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Two-day wait for TPR default not required where counsel continues

State v. J.B., 2016AP483, 484 & 485, 10/4/2016, District 1 (1-judge decision; ineligible for publication); case activity

2013 Wis. Act 337 created Wis. Stat. § 48.23(2)(b)3., which permits a TPR court in some circumstances to find that a parent who has defaulted as to grounds by failing to appear has also waived his or her right to counsel. The statute then imposes a two-day waiting period before the court proceeds to disposition. But what if the court finds a parent in default but does not find counsel waived?

J.B., a father, didn’t show up for either of two scheduled TPR trials. When he missed the second one the court declared him in default, but had his counsel continue to represent him. The court proceeded immediately to disposition, and terminated J.B.’s rights. On appeal, J.B. argues that the language of § 48.23(2)(b)3. required the court to wait two days before holding the disposition phase. The court of appeals disagrees.

The statutory language is, as the court allows, quite broad:

[A] parent 18 years of age or over is presumed to have waived his or her right to counsel and to appear by counsel if the court has ordered the parent to appear in person at any or all subsequent hearings in the proceeding, the parent fails to appear in person as ordered, and the court finds that the parent’s conduct in failing to appear in person was egregious and without clear and justifiable excuse. Failure by a parent 18 years of age or over to appear in person at consecutive hearings as ordered is presumed to be conduct that is egregious and without clear and justifiable excuse. If the court finds that a parent’s conduct in failing to appear in person as ordered was egregious and without clear and justifiable excuse, the court may not hold a dispositional hearing on the contested adoption or involuntary termination of parental rights until at least 2 days have elapsed since the date of that finding.

(¶16 (emphasis the court’s)).

Despite phrasing suggesting a court must always wait two days after a grounds default, the court finds that this is not the statute’s effect. Rather, in the court’s view, a court finding a parent in default may either dismiss counsel, in which case it must wait two days before disposition, or have counsel continue, in which case no delay is required:

Although the language in the last sentence of WIS. STAT. § 48.23(2)(b)3. is concededly broad, it is significant that it is found in the statute entitled “Right to counsel,” and that it does not include any requirements for trial courts to find a waiver of counsel when a parent defaults. The amended language creates a presumption of waiver where three conditions are met: the court orders a parent to appear, the parent fails to appear, and the court finds the failure to appear egregious and without excuse. Even where those conditions are met, there is no indication that a default converts automatically into a waiver of the right to counsel. The legislature “placed great emphasis on the necessity of counsel” in TPR cases, see Shirley E., 298 Wis. 2d 1, ¶30, and it would not be consistent with that emphasis to allow waivers to occur absent a circuit court’s explicit finding. The Wisconsin Legislative Council Act Memo for 2013 Wisconsin Act 337 lends support to this view: “The Act requires that at least two days must pass from a court’s finding that an adult parent has waived the right to counsel by a failure to appear before a court may hold a dispositional hearing on an involuntary termination of parental rights or a contested adoption.” (Emphasis added.)

The court also rejects J.B.’s argument that the circuit court should have ordered a competency exam. In explaining J.B.’s absence from court, his counsel stated that he “had some questions about … competency,” that J.B. “seems to be on a disconnect with what needs to be done and taking my advice, and I have to repeat things again and again and he just doesn’t seem to get it,” and that his case manager felt he had difficulties reading and writing. The case manager told the court that a psych eval was scheduled, that she could “see some competency issues,” and that “there is obviously a fog.” (¶6).

Mr. B argues in his brief that because “two people believed that [Mr. B] may have issues understanding the court proceeding” the circuit court erroneously exercised its discretion when it denied the motion for a competency exam. The concern of counsel alone does not constitute a sufficient factual basis to require a competency exam. See McKnight, 65 Wis. 2d at 595. The basis for their statements was the concern that Mr. B had problems with reading and writing and had been unwilling to accept advice from counsel––not concern that he was unable to understand the proceedings. This was even more clear at the postdispositional hearing: although facts were presented relative to Mr. B’s unwillingness to follow court orders, no facts were presented that would lead to the conclusion that he had an inability to understand them. The trial court considered the facts, applied the proper standard of law. See id.See alsoKainz, 300 Wis. 2d 670, ¶3. It reached a conclusion that a reasonable judge could reach. It was therefore not an erroneous exercise of discretion for the trial court to proceed with the trial without ordering a competency exam for Mr. B.

(¶27).

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