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TPR – Right to Be Present

State v. Tenesha T., 2012AP1283, District 1, 9/5/12

court of appeals decision (1-judge, ineligible for publication); case activity

Parent’s right to be present during TPR trial wasn’t violated when court allowed 30 minutes of testimony during parent’s volunary absence:

¶16      Tenesha bases her argument on Shirley E., contending that a parent’s right to be present during termination proceedings is inherent in Shirley E.  In Shirley E., our supreme court looked at the scope of a parent’s statutory right to counsel, set forth in Wis. Stat.§ 48.23(2), and determined that the right should be broadly construed.  Shirley E., 298 Wis. 2d 1, ¶¶35, 40-41.  The court did not rule upon or consider whether a parent subject to termination has a right to be present during trial.  However, the supreme court noted that a parent can appear by counsel during trial, see id., ¶49, and that “no statutory provision deprives a parent’s counsel from presenting evidence and arguing at a termination of parental rights proceeding when the parent has ‘appeared’ but has not appeared in person,” see id., ¶46 (emphasis added). In other words, contrary to Tenesha’s assertion, Shirley E. does not stand for the proposition that a parent has a right to be present during trial and, in fact, contemplates situations in which a parent might not be present.  See id.

¶19      When facing termination proceedings, due process ensures a parent the opportunity to be heard at a meaningful time and in a meaningful manner.  Id., ¶49.  Here, Tenesha was permitted both opportunities.  She was given an opportunity to testify and cross-examine the witnesses against her, and she was present for all but thirty minutes of trial, during which time she was amply represented by counsel.  As such, we discern no due process violation.

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