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Suspension of visitation while TPR was pending did not violate due process

State v. Delano W., 2013AP2445 & 2013AP2446, District 1, 3/14/14; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP2445; 2013AP2446

The trial court did not violate Delano’s due process rights and properly exercised its discretion when it prohibited Delano from visitation with his children pending the trial on a petition to terminate his parental rights to those children.

Under § 48.42(1m), a circuit court may prohibit a TPR respondent from visitation while the proceeding is pending if it is in the child’s best interests. The circuit court initially suspended Delano’s visitation at a permanency planning hearing in July–at which Delano did not appear–and kept that order in place after two more hearings–one in August, the second in September–after Delano requested reconsideration of the visitation suspension. (¶¶6, 15-21). Delano argued his due process rights were violated because he didn’t have sufficient notice of the July hearing, let alone that it would address suspension of visitation, and because, at the two subsequent hearings, the court had already decided to suspend visitation and improperly shifted the burden to Delano to prove he deserved visitation. (¶¶9, 14).

The court of appeals agrees Delano didn’t have notice the court would address suspension of visitation at the July hearing, but finds no due process violation. Delano had notice there would be a permanency hearing and was advised of his obligation to make his court appearances; moreover, at the July hearing the trial court properly found that an emergency existed and that the children’s best interests required suspension, but also indicated it would revisit that order at Delano’s request. (¶¶15-22). At the two subsequent hearings, the record demonstrates the court had not already made up its mind to continue the suspension of visitation. (¶¶23-25). Therefore, “Delano had a timely and meaningful opportunity to be heard and present his case on August 20th and September 18th.” (¶25). And the trial court properly concluded that the children’s best interests compelled the suspension of visitation. (¶¶26-37). At all three hearings, “the circuit court applied the proper law—the best-interests-of-the-child standard—and rationally determined based on the facts in the record that the children’s best interests warranted the suspension. Thus, the circuit court properly exercised its discretion in suspending visitation on all three occasions.” (¶38). 

The court also concludes there was sufficient credible evidence supporting the jury’s finding that Delano failed to assume parental responsibility. In particular, Delano’s periods of incarceration, caused by repeated violations of his rules of supervision and new criminal conduct, resulted in little contact with his children, a concomitant lack of ability to bond with them and, according to the state’s witnesses, “anxiety behaviors” from the children when they did visit with Delano. (¶¶39-61).

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