David G.’s parental rights were terminated in a proceeding commenced by the child’s mother. He filed a timely notice of intent to pursue postdisposition relief, but his appointed appellate counsel failed to file a notice of appeal before the deadline. (¶3). That deadline cannot be extended because the legislature has decreed that the time for filing an appeal in a TPR case may not be enlarged when the petition was filed by someone other than “a representative of the public.” Rule 809.82(2)(b). The SPD filed a petition for a writ of habeas corpus on David’s behalf, alleging appellate counsel was ineffective and asking the court to revive his lapsed appeal deadline. The court of appeals grants the petition.
The court first determines that habeas is the appropriate procedure for David to use. A petitioner seeking habeas relief must demonstrate that: (1) he or she is restrained of his or her liberty, (2) the restraint was imposed either by a tribunal without jurisdiction or contrary to constitutional protections, and (3) there was no other adequate remedy available in the law. State ex rel. L’Minggio v. Gamble, 2003 WI 82, ¶18, 263 Wis. 2d 55, 667 N.W.2d 1. David meets these criteria:
- First, while neither David nor the child is restrained of his or her liberty, habeas corpus proceedings have been used in TPRs in Wisconsin, State ex rel. Lewis v. Lutheran Soc. Servs., 68 Wis. 2d 36, 37, 227 N.W.2d 643 (1975), as well as for the adjudication of legal custody, Anderson v. Anderson, 36 Wis. 2d 455, 459, 153 N.W.2d 627 (1967). “The question in such matters is not physical restraint but the assertion of a lawful right to retain custody of the child. Anderson, 36 Wis. 2d at 459.” (¶7).
- Second, even though the Sixth Amendment right to counsel does not apply to civil matters, Sixth Amendment “concepts” apply in TPR proceedings. Oneida Cnty. DSS v. Nicole W., 2007 WI 30, ¶33, 299 Wis. 2d 637, 728 N.W.2d 652. In addition, the due process clauses of the state and federal constitutions provide “heightened legal safeguards” when one’s parental rights are at stake. Evelyn C.R. v. Tykila S., 2001 WI 110, ¶21, 246 Wis. 2d 1, 629 N.W.2d 768 (U.S. Constitution); Kenosha Cnty. DHS v. Jodie W., 2006 WI 93, ¶39, 293 Wis. 2d 530, 716 N.W.2d 845 (Wisconsin Constitution). (¶8).
- Finally, David has no other remedy. “Through no fault of his own, he missed the filing deadline and was statutorily precluded from having it extended because this case was filed by a private party rather than a governmental entity.” (¶9).
Note that the filing of a petition for a writ of habeas corpus in the court of appeals is based on State v. Knight, 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992) (habeas corpus relief is an appropriate remedy for a petitioner seeking relief due to ineffective assistance of appellate counsel), and State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 250-51, 548 N.W.2d 45 (1996) (habeas is the proper method by which to raise an ineffectiveness claim where counsel allows a deadline that cannot be extended to lapse).
Next, David has demonstrated that appellate counsel was ineffective. Counsel was deficient in failing to consult with David before the time to appeal had expired to ascertain how he wanted to proceed, as David wanted to appeal, relied on counsel to do so, and did not consent to abandon his appeal or close the case. (¶11). Counsel’s performance was prejudicial because her failure to timely file a notice of appeal deprived David of his fundamental right to an opportunity to be heard on an appellate challenge to the permanent severance of his relationship with his child. (¶12).
Finally, the remedy for the ineffective assistance is the extension of the time to file a notice of appeal, based on Schmelzer, 201 Wis. 2d at 255-56 (where attorney failed to file a timely petition for review, court granted relief “suited to the scope of the violation,” which was to allow the late filing of the petition for review).
Because it grants habeas relief, the court finds it unnecessary to reach David’s constitutional argument: That both facially and as applied to him, Rule 809.82(2)(b) violates the equal protection clauses of the state and federal constitutions because of the distinction that the child’s mother, rather than a “representative of the public,” initiated the TPR. (¶14).