Winnebago Cnty. Dep't of Human Servs. v. N.J.D. (In re A.K.V.)

1

In re the Termination of Parental Rights to A.K.V., a Person under the Age of 18:

Winnebago County Department of Human Services, Petitioner-Respondent, v. N.J.D., Respondent-Appellant.

No. 2023AP75

Court of Appeals of Wisconsin, District II

May 3, 2023

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.

APPEAL from an order of the circuit court for Winnebago County, Cir Ct. No. 2020TP23 DANIEL J. BISSETT, Judge. Reversed and cause remanded for further proceedings.

GROGAN, J.^[1]

¶1 N.D.^[2] appeals from an order terminating his parental rights to his daughter, A.V. He contends that the circuit court erroneously exercised its discretion when it found N.D. in default on the grounds phase without first hearing evidence that grounds existed and without making a finding that N.D.'s absence was egregious. N.D. also claims that he was deprived of his right to counsel, specifically with regard to moving to vacate the default judgment. He asserts that he never waived his right to counsel. Because the Record fails to demonstrate that N.D. waived his right to counsel, this court reverses the order and remands the matter for further proceedings.

I. BACKGROUND

¶2 In July 2020, Winnebago County Department of Human Services petitioned to terminate N.D.'s (the father) and B.V.'s (the mother) parental rights to A.V.^[3] With respect to N.D., the County alleged four grounds existed to terminate his parental rights: (1) abandonment; (2) child in need of protection or services (CHIPS); (3) a court order denying N.D.'s scheduled placement time; and (4) failure to assume parental responsibility. Both parents contested the petition, but circumstances repeatedly delayed the prompt disposition of the matter. After issues related to discovery resolved, the County filed a motion for summary judgment in June 2021, asserting that no material factual issues existed regarding grounds for terminating N.D.'s rights. Specifically, the County alleged that pursuant to a court order, N.D. was denied visitation with A.V. for two and one-half years. In July 2021, N.D. opposed the summary judgment motion, claiming it was untimely. At the August 2021 summary judgment hearing, N.D.'s counsel moved to withdraw before the court heard the motion. After some discussion with N.D. about whether it was best for his counsel to withdraw, N.D. confirmed that was what he wanted. The circuit court allowed the attorney to withdraw and instructed N.D. to contact the State Public Defender to see if it would appoint successor counsel.

¶3 The circuit court did not decide the summary judgment motion at the August 2021 hearing. Instead, it postponed ruling on the motion until N.D. had new counsel and set a new hearing for September 22, 2021. N.D. agreed to this date;^[4] however, on September 22, 2021, N.D. did not appear for the hearing. The County asked for a default judgment against N.D. on grounds based on his failure to appear, and the circuit court granted the motion. The circuit court did not take any evidence as to the grounds that existed to terminate N.D.'s parental rights prior to entering the default and did not make a finding on egregiousness.

¶4 N.D. also failed to appear for the following hearing in October 2021. However, he did appear at the next hearing in November 2021, where he told the circuit court that the mailed notice of the September 2021 hearing had been sent to his old address, and as a result, he did not receive it until after the hearing had already occurred.^[5] The circuit court advised N.D. that he had been found in default at the September 2021 hearing because he failed to appear. The court informed N.D. that the State Public Defender had deemed him eligible for appointment of another attorney and that he should contact the State Public Defender. In January 2022, the State Public Defender appointed new counsel for N.D., who appeared with N.D. at the March 3, 2022 pretrial hearing. A few days later, counsel filed proposed jury instructions but also filed a motion to withdraw based on N.D.'s request. In support of the motion, counsel claimed irreconcilable differences and disagreements with N.D. over the law and legal strategy.

¶5 The court held another pretrial hearing on April 14, 2022, at which N.D.'s counsel appeared in court, and N.D. appeared by video from Green Lake County Jail. N.D.'s attorney again asked to withdraw. N.D. objected, however, and indicated that he had changed his mind and wanted to keep his counsel. Counsel explained he could not continue to represent N.D. because N.D. had been "extremely adversarial," and counsel could no longer effectively represent him. The County did not object to counsel's withdrawal, advising the court that because N.D. had been defaulted as to grounds, he would not need an attorney until the dispositional hearing, where N.D. was entitled to an attorney. N.D. then asked the court for appeal paperwork as to the court's default finding, again repeating that the letter noticing the September hearing came four days after the hearing occurred.

¶6 The jury trial on the grounds phase for the mother was scheduled for April 19, 2022. On that date, N.D. refused transport from jail to attend the hearing in person and instead asked to appear by video. The circuit court declined the request, ultimately postponing the April 19th hearing for reasons not relevant to this appeal. The circuit court rescheduled the mother's jury trial as to grounds for August 2, 2022, and N.D. appeared pro se on that date. He again argued with the circuit court, insisting it was error to find him in default on grounds based on his claim that the court sent the notice to the wrong address. N.D. walked out of the courtroom before the hearing concluded.^[6]

¶7 The circuit court held the dispositional hearing in September 2022. N.D. again appeared pro se. There is no indication that the court addressed N.D.'s right to counsel or engaged in any type of colloquy with N.D. about waiving his right to counsel.

¶8 Before taking dispositional hearing testimony, the circuit court heard N.D.'s pro se motion to vacate the default judgment. There is nothing in the transcript discussing N.D.'s right to counsel or a waiver thereof. The circuit court denied N.D.'s motion as untimely. The County then introduced testimony to establish that grounds existed to terminate N.D.'s rights as well as testimony to establish that the best interests of the child required termination of parental rights (TPR). After hearing the testimony, the circuit court found it was in the child's best interests to terminate N.D.'s parental rights. The order terminating parental rights listed the grounds for termination of N.D.'s parental rights as abandonment, CHIPS, and continued denial of placement/visitation.

¶9 N.D. appeals.

II. DISCUSSION

¶10 N.D. claims the circuit court made two errors. First, he says the circuit court erred when it found him in default at the grounds phase for failing to appear for the September 2021 hearing. N.D. claims the circuit court, prior to granting default judgment, failed to take evidence establishing that grounds existed to terminate N.D.'s parental rights, which Evelyn C.R. v. Tykila S., 2001 WI 110, ¶¶29-35, 246 Wis.2d 1, 629 N.W.2d 768, requires, as well as that the circuit court failed to make any findings as to whether his absence was egregious. See Industrial Roofing Servs., Inc. v. Marquardt, 2007 WI 19, ¶¶41, 43, 299 Wis.2d 81, 726 N.W.2d 898 (Default sanction requires conduct that is "egregious[] or in bad faith."). Second, he says he was deprived of his right to counsel because he had to argue the motion seeking to vacate the default judgment pro se. He asserts that he did not waive his right to counsel. Because this Record fails to demonstrate that N.D. waived his right to counsel, which is dispositive, this court addresses only the second argument.^[7]

¶11 N.D. claims he was deprived of his right to counsel. "Termination of parental rights permanently extinguishes 'all rights, powers, privileges, immunities, duties and obligations existing between parent and child.'" Steven V. v. Kelley H., 2004 WI 47, ¶21, 271 Wis.2d 1, 678 N.W.2d 856 (quoting Wis.Stat. § 48.40(2)). Consequently, "[p]arental rights termination adjudications are among the most consequential of judicial acts, involving as they do 'the awesome authority of the State to destroy permanently all legal recognition of the parental relationship.'" Steven V., 271 Wis.2d 1, ¶21 (quoting Evelyn C.R., 246 Wis.2d 1, ¶20).

¶12 "A parent's interest in the parent-child relationship and in the care, custody, and management of his or her child is recognized as a fundamental liberty interest protected by the Fourteenth Amendment." Steven V., 271 Wis.2d 1, ¶22. Indeed,

[t]he [Supreme] Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed "essential,"^[8] "basic civil rights of man,"^[9] and "[r]ights far more precious ... than property rights[.]"^[10] "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."^[11]

Stanley v. Illinois, 405 U.S. 645, 651 (1972) (omission in original); see also Steven V., 271 Wis.2d 1, ¶¶21-22. Thus, "[w]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures." Santosky v. Kramer, 455 U.S. 745, 753-54 (1982).

¶13 A parent facing an involuntary termination of parental rights is entitled to representation of counsel. Wis.Stat. § 48.23(2)(b); see also A.S. v. State 168 Wis.2d 995, 1004-05, 485 N.W.2d 52 (1992) (explaining the right...