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Court’s discharge of TPR counsel justified under new statute

State v. T.P., 2015AP857, District 1, 8/18/15 (one-judge decision; ineligible for publication); case activity

Recently enacted statutes allow a circuit court to presume that a parent in a TPR proceeding has waived the right to counsel if, after being ordered to appear in court, the parent fails to do so and the court finds that failure egregious and without a justifiable excuse. The circuit court’s application of those statutes in this case didn’t violate the parent’s due process rights.

The statutes are § 48.23(2)(b)3. and (4m), which took effect in April 2014, and provide that a parent’s failure to appear for two or more consecutive hearings is presumed to be egregious, and the court may thereafter find the parent has waived counsel and discharge counsel. T.P. appeared with counsel at the first three hearings, at which the circuit court warned T.P. that failure to appear could result in a default judgment and, at the third hearing, that he could lose his lawyer. T.P. missed the next two hearings, so the circuit court found him in default and discharged his lawyer. (¶¶4-8). Application of the statute in this case didn’t violate T.P.’s due process rights:

¶17     T.P. fails to demonstrate how the circuit court’s application of Wis. Stat. § 48.23(4m) violated his due process rights. A review of the hearing transcript indicates that the circuit court carefully and thoroughly applied the language of Wis. Stat. § 48.23 to the facts of T.P.’s case. …. In accordance with the plain language of the statute, the circuit court found T.P.’s conduct to be egregious and without a justifiable excuse. Nonetheless, the court stated that it would consider lifting its default finding if T.P. chose to reappear and explain his absences. Even after discharging counsel, the court permitted counsel to investigate T.P.’s whereabouts and provide a possible explanation for his absences.

¶18    T.P.’s due process arguments ignore his own conduct, and ignore the fact that the circuit court provided numerous warnings about the consequences of failing to appear for hearings. The court specifically referenced Wis. Stat. § 48.23(4m) by telling T.P. that it had the discretion to remove his counsel if he failed to appear and failed to maintain contact with his counsel. T.P. was present when W.G.’s mother was found in default. He saw the consequences of failing to appear first-hand. T.P. was aware of the risks of violating the court’s order. ….

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