on review of summary order of court of appeals; for Mable K.: Brian C. Findley; case activity
TPR – Final Order – Appellate Standing
Issues (from Petition for Review):
I. When a trial court grants partial relief on remand in a Termination of Parental Rights appeal, is further appeal precluded by the ordinary rules of civil procedure?
II. Where the trial court determines that it denied the right to counsel during a TPR trial, must the courts grant an entirely new hearing before a different judge or may the court simply remedy the violation by “returning [the parent] to that point of the proceedings where she was deprived of that opportunity [to present evidence], and allowing [the parent’s] counsel to present any such evidence to this court for determination as to whether to order default?”
III. Did the trial court misuse its discretion when it refused to vacate a 10 minute-old default judgment when the [cognitively impaired] parent arrived in court?
(Added by supreme court:)
IV. The parties are specifically directed to discuss in their briefs to this court the question whether the circuit court orders at issued are final orders or non-final orders and the effect, if any, on this court’s review.
An unusual fact-pattern, not easily summarized. Mable K. appeared late on the second day of jury trial on TPR grounds, after the first day went without a hitch. More precisely, the proceeding was scheduled for 9:00 a.m., the trial court declared her in default, at 10:35. Not only that: the court declared her unfit and barred her attorney from presenting any evidence contesting grounds. However, Mable arrived a mere 10 minutes later, and told the court she was feeling ill and tired, but to no avail; the court nonetheless refused to rescind the default. After her parental rights were terminated, Mable appealed. The court of appeals remanded for postdisposition proceedings, while retaining jurisdiction. On remand, the trial court agreed that its ruling deprived Mable of her right to counsel, and vacated the termination order, but fashioned an ad hoc remedy: the case would pick up from the point where counsel was barred from presenting a defense to grounds, and would be heard by the court, not a jury. When the case returned to the court of appeals, that court dismissed the appeal, on the theory that Mable had obtained partial relief, hence wasn’t appealing from a final order (which by definition must dispose of the entire matter in litigation, § 808.03(1), something this order didn’t accomplish, in the court’s estimation).
That’s the background – much as can be pieced together from the petition for review. Assuming the facts are as straightforward as presented in the petition, it seems clear that Mable was denied her right to assistance of counsel by the order barring any defense to grounds after the first day of trial; further, that this was structural error. State v. Shirley E., 298 Wis. 2d 1, ¶¶60-65, 724 N.W.2d 623 (2006). “Partial relief” is tantamount to finding “partial harmless error” and thus violative of the structural error rule. Mable, that is, should have been returned to Square One. There’s a separate reason: partial relief deprives her of her right to a jury trial, which is itself structural error. It is less that Mable obtained partial relief, more that she obtained nonsensical relief. Besides, the order is necessarily final; it finally disposed of the matter of whether Mable is entitled to new trial on grounds: she is, sort of. The more refined question is whether Mable has standing to appeal in the sense that she is “aggrieved” by the order. E.g., Tierney v. Lacenski, 114 Wis. 2d 298, 302, 338 N.W.2d 522, 524 (Ct. App. 1983) (“The initial issue is whether Bollenbeck has standing to appeal … . A right to appeal from a judgment or order, irrespective of statute, is confined to parties aggrieved in some appreciable manner by the court action. … In essence, the judgment or order appealed from must bear directly and injuriously upon the interests of the appellant; he must be adversely affected in some appreciable manner.”). Surely, she has been aggrieved by the loss of her right to jury, not to say the absence of any integrity to a fact-finding process that would be so disjointed.
Take note, as well, of Justice Prosser’s striking comment accompanying the grant of review (labeled a dissent, but more in the nature of urging summary reversal): “Although the petition for review raises a multitude of issues worthy of consideration, I believe the likely result of supreme court review will be a wholly new trial on grounds for termination. Consequently, I see no point in putting off this result, inasmuch as the case cannot be argued this term and there are better ways to address the issues presented.” Hard to disagree.