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Defense win! TPR court lost competency by holding dispo hearing immediately after default and waiver of counsel finding

State v. R.A.M., 2023AP441, 6/6/23, District 1 (one-judge decision; ineligible for publication); petition for review granted 9/26/23; affirmed 6/25/24 case activity

R.A.M. was defaulted on grounds after she missed a single hearing. While the “hearing” was the fourth day of her TPR court trial, she had appeared at every prior hearing, including the first three days of trial.  As all too commonly happens, the circuit court determined that R.A.M.’s single non-appearance was “egregious and in bad faith and without justification” without ever hearing from her, and held that she had waived her right to counsel under Wis. Stat. § 48.23(2)(b)3. The court of appeals notes the paucity of grounds for this decision in a footnote, but as R.A.M. doesn’t challenge the finding of egregiousness, the opinion doesn’t otherwise address it. It does address what came next: rather than waiting the two days the same statute requires to hold a dispositional hearing after a counsel waiver, the court held the hearing on the same day and terminated R.A.M.’s rights.

On appeal, R.A.M. argued the noncompliance with the 2-day rule deprived the circuit court of competency to hold the dispositional hearing, and also that it violated her right to due process. The court of appeals agrees on both points, but first it addresses the state’s argument that what the trial court did was something other than a § 48.23(2)(b)3. waiver of counsel, such that the 2-day rule doesn’t apply. The state says the court sanctioned R.A.M. for her nonappearance not by dismissing her attorney, but instead by striking her “contest” posture such that she defaulted on grounds. It points out that her counsel participated, in a limited way, in the remaining proceedings. The court of appeals replies that

the State ignores the circuit court’s statements that showed it considered trial counsel to have a proscribed and diminished representation after the egregious conduct without justification finding for default. The State also ignores the presumption of waiver in the plain language of the statute. The State fails to address the presumption, arguing instead that the third situation in WIS. STAT. § 48.23(2)(b). applies when a parent fails to continue to participate in a TPR action. Although the State cites to other unpublished yet persuasive TPR cases, we consider those cases distinguishable, and we cannot ignore the plain meaning of the language in statute. State ex rel. Kalal, 271 Wis. 2d 633, ¶46. The statute states that a parent “is presumed to have waived his or her right to counsel and to appear by counsel” when the parent is ordered to appear, does not appear, and the court finds the absence was egregious and without a justifiable excuse. Sec. 48.23(2)(b)3. That situation and those three findings were made.

(¶32) (citation to one of those unpublished cases, State v. J.B., No 2016AP483, omitted, sort of).

Turning to the first claim, the court holds that § 48.23(2)(b). imposes a mandatory time limitation, and that this limitation is “central to the statutory scheme” such that its violation is fatal to competency. (¶33 (citing Village of Trempealeau v. Mikrut, 2004 WI 79, ¶9, 273 Wis. 2d 76, 681 N.W.2d 190). The court rejects a state argument that R.A.M. waived her competency challenge by not making it to the circuit court. (¶¶26-28). It also says Wis. Stat. § 48.315, which says competency isn’t removed by “failure by the court … to act within any time period” doesn’t apply here because the failure involved is acting too soon, rather than too late. (¶35).

The court of appeals also agrees that the circuit court violated R.A.M.’s due process rights:

R.A.M. argues that the circuit court’s decision to move forward with the dispositional phase of the TPR proceedings was contrary to statute, as well as in contradiction to the court’s statement to trial counsel that it would allow R.A.M. to move to vacate the default grounds with a very good excuse. The court scheduled hearing times on July 5 and 6 and July 15, 2022. After finding grounds for termination of R.A.M.’s parental rights, the circuit court told counsel that it would allow R.A.M. to participate in the disposition hearing if she appeared as scheduled the following day. However, the court instead conducted the entire dispositional hearing in under two hours, on the same day, denying R.A.M. an opportunity to appear and perhaps provide a justifiable reason to vacate the default finding or at least allow her to participate in the dispositional phase.



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