By: Derek Hawkins//July 16, 2019//
WI Court of Appeals – District IV
Case Name: Adams County Health & Human Services Department v. D.J.S.
Case No.: 2019AP506
Officials: KLOPPENBURG, J.
Focus: Termination of Parental Rights
D.J.S. appeals an order terminating his parental rights to E.W.D. A jury found that three grounds existed to terminate his parental rights: continuing need of protection or services, abandonment, and failure to assume parental responsibility. The circuit court subsequently held a dispositional hearing and determined that it was in E.W.D.’s best interests to terminate D.J.S.’s parental rights. D.J.S. raises three issues on appeal: (1) the circuit court erred by not dismissing as unconstitutional the first ground for termination of his parental rights, continuing need of protection or services; (2) the evidence introduced at the jury trial to support that first ground prejudiced his defense to the other two grounds, requiring a new trial on those grounds; and (3) the circuit court violated his statutory right to be in the same courtroom as the judge during the dispositional hearing when the judge attended the hearing by video conferencing technology over D.J.S.’s objection. D.J.S. asserts that he is entitled to both a new grounds trial and a new dispositional hearing.
As to the first issue, I assume, without deciding, that the constitutional argument D.J.S. makes with regard to the first ground for termination of parental rights, continuing need of protection or services, is correct and that, therefore, that ground should have been dismissed. As to the second issue, I reject D.J.S.’s argument that the evidence introduced to support the first ground at the jury trial prejudiced his defense to the other two grounds, and, therefore, I conclude that he is not entitled to a new trial on those two grounds. As to the third issue, I conclude that D.J.S. had a statutory right under WIS. STAT. § 885.60(2) to be in the same courtroom as the judge during the dispositional hearing, and that the circuit court erred by attending the dispositional hearing via videoconferencing technology over D.J.S.’s objection; I also conclude that this error is structural, thereby requiring automatic reversal of the court’s disposition. Accordingly, I reverse and remand for a new dispositional hearing only.