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TPR – Right to Counsel – Violation, Structural Error

State v. Darrell K., 2010AP1910, District 1, 10/19/10

court of appeals decision (1-judge, not for publication); for Darrell K.: Jereny C. Perri, SPD, Milwaukee

Darrell’s right to counsel was violated when the trial court granted counsel’s motion to withdraw then found Darrell in default as to grounds while he was unrepresented. State v. Shirley E., 2006 WI 129, followed.

¶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.”  Id., ¶49.  The trial court here, in noting that Attorney Lang was in an “impossible situation,” granted his motion to withdraw and Attorney Lang left the courtroom. Darrell was found in default and the trial court proceeded to hear only the State’s unchallenged evidence before finding Darrell unfit.  In Shirley E., the court held that this procedure violated a parent’s statutory right to representation by stating that “[a] [trial] court [has] no power to bar the parent or parent’s counsel from participation at the fact-finding stage.”  See id., ¶41.

Counsel’s motion to withdraw was based on lack of contact with, and cooperation from, Darrell but this wasn’t enough to establish waiver, given lack of evidence “that Darrell ever knowingly or voluntarily waived his right to counsel,” ¶12. Nor did representation by counsel at subsequent dispositional hearing cure the error: “Darrell’s right to counsel at the grounds phase was mandatory, unless knowingly and voluntarily waived,” ¶13.

¶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 Shirley E. when it held that the “denial of the statutory right to counsel … constitutes structural error.”  Id., ¶63 (emphasis added).  This error, the court continued, is a “prejudicial error per se” and undermines the “fairness and integrity of the judicial proceeding that the legislature has established for termination proceedings.”  Id., ¶¶63, 64.  Therefore, a harmless error analysis is inappropriate for evaluating whether a parent’s right to counsel was violated by a lack of representation at one of the two critical stages in the termination proceedings.

Nor, finally, does a “best-interests” analysis support affirmance:

¶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 Attorney Mountin filed two motions to vacate the default judgment.  Had either of those motions been granted, much of the delay which has occurred might well have been avoided.

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