State v. Marquita R., 2010AP1981, District 1, 12/14/10
court of appeals decision (1-judge, not for publication); for Marquita R.: Carl W. Chesshir
TPR – Default as Sanction
Delay of over two-and-one-half years between petition and fact-finding hearing (despite statutorily mandated schedule of 45-day limit, § 48.422(2)), caused by Marquita R.’s “egregious” and “bath faith” conduct, intended to disrupt the TPR process, supported the trial court’s decision to find her in default as a sanction.Nor did the default ruling violate due process, notwithstanding that during at least some of the relevant period Marquita R. was determined to be incompetent in a separate criminal proceeding and hospitalized.
¶20 Several of the cases cited by Marquita R. in support of her contention that her due process rights were violated deal with criminal proceedings. Convicting an accused person of a crime while he or she is incompetent is a violation of due process. Pate v. Robinson, 383 U.S. 375, 378 (1966). However, our supreme court has held that termination of parental rights cases are civil in nature. M.W. v. Monroe Cnty. Dep’t of Human Servs., 116 Wis. 2d 432, 442, 342 N.W.2d 410 (1984). No Wisconsin case has extended the ruling in criminal cases concerning incompetent defendants to termination of parental rights actions.[4] Indeed, “the jury trial right … is entirely statutory, not mandated by constitutional due process, and is therefore generally subject to the provision of the civil procedure code, including the summary judgment statute, WIS. STAT. § 802.08, unless the TPR statutes provide otherwise.” See WIS. STAT. § 801.01(2). “The TPR statutes do not provide otherwise, either explicitly or implicitly.” Steven V., 271 Wis. 2d 1, ¶4.
¶21 Additionally, it should be noted that WIS. STAT. § 48.415(3) lists as a ground for involuntary termination of parental rights “continuing parental disability,” which includes a parent who suffers from a mental illness and has been institutionalized for a cumulative total period of at least two years within the last five years immediately prior to the filing of the termination of parental rights petition. While the State did not proceed on that ground against Marquita R., the statute provides proof that the legislature clearly contemplated the possibility that the State may bring termination of parental rights actions against parents who are incompetent as a result of a mental illness. Further, WIS. STAT. § 48.235(1)(g) requires that the trial court appoint a guardian ad litem for a “parent who is the subject of a termination of parental rights proceeding, if any assessment or examination of a parent … shows that the parent is not competent to participate or assist his or her counsel or the court in protecting the rights in the proceeding.”[5] Extrapolating from these statutes, this court concludes that a termination of parental rights suit may be maintained against an incompetent person if the person has been appointed a guardian ad litem. In addition, common sense dictates that every litigant is expected to comply with the trial court’s orders to attend the proceedings. Given the restrictive time limits set by the statutes in these actions, a trial court must have the authority to “prevent undue delay” and bring closure to litigation. As applied here, the trial court had the authority to sanction a parent with a mental illness who intentionally and purposefully avoided court proceedings by appearing at emergency rooms with phony medical complaints.
The default as to grounds didn’t deprive her of right to “meaningful opportunity to be heard,” id. n. 4: she had the benefit of both adversarial counsel and guardian ad litem, and she testified at the dispositional phase.
TPR – Formal Advice as to Rights – Harmless Error
Trial court failure, contrary to § 48.22(1), to advise Marquita R. of her rights was harmless, given that the record shows she exercised those rights and was therefore aware of them, ¶¶24-29.
