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TPR: Right to “Meaningfully Participate” in Hearing

State v. Lavelle W., 2005 WI App 266

Issue/Holding:

¶2        Birth-parents “have constitutionally protected rights to raise their children as they see fit, and these rights may only be circumscribed if the government proves that there is a ‘powerful countervailing interest.’” Richard D. v. Rebecca G., 228 Wis. 2d 658, 661, 599 N.W.2d 90, 92 (Ct. App. 1999) (quoted sources and one internal quotation mark omitted). Thus, “unless the birth-parent has either done something, or failed to do something, to trigger erosion of the constitutional wall that prevents the State from intruding on the birth-parent’s constitutionally protected rights, the fact that the child might be better off somewhere else is an insufficient reason to breach that wall.” Id., 228 Wis. 2d at 663 n.4, 599 N.W.2d at 93 n.4. Accordingly, “a proceeding to terminate parental rights addresses a fundamental right which requires judicial protection.” D.G. v. F.C., 152 Wis. 2d 159, 166, 448 N.W.2d 239, 242 (Ct. App. 1989). But “judicial protection” is meaningless unless a person whose fundamental rights may be abridged has an “opportunity to be heard at a meaningful time and in a meaningful manner.” Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680, 701, 530 N.W.2d 34, 42 (Ct. App. 1995); see also D.G., 152 Wis. 2d at 167, 448 N.W.2d at 243 (“We view the ability of a respondent in a termination of parental rights proceeding to meaningfully participate as a right which requires similar protection by the court.”). Whether participation has been “meaningful” is a constitutional fact subject to our independent review. Rhonda R.D., 191 Wis. 2d at 700, 530 N.W.2d at 42. The trial court, however, has discretion on how to guarantee that a birth parent’s participation in proceedings to terminate his or her parental rights is meaningful. See D.G., 152 Wis. 2d at 162–163, 448 N.W.2d at 240–241.

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