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TPR – Right to Appearance by Counsel, Notwithstanding Parent’s Default in Failing to Personally Appear at Fact-Finding Phase

State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55

 Issue: “(W)hether a circuit court may deny a parent in a termination of parental rights proceeding the statutory right to counsel when the parent has appeared in the proceeding but failed to personally attend a hearing in contravention of a court order and is found in default as a sanction for disobeying the court order.” (¶2)


¶41 We do not accept the State’s position for three reasons. First, Wis. Stat. § 48.23 does not provide a right to counsel only to parents who appear in person. Second, case law clearly bars a circuit court from finding a parent in default before taking evidence on the ground alleged for the termination of parental rights. Accordingly, the circuit court’s finding of default in the present case was erroneous, and the circuit court had no power to bar the parent or parent’s counsel from participation at the fact-finding stage. Third, in any event, the circuit court erred in barring counsel from the disposition phase.

 ¶46 In sum, the statute directs the right to counsel, and no statutory provision deprives a parent’s counsel from presenting evidence and arguing at a termination of parental rights proceeding when the parent has “appeared” but has not appeared in person.


 ¶50 In the present case, as in Evelyn C.R., the circuit court erroneously found the mother in default before taking any evidence on the grounds alleged for termination of her parental rights. Because the circuit court should not have found Shirley E. in default before hearing evidence in the fact-finding phase, Shirley E.’s attorney should not have been barred from participating. Thus, the circuit court violated Shirley E.’s statutory right to counsel in the fact-finding phase.

 ¶51 In the present case, in contrast to Evelyn C.R., the circuit court heard evidence in the fact-finding phase after it found the mother in default and dismissed the mother’s counsel. But the circuit court heard only the State’s evidence, having erroneously barred Shirley E. by her attorney from challenging the State’s evidence and presenting her evidence at the fact-finding phase. As a result of the circuit court’s ruling dismissing Shirley E.’s counsel, the circuit court precluded counsel from participating on Shirley E.’s behalf.


 ¶53 Third, even if we were to view the circuit court’s finding of Shirley E. in default as valid, Shirley E. could still appear at the disposition phase in person or by counsel. The circuit court thus erred in dismissing Shirley E.’s counsel from this hearing.

Good, concise prefatory discussion re: right to counsel, ¶¶31-38, as well in as in the succeeding ¶¶. For that matter, entire discussion suffused with necessity for adversarial input. Note, though, the 3-Justice concurrence (more accurately described as partial dissent) which agrees with need for reversal as to disposition but would uphold default as to grounds, ¶¶66-85. Shirley E. thus prevailed by the skin of her teeth, but more importantly the “concurrence” identifies the significance of the majority holding, close though the vote might have been:

¶83 The gist of the majority opinion is to reaffirm the decision in Evelyn C.R. that a circuit court has no inherent or statutory authority to enter a true default judgment as a sanction in a termination of parental rights case. It must always take evidence to support the judgment and make findings on the requisite burden of proof. But more important, the decision determines that the failure of a parent to appear in person may not be sanctioned to limit the role of the parent’s attorney in the fact-finding proceedings. The attorney may challenge the state’s evidence by motion, objection, or cross-examination, or present alternative evidence, and even demand a jury trial. [46] A parent’s defiance or indifference, as reflected in the parent’s consistent non-appearance in court, does not work any forfeiture of the parent’s rights.


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