State v. Shirley E.

¶ 1. This is a review of a published decision of the court of appeals vacating an order of the circuit court for Milwaukee County, Dennis R. Cimpl, Judge, and remanding the cause for further proceedings.1 The circuit court's order terminated Shirley E.'s parental rights to her biological son, Torrance E, Jr.

¶ 2. This case presents the issue of whether 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.

¶ 3. We affirm the decision of the court of appeals vacating the circuit court's order terminating Shirley *8E.'s parental rights and remanding the cause to the circuit court. We hold that the circuit court erred in finding Shirley E. in default before conducting an evidentiary hearing to determine whether there was clear and convincing evidence that the grounds for termination existed. Accordingly, the circuit court erred in dismissing Shirley E.'s counsel at the fact-finding phase. We further hold that Shirley E. had a statutory right to counsel at the dispositional phase of the termination of parental rights proceeding, even when the circuit court found her in default as a sanction for her failure to obey the court order to appear personally at the fact-finding phase. The circuit court’s error in denying Shirley E. the right to counsel in both the fact-finding and dispositional phases of the termination of parental rights proceeding is prejudicial error.

HH

¶ 4. The record provides an account of the life of Torrance E, Jr., who was born on March 22, 1999 with cocaine in his system, to parents who, during his life, were frequently in trouble with the law and were incarcerated at various times. During the first five years of his life, Torrance E, Jr. was shuttled between relatives, neighbors, and foster care in at least three different states. He witnessed his parents abuse each other verbally and physically.

¶ 5. This review does not require us to determine the merits of the circuit court's order terminating Shirley E.'s parental rights, and thus we will not recount the chronology of events upon which the petition for termination is based. The brief facts we state, however, are enough to demonstrate what a sad story this case presents.

*9¶ 6. This opinion focuses on the procedural aspects of the circuit court's order terminating Shirley E.'s parental rights to Torrance E, Jr. Had the circuit court followed the procedures set forth in the statutes and our case law and allowed Shirley E.'s counsel to participate in both phases of the termination of parental rights proceeding, this case, in all likelihood, would not be before us. Because the circuit court erred, Torrance E, Jr.'s permanent placement has been delayed.

¶ 7. The procedural facts relevant to our review are not in dispute.

¶ 8. On April 15, 2004, a hearing was held before Milwaukee County Circuit Court Judge Carl Ashley to extend the Child in Need of Frotection or Services (CHIFS) order that had been entered against Shirley E. in 2002. The order was reduced to writing and warned of the possibility of termination of parental rights. The CHIFS order also contained conditions that Shirley E. had to fulfill in order to regain custody of Torrance E, Jr. She was to maintain a stable residence, have regular visits with and show interest in the child, stay in contact with her case manager, and complete "Alcohol or Other Drug Abuse" (AODA) programs. The CHIPS order also required Torrance E, Jr. to remain in the custody of his foster home.

¶ 9. Although Shirley E. was incarcerated in Michigan at the time, she sent Torrance E, Jr. several letters and completed AODA treatment. On September 9, 2004, Shirley E. was released from prison.

¶ 10. On November 23, 2004, the State of Wisconsin filed a petition for termination of parental rights, claiming Shirley E. had failed to meet the conditions of return contained in the CHIPS order.

¶ 11. An initial plea hearing on the termination of parental rights was held on December 13, 2004, before *10Milwaukee County Circuit Court Judge Joseph R. Wall. Shirley E., who was in Michigan, did not appear. The hearing was adjourned to February 14, 2005, so the State could obtain service on Shirley E. and arrange counsel for her.

¶ 12. On February 14, 2005, Shirley E.'s recently appointed counsel appeared in person, but Shirley E. did not. Upon her counsel's request, the circuit court allowed Shirley E. to appear by telephone. The State asked the circuit court to find Shirley E. in default. The circuit court instead ordered Shirley E. to appear in person at the next hearing and warned her that if she did not appear personally, she would be found in default.2 The hearing was adjourned and rescheduled for March 8, 2005, so counsel would have an opportunity to confer with Shirley E.

¶ 13. On March 8, 2005, Shirley E.'s counsel appeared in person, but Shirley E. did not. The State asked the circuit court to find Shirley E. in default. The circuit court found Shirley E. in default; the finding was a sanction for the parent's failure to obey the court order to appear in person.3 A circuit court has both inherent *11authority and statutory authority under Wis. Stat. §§ 802.10(7), 804.12(2)(a), 805.03 (2003-04)4 to sanction a party for failing to obey a court order.5

*12¶ 14. The circuit court stated that it would entertain a motion to vacate the default if Shirley E. personally appeared. The circuit court scheduled the hearings for the fact-finding and dispositional phases of the termination of parental rights procedure for April 1, 2005.

¶ 15. At the April 1, 2005 proceeding Shirley E.'s counsel appeared in person, but Shirley E. did not. Shirley E.'s counsel informed the circuit court that she had not spoken with Shirley E. because Shirley E. was without telephone service for several weeks. Counsel explained that Shirley E. had mentioned that she had had trouble traveling in the past because of lack of funds. The State remarked that Shirley E. had an outstanding warrant in Wisconsin for her arrest. The *13circuit court announced that if Shirley E. appeared in person, it would entertain a motion to vacate the default; otherwise, the default would stand. The matter was then adjourned until May 6, 2005.

¶ 16. On May 6, 2005, Shirley E.'s counsel appeared in person, but Shirley E. did not. The circuit court ruled that Shirley E. remained in default. The circuit court and Shirley E.'s counsel discussed counsel's role in the case, with counsel requesting a further role in the proceedings.6 At the end of the hearing, the circuit court informed Shirley E.'s counsel that counsel was "relieved of any further duties in this case."7 The circuit court stated that it would entertain a motion to vacate the default if Shirley E. communicated with her counsel. The termination of parental rights proceeding was rescheduled for August 1, 2005.

¶ 17. At the termination of parental rights proceeding on August 1, 2005, Shirley E.'s counsel appeared in person, but Shirley E. did not. Milwaukee County Circuit Court Judge Dennis R. Cimpl presided at this hearing. The circuit court explained that at the May 6, 2005 hearing Judge Wall had reaffirmed Shirley E.'s default status and relieved her counsel of any further duties. Although Shirley E.'s counsel informed *14the circuit court during the August 1 hearing that she had since spoken with her client and wanted to remain to represent her client, the circuit court once again relieved counsel of her duties and dismissed her from the courtroom.8

*15¶ 18. The circuit court then conducted hearings on both phases of the termination of parental rights proceeding without Shirley E. or her counsel present. The State presented only one witness, the most recent case manager assigned to Torrance E, Jr. Based on the case manager's testimony and the petition, the circuit court found that Shirley E. had failed to assume parental responsibility under Wis. Stat. § 48.415(6) (one of the grounds for termination of parental rights) and that Torrance E, Jr. was in continuing need of protection or services under Wis. Stat. § 48.415(2) (another ground for termination of parental rights). The circuit court found Shirley E. "unfit" under § 48.424(4). The circuit court then proceeded to the dispositional phase and ruled that it was in Torrance É, Jr.'s best interests that Shirley E.'s parental rights be terminated.9 See § 48.426(3) and § 48.427.

¶ 19. On August 26, 2005, Shirley E. appealed the circuit court's order. She claimed she was deprived of the right to counsel and that there was insufficient *16evidence in the record to support the findings on the two statutory grounds for termination of parental rights.

¶ 20. On February 14, 2006, the court of appeals vacated the circuit court's order terminating Shirley E.'s parental rights, concluding that Shirley E. was erroneously deprived of the right to counsel. The court of appeals did not reach the question of the sufficiency of the evidence. Because we affirm the decision of the court of appeals vacating the order of the circuit court, this court need not address the sufficiency of the evidence issue either.

I — I HH

¶ 21. This case presents the issue of whether 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. This issue raises a question of law which this court determines independently of the circuit court and the court of appeals, but benefiting from their analyses.

1 — 1 > — i

¶ 22. Before examining the right to counsel in a termination of parental rights proceeding, we briefly discuss the nature of a termination of parental rights proceeding to place the statutory right to counsel in proper context.

¶ 23. This court has stated numerous times that termination of parental rights proceedings " 'wor[k] a unique kind of deprivation.'... [They] involve the *17awesome authority of the State 'to destroy permanently all legal recognition of the parental relationship.' "10 A termination of parental rights proceeding implicates a parent's most fundamental rights.11 At stake is a parent's "interest in the companionship, care, custody, and management of his or her child. This court has recognized that... the integrity of the family is subject to constitutional protection through the due process clause of the state and federal constitutions."12

¶ 24. Termination of parental rights proceedings require heightened legal safeguards to prevent erroneous decisions.13 This court has consistently recognized that "[a] parent's right to the custody and care of his or her children is an extremely important interest that demands protection and fairness."14

¶ 25. The Wisconsin's Children's Code, Wis. Stat. ch. 48, sets forth a "panoply of substantial rights and procedures to assure that the parental rights will not be terminated precipitously, arbitrarily, or capriciously, but only after a deliberative, well considered, fact-finding process utilizing all the protections afforded by *18the statutes unless there is a specific, knowledgeable, and voluntary waiver."15

¶ 26. When a parent, like Shirley E., contests a petition for termination of parental rights, the circuit court must engage in a two-step process to determine whether to terminate parental rights.16

¶ 27. The first step, the fact-finding phase, consists of an evidentiary hearing to determine whether adequate grounds exist for the termination of parental rights.17 There are eleven statutory grounds on which a petition for termination can be based. Wis. Stat. § 48.415. The petitioner must demonstrate by clear and convincing evidence the existence of the alleged grounds for termination.18 If the petitioner satisfactorily carries the burden of persuasion, the circuit court "shall find the parent unfit." Wis. Stat. § 48.424(4). During this phase, "the parent's rights are paramount."19

¶ 28. The second step, the dispositional phase, consists of another evidentiary hearing in which the circuit court determines whether termination of paren*19tal rights is in the child's best interests.20 The child's interests are paramount at this stage of the proceeding, but the parent has a right to present evidence and be heard.21 If the circuit court finds during this disposi-tional phase that the evidence does not warrant the termination of parental rights, the circuit court need not terminate the parent's rights. Wis. Stat. §§ 48.424(4), 48.427(2).

¶ 29. We turn next to the statutory right to counsel which Shirley E. claims she was denied.

IV

¶ 30. One of the procedural safeguards the legislature has afforded to parents in termination of parental rights proceedings is the right to counsel. The legislature placed great emphasis on the necessity of counsel. Wisconsin Stat. § 48.23(2) provides that any parent who appears before the circuit court in an involuntary termination of parental rights proceeding shall he represented by counsel. A parent aged 18 years or older (and Shirley E. is over 18 years of age) 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.

¶ 31. The right to counsel statute, Wis. Stat. § 48.23(2), states in relevant part:

If a proceeding involves a contested adoption or the involuntary termination of parental rights, any parent 18 years old or older who appears before the court shall *20be represented by counsel; but the parent may waive counsel provided the court is satisfied such waiver is knowingly and voluntarily made.

¶ 32. Although not physically present, Shirley E. "appeared" in the proceeding by counsel.22 Thus, Wis. Stat. § 48.23(2) comes into effect.

¶ 33. "Counsel," as defined by Wis. Stat. § 48.23(lg), "means an attorney acting as adversary counsel who shall advance and protect the legal rights of the party represented . . .." The circuit court may appoint counsel for any party unless the party has or wishes to retain counsel of his or her own choosing 23

¶ 34. Shirley E. claims that her statutory right to counsel was violated when the circuit court dismissed her counsel from the August 1, 2005 proceeding, preventing the attorney from representing the then-absent Shirley E. during both the fact-finding and the disposi-tional phases of the termination of parental rights proceeding.

¶ 35. This case is not the first time we have been asked to examine the statutory right to counsel under Wisconsin's Children's Code, chapter 48. Because "[t]he statutory direction is unequivocal: A parent has the right to representation in court unless there is a waiver,"24 and because counsel plays a significant role in *21protecting parents' interests and ensuring a fair process, we have enumerated several interrelated principles regarding the right to counsel in chapter 48 proceedings.

¶ 36. One principle is that counsel must be present in court and available to participate. Mere "engagement" of counsel, that is, the contract to represent, without counsel's attendance at the proceedings, does not fulfill the statutory requirement that a parent shall be represented by counsel.25

¶ 37. A second principle is that counsel has a duty to provide his client with zealous, competent and independent representation.26

¶ 38. A third principle is that the statutory right to counsel includes the right to effective assistance of counsel: "It is axiomatic that the right to be represented by appointed counsel is worthless unless that right includes the right to effective counsel. Representation by counsel means more than just having a warm body with 'J.D.' credentials sitting next to you during the proceedings."27

¶ 39. A fourth principle is that the circuit court has a duty "to assure there was representation in court unless there was a knowledgeable and voluntary waiver."28

*22¶ 40. The State, however, now wishes us to interpret the statutory right to counsel narrowly. The State argues that the statutory right to counsel is conditional upon a party's appearing in person at the proceeding and that the right to counsel is forfeited once the circuit court finds the parent in default as a sanction for disobeying a court order to appear personally.

¶ 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.

¶ 42. We will discuss each of these reasons in turn.

¶ 43. First, Wis. Stat. § 48.23 does not provide a right to counsel only to parents who appear in person. Contrary to the State's argument, nothing in § 48.23 provides that the right to counsel is conditional upon the parent's appearance in person at a termination of parental rights proceeding. The legislature intended to be expansive in its according of legal rights to parents.29 The absence of an explicit and unambiguous requirement in § 48.23 that a parent appear in person to maintain a right to counsel means that a parent's right *23to counsel is not contingent upon the parent's personal attendance at the proceeding.

¶ 44. If the legislature wanted the right to counsel to be contingent upon a parent's appearance in person, it could have expressly stated so. The legislature, in constructing chapter 48, knew how to require personal attendance at a termination of parental rights proceeding. For example, Wis. Stat. § 48.41 (2) (a) allows a parent to voluntarily consent to a petition to terminate parental rights, but only if "[t]he parent appears personally at the hearing and gives his or her consent to the termination of his or her parental rights" (emphasis added).

¶ 45. Furthermore, the State's position contradicts the legislative direction that the Children's Code is to be liberally construed to effect its objectives. Wis. Stat. § 48.01(2). An objective of judicial proceedings is that parties are assured fair hearings and that their legal rights are recognized and enforced. Wis. Stat. § 48.01(l)(a).

¶ 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.

¶ 47. Second, dismissing Shirley E.'s counsel and refusing to allow counsel to participate on behalf of Shirley E. at the fact-finding stage of the termination of parental rights proceeding contravenes Evelyn C.R. v. Tykila S., 2001 WI 110, ¶ 17, 246 Wis. 2d 1, 629 N.W.2d 768.

¶ 48. In Evelyn C.R., counsel appeared for the mother at a termination of parental rights proceeding. The circuit court nevertheless entered a default judg*24ment against the mother when the mother failed to appear in person at the fact-finding phase after the circuit court had ordered her attendance. The circuit court entered a default judgment without first taking evidence sufficient to support the alleged grounds for termination.

¶ 49. This court in Evelyn C.R. recognized that Wis. Stat. § 806.02(5), the default judgment statute, did not control, inasmuch as the mother had "appeared" by counsel.30 The court stated that a circuit court could, however, find a parent in default as a sanction for failing to obey a court order to appear. The Evelyn C.R. court nevertheless concluded that the circuit court could not enter a default judgment without holding a fact-finding hearing and finding the alleged grounds for termination by clear and convincing evidence.31 The legislative goal of securing a fair procedure is not served unless a parent is given the opportunity to be heard in a meaningful time and in a meaningful manner.32 The circuit court has a duty and obligation to protect the parent's right to participate meaningfully in a termina*25tion of parental rights proceeding.33 This court concluded that by entering a default judgment without first taking evidence to support the grounds for termination of parental rights, "the circuit court [in Evelyn C.R.] failed to comply with the constitutional and statutory requirements for termination of parental rights."34

¶ 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.

¶ 52. The United States Supreme Court has commanded, "When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures."35 By depriving Shirley E. of her statutory right to be heard through her counsel in *26a meaningful time and in a meaningful manner, the circuit court in the present case deprived Shirley E. of fair procedures.

¶ 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.

¶ 54. Wisconsin Stat. § 48.427(1), which governs the dispositional phase of a termination of parental rights proceeding, provides that in the dispositional phase, "[a]ny party may present evidence relevant to the issue of disposition, including expert testimony, and may make alternative dispositional recommendations to the court." This language is not qualified and its directive is clear. By statute, Shirley E. and her counsel had a right to participate at the dispositional phase.36

¶ 55. In Evelyn C.R., the circuit court permitted the defaulted mother to present evidence during the dispositional phase of the termination of parental rights proceeding. The circuit court took the mother's testimony by phone and considered it in rendering its disposition. This court, in reviewing and affirming the circuit court's actions in Evelyn C.R., relied heavily on the defaulted mother's participation in this later dispo-sitional hearing. We held that the circuit court's error in finding her in default before conducting an evidentiary hearing was harmless error because the circuit court did hear the mother at the later dispositional phase and did reaffirm its finding on the ground for termination *27on the basis of her testimony.37 Accordingly, allowing Shirley E. or Shirley E.'s counsel to participate in the dispositional phase even after a finding of default is consistent with this court's decision in Evelyn C.R.

¶ 56. For these reasons, we hold that Shirley E. maintained her statutory right to counsel throughout this termination of parental rights proceeding, even after the circuit court found her in default for failing to obey the circuit court order to personally attend the hearing.

¶ 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.

¶ 58. We turn now to consider the impact of the circuit court's error.

*28V

¶ 59. A termination of parental rights proceeding is, as we have stated previously, not the ordinary civil action. At stake here are fundamental rights. Termination proceedings deprive parents of a significant liberty interest in their children.39

¶ 60. The statutory right to the assistance of counsel in a termination of parental rights proceeding is, according to the Wisconsin legislature, essential to a fair proceeding.

¶ 61. In criminal cases, in which counsel is viewed as essential to fair proceedings, when a litigant has been totally deprived of the presence and assistance of an attorney during a critical stage in the proceeding, reversal is automatic.40 A harmless error analysis is not applied in a criminal case because counsel is critical to a fair trial and no one can reliably determine the level of prejudice arising from the denial of a right to counsel.

¶ 62. Courts have long recognized that the total deprivation of counsel in criminal proceedings is a "structural error."41 A structural error is a defect that upsets the framework within which trial proceeds; it is not merely an error in the trial process.42 Consequently, "[s]uch errors . . . 'necessarily render a trial fundamen*29tally unfair.'1,43 In other words, structural errors "seriously affect the fairness, integrity or public reputation of judicial proceedings"44 and are so fundamental that they are considered per se prejudicial.45

¶ 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.'s attorney from the proceedings and to prevent counsel from participating in the termination of parental rights proceeding.

¶ 65. For the foregoing reasons, we hold that the circuit court erred in finding Shirley E. in default before conducting an evidentiary hearing to determine whether there was clear and convincing evidence that the grounds for termination existed. Accordingly, the circuit court erred in dismissing Shirley E.'s counsel at the fact-finding stage. We further hold that Shirley E. had a statutory right to counsel at the dispositional phase of the termination of parental rights proceeding, *30even when the circuit court found her in default as a sanction for her failure to obey the court order to appear personally at the fact-finding stage. The circuit court's error in denying Shirley E. the right to counsel in both the fact-finding and dispositional phases of the termination of parental rights proceeding is prejudicial error. The cause is remanded to the circuit court.

By the Court. — The decision of the court of appeals is affirmed.