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Defense win! Court holding TPR hearing without lawyer or parent violated right to counsel

Kenosha County v. A.C.S., 2022AP1821-1825, 2/15/23, District 2 (one judge decision; ineligible for publication); case activity

Here’s a fact pattern one hopes doesn’t come up too often. The county sought the termination of “Anna’s” parental rights to five children. It then moved for summary judgment on the grounds that she’d been convicted of a serious felony related to the death of another child. A hearing was set, but Anna’s counsel informed the court she’d be in trial in a homicide case. Expecting an adjournment–which both trial counsel and the court of appeals note is “common practice” in such a situation–the attorney told Anna the hearing would be put off. Counsel’s homicide trial then unexpectedly ended early, though she still had work to do to wrap it up. The TPR court apparently heard through the grapevine that the homicide trial was over. Without any successful contact–or much apparent effort to contact–Anna or her lawyer, the court held the scheduled hearing ex parte and, at the county’s request, granted summary judgment. Later, over Anna and her counsel’s protestations, the court terminated her rights.

The circuit court ruled, and the county argues on appeal, that there was no problem with this procedure because Anna has no defense to the prior serious felony grounds. The court of appeals rightly makes quick work of this argument:

the question here is not whether the circuit court erred in granting the summary judgment motion but rather whether the court’s decision to proceed with the summary judgment motion hearing in Attorney VanCuick’s absence violated Anna’s right to counsel in the first instance. If it did, the question of whether the circuit court erroneously granted the summary judgment motion is a nonstarter because the hearing simply should not have occurred. Stated otherwise, whether Anna had filed a written response, whether she has a meritorious defense to the motion, or whether the circuit erroneously granted summary judgment motion does not trump Anna’s right to counsel. See Shirley E., 298 Wis. 2d 1, ¶20 (unnecessary to address sufficiency of evidence where TPR order vacated due to violation of right to counsel that amounted to structural error).

(¶28 (italics in original)).

Give the facts a read, and see for yourself the concern the circuit court and the county display for the “fundamentally fair procedures” our state and federal high Courts have held necessary to the termination of one of the “basic civil rights.” (¶20). Courts often enough default parents and then terminate their rights to their children for “egregious” conduct such as missing a single hearing. There’s plenty of procedural egregiousness detailed in the opinion here–none of it on the part of Anna or her counsel.

The total deprivation of counsel is, of course, structural error–so the unfitness finding and subsequent termination of Anna’s rights are reversed. (¶23). (The complete absence of counsel distinguishes this case from the court of appeals troubling recent affirmance of a summary judgment grant in Portage County DH & HS v. C.S..) Aside from disregarding constitutional bedrock rights, the court of appeals notes, the lower court and the county have also betrayed the “efficiency” concerns that likely drove the slapdash proceedings in the first place:

Although this reversal may or may not change the ultimate outcome in this case, it is imperative that when a court presides over a TPR proceeding, it take every precaution to ensure that it follows the law. The statutes and procedures governing TPRs exist for a reason, and courts must faithfully follow the statutes, even in cases like this, where a variety of circumstances delay resolution for a period of time. Here, any consequence of rescheduling the January 12th hearing to ensure compliance with the law—namely, ensuring Anna was not deprived of her right to counsel at a critical stage in these proceedings—would have been far more efficient than proceeding, risking reversal on appeal, and having to begin again at the grounds phase—as is now the case here.

(¶18 n.11).


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