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TPR – Right to Counsel, Waiver

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

¶57      The State also argues that Shirley E., a parent over 18 years of age, has waived her right to counsel by not appearing personally. We can quickly dismiss this argument. Wisconsin Stat. § 48.23(2) explicitly requires that any waiver of counsel must be knowing and voluntary. As we determined in M.W. v. Monroe County Department of Human Services, it is “the duty of the court to determine by careful questioning that the waiver of counsel[ ]. . . is knowledgeable and voluntary.” [38] The circuit court conducted no such inquiry here.

¶63      Depriving a parent of the statutory right to counsel in a termination of parental rights proceeding deprives the parent of a basic protection without which, according to our legislature, a termination of a parental rights proceeding cannot reliably serve its function. The fairness and integrity of the judicial proceeding that the legislature has established for termination proceedings has been placed in doubt when the statutory right to counsel is denied a parent. Accordingly, the denial of the statutory right to counsel in the present case constitutes structural error.

¶64      We thus hold that it was prejudicial error per se for the circuit court to dismiss Shirley E.’sattorney from the proceedings and to prevent counsel from participating in the termination of parental rights proceeding.

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