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TPR: (Imprisoned) Parent’s Telephonic Appearance and Right to “Meaningfully Participate” in Hearing

State v. Lavelle W., 2005 WI App 266

Issue: Whether the right of a parent imprisoned  in the federal system to “meaningfully participate” in a TPR proceeding was violated when he was not physically produced in court but, instead, was limited to telephonic participation.

Holding: Where various mechanisms could have been utilized to produce the father yet weren’t attempted, and the telephone hook-up was, under the circumstances, not entirely adequate, the father’s right to be present at the hearing was violated:

¶7        There is nothing in the Record that indicates that any of these procedures, either under the applicable statutes or under the regulations, were explored before resorting to what Lavelle W.’s lawyer called the “last resort”—the telephone. Moreover, because the State is the petitioner, D.G. recognizes that the trial court would have been within its discretion to order the State to absorb the costs of producing Lavelle W. for the hearings. D.G., 152 Wis. 2d at 168–169, 448 N.W.2d at 243.

¶8        Our discussion so far would be academic if the telephone solution allowed Lavelle W. to meaningfully participate in the termination-of-parental- rights proceedings. See Rhonda R.D., 191 Wis. 2d at 701–702, 530 N.W.2d at 42–43 (whether ability to participate is “meaningful” must be determined case-by-case). Although the trial court concluded that Lavelle W. was able to meaningfully participate, that is a matter, that, as noted, we review de novo. In our view, any alternative to a parent’s personal presence at a proceeding to terminate his or her parental rights must, unless either the parent knowingly waives this right or the ministerial nature of the proceedings make personal-presence unnecessary, be functionally equivalent to personal presence: the parent must be able to assess the witnesses, confer with his or her lawyer, and, of course, hear everything that is going on. The Record here reveals that at times Lavelle W.’s ability to hear the proceedings faded in and out, and, at least at one point, was temporarily interrupted by static.

¶9        Although it may very well be that Lavelle W. was able to hear significantly more than he was unable to hear, that is not sufficient because periodic or sporadic inaudibility, both of which marred Lavelle W.’s connection to the proceedings, significantly truncates a party’s ability to fully comprehend what is going on, and thus hinders the ability to get a feel for the proceedings—a mix of spoken words and body language—and, therefore, meaningfully consult with his or her lawyer concerning not only the testimony but also what everyone else may be doing in court. In sum, we conclude that Lavelle W. was not able to meaningfully participate in the proceedings, and, accordingly, we must vacate the orders terminating his parental rights and remand to the trial court for further proceedings consistent with this opinion.

Is the holding limited to the facts? Limited, that is, to instances of static on the phone line? Perhaps; but that would be an awfully crabbed reading. Note that the court stresses the need to fully comprehend courtroom dynamics, including “a mix of spoken words and body language”: not, one would think, something transmissible by data bits.

An interesting procedural note: Lavelle W. raised a separate claim that the evidence was insufficient to support the termination order, an argument the court declines to reach in light of its reversal on the meaningful-partcipation ground, ¶1. In criminal cases, it is clear “that where a defendant claims on appeal from a conviction that the evidence is insufficient to sustain the conviction, the appellate court is required to decide the sufficiency issue even though there may be other grounds for reversing the conviction that would not preclude retrial,” State v. Ivy, 119 Wis.2d 591, 610, 350 N.W.2d 622 (1984). The rationale is that double jeopardy would preclude retrial if the evidence were insufficient, but a TPR is civil and therefore double jeopardy—which requires a criminal “offence” as a trigger—doesn’t apply. Presumably, that distinction informed the court’s reticence to reach the sufficiency question, though the reasoning isn’t spelled out. On the other hand, claim and issue preclusion [facets of double jeopardy analysis] are certainly available as TPR defenses, Brown County DHS v. Terrance M., 2005 WI App 57, ¶¶8-9; and see also State v. Kenneth Parrish, 2002 WI App 263, relative to SVP proceeding. Not to make this overly complex, but relief on sufficiency grounds would result in dismissal of the pending petition, not retrial on it. An argument thus might be made that an Ivy-type rationale ought to apply in this context, such that the court should similarly reach the merits the merits of a sufficiency claim.

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