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Once again, FTA leads to TPR

State v. A.S., 2017AP1349, District 1, 1/9/18 (one-judge decision; ineligible for publication); case activity

The circuit court properly exercised its discretion in refusing to adjourn the disposition hearing in A.S.’s termination of parental rights proceeding after A.S. failed to appear, and the subsequent termination order didn’t violate A.S.’s rights to be present and to participate in the hearing.

After A.S. failed to appear the first time the disposition hearing was scheduled the court adjourned the case for a status hearing. A.S. appeared at the status hearing and a new date was set for disposition. A.S. failed to appear at the rescheduled hearing, and counsel for A.S. requested another continuance. The circuit court denied the request, finding no good cause for the continuance. (¶¶4-8). The court properly exercised its discretion in doing so, as it applied the appropriate legal standard to the facts of record:

¶16     “Although a determination of good cause may be based on many factors, courts have emphasized the following four factors when evaluating good cause: (1) good faith of the moving party; (2) prejudice to the opposing party; (3) prompt remedial action by the dilatory party; and (4) the best interest of the child.” [State v.Robert K., [2005 WI 152,] 286 Wis. 2d 143, ¶35[, 706 N.W.2d 257].


¶19     Here the trial court specifically referenced three of the factors in making its ruling. It made no finding that the failure to appear was a bad-faith act by A.S. In fact, it stated that it was taking “on its face” A.S.’s claim of transportation problems. As to the prejudice factor, the trial court explicitly acknowledged the interests that would be prejudiced by a delay: “[A]ll of this discussion occurs in the context of the interests of other parties as well, most specifically, this child. And others.… Certainly the State[.]” The final factor, the best interest of child, was also directly weighed in the ruling: “You can probably find eight or nine references in Chapter 48 that tell us make decisions, make them quick, because that’s what’s in the best interests of these children. Lingering in foster care is directly contrary to their best interests.”

The court rejects A.S.’s argument that its review of the denial of an adjournment should be de novo instead of for erroneous exercise of discretion. The cases A.S. cites in support of this claim involve questions of trial court competency, not decisions to adjourn a proceeding. (¶¶13-14).

Proceeding to disposition without A.S. there didn’t violate A.S.’s due process or statutory rights to be present and participate. Due process requires notice and an opportunity to be heard; A.S. had both. (¶¶21-25). And his right to be physically present under § 885.60(2)(a) wasn’t violated, as the state did nothing to prevent A.S. from appearing. (¶¶26-27).

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