On Point: B. Constitutional rights

court of appeals decision

TPR – Forfeiture of Jury Trial
Failure to appear at initial hearing and make timely request forfeited right to jury trial; trial court’s ultimate refusal to enter default judgment “did not return the case to the initial hearing stage or reinstate Luis’s right to a jury trial”; nor did filing of amended petition reset this clock; finally, the court suggests that denial of right to jury trial was,

Walworth Co. DHHS v. Andrea L.O., 2008 WI 46, on Certification

TPR – Elements, Ground of Continuing Need of Protection and Services, Generally

Issue/Holding:

¶6 There are four elements to this ground for termination. First, the child must have been placed out of the home for a cumulative total of more than six months pursuant to court orders containing the termination of parental rights notice.

Waukesha Co. DHHS v. Teodoro E., 2008 WI App 16, District 2 (published)

Issue/Holding: A deported father’s participation in the TPR proceeding by a webcam system was “meaningful,” given that he could see and hear witnesses, be seen by the court, and communicate privately with counsel and with aid of an interpreter, ¶¶10-19.

State v. Lavelle W., 2005 WI App 266 (telephone hookup not functional equivalent of personal presence,

Walworth Co. DHHS v. Andrea L.O., 2008 WI 46, on Certification

Issue/Holding: Stipulation to a TPR elements did not constitute withdrawal of the demand for a jury trial, where the element was submitted to, and found by, the jury under the instructions and special verdict form, ¶¶18-24.

The court approvingly analogizes to State v. Charles J. Benoit, 229 Wis.2d 630, 600 N.W.2d 193 (Ct.

Manitowoc County HSD v. Allen J., 2008 WI App 137

Issue/Holding:

¶1 Allen J. appeals from orders terminating his parental rights to his children, Brandon [1] and Stephanie J. He argues that he was deprived of his right to a jury trial because the court, rather than the jury, answered one of the verdict questions on an element of parental unfitness. Allen’s counsel had stipulated that the element was satisfied,

State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55

 Issue: “(W)hether a circuit court may deny a parent in a termination of parental rights proceeding the statutory right to counsel when the parent has appeared in the proceeding but failed to personally attend a hearing in contravention of a court order and is found in default as a sanction for disobeying the court order.” (¶2)

Holding:

¶41 We do not accept the State’s position for three reasons.

State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55

¶57      The State also argues that Shirley E., a parent over 18 years of age, has waived her right to counsel by not appearing personally. We can quickly dismiss this argument. Wisconsin Stat. § 48.23(2) explicitly requires that any waiver of counsel must be knowing and voluntary. As we determined in M.W.

Dane County DHS v. Susan P.S., 2006 WI App 100, PFR filed 5/15/06

Issue/Holding: Holding the dispositional hearing beyond the 45-day time limit set by § 48.424(4) did not deprive the trial court of competency to proceed, where good cause existed for continuance under § 48.315(2), namely that the respondent’s attorney was going to be out of town during a portion of the limitation period, and the trial court expressly found good cause to schedule the hearing after counsel’s return,

Dane County DHS v. Susan P.S., 2006 WI App 100, PFR filed 5/15/06 (published)

Issue/Holding1: The same “self-representation competency standards developed in … criminal cases” applies to TPRs, ¶¶9-16.

Standards summarized, ¶¶17-23. Though much of this recitation is fairly abstract, the following embellishment of Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980) may be of interest, ¶20 n.

State v. Lavelle W., 2005 WI App 266

Issue/Holding:

¶2        Birth-parents “have constitutionally protected rights to raise their children as they see fit, and these rights may only be circumscribed if the government proves that there is a ‘powerful countervailing interest.’” Richard D. v. Rebecca G., 228 Wis. 2d 658, 661, 599 N.W.2d 90, 92 (Ct. App. 1999) (quoted sources and one internal quotation mark omitted).