Grant Co. DSS v. Stacy K. S., 2010AP1678, District IV, 10/7/10
court of appeals decision (1-judge, not for publication); for Stacy K.: Donna L. Hintze, SPD, Madison Appellate
The circuit court may take the parent’s admission telephonically at the grounds phase of a TPR; neither § 48.422(7)(a) nor § 807.13 requires physical presence.
¶16 Addressing first the requirements of Wis. Stat. § 48.422(7)(a), the plain import of the requirement that the court “[a]ddress the parties present” is that the court engage in an on-the-record discussion, before all those appearing at the hearing, focused on the topics addressed in § 48.422(7)(a), namely the adequacy and clarity of a purported admission. The import of “[a]ddress the parties present” is not that all who make appearances at a grounds hearing must be personally present. There is no suggestion in the language of the statute that presence by telephone is prohibited. Stacy made an appearance at the grounds hearing. The fact that she elected to appear by telephone instead of in person does not mean that she did not make an appearance.
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¶19 Turning to the requirements of Wis. Stat. § 807.13, we conclude that the circuit court did not violate its terms by permitting the stipulation to a telephone appearance by Stacy. See § 807.13(2)(b). [4] The circuit court properly admitted Stacy’s voluntary admission to grounds by telephone because the hearing was an evidentiary hearing under Wis. Stat. Ch. 48 and the parties stipulated to allowing the circuit court to admit such testimony, which was presumably subject to cross-examination if anyone had elected to cross-examine Stacy.
The legislation specifically requires personal presence for voluntary termination, § 48.41(2)(a), (b) (“appears personally”; “appear in person”). This shows that, had the legislature indeed intended to require personal presence at the grounds phase, it would have so provided, ¶18. The court’s discussion is limited to statutory construction, the caselaw being settled that due process doesn’t absolutely require physical presence, so long as the means of appearance is the functional equivalent, ¶11 n. 3.
