Defense Win! Invalid waiver of right to counsel results in reversal of TPR order

Winnebago County Department of Human Services v. N.J.D., 2023AP75, 05/03/2023 (District 2) (one-judge opinion, ineligible for publication); case activity

Presented with two strong bases to reverse, the court of appeals picks one and holds that because the record “fails to demonstrate that N.D. waived his right to counsel,” the order terminating his parental rights to his daughter is reversed. (Opinion, ¶1).

After the county filed a motion for summary judgment on grounds, N.D.’s trial counsel moved to withdraw and the court granted the request. The circuit court postponed ruling on the county’s motion and allowed N.D. time to obtain new counsel. N.D. then failed to appear at the next hearing and the circuit court summarily granted the county’s request for a default judgment on grounds. Notably, the court took no evidence and the county failed to “prove up” the factual basis for the finding of unfitness. See Evelyn C.R. v. Tykila S., 2001 WI 110, ¶¶29-35, 346 Wis. 2d 1, 629 N.W.2d 898. The court also failed to make any findings as to whether N.D.’s failure to appear was an “egregious” violation of the court’s order. See Industrial Roofing Servs., Inc. v. Marquardt, 2007 WI 19, ¶¶41, 43, 299 Wis. 2d 81, 726 N.W. 898.

N.D. later appeared and explained that he failed to appear because the notice of hearing was sent to his old address and he never received it until after the hearing had already taken place. The court then informed N.D. that he had been found in default because he missed a prior hearing. N.D. subsequently sought and obtained new trial counsel but that attorney moved to withdraw based on “irreconcilable differences.” N.D. later showed up to the mother’s jury trial without counsel and again argued with the court over whether the default finding was appropriate based on lack of notice.

N.D. next showed up to his dispositional hearing still without counsel and was allowed to argue his pro se motion to vacate the default judgment. The court denied the motion as untimely and entered an order terminating N.D.’s parental rights.

N.D. raised two issue on appeal: (1) that the court erred when it found him in default at the grounds stage because the court failed to take evidence sufficient to establish grounds actually existed and because the court failed to make any findings that N.D.’s single missed court appearance was “egregious” and (2) that he never waived and was deprived of his right to counsel. (Opinion, ¶10).

A parent may waive the right to counsel in two ways: (1) if the circuit court makes a finding that the parent knowingly and voluntarily waives the right and (2) by failing to appear in person as ordered by the court if the court determines the failure was “egregious and without clear and justifiable excuse.” See State v. Shirley E., 2006 WI 129, ¶30, 298 Wis. 2d 1, 724 N.W.2d 623; see also Wis. Stat. § 48.23(2)(b)3. The invalid waiver of the right to counsel is structural error, not subject to harmless error review. (Opinion, ¶15).

While the court of appeals agreed with the county that N.D. “clearly failed to appear” as ordered by the circuit court, it rejects the county’s reliance on Wis. Stat. § 48.23(2)(b)3. because the “record is devoid of any finding that N.D.’s failure to appear on that date was either egregious or without a clear and justifiable excuse – let alone both.” (Opinion, ¶18). Moreover, the court easily shoots down the county’s request that the the court of appeals “should essentially make those factual findings on behalf of the circuit court.” (Opinion, ¶21).

Because the court finds the invalid waiver of the right to counsel to be dispositive, and not subject to harmless error review, the court does not separately address the “default issue.” (Opinion, ¶10, n.7).

Who said parents never win TPR appeals? This case the 5th TPR reversal since March 2023. See Kenosha County v. A.C.S., State v. Y.P.V., State v. N.H., and Brown County Department of Human Services v. S.K.