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“Meaningful participation” in TPR by webcam

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, therefore participation by phone not meaningful), distinguished:

¶15 Further, the system that the trial court used here is plainly and significantly different from the simple telephone setup at issue in Lavelle W. One obvious distinction is that Teodoro was able to see both the witness and a wider view of the entire courtroom. Further, Teodoro’s attorney was able to communicate with him privately which, as we noted in Lavelle W., is a key component of meaningful participation. Lavelle W., 288 Wis. 2d 504, ¶8. In fact, in Rhonda R.D., a case unacknowledged by Teodoro, we held that a telephone setup that allowed the parent to consult privately with his lawyer afforded the parent meaningful participation in the termination proceedings. Rhonda, 191 Wis. 2d at 701-03.

¶16 … If the circuit court had insisted on Teodoro’s physical presence, which was apparently impossible, there is no telling how long things would have continued in the posture that they were in: Teodoro in Mexico and the children in foster care and in legal limbo, their future unknown. This would have been grossly unfair to the children, as well as contrary to the legislative directive that TPR cases proceed in a timely fashion. See Rhonda R.D., 191 Wis. 2d at 698-99.

Joseph Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006), reinstated, Van Patten v. Endicott, 489 F.3d 827 (7th Cir. 2007) (counsel’s remote appearance by phone at defendant’s guilty plea proceeding amounted to denial of counsel altogether) also distinguished:

¶19 Just as with Lavelle W., the procedures adopted by the circuit court in this case distinguish it from Deppisch. The record shows that Teodoro could consult privately with his attorney. Moreover, his attorney was physically present in the courtroom. Thus, unlike in Deppisch, there was nothing preventing the court from keeping an eye on either Teodoro or his counsel. [4] We reject Teodoro’s ineffective assistance argument.

Think this case won’t be cited in future criminal cases where the defendant must make a “remote” appearance? Or that local facilities won’t eventually go to webcam instead of phone hookups?

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