"The Mikrut court, however, backed off from adopting a categorical rule that all competency objections must be made at circuit court or be waived." State v. Michael S., 2005 WI 82, ¶ 71, 282 Wis. 2d 1, 698 N.W.2d 673 (citing Mikrut, 273 Wis. 2d 76, ¶ 30). ¶ 26.
¶ 19 The State and the GAL respond to the parents' competence claim by arguing that Francine and Emiliano waived their loss-of-competence challenge when they failed to object at the time the trial court entered the January 31, 2008 extended CHIPS dispositional order. Francine and Emiliano countered that State v. Michael S., 2005 WI 82, 282 Wis. 2d 1, 698 N.W.2d 673, clearly holds that a party cannot waive a challenge to a thirty-day extension made pursuant to WIS. STAT. § 48.365(6) (2005-06). ¶ 20 We think the parties misperceive the issue.
¶ 26. Because the time limit in WIS. STAT. § 230.44(3) affects WERC's competency to proceed, not its subject matter jurisdiction, we next consider whether it is subject to waiver. Two recent supreme court cases have addressed waiver of statutory requirements that affect a circuit court's competency to proceed, and the parties arguments focus on these cases: Trempealeau and State v. Michael S., 2005 WI 82, 282 Wis. 2d 1, 698 N.W.2d 673. We agree with the parties' implicit assumption that, if WIS. STAT. § 230.44(3) did affect WERC's subject matter jurisdiction, rather than its competency, it would not be subject to waiver.
While we agree that our decision is moot as to Washington, we will proceed to the merits because the issues raised in this appeal are of great public concern and are likely to recur. See State v. Michael S., 2005 WI 82, ¶ 6, 282 Wis. 2d 1, 698 N.W.2d 673. All references to the Wisconsin Statutes are to the 2005-2006 version of the statutes unless otherwise noted.
¶ 8 The question remaining is what remedy is appropriate under the circumstances. D.C.M. and the State agree that remand is inappropriate as once the dispositional order expires, the court has no authority over D.C.M. See State v. Michael S., 2005 WI 82, ¶¶ 62, 68, 282 Wis.2d 1, 698 N.W.2d 673 ; Green Cty. DHS v. H.N., 162 Wis.2d 635, 658, 469 N.W.2d 845 (1991). The State cannot comply with the terms of WIS. STAT. § 938.34(16) and file a motion alleging that D.C.M. violated the terms of the dispositional order as it is no longer in effect.
Stat.] ch. 48 [ (2003–04) ], cannot be waived, even though it was not raised in the circuit court.” Id., ¶ 30; see also State v. Michael S., 2005 WI 82, ¶ 73, 282 Wis.2d 1, 698 N.W.2d 673 (explaining that the Mikrut waiver rule does not control the outcome of a case involving a statutory time period because Mikrut “left undisturbed” this issue). ¶ 25 In a recent unpublished opinion, Lipp v. Outagamie County Department of Health and Human Services, No. 2011AP152, 2012 WL 1989409, slip op. (WI App June 5, 2012), this court applied Mikrut and Matthew S. to resolve the question of whether a party can waive a competency challenge based on a previous version of the statutory limitation period at issue here, Wis. Stat. § 54.44(1) (2009–10).
In Sheboygan County Department of Social Services v. Matthew S., 2005 WI 84, 282 Wis. 2d 150, 698 N.W.2d 631, the court went a step further and held that "a competency challenge ... based on the court's failure to act within the statutory time periods listed within WIS. STAT. ch. 48 [(2003-04)], cannot be waived, even though it was not raised in the circuit court." Id., ¶30; see also State v. Michael S., 2005 WI 82, ¶73, 282 Wis. 2d 1, 698 N.W.2d 673 (explaining that the Mikrut waiver rule does not control the outcome of a case involving a statutory time period because Mikrut "left undisturbed" this issue). ¶25 In a recent unpublished opinion, Lipp v. Outagamie County Department of Health and Human Services, No. 2011AP152, slip op. (WI App June 5, 2012), this court applied Mikrut and Matthew S. to resolve the question of whether a party can waive a competency challenge based on a previous version of the statutory limitation period at issue here, WIS. STAT. § 54.44(1) (2009-10).
In Sheboygan County Department of Social Services v. Matthew S., 2005 WI 84, 282 Wis. 2d 150, 698 N.W.2d 631, the court went a step further and held that "a competency challenge ... based on the court's failure to act within the statutory time periods listed within WIS. STAT. ch. 48 [(2003-04)], cannot be waived, even though it was not raised in the circuit court." Id., ¶30; see also State v. Michael S., 2005 WI 82, ¶73, 282 Wis. 2d 1, 698 N.W.2d 673 (explaining that the Mikrut waiver rule does not control the outcome of a case involving a statutory time period because Mikrut "left undisturbed" this issue). ¶25 In a recent unpublished opinion, Lipp v. Outagamie County Department of Health and Human Services, No. 2011AP152, slip op. (WI App June 5, 2012), this court applied Mikrut and Matthew S. to resolve the question of whether a party can waive a competency challenge based on a previous version of the statutory limitation period at issue here, WIS. STAT. § 54.44(1) (2009-10).
At least in certain circumstances, a loss of competency due to failure to follow statutorily mandated procedures may be an unwaivable defect. See State v. Michael S., 2005 WI 82, ¶¶ 72–74 & n. 46, 282 Wis.2d 1, 695 N.W.2d 673; Green Cnty. Dept. of Human Servs. v. H.N., 162 Wis.2d 635, 657–58, 469 N.W.2d 845 (1991). However, we are aware of no precedent barring voluntary waiver of this issue in Wis. Stat. ch. 51 proceedings, and there is no categorical prohibition on waiving an objection to the court's competency to proceed due to failure to follow statutorily mandated procedures.
The postdisposition court also pointed to case law stating that once a juvenile dispositional order expires, it "simply ceases to be in effect." SeeState v. Michael S., 2005 WI 82, ¶ 62, 282 Wis. 2d 1, 698 N.W.2d 673. It reasoned that since Malcolm's dispositional order expired on his eighteenth birthday, there is no longer any way to modify it with a stay of the sex offender registry requirement. We do not address this argument in detail because while the order may have expired as to all other conditions, the sex offender registration condition is clearly still in effect.