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Lawyer’s temporary license suspension, late review of discovery didn’t invalidate TPR orders

State v. D.S., 2019AP2230 through 2019AP2233, District 1, 8/25/30 (one-judge decision; ineligible for publication); case activity

D.S. challenges the orders terminating her parental rights to her children on the ground, first because her lawyer was unable to appear and represent her at a pretrial hearing because his law license was temporarily suspended, second because trial counsel didn’t obtain 400 pages of discovery until the day before the  dispositional hearing. Her challenges are rejected.

The temporary license suspension (due to a snafu in processing his bar dues payment) kept counsel from representing D.S. at a pretrial hearing. (¶¶11, 18). Because her lawyer wasn’t there, the court adjourned the hearing except to deal with an “emergent situation” regarding medication for one of the children that couldn’t be provided with D.S.’s consent. Because she wouldn’t give consent, the circuit court ordered the child evaluated for treatment under § 48.373. (¶¶12-15).

While D.S. argues it was structural error for the court to proceed without her lawyer present, the court of appeals finds no error. The hearing wasn’t a critical stage of the proceeding requiring the presence of counsel, and any error in addressing the child’s situation was harmless, for it related only to providing emergency treatment for the child, not disposition of the petitions. For the same reason, any ineffective claim that might be raised fails because D.S. can’t show prejudice. (¶¶25-30).

As for obtaining the discovery the day before disposition, trial counsel reviewed the documents with the aid of his experienced paralegal—a common occurrence in at least some litigation practices—and testified he was able to determine the information in the documents didn’t affect his strategy at the dispositional hearing. Thus, he was not deficient. (¶¶17-19, 24).

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