Wisconsin Supreme Court holds that failure to appear does not waive right to counsel.

• Author: Ziemer, David

Byline: David Ziemer

A juvenile court cannot dismiss a parent's attorney as a sanction, despite repeated failure to appear at proceedings, the Wisconsin Supreme Court held on Dec. 13. Torrance P. was born in 1999 with cocaine in his system, to parents who were frequently incarcerated. From his birth until 2004, he was shuttled between relatives, neighbors, and foster care. A CHIPS order was entered in 2002, and on Nov. 23, 2004, the State filed a petition to terminate the parental rights of his mother, Shirley E. Counsel was appointed, but Shirley never made any court appearances, failing to appear on: Dec. 13, 2004, Feb. 14, 2005, Mar. 8, Apr. 1, May 6, and Aug. 1. Counsel for Shirley appeared at each hearing. At the Mar. 8, hearing, Shirley was found in default, and at both the May 6 and Aug. 1, hearings, the court relieved Shirley's counsel from her duties. After the court dismissed counsel on Aug. 1, it conducted hearings on both the fact-finding and dispositional phases of the proceedings. The only evidence was presented by the State -- the testimony of the case manager. The court found Shirley "unfit," and terminated her parental rights. Shirley appealed, and the court of appeals vacated the order in a published opinion, State v. Shirley E., 2006 WI App 55, 290 Wis.2d 193, 711 N.W.2d 690. The Supreme Court accepted review, and affirmed the court of appeals, in a decision by Chief Justice Shirley S. Abrahamson. Justice David T. Prosser wrote a concurrence, joined by Justices Jon P. Wilcox, and Patience Drake Roggensack.

Right to Counsel Section 48.23(2) provides that any parent who appears before the circuit court in an involuntary termination of parental rights proceeding shall be represented by counsel. A parent aged 18 years or older (like Shirley) can waive the assistance of counsel, but only if the circuit court finds that the waiver is knowing and voluntary. Minor parents cannot waive the right to counsel. The court rejected the State's argument that a parent can forfeit the right to counsel by failing to appear and being found in default, for three reasons. First, the statute does not make the right to counsel contingent on appearing in person. The court concluded, "The absence of an explicit and unambiguous requirement in sec. 48.23 that a parent appear in person to maintain a right to counsel means that a parent's right to counsel is not contingent upon the parent's personal attendance at the proceeding." The court noted that...