret or unknown [to the parents]. It is not sufficient that the information was merely repeated; you should not find David Polashek guilty unless you find that he laid bare information which was previously unknown or secret [to the parents].

The State objected to the instruction on this element, arguing that it should not be required to prove that the identity of the reporter was unknown to the recipient before Polashek's disclosure. The State sought permission to appeal the order, and the court of appeals granted the request.

¶ 8. In a published decision, State v. Polashek, 2001 WI App 130, the court of appeals reversed the circuit court's order. The court of appeals concluded that the term "disclose" was ambiguous, but looked to the legislative history and the purpose of the statute to determine that the recipient's prior knowledge did not alter the fact that a disclosure was made. The court of appeals thus held that the term "disclose" does not require that the State prove that the confidential information was unknown to the recipient of the information, and further held that the defendant's proposed jury instruction was inappropriate.

¶ 9. Although the State did not object to the proposed instruction in the trial court, it also challenged the fourth element of Polashek's proposed jury instructions on appeal. That instruction would have required that the State prove that the defendant intentionally disclosed the confidential information. The court of appeals chose to address this question pursuant to Apex Electronics Corp. v. Gee, 217 Wis. 2d 378, 577 N.W.2d 23 (1998), and held that § 48.981 is a strict liability statute.

¶ 10. Polashek petitioned this court for review on both issues, and we accepted. On review, we disagree with the court of appeals' interpretation of "disclose." Rather, we hold that information cannot be "disclosed" to a recipient who already knows the information communicated. However, we agree with the court of appeals that § 48.981(7) creates a strict liability offense. We therefore affirm the holding of the court of appeals in part, reverse the holding in part, and remand the case to the circuit court for further proceedings consistent with this opinion.

hH HH

¶ 11. We begin by briefly addressing the question of timeliness. Polashek claims that the State's appeal in this case was untimely because it was not made within the prescribed statutoiy time limits and that the State therefore waived its right to appeal the non-final order. We disagree.

¶ 12. After the initial submission of the proposed jury instructions, and several amendments to the instructions, the circuit court sent a letter to each of the parties. The letter, which was filed on March 9, 2000, stated that the court was "not satisfied with either [jury] instruction," but felt that Polashek's proposed instruction was "closer to the mark." The letter went on to state that if either party wished to provide further jury instructions, the court would consider them, but that the court was convinced that "the information transmitted must have been previously unknown to the recipient." The letter was signed by Judge Jeské.

¶ 13. On June 2, 2000, the State filed a motion with the circuit court, asking for an immediate ruling on which substantive jury instruction the court intended to use. The court issued an order on June 6, 2000, stating that it intended to use the instructions attached to the order. These attachments included Polashek's proposed instructions — the ones currently under dispute. The order was dated nunc pro tunc, March 9, 2000. The State appealed this order.

¶ 14. Polashek contends that the original letter constituted the order from which the State should have appealed. Citing Fredrick v. City of Janesville, 92 Wis. 2d 685, 285 N.W.2d 655 (1979), and Orth v. Ameritrade, Inc., 187 Wis. 2d 162, 522 N.W.2d 30 (Ct. App. 1994), Polashek argues that the letter did not contemplate further action by the court, and therefore constituted an order for the purposes of Wis. Stat. § 808.03(2).

¶ 15. We disagree with Polashek for two reasons. First, the letter was simply not an order from a circuit court. As Polashek himself notes, in Fredrick we held that the test of "finality" is "not what later happened in the case but rather, whether the trial court contemplated the document to be a final judgment or order at the time it was entered." Fredrick, 92 Wis. 2d at 688. Here, the plain text of the circuit court's letter anticipated that there could be further amendments to the jury instructions, undercutting the conclusion that the letter constituted a final order. And even though the June 6th order was labeled "nunc pro tunc," that authority could not create a retroactive order where none previously existed. We agree with the decision in State v. Jeffrie C.B., 218 Wis. 2d 145, 150, 579 N.W.2d 69 (Ct. App. 1998), where the court of appeals stated, " 'A court cannot modify or amend its judgment to make it conform to what the court ought to have or intended to adjudge.' Even a court's nunc pro tunc authority is limited to rectifying what might be termed 'mechanical errors' in our judicial system." (quoting Strawser v. Strawser, 126 Wis. 2d 485, 490, 377 N.W.2d 196 (Ct. App. 1985)).

¶ 16. Second, the court of appeals may, on its own motion, "enlarge ... the time prescribed by these rules or court order for doing any act, or waive or permit an act to be done after the expiration of the prescribed time." Wis. Stat. § 809.82(2). In this case, the question of timeliness was fully briefed in Polashek's response to the State's motion to seek an interlocutory appeal, and a three-judge panel of the court of appeals, which decided the petition for leave to appeal, granted the appeal nonetheless. This was sufficient to show that the court of appeals exercised its discretionary power to waive the non-jurisdictional timeliness issue. Thus, we hold that the appeal should not be barred for untimeliness.

HH 1 — 1 1 — I

¶ 17. We next examine the juiy instruction on the third element of the crime — the "disclosure." The definition of "disclose" is a question of statutory interpretation, which we review de novo. State ex rel. Hensley v. Endicott, 2001 WI 105 , ¶ 6, 245 Wis. 2d 607, 629 N.W.2d 686.

¶ 18. The ultimate goal of statutory interpretation is to determine and to give effect to the intent of the legislature. Anderson v. City of Milwaukee, 208 Wis. 2d 18, 25, 559 N.W.2d 563 (1997). To determine the intent of the legislature, we first look to the text of the statute. Clark v. Am. Family Mut. Ins. Co., 218 Wis. 2d 169, 173, 577 N.W.2d 790 (1998). If the meaning of the statute is plain, we do not look beyond the statutory language to determine legislative intent. State v. Sweat, 208 Wis. 2d 409, 415, 561 N.W.2d 695 (1997).

¶ 19. In this case, the term "disclose" is not defined in the statute, and the term has not been interpreted in any decision of a Wisconsin court prior to this case. If a word is not defined in the statute, our next recourse has normally been to use a recognized dictionary to determine the common and ordinary meaning of the word. State v. Perez, 2001 WI 79, ¶ 23, 244 Wis. 2d 582, 628 N.W.2d 820.

¶ 20. Both parties acknowledge Black's Law Dictionary as an appropriate source. Black's defines "disclosure" as "The act or process of making known something that was previously unknown; a revelation of facts." Black's Law Dictionary All (7th ed. 1999) (emphasis added). A plain reading of this definition suggests that in order for a dissemination of information to be a "disclosure," the recipient must not have previous knowledge of the information disseminated.

¶ 21. Other dictionaries provide a similar definition. Webster's Third New International Dictionary defines "disclose" as "to expose to view: lay open or uncover (something hidden from view) ... to make known: open up to general knowledge ... to reveal in words (something that is secret or generally not known): divulge." Webster's Third New International Dictionary (Unabridged) 645 (1986) (emphasis added), and the Oxford English Dictionary defines "disclose" as "To uncover (anything covered up from view); to remove a cover from and expose to view (anything material) ... To open up to the knowledge of others; to make openly known, reveal, declare (secrets, purposes, beliefs, etc.)...." 4 Oxford English Dictionary 737 (2d ed. 1989) (examples omitted) (emphasis added). Like Black's, these definitions also suggest that a disclosure requires that the recipient not have known the information prior to the disclosure. This leads us to the conclusion that a lack of knowledge on the part of the recipient is inherent in a disclosure.

¶ 22. As Polashek points out, several federal courts have interpreted "disclose" in a similar manner when interpreting the Federal Privacy Act, 5 U.S.C. § 552a (2000). See Pellerin v. Veterans Admin., 790 F.2d 1553, 1556 (11th Cir. 1986) (holding that a "dissemination of information to a person or persons who were previously aware of the information is not a disclosure under the Privacy Act"); Sullivan v. United States Postal Serv., 944 F. Supp. 191, 196 (W.D.N.Y. 1996) (holding that "common sense requires that [disclosure] be taken to denote the imparting of information which in itself has meaning and which was previously unknown to the person to whom it was imparted"); Brooks v. Veterans Admin., 773 F. Supp. 1483, 1485 n.1 (D. Kan. 1991) (stating that when the recipient had knowledge of certain protected information, any discussion of that matter with the recipient would not qualify as a disclosure under the Privacy Act). Although the court of appeals identifies Pilon v. United States Dep't of Justice, 73 F.3d 1111 (D.C. Cir. 1996), for the principle that any unauthorized dissemination is presumptively a "disclosure" under the Privacy Act, we note (as did the court of appeals) that even in Pilon, the U.S. Court of Appeals for the D.C. Circuit made an exception to that rule when the recipient had already received the information legally from the dis-closer. See Pilon, 73 F.3d at 1124 (holding that an agency's unauthorized release of a protected record constitutes a "disclosure," except under circumstances where the agency has previously, and lawfully disseminated the information to the recipient, who is fully able to reconstruct its contents).

¶ 23. We conclude, then, that to "disclose" information under § 48.981(7), the recipient must have been previously unaware of the information at the time of the communication. Because the disclosure of the confidential information is an element of the crime, the State has the burden to prove beyond a reasonable doubt that the disclosure took place. In re Winship, 397 U.S. 358, 363 (1970). We thus reverse the court of appeals on this issue.

IV

¶ 24. Finally, we address the issue of whether § 48.981(7)(f) is a strict liability statute. In the jury instructions accepted by the circuit court, the State would have been required to show that the defendant intended to disclose the confidential information in order to convict him. The State challenged this instruction for the first time on appeal.

¶ 25. Polashek first argues that the appeal was waived because it was not raised in the circuit court. We disagree. The court of appeals correctly noted that, although the general rule is that issues not raised in the circuit court are deemed waived, the rule is not absolute and does not relate to the appellate court's jurisdiction. See Apex Elec., 217 Wis. 2d at 384. Because the issue involved a question of law that had been fully briefed by both parties, and was of sufficient public interest to merit a decision, the court of appeals exercised its discretion to address the issue. Id.; Polashek, 2001 WI App 130, ¶ 28. We agree with the court of appeals' reasoning, and conclude that the court of appeals properly addressed the issue.

¶ 26. We find it appropriate to address the issue as well and we find, as did the court of appeals, that the legislature intended to create a strict liability offense in § 48.981(7)(f). We also agree substantially with the reasoning of the court of appeals on this issue.

¶ 27. An offense is a strict liability offense if it punishes a defendant's behavior without regard to the mental state of the defendant. State v. Dundon, 226 Wis. 2d 654, 664, 594 N.W.2d 780 (1999). To convict a defendant of a strict liability offense, the State is not required to prove that the defendant acted with a culpable state of mind while committing the offense. State v. Stoehr, 134 Wis. 2d 66, 75, 396 N.W.2d 177 (1986). Whether a statute imposes strict liability or not is ultimately an issue of statutory construction, which turns on legislative intent. Id. at 75. We review such a question de novo.

¶ 28. Both parties here agree that the plain language of § 48.981(7)(f), does not specify a mental state. Often, when the statute makes no reference to intent, we have held that the statute creates a strict liability offense. See, e.g., State v. Black, 2001 WI 31, ¶ 19, 242 Wis. 2d 126, 624 N.W.2d 363 (citing Dundon, 226 Wis. 2d at 664; State v. Coleman, 206 Wis. 2d 199, 207, 556 N.W.2d 701 (1996)). However, the mere fact that there is no mention of a mental state in the statute does not inevitably lead to that conclusion.

¶ 29. We have occasionally found a requisite mental state for an offense when the statute is silent regarding the mens rea requirement. Stoehr, 134 Wis. 2d at 77. When we have done so, we have looked at a number of factors to determine the legislative intent of the statute. These include the statute's plain language, the legislative history of the statute, the seriousness of the potential penalty imposed, the statute's purpose, and the practical requirements of effective law enforcement. Id. at 76 (citing State v. Stanfield, 105 Wis. 2d 533, 560-61, 314 N.W.2d 339 (1982); State v. Collova, 79 Wis. 2d 473, 478-80, 482, 485,- 255 N.W.2d 581 (1977)). Taken together here, we, like the court of appeals, conclude that § 48.981(7)(f) creates a strict liability offense.

¶ 30. We first note that the plain language of § 48.981(7)(f) contains no explicit or implicit requirement of a mental state. The statute states that "Any person who violates this subsection, or who permits or encourages the unauthorized dissemination or use of information contained in reports and records made under this section, may be fined not more than $1,000 or imprisoned not more than 6 months or both." However, in another section of the same statute, the legislature has chosen to include an element of intent. Section 48.981(6), the section immediately preceding the one at issue here, states "Whoever intentionally violates this section ... ." (emphasis added). The inclusion of a mental state in one section of the statute tends to indicate to us a deliberate choice on the part of the legislature to exclude a mental state from subsection (7)(f).

¶ 31. The statute's purpose also supports this conclusion. In the past, we have noted that "[w]hen the legislature's goal is primarily to regulate, to accomplish a social good, or to obtain a high standard of care, proof of a criminal state of mind is often eliminated to achieve the desired result." Stoehr, 134 Wis. 2d at 79 (citing Collova, 79 Wis. 2d at 485). Here, the legislature, by establishing a confidentiality requirement, was clearly attempting to impose a high standard of care on those with access to records and reports of child abuse and neglect. In such a case, it is not unfathomable that the legislature would eliminate a mental state to enforce such a standard.

¶ 32. Consideration of the seriousness of the penalty is only somewhat helpful to our analysis. We consider the penalty for an offense because a particularly strict penalty would tend to indicate the legislative expectation of a more culpable mental state. Id. at 81. Here, the maximum penalty is a fine of no more than $1000 and a maximum of six months' imprisonment. Although the potential for imprisonment indicates a crime of some seriousness, we cannot find that is sufficiently serious to necessitate a mental state, since we have found some statutes that carry significantly longer sentences to be legitimate strict liability statutes. See, e.g., Coleman, 206 Wis. 2d at 207 (felon in possession of a firearm, § 941.29(2), a Class D felony); State v. Oimen, 184 Wis. 2d 423, 445, 516 N.W.2d 399 (1994) (felony murder, § 940.03, punishable by 20 years in excess of the maximum penalty for the underlying felony).

¶ 33. Finally, we consider the practical needs for the effective enforcement of the statute. To prove that a defendant intended an action, the State is required to prove that the defendant "has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result." Wis. Stat. § 939.23(3). In addition, the State must show that the actor had "knowledge of, those facts which are necessary to make his or her conduct criminal." Id. As the court of appeals concluded, in a case under § 48.981(7), this would require the police and prosecutors to examine the defendant's personal knowledge of the statutes, the defendant's knowledge of the actual information, and the defendant's knowledge of whether the information was confidential at the time he disclosed it. Given the regulatory purpose of the statute, and the high level of responsibility imposed upon the keepers of such information, the requirement of a mental state would hamper effective enforcement of the statute.

¶ 34. Taking into account all of these factors, we conclude that the legislature intended to create a strict liability offense in § 48.981(7). Thus, we affirm the court of appeals' decision that the appropriate jury instruction should not contain a requirement that the State prove intent.

V

¶ 35. In sum, we hold, for the purposes of § 48.981(7), that "disclose" is defined to require that the information communicated must have been previously unknown by the recipient. With regard to the required mental state, we also hold that § 48.981(7) (f), creates a strict liability offense. We thus affirm the holding of the court of appeals in part, and reverse in part, and we remand the case to the circuit court for further proceedings in accordance with this opinion.

By the Court. — The decision of the court of appeals is affirmed in part, and reversed in part.

¶ 36. N. PATRICK CROOKS, J.

(dissenting). I cannot join Part III of the majority's opinion because I disagree with the majority's interpretation of the term "disclose." According to the majority, "to 'disclose' information under [Wis. Stat.] § 48.981(7), the recipient must have been previously unaware of the information at the time of the communication." Majority op. at ¶ 23. I respectfully dissent because I conclude that the term "disclose" in § 48.981(7) is ambiguous, and that, consistent with the goals and purposes of the statute, the definition of "disclose" does not require lack of knowledge on the part of the recipient.

¶ 37. Based on various dictionary definitions, the majority concludes that the term disclose is unambiguous and requires that the recipient must not have known the information prior to the communication. Majority op. at ¶ 21. The majority finds further support for that interpretation in several federal court decisions. Id. at ¶ 22.1 agree that the court should turn to recognized dictionaries to determine the common and ordinary meaning of "disclose." State v. Perez, 2001 WI 79, ¶ 23, 244 Wis. 2d 582, 628 N.W.2d 820. I disagree, however, that based on the dictionary definitions of "disclose" and the federal court decisions, the term "disclose" in Wis. Stat. § 48.981(7) is unambiguous.

¶ 38. The majority presents the following dictionary definitions of disclosure: (1) "The act or process of making known something that was previously unknown; a revelation of facts." Black's Law Dictionary 477 (7th ed. 1999); (2) "To expose to view: lay open or uncover (something hidden from view); to make known: open up something to general knowledge ... to reveal in words (something that is secret or generally not known): divulge." Webster's Third New International Dictionary (Unabridged) 645 (1986); and (3) "To uncover (anything covered up from view); to remove a cover from and expose to view (anything material)... To open up to the knowledge of others; to make openly known, reveal, declare (secrets, purposes, beliefs, etc.)... ." 4 Oxford English Dictionary 737 (2d ed. 1989). Majority op. at ¶¶ 20-21. While these definitions may suggest a previous lack of knowledge on the part of the recipient, contrary to the majority, I do not interpret these definitions as unambiguously imposing such a requirement. Several parts of the definitions, including "to make known," "open up something to general knowledge," "generally not known," and "to make openly known," indicate that a disclosure does not necessarily require a previous lack of knowledge by the recipient. After examining the definitions of "disclosure," therefore, I conclude that the term is ambiguous on its face.

¶ 39. In addition to the dictionary definitions, the majority relies on some federal court decisions interpreting the term "disclose." Majority op. at ¶ 22. Some federal courts have interpreted the term "disclose" under the Federal Privacy Act, 5 U.S.C. § 552a (2000), such that there is no violation of the Act where the agency makes available information already known by the recipient. See Pellerin v. Veterans Admin., 790 F.2d 1553 (11th Cir. 1986); Sullivan v. United States Postal Serv., 944 F. Supp. 191 (W.D.N.Y. 1996); Brooks v. Veterans Admin. 773 F. Supp. 1483 (D. Kan. 1991). In Pilon v. United States Dep't of Justice, 73 F.3d 1111, 1124 (D.C. Cir. 1996), however, the court concluded that any unauthorized release of confidential information constitutes a disclosure under the Privacy Act, except under narrow circumstances where the information disclosed was previously and lawfully disseminated by the agency to the recipient, who is fully able to reconstruct its contents. I disagree with the majority's interpretation of these cases as further support for the conclusion that "disclose" unambiguously requires a lack of prior knowledge by the recipient, in regard to the information communicated. The noted exception in Pilón is narrow and it does not encompass the context we are faced with here, regarding professionals who are entrusted with confidential information about suspected child abuse or neglect. Furthermore, the court in Pilón expressed the ambiguous nature of "disclose" when it presented the example of a government employee who must set forth his or her assets in a "financial disclosure statement" even though the statement discloses information identical to that which the recipient knows from the employee's prior years' statement. Id. at 1119. I agree with the court of appeals, therefore, that the federal cases are helpful only to the extent that they show reasonable minds can differ as to the meaning of "disclose."

¶ 40. Based on the varied dictionary definitions and the federal court decisions, I conclude, as did the court of appeals, that the term "disclose" is ambiguous. See id. When a statute is ambiguous, we then look to the scope, history, context, subject matter and purpose of the statute to determine the legislative intent. Dodgeland Educ. Ass'n v. WERC, 2002 WI 22, ¶ 21, 250 Wis. 2d 357, 639 N.W.2d 733. Here, the purpose of the statute leads me to conclude that a previous lack of knowledge requirement was not intended, and is therefore not required under Wis. Stat. § 48.981(7).

¶ 41. As the court of appeals acknowledged, the purpose of Wis. Stat. § 48.981 is to encourage the reporting of suspected child abuse and neglect, to assure that the appropriate services are provided to the families of abused and neglected children. State v. Polashek, 2001 WI App 130, ¶ 20, 246 Wis. 2d 627, 630 N.W.2d 545 (citing Laws of 1977, ch. 355, § 1). To encourage reporting, the legislature mandated that certain professionals, including physicians, nurses, social workers, teachers, and counselors, report suspected child abuse and neglect. Wis. Stat. § 48.981(2). The legislature also required that all mandatory reporters receive training on identifying and reporting suspected child abuse and neglect. § 48.981(8).

¶ 42. Furthermore, the legislature created several protections for mandatory reporters. Under Wis. Stat. § 48.981, reporters are immune from civil and criminal liability for the good faith reporting — which is presumed in all cases — of suspected abuse or neglect, and reporters cannot be fired from a job for reporting suspected abuse or neglect. §§ 48.981(2), (4), (7)(cr)5. Moreover, § 48.981(7) specifically provides that reports made pursuant to the statute are to be kept confidential, although with explicit exceptions. Especially significant here, § 48.981(7) also protects against the "disclosure" of information that would identify the reporter. This ban on disclosing identifying information about the reporter furthers the statute's purpose of encouraging reporting, because it restricts the ability of parents or guardians of a child to retaliate against the reporter for making the mandatory report.

¶ 43. Based on the legislature's intent, I conclude that the dissemination of confidential information is a "disclosure" under Wis. Stat. § 48.981(7). The actual knowledge of the recipient is wholly unrelated to encouraging reporting of child abuse and neglect. The goal is to protect children, and in order to do so, to protect the identity of persons mandated to report suspected child abuse and neglect. Interpreting "disclose" to require that the recipient be unaware previously of the information does not further this purpose, because it allows for open discussion of confidential information if such information were previously known. Similarly, the Wisconsin Education Association Council (WEAC) notes in its amicus curiae brief that applying the majority's interpretation of "disclose" to § 48.981 produces inconsistent results. Section 48.981(7)(a) enumerates exceptions to the confidentiality requirement; thus, reports and records of suspected child abuse may be disclosed to certain identified persons. Contrary to the plain language of the statute, however, the majority's interpretation of "disclose" essentially adds to that list persons who have prior knowledge of the information communicated, and might be interpreted as allowing extensive discussion of a report with anyone who had some familiarity with the information in such a report.

¶ 44. Furthermore, under the majority's interpretation of "disclose," someone who discloses the identity of the reporter would not be held responsible for violating the statute simply because the recipient was aware previously of the information. To me, this seems illogical and contrary to the legislature's intent. "[T]he recipient's previous knowledge of the information does not alter the fact that a disclosure was made." Polashek, 2001 WI App 130, ¶ 26. Consistent with the legislative purpose of § 48.981, therefore, I would affirm the court of appeals' conclusion that the definition of "disclose" does not require the State to prove a lack of knowledge on the part of the recipient. See id.

¶ 45. Finally, I note that the majority's interpretation of "disclose" seems inconsistent with the majority's conclusion that Wis. Stat. § 48.981(7) is a strict liability statute. The majority relies on several factors in drawing its conclusion on the strict liability issue. Two of those factors, however, seem inconsistent with the majority's prior conclusion that "disclose" requires that the recipient not have prior knowledge of the information.

¶ 46. First, the majority acknowledges the statute's purpose and states:

by establishing a confidentiality requirement, [the legislature] was clearly attempting to impose a high standard of care on those with access to records and reports of child abuse and neglect. In such a case, it is not unfathomable that the legislature would eliminate a mental state to enforce such a standard.

Majority op. at ¶ 31 (emphasis added). Second, the majority notes that the practical needs for effective enforcement of the statute lead to the conclusion that the legislature intended a strict liability offense. The majority recognizes that interpreting the statute to require intent would hamper effective enforcement of the statute, because police and prosecutors would have to "examine the defendant's personal knowledge of the statutes, the defendant's knowledge of the actual information, and the defendant's knowledge of whether the information was confidential at the time he disclosed it." Majority op. at ¶ 33.

¶ 47. These factors seem contrary to the majority's conclusion that "disclose" requires that the recipient not have prior knowledge of the information. Similar to imposing an intent requirement, imposing a prior knowledge requirement on the part of the recipient seems inconsistent with the legislature's intent to impose a "high standard of care on those with access to records and reports of child abuse and neglect." Majority op. at ¶ 31. The majority's interpretation of "disclose" is contrary to a high standard of care because, as I stated earlier, it allows open discussion of confidential information if the recipient has previous knowledge. Furthermore, the majority's interpretation of "disclose" hampers effective enforcement of the statute by requiring the State to prove that the recipient did not have prior knowledge of the information. Under the majority's interpretation of "disclose" the police and prosecutors are required to examine the recipient's personal knowledge of the information. Moreover, although I agree with the majority's conclusion that § 48.981(7) is a strict liability offense, I find several factors, leading to that conclusion, seemingly inconsistent with the majority's prior conclusion that "disclose" requires that the recipient lack knowledge of the information communicated.

¶ 48. For the reasons stated, I respectfully dissent from Part III of the majority's opinion.

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

       Hereafter, any person to whom confidential information is conveyed is referred to as a "recipient."

       We provide only a brief summary of the factual background in this case because many of the facts are still contested, and they are, for the most part, irrelevant to our decision.

       "Reporter," as used here, is a statutorily defined term that refers to a person who reports suspected child abuse or neglect under § 48.981. See Wis. Stat. § 48.981(1)(g).

       Wis. Stat. § 48.981(7) provides, in relevant part:
      (a) All reports made under this section. .. and records maintained by an agency and other persons, officials and institutions shall be confidential. Reports and records may he disclosed only to the following persons:
      3m. A child's parent, guardian or legal custodian . .. except that the person or agency maintaining the record or report may not disclose any information that would identify the reporter.
      (e) A person to whom a report or record is disclosed under this subsection may not further disclose it, except to the persons and for the purposes specified in this section.
      (f) Any person who violates this subsection, or who permits or encourages the unauthorized dissemination or use of information contained in reports and records made under this section, may he fined not more than $1,000 or imprisoned not more than 6 months or both.

       The Privacy Act provides, in relevant part, that "No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains." The statute contains some exceptions to this rule, and does not define the word "disclose." 5 U.S.C. § 552a (2000).


source: Caselaw Access Project

author: ¶ 1. FINE, J.

license: Public Domain

text:
    Kathleen Selaiden, Plaintiff-Appellant, v. Columbia Hospital, Sentry Insurance, The Connecticut Indemnity Company and Labor & Industry Review Commission, Defendants-Respondents.
    Court of Appeals

      No. 01-2046.

      Submitted on briefs February 6, 2002.

    Decided March 5, 2002.

    2002 WI App 99
    (Also reported in 644 N.W.2d 690.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Michael H. Gillick of Murphy, Gillick, Wicht and Prachthauser, Milwaukee.
    On behalf of the defendants-respondents, Columbia Hospital and Sentry Insurance, the cause was submitted on the brief of Daniel L. Zitzer of Otjen, Van Ert, Lieb & Weir, S.C., Milwaukee.
    On behalf of the defendants-respondents, Columbia Hospital and The Connecticut Indemnity Company/Royal and SunAlliance, the cause was submitted on the brief of Roland C. Cafaro of Hailing & Cayo, S.C., Milwaukee.

      Before Fine, Schudson and Curley, JJ.
   ¶ 1. FINE, J.

This is a worker's compensation case. Kathleen Selaiden appeals from an order dismissing her appeal of an adverse ruling by the Labor and Industry Review Commission. We reverse.

I.

¶ 2. Selaiden worked for Columbia Hospital and claims that she was injured by a patient during the course of her work. An Administrative Law Judge determined that Selaiden had a compensable injury. The Commission reversed. Selaiden then sought review by the circuit court.

¶ 3. Wisconsin Stat. § 102.23(1) governs appeals of Commission orders. Wis. Stat. § 102.23(1)(a) (Commission determinations are "subject to review only as provided in this section and not under ch. 227 or s. 801.02."). Under § 102.23(1)(a), "any party aggrieved" by a Commission order may seek circuit court review if he or she files, within thirty days of the Commission's order, a summons and complaint with the clerk of the circuit court. Section 102.23(l)(a) requires that every "adverse party shall also be made a defendant." See also Miller Brewing Co. v. Labor & Indus. Review Comm'n, 173 Wis. 2d 700, 708, 721-722, 495 N.W.2d 660, 662, 668 (1993) (worker's compensation); Brandt v. Labor & Indus. Review Comm'n, 166 Wis. 2d 623, 626, 634-635, 480 N.W.2d 494, 495, 499 (1992) (unemployment compensation).

¶ 4. The Commission's order was entered on August 10, 2000. On August 22, 2000, Selaiden filed her summons and complaint in the circuit court seeking review of that order. Both the summons and the complaint named Sentry Insurance as a defendant. Selaiden timely served Sentry with the summons and complaint. The body of the complaint, however,- did not mention Sentry. By letter dated September 28, 2000, Selaiden sent to the trial court an amended complaint for filing, purportedly pursuant to Wis. Stat. Rule 802.09, which permits a party to "amend the party's pleading once as a matter of course at any time within 6 months after the summons and complaint are filed." This "amended" complaint, stylized merely as "complaint" (uppercasing omitted), was filed on September 29, 2000, fifty days after entry of the Commission's order. It asserted as its only allegation naming Sentry: "That the defendant, Sentry Insurance Company is a corporation organized and existing under and by virtue of the law of the state of Wisconsin with its principal offices at EO. Box 8032 Stevens Point, Wisconsin."

¶ 5. In a written decision and order, the trial court granted Sentry's motion to dismiss. The trial court concluded, and the parties do not dispute, that Sentry, the compensation carrier for Selaiden's employer, is "adverse" to her. The trial court dismissed Selaiden's complaint because the version filed within thirty days of the Commission's order did not mention Sentry in the body of the complaint and, therefore, the trial court did not have competency to decide the merits of Selaiden's appeal.

II.

¶ 6. The issue presented by this appeal is whether Selaiden complied with Wis. Stat. § 102.23(1) by naming Sentry in the caption to a summons and complaint that were timely filed and served, even though Sentry was not mentioned in the complaint's body. This is a matter of law that we review de novo. Miller Brewing Co., 173 Wis. 2d at 711, 495 N.W.2d at 664. We hold that she did.

¶ 7. We start with the observation that mere technical defects in proceedings do not deprive a circuit court of competence to hear a matter because "the entire tenor of modern law is to prevent the avoidance of adjudication on the merits by resort to dependency on non-prejudicial and non-jurisdictional technicalities." Cruz v. Department of Indus., Labor & Human Relations, 81 Wis. 2d 442, 445-446, 449, 260 N.W.2d 692, 693-694 (1978) (caption designating venue as Milwaukee County did not deprive circuit court of competence to hear appeal of denial of worker's compensation benefits, where action was properly commenced in Dane County as was then required by statute). Thus, we look to the reasons underlying a rule to determine whether an alleged miscue is a mere technical defect that does not prejudice either the parties or the system of justice, or is a fundamental defect that deprives the circuit court of competency. Novak v. Phillips, 2001 WI App 156, ¶ 17, 246 Wis. 2d 673, 683, 631 N.W.2d 635, 640 ("Whether the defect is technical or fundamental is resolved by analyzing the purposes of the statute and the type of action involved. If the purpose of the statutory rule is fulfilled, then we consider the defect to be technical and not fundamental.") (internal citation omitted), overruled on other grounds by Schaefer v. Riegelman, 2002 WI 18, 250 Wis. 2d 494, 639 N.W. 2d 715; see Brandt, 166 Wis. 2d at 634, 480 N.W.2d at 499 (failure to join adverse party as a defendant is a "fundamental defect" even though adverse party knew of proceeding because "knowledge that a suit is pending is not the equivalent of service") (quoted source omitted). See also Schaefer, 2002 WI 18 at ¶ 13.

¶ 8. There are three interrelated purposes underlying the requirement in Wis. Stat. § 102.23(1)(a) that a party seeking judicial review of a determination by the Commission name as a defendant every "adverse party." First, "[flailure to name a party in the summons and complaint deprives that party of [formal] notice that an action has been commenced against it." Brandt, 166 Wis. 2d at 634, 480 N.W.2d at 499. Second, not making the adverse party a defendant "precludes that party from being bound by a decision of the court," or, at the very least, would spur litigation as to whether that party was bound. Ibid.; Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723, 727 (1995) (principles of claim preclusion can bind not only parties to an action but also their "privies"). Third, naming as a defendant every adverse party assures that the reviewing court will have the benefit of the argument of all parties who might have an interest in the court's ruling. Brandt, 166 Wis. 2d at 634, 480 N.W.2d at 499 ("[including all necessary parties assures just, complete, and binding adjudication with respect to all persons who have an interest in the particular controversy.").

¶ 9. Here, Sentry was named as a defendant in both the timely summons and the timely complaint. Additionally, Sentry was timely served with the documents. Thus, unlike the situation where an adverse party has only anecdotal knowledge of the appeal from the Commission's determination, see id., 166 Wis. 2d at 634, 480 N.W.2d at 499; Holley v. Department of Indus., Labor & Human Relations, 39 Wis. 2d 260, 268, 158 N.W.2d 910, 913 (1968), Sentry not only had formal notice of the pendency of the appeal from the Commission's determination in its favor, but it also knew the grounds upon which the appeal was based because those grounds were set out in the complaint. Thus, Sentry could appear, defend its position, and would be bound by any result. The only thing "missing" from the original complaint was the allegation about Sentry's corporate status and address. But this allegation added nothing to Sentry's ability to defend its position; conversely, absence of this perfunctory allegation did not impede Sentry from defending its interests in the circuit court review. The failure to mention Sentry in the body of the complaint was, at the most, de minimis.

¶ 10. Sentry argues, however, that its inclusion as a named party defendant in both the summons and in the caption to the complaint did not satisfy Wis. Stat. § 102.23(1)(a) because, in the words of Nigbor v. Department of Industry, Labor and Human Relations, 120 Wis. 2d 375, 381, 355 N.W.2d 532, 536 (1984), a complaint's "caption is not a part of a pleading and ... the nature of an action must be determined from the allegations of a pleading rather than its caption." In Nigbor, a party seeking review of an adverse worker's-compensation decision named the wrong agency-defendant in the complaint's caption (the Department rather than the Commission). Id., 120 Wis. 2d at 378, 355 N.W.2d at 534. Nigbor held the misnomer to be a mere technical error because the body of the complaint "clearly showed that her grievance was against the Commission." Id., 120 Wis. 2d at 381, 355 N.W.2d at 536. Similarly here, the body of Selaiden's timely complaint clearly indicated the nature of her grievance — against all the adverse parties named as defendants, including Sentry. As in Nigbor, the allegations of the timely-filed complaint here described the "nature of the action" commenced by Selaiden, her grievance against the adverse parties including Sentry, as well as the relief she sought. Nigbor and the other authorities Sentry cites for the unremarkable proposition that a claim is framed by allegations in the complaint are inapposite. Accordingly, we reverse the order of the circuit court and remand for its determination of the merits of Selaiden's appeal from the Commission's decision denying her benefits.

By the Court. — Order reversed and cause remanded with directions.

       Selaiden's notice of appeal mistakenly characterizes the trial court's order as a "judgment."

       As material here, Wis. Stat. § 102.23(1) provides:
      (a) The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive. The order or award granting or denying compensation, either interlocutory or fined, whether judgment has been rendered on it or not, is subject to review only as provided in this section and not under ch. 227 or s. 801.02. Within 30 days after the date of an order or award made by the commission either originally or after the filing of a petition for review with the department under s. 102.18 any party aggrieved thereby may by serving a complaint as provided in par. (b) and filing the summons and complaint with the clerk of the circuit court commence, in circuit court, an action against the commission for the review of the order or award, in which action the adverse party shall also be made a defendant. If the circuit court is satisfied that a party in interest has been prejudiced because of an exceptional delay in the receipt of a copy of any finding or order, it may extend the time in which an action may be commenced by an additional 30 days. The proceedings shall be in the circuit court of the county where the plaintiff resides, except that if the plaintiff is a state agency, the proceedings shall be in the circuit court of the county where the defendant resides. The proceedings may be brought in any circuit court if all parties stipulate and that court agrees.
      Ob) In such an action a complaint shall be served with an authenticated copy of the summons. The complaint need not be verified, but shall state the grounds upon which a review is sought. Service upon a commissioner or agent authorized by the commission to accept service constitutes complete service on all parties, but there shall be left with the person so served as many copies of the summons and complaint as there are defendants, and the commission shall mail one copy to each other defendant.

       In light of our conclusion that Selaiden complied with Wis. Stat. § 102.23(1), we do not decide whether a party may, pursuant to Wis. Stat. Rule 802.09, amend after the expiration of thirty days a complaint filed under § 102.23(1). See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663, 665 (1938) (only dispositive issue need be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) ("cases should be decided on the narrowest possible ground").

       The complaint alleged in its substantive part that Se-laiden was "aggrieved" by the Commission's determination because its "decision is based upon an erroneous application of worker's compensation law, and is not supported by the evidence." None of the parties argues that this allegation of Commission error is insufficient to give the circuit court competence to decide the issues raised by Selaiden's appeal. As noted, the only contention is that not mentioning Sentry in the body of the original complaint violated the command in Wis. Stat. § 102.23(1)(a) that Sentry, as an adverse party, "be made a defendant." As discussed in the main body of this opinion, that condition was met.


author: ¶ 1. CANE, C.J.

text:
    In the Interest of Gregory R.S., Katherine L.S., Margaret C.S., James B.S. and Joseph D.S., persons under the age of 17: State of Wisconsin, Petitioner-Respondent, v. Gregory L.S., Respondent-Appellant, Michelle S., Respondent.
    Court of Appeals

      No. 01-2325.

      Submitted on briefs February 5, 2002.

    Decided March 5, 2002.

    2002 WI App 101
    (Also reported in 643 N.W.2d 890.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Leonard W. Schulz of Big Bend.
    On behalf of the petitioner-respondent, the cause was submitted on the brief oí Mary M. Kerrigan-Mares, assistant district attorney of Green Bay.
    Before Cane, C.J., Hoover, PJ, and Peterson, J.

       Petition to review dismissed 7-26-02.

   ¶ 1. CANE, C.J.

Gregory L.S. appeals from circuit court orders adjudging his children to be in need of protection or services (CHIPS) under Wis. Stat. § 48.13(10) (relating to parental neglect) and the accompanying dispositional orders. Gregory also appeals the court's denial of his motion to dismiss the petitions on grounds that the children are no longer in need of protection or services because they are now living with him, rather than with his ex-wife.

¶ 2. Gregory presents two issues on appeal: (1) whether children can be adjudicated in need of protection or services when the divorced parents have joint custody, the mother committed acts proscribed by Wis. Stat. § 48.13(10), and the father can provide the necessary care for his children; and (2) even if a CHIPS adjudication is permissible in this situation, whether the adjudication can be made without providing the non-neglectful parent a jury trial or an evidentiary hearing.

¶ 3. We conclude that as a matter of law, a court is not precluded from finding a child in need of protection or services even when only one parent has neglected the child. Where there is clear and convincing evidence to support a CHIPS petition, a court can properly enter a CHIPS order. Although one parent may be fit, there are times when the facts support a CHIPS order that can protect the best interests of the child.

¶ 4. Further, we conclude that when a court considers the child's need for protection or services that the court can order, as required by Wis. Stat. § 48.31(2), the determination should be made based on the facts in existence on the date the petition was filed. In doing so, we reject Gregory's argument that the court should consider conditions as they exist on the date of the fact-finding hearing, as this would allow the court's jurisdiction over the child to change daily, depending on the circumstances in the home on a particular day. Instead, we conclude that the court should consider changes subsequent to the petition's filing at the dispo-sitional hearing.

¶ 5. In this case, it is undisputed that as of the date the petitions were filed, the children were in need of out-of-home placement and their mother required counseling and mental health and substance abuse assessments. Accordingly, summary judgment adjudicating the children in need of protection or services was appropriate. We affirm the orders.

Statement of Facts

¶ 6. Gregory and Michelle S., parents of the five children in this case, divorced in 1999. The parties were awarded joint legal custody and Michelle received primary physical placement. On March 6, 2001, the Brown County Department of Human Services responded to a request from the Green Bay Police Department to investigate whether the children were being neglected. According to the CHIPS petitions, the social worker observed numerous conditions that endangered the children, such as

food ground into the carpeting throughout the home,... cat litter and fecal matter in and surrounding the sink in the main level bathroom, full litter box, one foot of clothing completely covering the laundry room floor causing a fire hazard... fresh cat vomit on the carpet of the stairs leading to basement, 4 Rubbermaid containers in the basement area containing fecal matter and urine — undetermined if it was human or animal. Also found were two steak knives and one screwdriver on the floor in the play area, moldy food found in the area in the play kitchen center, raw eggs thrown at the wall downstairs in the play room,. . . combustibles surrounding the water heater, upstairs landing area blocked with turned over furniture creating a fire hazard with no clear walkway, non functioning light in one of the children's bedroom [and] two clogged toilets with fecal matter and used tampons on the second level.

¶ 7. The children, ages two through eleven, were immediately removed from the home. Two were placed with their maternal grandparents and three were placed in a foster home.

¶ 8. On March 9, the State filed CHIPS petitions alleging that the children were in need of protection or services because Michelle "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 children. See Wis. Stat. § 48.13(10). In addition to describing the condition of the home on March 6, the petitions indicated that Michelle's father and friends had voiced concerns about Michelle's mental health and substance abuse. The petitions alleged that the children were in need of protection or services that the court could order, such as out-of-home placement and counseling and assistance for Michelle regarding substance abuse, mental health issues and parenting skills.

¶ 9. The initial appearance took place on March 12 before a court commissioner. The appearance was continued to March 19 for the entry of Michelle's plea. However, the commissioner on March 12 heard argument from the State that the children should be returned to Michelle, given that the home had now been cleaned. Gregory objected, asserting that the children should be placed with him. Gregory's counsel explained that on March 6, Gregory was in Florida visiting his father and returned to Wisconsin as soon as he learned that the children had been removed from the home. Gregory argued that although the home had been cleaned, there were alcohol or drug issues that should be addressed. He asked the court commissioner to place the children in his home.

¶ 10. The court commissioner concluded that the children could be returned to Michelle's care, but cautioned that the final placement of the children would be decided at a later date. The following day, Michelle was arrested for operating while intoxicated (OWI). The department placed the children with Gregory.

¶ 11. On March 19, both parents again appeared before the court commissioner for the continued initial appearance. Michelle denied the allegations in the petitions. In light of Michelle's recent arrest for OWI, the department recommended placing the children with Gregory. The commissioner agreed and also ordered that Michelle could have supervised visitation with the children.

¶ 12. On April 11, Gregory notified the court and the parties by letter that he denied the allegations in the petitions. He requested both a jury trial and a substitution of judge. These requests were granted.

¶ 13. On April 17, Gregory moved for summary judgment, asserting that there were no issues of material fact and that he was entitled to dismissal of the petitions as a matter of law. In support, Gregory noted that the children were now living with him and there were no allegations that he was unable to provide for their needs. He argued that the circuit court lacked jurisdiction over the children because there was nothing that the court could order that was not being. provided.

¶ 14. The State responded with a cross-motion for summary judgment, arguing that it need not prove both parents unfit before the children could be in need of protection or services. The State asserted that summary judgment in its favor was appropriate because both Michelle and the guardian ad litem planned to admit the allegations in the petitions. Further, the State contended that Gregory's subsequent care for the children did not call for a dismissal of the CHIPS petitions. The State explained:

[T]he fact finder must consider the facts and circumstances as they existed on the date that the children were removed from the home, which is March 6, 2001.... Even if it were to be agreed that an appropriate home and care for the children is now available with the father, that does not alter the historical facts or address the issues for this adjudication., Where the children should ultimately be placed is an issue for disposition and does not change what has already occurred.

Finally, the State argued that Gregory was not without flaws, referring to several alleged law violations mentioned in the petitions.

¶ 15. Without holding a hearing, the circuit court on May 29 granted summary judgment in the State's favor and scheduled a dispositional hearing. In the order, the court recognized that no one had disputed the allegations in the petitions relating to March 6, 2001. On May 31, Gregory obtained^ family court order transferring primary physical placement to him that would take effect upon dismissal of the CHIPS actions.

¶ 16. At a June 5 status hearing, Michelle appeared before the court to admit the allegations in the petitions. The court accepted her admissions, noting that "this Court has already made a determination that the children are, in fact, in need of protection and services." The guardian ad litem asked the court to enter admissions on behalf of the children. The court agreed.

¶ 17. The dispositional hearing was scheduled for June 25. After this court denied Gregory's motion for leave to appeal a nonfinal order, Gregory filed with the circuit court a motion to dismiss the petitions, arguing that he had not been given a fair opportunity to respond to the State's motion for summary judgment. Gregory indicated that if he had been given the opportunity, he would have objected to the State's failure to comply with the twenty-day notice requirement. See Wis. Stat. § 802.08(2).

¶ 18. Gregory also stated that before his children could be adjudicated in need of protection or services, the State was required to prove: (1) that Michelle neglected, refused or was unable for reasons other than poverty to provide necessary care; (2) that the failure to provide care seriously endangered the children's health; and (3) that there is something that the court could order that is not already being provided, i.e., that there is a need for protective services. Gregory maintained that this third element must be satisfied both at the time of the fact-finding hearing and the dispositional hearing. Gregory argued that the State could not establish the third element because there was no service or material necessity that the Court could order that was not already being provided by Gregory.

¶ 19. The circuit court considered Gregory's motion to dismiss at the dispositional hearing and ultimately denied the motion in a written order. The court proceeded with the dispositional hearing and concluded that the children should be under the court's supervision for one year. The court ordered that the children be placed with Gregory and that the department provide ongoing services. Michelle was granted visitation. The court also imposed conditions on both Gregory and Michelle, including that both parents undergo a psychological evaluation and work with a parenting instructor. This appeal followed.

Relevant Statutes

¶ 20. The CHIPS petitions were filed pursuant to Wis. Stat. § 48.13(10), which provides in relevant part:

Jurisdiction over children alleged to be in need of protection or services. The court has exclusive original jurisdiction over a child alleged to be in need of protection or services which can be ordered by the court, and:
(10) Whose parent, guardian or legal custodian 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.

¶ 21. Also at issue is Wis. Stat. § 48.31, which provides in relevant part:

Fact-finding hearing. (1) In this section, "fact-finding hearing" means a hearing to determine if the allegations in a petition under s. 48.13 or 48.133 or a petition to terminate parental rights are proved by clear and convincing evidence.
(2) The hearing shall be to the court unless the child, the child's parent, guardian or legal custodian .. . exercises the right to a jury trial by demanding a jury trial at any time before or during the plea hearing. ... At the conclusion of the hearing, the court or jury shall make a determination of the facts, except that in a case alleging a child or an unborn child to be in need of protection or services under s. 48.13 or 48.133, the court shall make the determination under s. 48.13 (intro.) or 48.133 (intro.) relating to whether the child or unborn child is in need of protection or services which can be ordered by the court. If the court finds that the child or unborn child is not within the jurisdiction of the court or, in a case alleging a child or an unborn child to be in need of protection or services under s. 48.13 or 48.133, that the child or unborn child is not in need of protection or services which can be ordered by the court or if the court or jury finds that the facts alleged in the petition have not been proved, the court shall dismiss the petition with prejudice.

Discussion

¶ 22. At issue is the circuit court's summary judgment adjudicating the children in need of protection or services. Summary judgment can be used in CHIPS cases. See N.Q. v. Milwaukee County Dep't of Soc. Servs., 162 Wis. 2d 607, 612, 470 N.W.2d 1 (Ct. App. 1991). When reviewing a motion for summary judgment, we apply the same methodology in the same manner as the trial court. State v. Courtney E., 184 Wis. 2d 592, 599, 516 N.W.2d 422 (1994). First, we review the sufficiency of the CHIPS petition. Id. If the petition is sufficient, we determine whether any factual issues exist and whether the moving party is entitled to judgment as a matter of law. See id.

¶ 23. Gregory does not dispute the sufficiency of the CHIPS petitions. We agree that the petitions provide sufficient facts to support the allegations that (1) the children are "in need of protection or services which can be ordered by the court;" (2) the parent neglected, refused or was unable for reasons other than poverty to provide for the child; and (3) the parent's inaction seriously endangered the physical health of the child. See Wis. Stat. §§ 48.13 (intro.) and 48.31(2).

¶ 24. Because the petitions were sufficient, we determine whether any factual issues exist and whether the moving party is entitled to judgment as a matter of law. See Courtney E., 184 Wis. 2d at 599. At the fact-finding hearing, the fact-finder determines whether the allegations in the petition with respect to neglect were proven. See Wis. Stat. § 48.31(1) and (2). Section 48.31(2) further provides that at the conclusion of the fact-finding hearing, "the court shall make the determination under s. 48.13 (intro.) or 48.133 (intro.) relating to whether the child... is in need of protection or services which can be ordered by the court." If the requisite facts are proven, then the court sets the date for the dispositional hearing. Wis. Stat. § 48.31(7). In the alternative, if all parties consent, the court may immediately proceed with a dispositional hearing. Id.

¶ 25. Accordingly, the State was entitled to judgment as a matter of law in this case only if the facts were undisputed with respect to three elements: (1) Michelle neglected the children; (2) the children's health was seriously endangered; and (3) the children are in need of protection or services that the court can order. See Wis. Stat. §§ 48.13 (intro.) and 48.13(10). No one disputes that the first two elements were satisfied. Resolution of this appeal therefore depends on the third element.

¶ 26. The crucial issue is whether the court's determination pursuant to Wis. Stat. § 48.31(2) should consider the children's needs as of the date of the fact-finding hearing, as Gregory asserts. The State argues that the court's determination should be made based on the facts and circumstances as they existed on the date the children were removed from the home. In support, the State cites the reasoning reflected in Wis JI — Children 180, "Appropriate Date for Jury's Finding," and the accompanying comment. The instruction provides:

In answering the question in the special verdict, you must consider the facts and circumstances as they existed on_, which was [the date on which the petition was filed] [the date on which the child was removed from the home by the Department of Social Services]. Your ¿nswer must reflect your finding as of that date.

¶ 27. The comment to the jury instruction acknowledges that the CHIPS statutes do not specify the time period that should govern each factual finding. Comment, Wis JI — Children 180. It also points out problems that could arise due to the lack of statutory guidance and suggests that policy reasons support looking at the facts as they existed on the date the petition was filed or the child was removed from the home. Id. The comment provides:

The issue of the date or time period upon which the jury must focus is most likely to arise with respect to the many jurisdictional grounds which are worded in the present tense. For example, Wis. Stat. § 48.13(8) provides for CHIPS jurisdiction over a child "who is receiving inadequate care during the period of time a parent is incarcerated." Department intervention will often have resulted in the provision of adequate care at the time of the hearing, perhaps even by the time the petition is filed, but it hardly seems logical that this should defeat jurisdiction. The issue is somewhat less clear when the parent or other family members remedy the problems between the filing of the petition and the date of the hearing. Similarly, the TPR ground in Wis. Stat. § 48.415(3) refers to a parent who "is presently ... an inpatient" in a hospital and to a child who "is not being provided adequate care." Should the. parent's discharge on the eve of the hearing or last minute provisions for a child's care defeat jurisdiction? As another example, Wis. Stat. § 48.13(4) provides for CHIPS jurisdiction where a parent signs the petition and states that he or she "is unable to care for the child." If the inability clearly existed at the time of the filing but has completely disappeared by the time of the hearing, should there be jurisdiction?
There is no statutory or published case law guidance on this question of timing, and when the issue does arise, it must be resolved by the court in the context of the particular jurisdictional ground at issue. As a general rule, it is the Committee's opinion that the intent and purpose of the Children's Code are best served by addressing the jurisdictional issue as of the date of removal of the child or the filing of the petition. In particular, the best interests of the child are not served by permitting the child to waffle in and out of the jurisdictional status. Changes or improvements subsequent to court intervention can and should be considered by the court in determining the appropriate dispositional order.

¶ 28. Gregory argues that Wis JI — Children 180 does not apply. He asserts that JI 180 applies only when there is a single parent involved in the children's lives. He states, "Where there is only one parent, the underlying assumption is that the facts and circumstances as of the date of filing of the petition and the date of the adjudicative hearing are the same." In support of his contention that the court must consider the facts as they exist at the adjudicative hearing, Gregory notes that Wis. Stat. § 48.31(2) uses the present tense when it refers to the court's determination that the child "is in need of protection or services which can be ordered by the court." (Emphasis added.) We are unpersuaded.

¶ 29. We conclude that the court's determination under Wis. Stat. § 48.13 (intro.) relating to whether the child is in need of protection or services that can be ordered by the court should be made based on facts as they existed at the time the petition was filed. Our conclusion is based on our interpretation of Wis. Stat. §§ 48.13 and 48.31.

¶ 30. Statutory interpretation is a question of law that we decide de novo. Minuteman, Inc. v. Alexander, 147 Wis. 2d 842, 853, 434 N.W.2d 773 (1989). The purpose of statutory interpretation is to discern the intent of the legislature. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997). To do so, we first consider the language of the statute. If the language of the statute clearly and unambiguously sets forth the legislative'intent, we apply that to the case at hand and do not look beyond the statutory language to ascertain its meaning. Id. A statute is ambiguous when it is capable of being understood in two or more different senses by reasonably well-informed persons. Id. If a statute is ambiguous, we look to the scope, history, context, subject matter, and object of the statute in order to ascertain legislative intent. Id. Whether a statute is ambiguous is a question of law. Awve v. Physicians Ins. Co., 181 Wis. 2d 815, 822, 512 N.W.2d 216 (Ct. App. 1994).

¶ 31. We begin with Wis. Stat. § 48.31(2), which governs the fact-finding hearing. The statute is silent as to whether the court may consider facts developed after the filing of the petition. Gregory argues that use of the present tense in Wis. Stat. § 48.31(2) suggests that the circuit court should make its determination as of the date of the fact-finding hearing. On the other hand, § 48.31(2) refers to "the determination under s. 48.13 (intro.)." The introduction to Wis. Stat. § 48.13 refers to the court's exclusive jurisdiction over a child "alleged" to be in need of protection or services. This suggests that the facts at the time of the allegations are what the court must consider. Because there are two reasonable interpretations of the statute, we conclude that § 48.31(2) is ambiguous with respect to the time frame to be considered when the court makes its determination under § 48.13 (intro.). See Setagord, 211 Wis. 2d at 406. Thus, we look to the scope, history, context, subject matter and object of the statute in order to ascertain legislative intent. Id.

¶ 32. The legislative history of the relevant language in Wis. Stat. § 48.31(2) is helpful. The relevant language was added to § 48.31(2) after the supreme court, citing Wis. Stat. § 48.13 (intro.), affirmed the dismissal of a CHIPS petition that failed to allege and contain facts showing that the child was "in need of protection or services which can be ordered by the court." See Courtney E., 184 Wis. 2d at 601-02. The basis for the CHIPS petition in Courtney E. was Wis. Stat. § 48.13(3) (1991-92), that the child was a victim of sexual abuse. See id. at 601. The only facts provided in the petition were the child's age and the fact that she was pregnant. Id. The petition offered no information to support the allegation that the child was in need of protection or services that the court could provide. Id. The court observed:

It is altogether possible, based on the face of the petition, that Courtney is receiving all of the protection and services that she needs from her family. The legislature could not have intended for courts to have jurisdiction over a pregnant minor in such a situation. We conclude that a sec. 48.13, Stats., CHIPS petition is not sufficient unless it contains information which at least gives rise to a reasonable inference sufficient to establish probable cause that there is something that the court could order for the child that is not already being provided. For example, the petition in this case could have stated that Courtney has been abandoned by her parents; that her parents are unable or refuse to care for her; or that her parents refuse to provide her with the medical care essential for a pregnant minor. In any event, the petition must on its face provide a reason, beyond her pregnancy and age, why Courtney is in need of court-ordered protection or services.

Id. at 602.

¶ 33. At issue in Courtney E. was the dismissal of the petition prior to the fact-finding stage. However, once Courtney E. recognized the need to allege facts showing that the child is in need of protection or services that the court can order, it followed that this same allegation must be proved by clear and convincing evidence at the fact-finding hearing;

¶ 34. Subsequently, the legislature proposed amending Wis. Stat. § 48.31(2) to make the court responsible for making the determination identified in Courtney E. The prefatory note accompanying 1995 Senate Bill 501 summarized the proposed changes to Wis. Stat. § 48.31(2):

Under current law, a child who is the subject of a CHIPS petition or the child's parent, guardian or legal custodian may demand a jury trial to determine whether the allegations of the CHIPS petition are proved. In In the Interest of Courtney E., 184 Wis. 2d 592 (1994), the Wisconsin supreme court held that in order for a juvenile court to exercise jurisdiction over a child alleged to be CHIPS, 2 things must be proved: (a) that one of the grounds for CHIPS jurisdiction exists; and (b) that the child is in need of protection or services that can be ordered by the court.
[The bill] provides that the juvenile court, not the jury, determines whether the child needs protection or services which the juvenile court can order, thus leaving to the jury (or to the court, if a jury trial is not requested) the task of determining whether one of the underlying grounds for CHIPS jurisdiction, such as abandonment, abuse or neglect, has been proved.

¶ 35. The legislation that was ultimately passed added the following underlined language to Wis. Stat. § 48.31(2), making the court responsible for determinations under the introductions to Wis. Stat. § 48.13 and 48.133:

At the conclusion of the hearing, the court or jury shall make a determination of the facts, except that in a case alleging a child to be in need of protection or services under s. 48.13, the court shall make the determination under s. 48.13 (intro.) relating to whether the child is in need of protection or services which can be ordered by the court. If the court finds that the child is not within the jurisdiction of the court, or, in a case alleging a child to be in need of protection or services under s. 48.13, that the child is not in need of protection or services which can be ordered by the court or if the court or jury finds that the facts alleged in the petition have not been proved, the court shall dismiss the petition with prejudice.

1995 Wis. Act 275 § 52.

¶ 36. According to the legislative note and consistent with Courtney E., the law prior to the amendment to Wis. Stat. § 48.31(2) required that when a CHIPS case proceeded to the fact-finding stage, the fact-finder, whether it was a jury or the court, had to determine whether the allegations were proven with respect to both Wis. Stat. § 48.13 (intro.) and the specific grounds alleged under § 48.13(1)-(13). We agree with Wis JI— Children 180 that generally the jury should consider facts as they existed at the time the petition was filed.

¶ 37. The amendment to Wis. Stat. § 48.31(2) shifted to the court the responsibility for making the determination relating to Wis. Stat. § 48.13 (intro.). See Wis. Stat. § 48.31(2). Although the fact-finder may have changed, the legislative history is devoid of any indication that the factual determination is to be made differently. Thus, we conclude that the court should follow the same guidelines that would have guided a jury. The court should consider facts as they existed at the time that the petition was filed when making the determination relating to § 48.13 (intro.).

¶ 38. Our decision supports the paramount goal of Wis. Stat. ch. 48: to protect children. See Wis. Stat. § 48.01(l)(a). Our legislature has provided that ch. 48 is to be liberally construed to effectuate numerous express legislative purposes, including:

(ag) To recognize that children have certain basic needs which must be provided for, including the need for adequate food, clothing and shelter; the need to be free from physical,- sexual or emotional injury or exploitation; the need to develop physically, mentally and emotionally to their potential; and the need for a safe and permanent family. ...
(bg) 1. To ensure that children are protected against the harmful effects resulting from the absence of parents or parent substitutes, from the inability, other than financial inability, of parents or parent substitutes to provide care and protection for their children and from the destructive behavior of parents or parent substitutes in providing care and protection for their children.

Wis. Stat. § 48.01(1).

¶ 39. The intent and purpose of the Children's Code are best served by determining the child's need for protection or services as of the date the petition is filed. As the comment to Wis JI — Children 180 notes, the goals of Wis. Stat. ch. 48 would be frustrated by allowing children to waffle in and out of jurisdictional status. To conclude otherwise would allow the jurisdictional status of a case to change daily, depending on the circumstances in the home on a particular day.

¶ 40. Here, for example, the children were in need of immediate protection on March 6, returned to their mother on March 12, and again removed on March 13 when she was arrested for OWI. That Michelle was apparently able to care for the children on March 12 did not alter the fact that the children were neglected on March 6, or that they were again in need of immediate intervention on March 13. The jurisdictional status of the CHIPS petition should not be allowed to fluctuate daily. Rather, changes or improvements after court intervention can and should be considered by the court in determining the appropriate dispositional order. Id.

¶ 41. In summary, we conclude that pursuant to Wis. Stat. § 48.31(2), it is the circuit court's responsibility to determine whether the children were in need of protection or services that the court could order on the date the petition was filed. Here, it was undisputed that as of the date the petitions were filed, the children were in need of out-of-home placement and their mother required counseling and mental health and substance abuse assessments. Accordingly, the circuit court did not err when it concluded that summary judgment in the State's favor was appropriate.

¶ 42. The result of our holding is a recognition that children can be adjudicated to be in need of protection or services even when only one parent has neglected the children. Whether the children are in need will depend on the particular facts of the case. Where, as here, the children were neglected and seriously endangered by one parent, they may be adjudicated in need of protection or services.

¶ 43. In this case, the court ordered that the children be placed with Gregory and that the department provide the family with a variety of services. If, as Gregory asserts, the children have no future need for protection or services that the court can order, then the court can make the appropriate amendments to the dispositional orders and, ultimately, allow the orders to expire. Although we understand Gregory's frustration with having to comply with dispositional orders entered because his ex-wife neglected the children, the best interests of the children remain our paramount concern. There is no dispute that they were seriously endangered and that, at a minimum, Michelle needs assistance parenting the children in the future. The dispositional orders provide for that assistance.

By the Court. — Orders affirmed.

       All statutory references are to the 1999-2000 version unless otherwise noted. Originally assigned as a one-judge appeal, this case was reassigned to a three-judge panel on September 18, 2001. See Wis. Stat. Rule 809.41.

       Gregory's appeal centers on the CHIPS adjudications, rather than on the dispositional orders. Gregory does not contest the court's legal authority, once the children were adjudicated, to fashion dispositional orders that require Gregory to take certain action (e.g., cooperate with social services). He also does not appeal any of the specific requirements imposed on him in the dispositional orders. Gregory does suggest that he was denied due process when the circuit court refused to let him call several witnesses at the dispositional hearing, but he does not seek a new dispositional hearing. To the extent Gregory is attempting to appeal the dispositional orders based on the hearing procedure, we conclude his argument is inadequately briefed. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (appellate court may decline to review issues inadequately briefed). Our decision will focus on the circuit court's decision to adjudicate the children in need of protection or services.

       The State argues that Gregory's request for a jury trial was untimely and that, therefore, he was not entitled to a jury trial. Because we conclude that a jury trial was unnecessary because the relevant facts were undisputed, we do not address the timeliness of Gregory's requests.

       Gregory also contended that he would have to be found unfit before the court could exercise jurisdiction over his children. On appeal, he takes a slightly different position, arguing that a court cannot find a child in need of protection or services unless there is a parental void that cannot be filled by the non-neglectful parent.

       The petitions indicate that there was a domestic violence incident between Gregory and Michelle, and that Gregory allegedly violated a restraining order on multiple occasions. It appears from the record that the criminal charges against Gregory subsequently were dismissed in July 2001.

       The State asserts that the appropriate date to consider is the date on which the children were removed from the home. Neither the State nor Wis JI — Children 180 explains when the date of removal should be used as opposed to the date the petition is filed. Here, the facts were substantially the same on March 6 and March 9. Accordingly, for purposes of this opinion, we will consider the facts as they existed on the date the petitions were filed. We decline to address when the date of removal would be more appropriate.
      The guardian ad litem did not file a brief on appeal.

       Although the decisions and comments of the Wisconsin Juvenile Jury Instructions Committee are not binding upon this court, we generally find the committee's work insightful and persuasive. See Nommensen v. Am. Cont'l Ins. Co., 2001 WI 112, ¶ 47, 246 Wis. 2d 132, 629 N.W.2d 301 (referring to Wisconsin Civil Jury Instructions Committee).

       We ultimately conclude that the circuit court's factual determination whether the child is in need of protection or services that the court can provide must be made as of the date the petition is filed. In that respect, our conclusion is consistent with the reasoning reflected in Wis JI — Children 180 and the accompanying comment. However, we emphasize that pursuant to Wis. Stat. § 48.31(2), this finding is made by the court, not the jury.

       We decline to address whether this same time frame is appropriate for other factual findings made by the court or jury. As the comment to Wis JI — CHILDREN 180 observes, "There is no statutory or published case law guidance on this question of timing, and when the issue does arise, it must be resolved by the court in the context of the particular jurisdictional ground at issue."

       1995 Wis. Act 275 § 52 also contained a note explaining the reason for the amendments. The note was an edited version of the explanation that appeared in 1995 S.B. 501 as it was originally introduced. The note provided:
      Note: Under current law, a child who is the subject of a CHIPS petition or the child's parent, guardian or legal custodian may demand a jury trial to determine whether the allegations of the CHIPS petition are proved. This bill provides that the juvenile court, not the jury, determines whether the child needs protection or services which the juvenile court can order, leaving to the jury the task of determining whether one of the underlying grounds for jurisdiction specified in s. 48.13, such as abandonment, abuse or neglect, has been proved.

       However, we recognize that there are times when consideration of facts subsequent to the petition may be relevant. For example, a jury in a termination of parental rights case based on the continuing need for protection or services must determine whether it is likely that the parent will meet the conditions for the safe return of the child within the twelve-month period following the conclusion of the hearing. See Wis. Stat. § 48.415(2); Wis JI — ChildRen 324. Evidence concerning the parent's actions after the filing of the petition may be relevant to the jury's determination of that issue. In contrast, where the jury is asked to determine whether the grounds for CHIPS pursuant to Wis. Stat. § 48.13(10) are proved, the jury need only determine whether the child was neglected and whether the child's health was seriously endangered. See Wis. Stat. § 48.13(10); Wis JI — Children 250.

       Even if the circuit court had concluded that the facts with respect to the children's needs on the day the petitions were filed were in dispute, Gregory would not have been entitled to a jury trial on that issue. The two issues for the jury, whether a parent neglected the children and whether the children were seriously endangered, were undisputed. The remaining determination with respect to the children's need for protection or services that the court can order must be made by the circuit court. See Wis. Stat. § 48.31(2). Thus, any disputed facts would have been presented in a fact-finding hearing before the circuit court.