Shaianne D. v. David D.

344 Wis.2d 521

822 N.W.2d 737

2012 WI App 118

In re the termination of parental rights to SHAIANNE D., a person under the age of 18.Brown County Department of Human Services, Petitioner–Respondent,

v.David D., Respondent–Appellant.

No. 2012AP722.

Court of Appeals of Wisconsin.

Sept. 5, 2012.

OPINION TEXT STARTS HEREAppeal from orders of the circuit court for Brown County: Kendall M. Kelley, Judge. Affirmed.

¶ 1HOOVER, P.J.¹

David D. appeals an order terminating his parental rights to his daughter, Shaianne D. He also appeals an order denying postdisposition relief. David argues the court denied his right to meaningful participation in the termination of parental rights proceeding. We affirm.

BACKGROUND

¶ 2 On June 9, 2011, the Brown County Department of Human Services petitioned to terminate David's parental rights to Shaianne.² As grounds for termination, the petition alleged that Shaianne continued to be a child in need of protection or services, seeWis. Stat. § 48.415(2), and that David had failed to assume parental responsibility, see§ 48.415(6).³

¶ 3 At the first court appearance on July 6, David appeared by telephone. David told the court that he lives in New Jersey and “it's a challenge” financially to appear in person. The court, however, advised David that if he wanted “to contest this matter, it will be necessary for you to appear in person.”

¶ 4 At the next hearing, David's counsel told the court that David needed time to “put together the money” to travel to Wisconsin for the hearing and requested the court extend the time limits. The court granted David's request and found good cause to extend the time limits.

¶ 5 At the next hearing, David's counsel inquired whether David could appear telephonically because “one of the issues that confronts [David] is the ability to travel and to maintain a location here during the pendency of the proceedings.” The court responded:

I'll be very candid. Telephonic testimony is very difficult in terms of accuracy of the record, and in a TP case, the record is very important. As you know, appellate review of these types of cases is frequent, just because of the interests that are involved here and the importance of action by the court, as well as by all of the litigants, so one of the problems will be the ability to get a good record, but beyond that, it's the court's observation that telephonic testimony is not very effective generally. You can convey information, sometimes if you have an expert who is giving uncontroverted information, perhaps that's a worthwhile use of the phone, and I am very aware of the costs and so forth, but the integrity of the process generally requires that people are present. It's even in the jury instructions, in terms of observing demeanor and so forth. I mean, this is just one of the critical parts of the trial process, and I know that there is an increasing trend to try to save costs by minimizing transportation costs, but again, the integrity of that process would be the court's primary focus, so we'll see how things go and see where things go from there.

The court stated David needed to appear in person for the fact-finding hearing and, if he failed to appear, it would allow him to listen to the proceeding telephonically; however, David would not be able to interact during the proceeding.

¶ 6 The fact-finding hearing was held on October 4, 2011. David failed to appear in person and made his appearance by telephone. When questioned by the court about whether he had looked into travel options to come to the hearing, David testified he was not able to afford a $190 bus ticket. He also testified he works part time in a bar, smokes cigarettes, occasionally goes to bars to drink alcohol, and has a cell phone plan that costs $100 to $150 per month and includes internet and text messaging services. The court advised David that, because he did not appear in person, he could listen to the proceeding telephonically, but he would not be allowed to testify.

¶ 7 David's counsel moved for David to be able to testify telephonically. The court denied counsel's motion, reasoning:

It is not practical or appropriate in terms of the jury exercising its function, and for the other reasons I stated before, the limitations of technology here are such that actually would interfere with the effectiveness of the process and would not ensure that all of the rights of all of the litigants are properly observed.

David's counsel also moved for an adjournment until such time as David could appear in person. The court denied counsel's request, reasoning:

There's been ample time. [David]'s had ample notice to be able to get here, and he has been given notice that it was necessary for him to personally be here.

Nothing in his remarks today under oath suggested to the court that he's making any serious plans, and frankly, the questions appropriately asked by counsel with respect to his preferences in spending would suggest that it is his preference to support other habits and entertainments in his life as opposed to use those resources in order to make himself available here today, so I'm going to find that there's actually no reason that he could not have been here today had he chosen to do so, simply by forgoing some of those other items in his life and by making other arrangements.

(Emphasis added.)

¶ 8 The jury trial went forward as scheduled, and David listened to portions of the trial by telephone. He did not testify. The jury found grounds existed to terminate his parental rights. The court then granted David's request to postpone the dispositional hearing until January 2012 so that he could appear in person. Following a dispositional hearing in which David did not appear—either in person or by telephone, the court terminated his parental rights.

¶ 9 David filed a postdisposition motion, alleging, in part, that the court denied his right to meaningfully participate in the fact-finding hearing. The court denied this motion following a hearing. David appeals.

DISCUSSION

¶ 10 “A parent's rights to his or her children are substantial and are protected by due process.” Waukesha Cnty. DHHS v. Teodoro E., 2008 WI App 16, ¶ 10, 307 Wis.2d 372, 745 N.W.2d 698 (citation omitted). “Due process requires that a court ensure the parent's ability to ‘meaningfully participate’ in the proceedings.” Id. (citation omitted). The right to meaningful participation is “the opportunity to be heard at a meaningful time and in a meaningful manner.” Rhonda R.D. v. Franklin R.D., 191 Wis.2d 680, 701, 530 N.W.2d 34 (Ct.App.1995) (citing Ma thews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). “Whether a parent has been afforded the opportunity to participate meaningfully is a question of constitutional fact.” Teodoro, 307 Wis.2d 372, ¶ 10, 745 N.W.2d 701. We defer to the circuit court's factual findings unless they are clearly erroneous, but we independently apply constitutional principles to those facts. Id.

¶ 11 On appeal, David argues he was denied his due process right to meaningful participation at the fact-finding hearing because, after he advised the circuit court he lacked the financial ability to appear in person, the court failed to make alternative arrangements that would have ensured his meaningful participation. He cites three cases in which alternative arrangements were made for parents who were prevented from appearing in person at the fact-finding hearing. See id., ¶¶ 5–8 (alternative arrangements for father who was deported and could not reenter country for ten years); State v. Lavelle W., 2005 WI App 266, ¶¶ 3–4, 288 Wis.2d 504, 708 N.W.2d 698 (alternative arrangements for father who could not appear because he was federal prisoner); Rhonda, 191 Wis.2d at 690–91, 530 N.W.2d 34 (alternative arrangements for father who was imprisoned in Washington). David also argues his participation by telephone, without the opportunity to testify, did not constitute meaningful participation, and he never waived his fundamental right to meaningful participation.

¶ 12 David's arguments, however, suffer from a fatal factual flaw: the circuit court found David had the financial ability to appear in person and simply chose not to attend the hearing. This factual determination is supported by the record and therefore not clearly erroneous. See Noll v. Dimiceli's, Inc., 115 Wis.2d 641, 643, 340 N.W.2d 575 (Ct.App.1983). Specifically, the record shows that David requested time extensions so he could “put together the money” to come to Wisconsin, and, when David failed to appear in person at the fact-finding hearing, he testified he buys cigarettes, goes to the bar, and spends $100 to $150 per month for his cell phone. It was reasonable for the court to infer that, by granting these extension requests, David believed he would be in a financial position to afford the trip and would appear in person. When he failed to appear and testified about some of his expenditures, it was reasonable for the court to infer that, if David had forgone some of these items in the months leading up to the fact-finding hearing, David would have been able to purchase the $190 bus ticket and attend the hearing.

¶ 13 As a result, this case does not present a situation where a parent lacked the financial resources to attend the fact-finding hearing and the court determined due process would nevertheless be satisfied if the parent appeared by telephone and did not testify. Because nothing prevented David from attending the fact-finding hearing, the court did not need to make “alternative arrangements” to ensure his meaningful participation.

¶ 14 Moreover, the court's decision to allow David to observe the proceedings telephonically...