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TPR – Meaningful Participation: Telephonic Appearance

Brown County Department of Human Services v. David D., 2012AP722, District 3, 95/12

court of appeals decision (1-judge, ineligible for publication); case activity

Parent’s appearance by telephone held to satisfy right to “meaningful participation”:

¶10      “A parent’s rights to his or her children are substantial and are protected by due process.”  Waukesha Cnty. DHHS v. Teodoro E., 2008 WI App 16, ¶10, 307 Wis. 2d 372, 745 N.W.2d 698 (citation omitted).  “Due process requires that a court ensure the parent’s ability to ‘meaningfully participate’ in the proceedings.”  Id. (citation omitted).  The right to meaningful participation is “the opportunity to be heard at a meaningful time and in a meaningful manner.”  Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680, 701, 530 N.W.2d 34 (Ct. App. 1995) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).  “Whether a parent has been afforded the opportunity to participate meaningfully is a question of constitutional fact.”  Teodoro, 307 Wis. 2d 372, ¶10.  We defer to the circuit court’s factual findings unless they are clearly erroneous, but we independently apply constitutional principles to those facts.  Id.

¶11      On appeal, David argues he was denied his due process right to meaningful participation at the fact-finding hearing because, after he advised the circuit court he lacked the financial ability to appear in person, the court failed to make alternative arrangements that would have ensured his meaningful participation.  He cites three cases in which alternative arrangements were made for parents who were prevented from appearing in person at the fact-finding hearing.  See id., ¶¶5-8 (alternative arrangements for father who was deported and could not reenter country for ten years); State v. Lavelle W., 2005 WI App 266, ¶¶3-4, 288 Wis. 2d 504, 708 N.W.2d 698 (alternative arrangements for father who could not appear because he was federal prisoner); Rhonda, 191 Wis. 2d at 690-91 (alternative arrangements for father who was imprisoned in Washington).  David also argues his participation by telephone, without the opportunity to testify, did not constitute meaningful participation, and he never waived his fundamental right to meaningful participation.

¶12      David’s arguments, however, suffer from a fatal factual flaw:  the circuit court found David had the financial ability to appear in person and simply chose not to attend the hearing.  This factual determination is supported by the record and therefore not clearly erroneous. See Noll v. Dimiceli’s, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 575 (Ct. App. 1983). …

David was allowed to appear, but not testify, telephonically: although this isn’t the functional equivalent of personal presence, the trial court repeatedly informed David that he did need to appear in person, thus provided “the opportunity to be heard at a meaningful time and in a meaningful manner,” considering that David “chose not to attend the proceeding in person,” ¶¶14-15. Separately: barring telephonic testimony “because of technology limitations in the courtroom” was an appropriate exercise of discretion under § 807.13(2), ¶¶17-18.

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