Circuit court didn’t have to wait 2 days before moving from default on grounds to terminating parental rights

State v. T.C.G., 2018AP464, 10/23/18, District 1 (1-judge opinion, ineligible for publication); case activity

This TPR decision doesn’t seem right. The circuit court defaulted T.C.G. for failing to appear at the final pre-trial and trial regarding her fitness to parent J.M.H. It then moved immediately to the dispositional hearing without waiting 2 days as required by §48.23(2)(b)3. The court of appeals held that the 2-day requirement didn’t apply here.

One way to interpret §48.23(2)(b)3 is that when a court finds that a parent engaged in “egregious conduct without clear and justifiable excuse” it results in the waiver of counsel and a default judgment on the grounds phase of a TPR. Then the last sentence of the statute reads:

If the court finds that a parent’s conduct in failing to appear in person as ordered was egregious and without clear and justifiable excuse, the court may not hold a dispositional hearing on the contested adoption or involuntary termination of parental rights until at least 2 days have elapsed since the date of that finding.

But that is not how the court of appeals reads the plain language. It noted that the title of this statutory subsection is called “right to counsel” and it held that because the trial court had not found that T.C.G. waived her right to counsel, she did not get the 2 days to prepare and appear for the dispositional hearing. The trial court could proceed immediately in her absence. Opinion ¶¶17-18.

Consider the implications of this holding. It gives trial courts an incentive to find “egregious conduct” but not find a “waiver of counsel” so that they can proceed to disposition without waiting the two days required by statute.  Two days! Can’t our courts err on the side of “plain language” and due process rather than on the side of terminating a person’s parental rights?