La Crosse County DHS v. B.B. and E.B., 2020AP2030 & 2020AP2031, District 4, 9/30/21 (one-judge decision; ineligible for publication); case activity

B.B. and E.B. challenge the order terminating their parental rights, arguing that the guardian ad litem improperly invoked the children’s best interest standard during the grounds trial and that conducting the dispositional hearing via Zoom violated their due process rights. The court of appeals rejects both arguments.

GAL’s conduct during grounds trial

It’s well settled that the fact finder at a grounds trial does not consider the best interests of the child standard. during the grounds phase. Waukesha County DSS v. C.E.W., 124 Wis. 2d 47, 61, 368 N.W.d 47 (1985). This bar applies even to the GAL, who is appointed to represent the best interests of the children and who may participate in the grounds phase, but only to argue the facts to the fact finder. Id. at 70.

At the grounds trial, the GAL made an opening statement, examined witnesses, and offered a closing argument. E.B. and B.B. argue the GAL crossed the line by invoking the children’s best interests standard during the grounds phase by:

  • Referring during opening statement to the children “doing much better now” in foster care. (¶¶21-25).
  • Asking two witnesses to compare the children’s lives before being removed and afterward, implying they were better off outside the home of their parents. (¶¶31, 33).
  • Referring in closing arguments to the children’s pre-removal conditions and the suggestion the children were sexually victimized by a guest of the parents while in the parents home when that wasn’t supported by the evidence. (¶¶35-40).

The court of appeals rejects these arguments.

First, the circuit court properly exercised its discretion in concluding the GAL’s opening statement didn’t stray into a best-interests argument; and even if it improperly suggested an unfavorable comparison between the parents and foster care, the remarks were a small portion of the statement and overwhelmed by the extensive evidence admitted during the 5-day fact-finding hearing, at the close of which the court instructed the jury to focus on the specific questions in the verdict, and not to consider the children’s best interests. (¶¶26-29).

Next, the GAL’s questioning of the witnesses was relevant to other issues presented to the grounds of termination. (¶¶32, 34).

Finally, the GAL’s closing argument wasn’t improper because it didn’t tell the jury to consider the children’s best interests and summarized admitted evidence about the home before their removal; in addition, there was evidence about concerns regarding sexual victimization that it was up to the jury to sort out. (¶¶41-43).

Challenge to the use of audio-visual technology at the dispositional hearing

The dispositional hearing was set for April 2020, just after the court system implemented orders limiting in-person court appearances due to the coronavirus pandemic. After a couple of adjournments of the dispositional hearing to try to accommodate the parents’ expressed desire to appear in person, the court finally held a dispositional hearing via Zoom in July 2020. Neither parent objected to that mode of appearance at the hearing. (¶¶46-48).

B.B. argues her due process and statutory rights to be present in person were violated. Though it finds no basis for a constitutional right to be present like that a criminal defendant has, Illinois v. Allen, 397 U.S. 337, 338 (1970), the court does note that § 885.60(2)(a) provides that, “[e]xcept as may otherwise be provided by law,” a respondent in a TPR proceeding “is entitled to be physically present in the courtroom” during the dispositional hearing, and § 885.60(2)(d) provides that, if a respondent in a TPR proceeding objects to the use of videoconferencing technology “regarding any proceeding where he or she is entitled to be physically present in the courtroom, the court shall sustain the objection.” Thus, under § 885.60 a court cannot normally hold a dispositional hearing using videoconferencing technology over a TPR respondent’s objection. (¶¶49-50 (also citing Adams County HHS v. D.J.S., 2019AP506, unpub. slip op. ¶¶27-31 (WI App June 20, 2019)).

But the court of appeals rejects B.B.’s argument that her statutory right to be present was violated, for two reasons. First, B.B. appeared at the dispositional hearing through videoconferencing and didn’t object, so she forfeited her right to raise the issue. (¶51). Second, the dispositional hearing in this case didn’t occur in “normal times,” and the Wisconsin Supreme Court had issued orders regarding circuit court procedure during the COVID-19 pandemic. The order in effect in July 2020 expressly suspended the provisions of § 885.60(2)(d) (see here, footnote 1). B.B. doesn’t develop an argument challenging the supreme court’s use of its authority to suspend the statute, so the court concludes it was validly suspended and inapplicable at the time of B.B.’s dispositional hearing. (¶52).