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Parent didn’t show her failure to appear at dispostional hearing was excusable neglect justifying reopening of TPR

State v. M.H., 2015AP711, District 1, 9/1/15 (one-judge decision; ineligible for publication); case activity

The circuit court properly exercised its discretion in concluding that M.H. had not shown that her termination of parental rights proceeding should be reopened based on her “excusable neglect” in failing to appear at the dispositional hearing.

When M.H. failed to appear for the continuation of a TPR dispositional hearing the circuit proceeded to finish the hearing and ordered M.H.’s parental rights to be terminated. M.H. later moved to re-open the dispositional hearing on the grounds her failure to appear was excusable neglect under § 806.07(1)(a) because, she alleged, she was hospitalized for two days prior to the dispositional hearing and then spent several days recuperating in a home without access to a telephone. But other witnesses contradicted M.H.’s claims; the circuit court believed them, not M.H., and concluded M.H. now regretted her decision not to come to court and hadn’t shown excusable neglect. (¶¶3-18). The court of appeals affirms.

¶23      …. The court appropriately credited the testimony of the three witnesses who testified that, in the days leading up to the July 9th dispositional hearing, M.H. had skipped two visitations with S.H. and had told both her attorney and two visitation workers that she had “given up” on her case. The court properly inferred from that testimony that M.H. purposefully chose not to attend the July 9th dispositional hearing and that her failure to attend the hearing was not “‘that neglect which might have been the act of a reasonably prudent person under the same circumstances.’” See Hedtcke [v. Sentry Ins. Co.], 109 Wis. 2d [461,] 468[, 326 N.W.2d 727 (1982)] (citation omitted). In so holding, the court rooted its decision in the testimony elicited at the hearing and the relevant case law and reached a conclusion that a reasonable court could reach.

¶24      The circuit court also acted within its discretion when it evaluated M.H.’s testimony and implicitly found it incredible. The court founded that conclusion on M.H.’s failure to corroborate her testimony with “hospital records,” the “opinion of any physician or nurse,” or the friend with whom she allegedly stayed while she was injured. The court also called M.H.’s testimony into question based upon the testimony of the multiple witnesses who said M.H. had told them she had “given up” on her case, her failure to keep in contact with her attorney, and her ten-month delay in filing a motion to reopen the final termination order…. Consequently, the court properly exercised its discretion when evaluating the weight to give to M.H.’s testimony.

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