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COURT OF APPEALS
DECISION
DATED AND FILED
June 24, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT III
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In re the
termination of parental rights to
Patrick L.
B., a person under the age of 18:
Jamie P. B.,
Petitioner-Respondent,
v.
Lawrence J. B.,
Respondent-Appellant.
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APPEAL
from an order of the circuit court for Washburn County: MICHAEL
J. GABLEMAN, Judge. Reversed
and cause remanded.
¶1 PETERSON, J. Lawrence
J.B. appeals an order terminating his parental rights. He argues he was denied the right to
meaningfully participate in the fact-finding hearing. We agree and reverse and remand for a new
trial.
BACKGROUND
¶2 On September 7, 2007, Jamie P.B. filed a petition to
terminate Lawrence’s
parental rights to their son, Patrick L.B.
At the time, Lawrence was incarcerated in
a federal prison in Pennsylvania. He was not scheduled for release until
2017. A jury trial was held on November
26, 2007. Lawrence appeared by phone. At the close of the hearing, the jury found
grounds for the termination of Lawrence’s
parental rights.
¶3 Before jury selection began, the court asked Lawrence
if he could hear and Lawrence
replied that he could. During voir dire
by Jamie’s attorney, Kathryn zumBrunnen, the court interrupted to ask Lawrence whether he was
able to hear. He replied, “No. I can barely hear anything that’s going
on. It’s going in and out.” The court instructed zumBrunnen to pull the
microphone closer and repeat the questions she had asked. During voir dire by Lawrence’s
attorney, Lester Liptak, the court again asked Lawrence whether he could hear. Lawrence
replied, “Yes, your Honor. It keeps
going in and out. Even when you spoke
earlier, I get like parts of it.” The
court instructed the clerk to move the microphone in front of the
attorneys. The court also asked any
juror responding to a question to speak into the microphone. Following the questioning of potential
jurors, the court noted:
[H]e has made mention now twice of the fact that our
voices have been cutting out.
The record should reflect that I have taken all
available means that are possible, including providing potential jurors with
the portable microphone, moving the telephone closer to the potential jurors
and to counsel, turning the volume up on the sound system; I think I have
exhausted every opportunity to make sure that [Lawrence] is able to
meaningfully participate in this hearing.
The court then asked Liptak to
inquire if Lawrence
had been able to “materially and substantially follow these proceedings as to
make his participation in it meaningful in the legal sense.” Liptak spoke to Lawrence and informed the
court that “he’s indicated there’s been some difficulty but that he understands
the proceedings up to this point and has had enough so that he has a grasp
today, to this point what’s been going on, and I guess we are going to have to
proceed and see where it leads us.”
Liptak stated that Lawrence
was able to meaningfully participate.
¶4 Following his cross-examination of Jamie, Liptak asked to
confer with Lawrence to determine whether Lawrence wished him to
address anything else with the witness.
After speaking with Lawrence, the court
went back on the record and Liptak asked Lawrence
whether he could hear. Lawrence replied that he could, and Liptak
proceeded to question the witness.
¶5 After a recess, the court stated:
I’ll note that you did not indicate at any point during
the last session in court, the opening statements or direct examination of
[Jamie], that you could not hear anything.
Therefore I have been assuming that and inferring that you have been
able to follow everything substantially.
And you have been able to follow what’s been happening; is that true?
Lawrence replied that he had been able to
hear the proceedings and the court reminded him to advise the court if he was
unable to hear at any point during the proceedings. The court then indicated it had a matter to
discuss with the parties and Lawrence
stated he was unable to hear. The court
advised Lawrence
that the reason he was unable to hear was because there had been a break in the
proceedings.
¶6 At the beginning of Lawrence’s
testimony, he advised Liptak that he could barely hear. The court then instructed Liptak to take his
notepad up to the podium so he could speak into the microphone. Liptak did so, and Lawrence indicated that he could hear
Liptak. During his testimony, Lawrence said he had heard all of his cousin’s, Carrie
Wiggins, testimony and disputed her statement that she had made arrangements
“ten plus” times for Lawrence
to visit his child. After Jamie
presented her case, Liptak asked to speak with Lawrence
to ensure that Lawrence
did not have any additional witnesses, exhibits, or evidence he wished to
present. The court allowed Liptak and
Lawrence to confer.
¶7 Lawrence
then presented his case, which consisted of his own testimony. zumBrunnen then indicated she wished to
recall Jamie for rebuttal testimony. When
Jamie returned to the witness stand, the court asked Lawrence whether he could hear and he said
that he could. Then, shortly into
Jamie’s testimony Lawrence
informed the court that he could not hear.
The court replied, “One moment [Lawrence].” The witness continued to testify and Lawrence again informed
the court, “I’m hearing nothing, Your Honor.”
Jamie continued to testify and there is no indication in the record of
what, if any, steps the court took to resolve the issue.
¶8 Shortly after zumBrunnen began her closing argument, Lawrence again indicated
he could not hear anything. The court
informed Lawrence
that zumBrunnen was getting the portable microphone and zumBrunnen continued her
argument.
DISCUSSION
¶9 Lawrence
argues the court failed to fulfill its obligation to assure his right to
meaningfully participate in his fact-finding hearing. Jamie argues Lawrence waived this issue by not objecting
to appearing by telephone.
¶10 A parent has a fundamental right to the care and custody of his
or her child. Stanley v. Illinois, 405 U.S. 645, 649 (1972). However, that right is meaningless without
the “opportunity to be heard … in a meaningful manner.” State v. Lavelle W., 2005 WI App
266, ¶2, 288 Wis.
2d 504, 708 N.W.2d 698. Fundamental
rights must be waived in open court and on the record. State v. Albright, 96 Wis. 2d 122, 129-30, 291
N.W.2d 487 (1980). There is no
indication that Lawrence
waived his right to meaningful participation in this manner and thus we address
this issue on the merits.
¶11 The right to meaningfully participate is a due process
right. Rhonda R.D. v. Franklin
R.D., 191 Wis.
2d 680, 701-02, 530 N.W.2d 34 (Ct. App. 1995).
Whether a parent’s participation has been meaningful is a question of
constitutional fact we review without deference. Lavelle W., 288 Wis. 2d 504, ¶8.
¶12 Meaningful participation does not always require a physical
presence. Rhonda R.D., 191 Wis. 2d at 701. “[W]hether a respondent in a TPR proceeding
can meaningfully participate without being physically present depends on the
circumstances of each case.” Id. at
701-02.
¶13 In Rhonda R.D., the respondent appeared by telephone. Before trial, the court conducted a number of
experiments to determine “whether the telephone system allowed [the respondent]
to hear persons on the witness stand, in the jury box, and at counsel table.” Id.
at 700. The trial court found that the
system allowed the respondent to hear counsel, witnesses, and the jury. Id. Additionally, “[a]t the beginning of jury
selection, the beginning of the first and second days of trial, and at various
other times throughout the proceedings, the trial court redetermined that [the
respondent] was able to hear the proceedings.”
On appeal, we concluded the arrangements afforded the respondent “the
opportunity to meaningfully participate in the proceedings.” Id.
at 703.
¶14 In Lavelle W., the respondent also appeared by telephone. There however, the record revealed “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.” Lavelle W., 288 Wis. 2d 504, ¶8. We held that any alternative to physical
presence at a TPR proceeding must “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.” Id. Although Lavelle was able “to hear
significantly more than he was unable to hear, that is not sufficient because
periodic or sporadic inaudibility … significantly truncates a party’s ability
to fully comprehend what is going on.…” Id.,
¶9. Therefore, the court concluded
Lavelle was not able to meaningfully participate in the proceedings. Id.
¶15 Here, as in Rhonda R.D., the court frequently
checked that Lawrence
could hear the proceedings.
Additionally, Lawrence
had multiple opportunities to speak with his attorney. The trial court made a significant effort to
ensure that Lawrence
was able to meaningfully participate.
However, the test is not the effort exerted by the trial court to ensure
meaningful participation but rather whether the effort succeeded.
¶16 The record shows that the trial court’s effort was
unsuccessful. Unlike in Rhonda
R.D., Lawrence’s
ability to hear faded in and out. During
a portion of Jamie’s testimony, it is unclear what, if any, steps the court
took to correct this problem. From
reviewing the record, it appears the court used a telephone and a microphone
and the microphone was moved from person to person to allow Lawrence to hear. At times when the microphone was improperly
positioned, Lawrence
could not hear. Though the problem was
generally corrected, there were at least sporadic periods of time where Lawrence did not hear the
proceedings. Thus as in Lavelle
W., though Lawrence was able to hear significantly more than he did not
hear, the sporadic inaudibility truncated his ability to fully comprehend the
proceedings and he was unable to meaningfully participate in the fact-finding
hearing.
By the Court.—Order reversed and cause
remanded for further proceedings.
This opinion will not be
published. See Wis. Stat. Rule 809.23(1)(b)4.