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TPR -Statutory Construction – “Reasonable Time to Prepare” for Dispositional Hearing

State v. Beverly H., 2011AP536, District 1, 6/21/11

court of appeals decision (1-judge, not for publication); for Beverly H.: Jeffrey W. Jensen; case activity

The trial court didn’t err in denying the parent’s request for an adjournment of dispositional hearing, following jury verdict finding grounds to terminate. The court of appeals rejects the argument that § 48.31(7)(a) controls the issue.

¶2        This Court disagrees with Beverly H.’s arguments on appeal.  Whether this court applies the legal doctrine holding that when there are conflicting statutes a specific statute trumps a general statute, or whether it applies the legal doctrine holding that this court is obligated to harmonize conflicting statutes, the conclusion is the same:  the trial court did not err in relying on Wis. Stat. § 42.424(4) to immediately proceed to the dispositional hearing following trial.  Section 48.424(4) is the specific statute addressing fact finding hearings in TPR cases, and Wis. Stat. § 48.31(7)(a) is the general statute; therefore, § 48.424(4) controls.  Furthermore, when the two statutes are harmonized, § 48.424(4) is the operative statute to be utilized after a fact finder finds grounds have been proved for the TPR.  Finally, this court also concludes that Beverly H.’s due process rights were not violated by the denial of an adjournment.  Consequently, this court affirms.

The court agrees that these two provision “appear to be [in] conflict,” ¶13, leading to the specific-controls-general analysis indicated above. Section 48.424(4) (“proceed immediately to … disposition[]”) is the more specific because it: appears in a subchapter entitled “Termination of Parental Rights”; specifically refers to fact-finding in contested TPR cases; and modifies the procedure under § 48.31, ¶15. This conclusion is bolstered by the idea that “§ 48.31 is not only part of a subchapter that is more general in scope, but also governs proceedings wholly different from TPR hearings,” ¶16.

Beverly H. separately argues that failure to grant adjournment violated her right to due process. The argument is rejected on narrow, fact-contingent grounds: despite having been placed on notice that the dispositional hearing would likely take place immediately after finding on grounds, she failed to make an offer of proof as to what an adjournment would produce. Her argument is also inconsistent with her comments below, “that she wanted no further delays,” ¶22.

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