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Defense win! Judge can’t attend TPR dispositional hearing by video over parent’s objection

Adams County  Health and Human Serv. Dep’t. v. D.J.S., 2019AP506, District 4, 6/20/19 (1-judge opinion, ineligible for publication; case activity

You don’t see defense wins in TPR appeals very often! In this case, D.J.S., the witnesses, the GAL, and counsel for both parties were at the Adams County Courthouse. For unknown reasons,the judge appeared by videoconference from the Marquette County Courthouse. D.J.S. objected, arguing that under §885.60(2) he had a right to be present in the same courtroom as the judge, and he won!

Section 885.60 governs the use of videoconferencing in TPR proceedings. Subsection 885.60(2)(a) states: “Except as otherwise provided by law, a defendant in a criminal case and a respondent in a matter listed in sub. 1 [i.e. chs. 51, 55, 938, 980] is entitled to be physically present in the courtroom at all trial and sentencing or dispositional hearings.” Then §885.60(2)(d) provides that if the defendant or respondent objects to a videoconference proceeding, “the court shall sustain the objection.”

The statute does not say explicitly whether a judge may attend a hearing by videoconferencing.  The court of appeals relied on State v. Soto, 2012 WI 93, ¶19, 343 Wis. 2d 43, 817 N.W.2d 848 to conclude that  §885.60(2) means that a TPR respondent has the right to be in the same courtroom as the judge. Soto held that a judge may not accept a guilty plea and convict a defendant by videoconference under §971.04(1)(g), which is similar to  §885.60(2). See our post on Soto.

It gets better. the court of appeals held this error to be structural thus entitling D.J.S. to a new dispositional hearing. Opinion ¶¶43-46. Appellate courts defer to a trial court’s credibility determinations precisely because the trial court is there observing the witnesses testifying within the close confines of a courtroom, not from afar “with the impersonal barrier of a view screen and microphone between it and the witness.” Opinion ¶43 (citing Johnson v. Merta, 95 Wis. 2d 141, 151-52, 289 N.W.2d 813 (1980) and United States v. Thompson, 599 F.3d 595, 601 (7th Cir. 2010). In a TPR proceeding, a witness’s demeanor, attitude and strength of emotion when testifying about a relationship with a child are essential to the disposition. In this case, videoconferening “intrinsically altered” the testimony by D.J.S.’s mom and D.J.S.’s ability to present his defense. Opinion ¶45. This affected the framework of the proceeding in a way that was impossible to determine. Therefore, the error was structural. Opinion ¶¶45-47.

D.J.S. also scored a point regarding the grounds phase of the this TPR proceeding. The County presented 3 grounds for termination of his parental rights. The trial court erred in not dismissing the first ground–continuing CHIPS. The statute changed between the time the County filed its petition and the jury trial. See 2017 Wis. Act 256 (amending §48.415(2)(a)(3). The court used the current version of the statute, rather than the version in effect at the time County filed a petition. The court of appeals assumed, without deciding, that the circuit court should have dismissed this ground for termination. Opinion ¶12. However, it affirmed the trial court’s decision on the other two grounds for termination, so D.J.S. still lost at this phase.

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