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Merging change of placement hearing into jury trial on grounds for TPR is okay

State v. T.S.W., 2019AP450-451, District 1, 10/22/19 (1-judge opinion, ineligible for publication); case activity

The trial court failed to hold a hearing on T.S.W.’s motion for change of physical placement of her child, J.C., before the jury trial on the grounds phase of her TPR. She argued that this violated her right to due process because if she had prevailed at the hearing, the jury would have heard evidence that J.C. had been placed in the parental home with T.S.W., rather than outside the parental home.

This is an interesting argument–especially because the jury was tasked with deciding whether J.C. and sibling, J.L.C., were children in need continuing need of protective services and whether T.S.W. had failed to assume parental responsibility for them. However, the court of appeals brushed the point aside with the familiar “we need not address undeveloped arguments” refrain. Opinion, ¶17 (citing State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

The court of appeals also held:

¶19 The record reflects that T.S.W. was given her hearing on the motion to change J.C.’s physical placement during the emergency hearing on the motion and during the jury trial. At the hearing on July 12, 2018, the trial court heard evidence on the request for an emergency temporary change of placement. The trial court heard testimony from Kelly Davis, a family case manager with Children’s Hospital of Wisconsin Community Services. She described the efforts to reunify T.S.W. with J.C., the treatment services that were offered to T.S.W., and T.S.W.’s relapses with substance abuse that put J.C. in unsafe situations. The trial court heard that J.C. was placed with T.S.W. for a trial reunification on approximately October 31, 2017, until approximately July 9, 2018, when she was removed for an emergency detention. T.S.W. chose not to testify at the hearing.

¶20 During the jury trial, the trial court heard testimony about T.S.W.’s involvement with Child Protective Services beginning with her older children in 2007 and continuing until the jury trial. It also heard about T.S.W.’s extensive substance abuse issues that put J.C. in dangerous situations. T.S.W. does not even attempt to identify any facts that she could have introduced that would have resulted in the trial court denying the motion to change J.C.’s physical placement, nor does she address the evidence presented by the State.

The court of appeals does not say whether T.S.W. received notice that her motion for change of physical placement was being folded into the emergency hearing and the trial. Because the record is confidential we cannot see the briefs to see how the point was argued. But, of course, due process requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner.  State v. C.L.K., 2019 WI 14, ¶17, 385 Wis. 2d 418, 922 N.W.2d 807.

Because the court of appeals held that T.S.W. was not entitled to a separate hearing on her motion for change of placement, it further held that her trial lawyer did not perform deficiently by allowing the trial to proceed without hearing on the change of placement motion. State v. Swinson, 2003 WI App 45, ¶59, 261 Wis. 2d 633, 660
N.W.2d 12 (“Trial counsel’s failure to bring a meritless motion does not constitute deficient performance.”)

The court of appeals also rejected T.S.W.’s argument that trial counsel should have moved for an adjournment of her trial so that the jury could see her while she was on medication for her mental health. The court of appeals deferred to the trial court’s findings: T.S.W. had a history of stopping medication, so an adjournment would not have mattered. Also, there had already been several long delays in the case, so another delay would be contrary to the rights of the children and the public in a timely resolution of TPR cases. Again, trial counsel did not perform deficiently by failing to bring a motion that would have been denied. Opinion, ¶¶30-31.

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