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Guardianship – Respondent’s Right to Personal Presence

Jefferson County v. Joseph S., 2010 WI App 160 (recommended for publication); for Joseph S.: Margaret A. Maroney, SPD, Madison Appellate

Failure of trial court to warn guardianship respondent of possibility of removal from courtroom for disruptive behavior prior to ordering his removal deprived court of competency to proceed.

¶5        A determination that a person “is incompetent … is as difficult a judgment as a judge is called upon to make,” and thus the legislature has adopted procedural requirements “to mitigate the chances of error.”  Byrn v. Thompson, 21 Wis. 2d 24, 28, 123 N.W.2d 505 (1963).  Among these is the requirement that the petitioner in a guardianship or protective placement action ensure the attendance of the respondent at the petition hearing unless the attendance is waived by the guardian ad litem.  WIS. STAT. §§ 54.44(4)(a) (guardianship); 55.10(2) (protective placement).[2] Failure to ensure the attendance of the respondent at a hearing absent a valid waiver by the guardian ad litem causes the trial court to lose competency to proceed on the petition.  Byrn, 21 Wis. 2d at 28; Knight v. Milwaukee County, 2002 WI App 194, ¶1, 256 Wis. 2d 1000, 651 N.W.2d 890.

¶9        We begin by noting that, unlike the respondents in Knight and Byrn, who were not present for any portion of the hearing, Joseph was in attendance through the close of evidence but was removed before the court issued its ruling.  The county does not argue, however, that Joseph’s attendance for most of the proceeding prevented the court from losing competency, and we conclude that, unless Joseph forfeited his right to attend by his conduct, the court lost competency to continue in Joseph’s absence when he was removed from the courtroom.[3] As Knight explains, the attendance requirement “reflects a legislative judgment that … a declaration of incompetency and the attendant restrictions on a proposed ward’s liberty[] not be made without whatever input the proposed ward is able to give.”  Knight, 256 Wis. 2d 1000, ¶3.  Here, Joseph was removed before the court issued its ruling and at a juncture in the proceedings while Joseph still had the opportunity to provide input in the form of a statement to the court.  (In fact, Joseph was removed while attempting to provide input—albeit in a disruptive and profane manner—on the petitions.)

The court concludes that the Illinois v. Allen, 397 U.S. 337, 343 (1970) test for forfeiture of right to presence by conduct applies, Illinois v. Allen, 397 U.S. 337, 343 (1970), so that a warning is required before forfeiture is effectuated, ¶11. Joseph wasn’t warned he could be removed, and he therefore didn’t forfeit his right to presence, ¶¶11-13. Although the court declines to apply harmless error, the remedy it fashions may well make the relief illusory:

¶16      The question remains what must be redone on remand.  As noted, Joseph was present for the entire evidentiary portion of the hearing.  Our review of the record discloses no reason to think that Joseph’s removal after the close of evidence affected his rights during the evidentiary portion of the hearing.  Accordingly, we remand with directions that the circuit court recommence the hearing with Joseph present at the point at which he was removed from the courtroom.

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