COURT OF APPEALS
DATED AND FILED
October 19, 2010
A. John Voelker
Acting Clerk of Court of Appeals
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.
IN COURT OF APPEALS
In re the termination of parental rights to Marquise L., a person under the age of 18:
APPEAL from an order of the circuit court for
¶1 KESSLER, J. Darrell K. appeals from an order terminating his parental rights to Marquise L. He argues that the trial court violated his right to counsel when it allowed trial counsel to withdraw and exit the courtroom, found Darrell in default, and then proceeded to hear testimony supporting the termination of Darrell’s parental rights while he was unrepresented. We agree.
¶2 Darrell K. is the biological father of Marquise L., born in September 2007. Marquise was born prematurely at twenty-four weeks and tested positive for cocaine and barbiturates at birth. Marquise suffered, and continues to suffer, from significant medical issues. He remained in the hospital for approximately four months following his birth. On January 2, 2008, Marquise was taken into protective custody after the Bureau of Milwaukee Child Welfare received neglect referrals pertaining to Marquise’s mother, Angela L. After Marquise was discharged from the hospital, he was placed in the foster home of Ralph G. and Jennifer H.
¶3 On June 27, 2008, Darrell was determined to be the biological
father of Marquise through a paternity test. Though Darrell lived in
¶4 On April 21, 2009, the State filed a petition to terminate Darrell’s parental rights. The petition alleged two grounds for termination: (1) continuing CHIPS pursuant to Wis. Stat. § 48.415(2)(a); and (2) failure to assume parental responsibility pursuant to Wis. Stat. § 48.415(6). Darrell attended the initial hearing, stated that he wanted to contest termination of his parental rights, and was referred to the public defender’s office for an attorney. On July 20, 2009, Darrell appeared with Attorney Nick Toman, who appeared for Darrell’s appointed counsel, David Lang. A motion hearing date was set for September 21, 2009. Darrell did not appear at that hearing, though Attorney Lang did. The State indicated that it would seek default judgment if Darrell missed another court date. Darrell did not appear at the grounds hearing held on October 14, 2009, and Attorney Lang informed the court that he had filed a motion to withdraw as counsel. Attorney Lang stated that he had been unable to have any contact with Darrell, though he sent Darrell numerous letters and made multiple attempts at phone contact. The trial court granted the motion to withdraw and allowed Attorney Lang to leave. The court found Darrell in default for failing to appear and then heard testimony from the ongoing case manager, Michelle Bachman, who testified as to the grounds for terminating Darrell’s parental rights. The trial court found that grounds existed for finding Darrell an unfit parent.
¶5 After determining that grounds existed for terminating Darrell’s parental rights, the trial court set October 19, 2009, for the dispositional hearing. Darrell attended this hearing without counsel and was again referred to the public defender’s office. On December 3, 2009, Darrell’s new counsel, Mary Mountin, appeared in court for a motion to vacate the default judgment. Darrell did not attend this hearing and the motion was denied. The dispositional hearing began on February 15, 2010 and concluded on March 26, 2010. Darrell was present with Attorney Mountin for all of the dispositional hearing dates and he testified at each hearing. On March 29, 2010, the trial court issued a letter decision terminating Darrell’s parental rights. This appeal follows.
¶6 At issue is whether the trial court violated Darrell’s statutory right to counsel when it allowed fact-finding to occur at the grounds phase of a termination of parental rights proceeding without the presence of Darrell’s counsel. Darrell asserts that because the trial court allowed his first appointed attorney to withdraw prior to fact-finding, his right to counsel pursuant to Wis. Stat. § 48.23(2) was denied. Both the State and the guardian ad litem argue that because Darrell was represented by counsel at the dispositional hearings and had the opportunity to testify, cross-examine witnesses and present evidence as to grounds at those hearings, he was not effectively deprived of his right to counsel. The State alternatively argues that if we find error, the error was harmless, as Darrell had the opportunity to cure it by participating in the dispositional phase. The guardian ad litem contends that Darrell waived his right to counsel at the grounds phase by failing to appear and also that a per se rule requiring a parent’s right to counsel at all phases in a termination of parental rights case is inappropriate since the trial court must balance the interest of the child with the interests of the State and the parent. We disagree with both the State and the guardian ad litem and conclude that Darrell’s right to counsel was violated, the error was not harmless and that the legislature, by statute, has already balanced the rights of parents and their children in the context of involuntary termination proceedings.
I. Darrell’s statutory right to counsel at the grounds phase.
¶7 Termination of parental rights proceedings consist of two
phases. The first phase, the grounds
phase, is a fact-finding hearing held to “determine whether grounds exist for
the termination of parental rights.” Wis. Stat. § 48.424(1)(a). At this time, “‘[t]he petitioner must prove
the allegations [supporting grounds for termination] in the petition for
termination by clear and convincing evidence.’”
See Evelyn C.R. v. Tykila S., 2001 WI 110, ¶22, 246
¶8 Because of the critical nature of termination proceedings, Wis. Stat. § 48.23(2) provides parents with a right to counsel. The statute states:
Rights to Counsel. Whenever a child is the subject of a proceeding involving a contested adoption or the involuntary termination of parental rights, any parent under 18 years of age who appears before the court shall be represented by counsel; but no such parent may waive counsel. Except as provided in sub. (2g), a minor parent petitioning for the voluntary termination of parental rights shall be represented by a guardian ad litem. If a proceeding involves a contested adoption or the involuntary termination of parental rights, any parent 18 years old or older who appears before the court shall be represented by counsel; but the parent may waive counsel provided the court is satisfied such waiver is knowingly and voluntarily made.
¶9 The Wisconsin Supreme Court, in State v. Shirley E., 2006
WI 129, 298
¶10 The Wisconsin Supreme Court ruled that the trial court erred in
dismissing Shirley’s attorney and in finding Shirley in default when she was
unrepresented throughout the hearings. The
court held “[t]he legislative goal of securing a fair procedure is not served
unless a parent is given the opportunity to be heard in a meaningful time and
in a meaningful manner.”
¶11 The guardian ad litem contends that Darrell waived his right to
counsel by failing to appear in court and by not cooperating with his
counsel. Shirley E. rejected the
argument that non-cooperation and non-attendance can constitute a waiver of
counsel, stating: “If the legislature
wanted the right to counsel to be contingent upon a parent’s appearance in
person, it could have expressly stated so.”
¶12 It is clear from the record that Darrell never waived his right to counsel. Darrell never stated that he wished to proceed without counsel. In fact, after missing the grounds hearing, he appeared in court and was returned to the public defender’s office for appointment of new counsel. There is nothing in the record that supports a finding that Darrell ever knowingly or voluntarily waived his right to counsel.
III. Representation at the dispositional phase as a cure of error at the grounds phase.
¶13 Both the State and the guardian ad litem contend that Darrell
was not totally deprived of his right to counsel as he was represented at the
dispositional hearings and was able to testify as to grounds during the
dispositional hearings. While it is true
that the factual findings made at the grounds phase were readdressed at the
dispositional phase, the statute does not permit us to substitute
representation at one stage for representation at another. The statute addresses the right to counsel
during all termination proceedings,
not separately at the individual stages. Further, the language of the statute is
mandatory. (“In statutory construction,
the use of the word ‘shall’ is usually construed as mandatory, while the word
‘may’ is generally construed as permissive.”
State v. McKenzie, 139
¶14 We cannot agree that Darrell’s representation at the
dispositional phase cured the error that occurred at the grounds phase. To accept the State’s argument would
essentially render Darrell’s lack of counsel at the grounds phase a harmless
error because counsel was later supplied. Our supreme court rejected that alternative in
E. when it held that the “denial of the statutory right to counsel …
constitutes structural error.”
¶15 While it may strain the allocation of limited judicial resources to conduct another grounds hearing at which Darrell is represented by counsel, the statute and case law are clear: regardless of the difficult situation in which the attorney was placed, Darrell was entitled to representation when the grounds hearing took place. Although we are sympathetic to the issues counsel and trial courts face when parents do not maintain contact with their counsel or when parents fail to attend hearings, neither Shirley E. nor the statute permit representation at one stage of an involuntarily termination proceeding to cure the lack of representation at the other.
IV. The rights of Marquise.
¶16 Finally, the guardian ad litem argues that it is not in the child’s best interest to stretch out this matter and, therefore, we must balance the best interest of the child against the right of a parent to counsel at termination proceedings. We disagree.
¶17 The entire Children’s Code is intended to promote the best interest of a child. See Wis. Stat. § 48.01(1). One of those interests is the presumed interest of the child to remain with his or her parents. See § 48.01(1)(a). Hence, the statutory grounds which permit the parental bond to be legally destroyed require proof of what many would consider appalling parental misconduct. See Wis. Stat. § 48.415. Unless the parent(s) are afforded a fair and meaningful opportunity to fully participate in the proceedings, with counsel, during the State’s attempt to establish that misconduct, and to meaningfully challenge the State’s assertions with the assistance of counsel, a child’s best interests in the broadest sense have not been truly protected. The existence of a two-step process in which the first step focuses on both the parent’s conduct and the parent’s interest in preserving parental bonds, while the second step focuses on the best interest of the child as to physical placement, reflects the legislative determination that both steps are separately necessary to promote the best interest of the child. Given the significant familial interests at stake, the best interest of the child and a parent’s right to counsel go hand-in-hand.
¶18 We are cognizant that the placement planning for Marquise has
been delayed by this appeal and may be further delayed by the remand and
necessary hearing. However, we note that
¶19 We conclude that the trial court erred when it allowed fact-finding to occur at the grounds phase of the termination of parental rights proceeding without the presence of Darrell’s counsel. We reverse and remand for a new fact-finding hearing.
By the Court.—Order reversed and remanded for further proceedings consistent with this opinion.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
 This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2) (2007-08).
 The parental rights of Marquise’s mother, Angela L., were terminated at the same time as Darrell’s rights. The termination of Angela L.’s rights is not the subject of this appeal.
 CHIPS is an acronym for children in need of protection or services.
 All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 A CHIPS dispositional order was entered on April 18, 2008, pursuant to Wis. Stat. § 48.355. The order outlined a number of conditions Darrell was to meet in order to have Marquise placed in his home.
 Attorney Mountin renewed the motion to vacate the default judgment at the dispositional hearings, however, the motion was denied.
 The merits of the trial court’s order terminating Darrell’s parental rights were not raised in this appeal.