Winnebago County DHS v. N.J.D.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 3, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP75 Cir. Ct. No. 2020TP23

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

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.

APPEAL from an order of the circuit court for Winnebago County:
DANIEL J. BISSETT, Judge. Reversed and cause remanded for further
proceedings.
No. 2023AP75

¶1 GROGAN, J.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

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
For readability, this opinion uses first and last initials only.
3
This appeal concerns only N.D.

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No. 2023AP75

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
4
The Record clearly reflects that, during the August 21st hearing, N.D. agreed to this
date, despite his argument to the circuit court that no date was selected at that hearing.
5
It is unclear from the Record whether the court sent N.D. a hearing notice for the
October 2021 hearing, whether N.D. received a hearing notice for that hearing, or whether N.D.
was even aware of the October 2021 hearing at all.

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No. 2023AP75

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

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No. 2023AP75

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.

6
The mother ultimately withdrew her contested position with respect to the grounds
phase, and the circuit court ultimately took evidence with respect to the grounds for terminating
her parental rights at the August 2022 hearing.

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No. 2023AP75

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

7
Because the right to counsel issue is dispositive, it is not necessary for this court to
address the default issue. This court notes, however, that when a circuit court finds a parent in
default on grounds, it still must take “evidence sufficient to establish the grounds alleged in the
[termination] petition[].” Dane Cnty. DHS v. Mable K., 2013 WI 28, ¶52, 346 Wis. 2d 396, 828
N.W.2d 198. Any failure to do so is subject to a harmless error analysis as set forth in
Evelyn C.R. v. Tykila S., 2001 WI 110, ¶¶25-27, 246 Wis. 2d 1, 629 N.W.2d 768.

6
No. 2023AP75

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.

8
Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
9
Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).
10
May v. Anderson, 345 U.S. 528, 533 (1953).
11
Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

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No. 2023AP75

State, 168 Wis. 2d 995, 1004-05, 485 N.W.2d 52 (1992) (explaining the right to
counsel must be effective and adopting the test set forth in Strickland v.
Washington, 466 U.S. 668 (1984), for TPR proceedings). The statutory right to
counsel is “[o]ne of the procedural safeguards the legislature has afforded to
parents in [TPR] proceedings,” and this right “‘is unequivocal: A parent has the
right to representation in court unless there is a waiver[.]’” State v. Shirley E.,
2006 WI 129, ¶¶30, 35, 298 Wis. 2d 1, 724 N.W.2d 623 (citation omitted). “[A]
parent’s statutory right to an attorney is preserved even after the entry of a default
judgment.” Dane Cnty. DHS v. Mable K., 2013 WI 28, ¶49, 346 Wis. 2d 396,
828 N.W.2d 198.

¶14 WISCONSIN STAT. § 48.23(2)(b) recognizes two circumstances
wherein a parent may waive his right to counsel. First, a parent over the age of
eighteen “can waive the assistance of counsel, but only if the circuit court finds
that the waiver is knowing and voluntary.” Shirley E., 298 Wis. 2d 1, ¶30;
§ 48.23(2)(b) (a “parent who appears before the court” in a TPR proceeding “shall
be represented by counsel,” unless the parent is over the age of eighteen and
“knowingly and voluntarily” waives counsel). Second, a parent may waive his
right to counsel under § 48.23(2)(b)3, which provides:

Notwithstanding subd. 1., a parent 18 years of age or over
is presumed to have waived his or her right to counsel and
to appear by counsel if the court has ordered the parent to
appear in person at any or all subsequent hearings in the
proceeding, the parent fails to appear in person as ordered,
and the court finds that the parent’s conduct in failing to
appear in person was egregious and without clear and
justifiable excuse. Failure by a parent 18 years of age or
over to appear in person at consecutive hearings as ordered
is presumed to be conduct that is egregious and without
clear and justifiable excuse. If the court finds that a
parent’s conduct in failing to appear in person as ordered
was egregious and without clear and justifiable excuse, the
court may not hold a dispositional hearing on the contested

8
No. 2023AP75

adoption or involuntary termination of parental rights until
at least 2 days have elapsed since the date of that finding.

(Emphasis added.)

¶15 “The statutory right to the assistance of counsel in a [TPR]
proceeding is … essential to a fair proceeding.” Shirley E., 298 Wis. 2d 1, ¶60.
Counsel is similarly “viewed as essential to fair proceedings” in criminal matters,
and “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.” Id., ¶61
(emphasis added). “Courts have long recognized that the total deprivation of
counsel in criminal proceedings is a ‘structural error.’” Id., ¶62. Structural errors
“affect ‘[t]he entire conduct of the trial from beginning to end.’ An error also may
be structural because of the difficulty of determining how the error affected the
trial.” State v. Pinno, 2014 WI 74, ¶49, 356 Wis. 2d 106, 850 N.W.2d 207
(alteration in original; citation omitted); see also Neder v. United States, 527
U.S. 1, 8 (1999). “Whether a particular error is structural and therefore not subject
to a harmless error review is a question of law” this court reviews independently.
State v. Nelson, 2014 WI 70, ¶18, 355 Wis. 2d 722, 849 N.W.2d 317; State v.
C.L.K., 2019 WI 14, ¶12, 385 Wis. 2d 418, 922 N.W.2d 807.

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No. 2023AP75

¶16 The County, relying on WIS. STAT. § 48.23(2)(b)3, argues that N.D.
waived his right to counsel.12 As set forth above, N.D. may waive his right to
counsel under § 48.23(2)(b)3 if he “fails to appear in person as ordered, and the
court finds that the parent’s conduct in failing to appear in person was egregious
and without clear and justifiable excuse.” (Emphasis added). The statutory
language plainly states that two things must happen to effect waiver under this
provision.13 First, the parent must fail to appear for court as ordered, and second,
the circuit court must find that the parent’s failure to appear was both egregious
and without clear and justifiable excuse.

¶17 The County’s brief argues that the circuit court did not err in
“finding a waiver of N.J.D.’s statutory right to counsel following his default” as
set forth in WIS. STAT. § 48.23(2)(b)3. But, at no point in the Record does it
appear that the circuit court ever discussed whether N.D. had waived his right to
counsel during any stage of this proceeding, whether explicitly or by his conduct.
This court sees nothing in the Record showing that the circuit court made any
finding that N.D. waived his right to counsel. To the contrary, the circuit court

12
As noted, a parent in a TPR proceeding can also waive his right to counsel under WIS.
STAT. § 48.23(2)(b)1. To waive the right to counsel under § 48.23(2)(b)1, the circuit court must
make a finding that the parent “knowingly and voluntarily” waived his right to counsel. There is
nothing in the Record to support a subsec. (2)(b)1 waiver here as there is no discussion between
N.D. and the circuit court about waiving counsel. There is also no written waiver form
suggesting that N.D. knowingly and voluntarily waived his right to counsel under this subsection.
In fact, the last mention of counsel for N.D. during the course of these proceedings occurred at
the April 14, 2022 hearing when the circuit court granted N.D.’s second attorney’s request to
withdraw over N.D.’s objection: “If we did get to the dispositional phase he would have the right
to counsel at that time which can be addressed at a later time. So I will permit [N.D.’s attorney]
to withdraw as counsel.” (Emphasis added.)
13
See State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d
633, 681 N.W.2d 110 (“[S]tatutory interpretation ‘begins with the language of the statute. If the
meaning of the statute is plain, we ordinarily stop the inquiry.’” (citation omitted)).

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No. 2023AP75

specifically acknowledged at the April 2022 hearing that N.D. would have “the
right to counsel” at the dispositional phase despite having been found in default as
to grounds and that this issue could “be addressed at a later” hearing. And yet, at
the dispositional hearing, which occurred in September 2022, there was no
mention of N.D.’s right to counsel or whether he waived that right at all—despite
N.D. having appeared at that hearing pro se.14 The County does not cite to any
part of the Record to support its claim that the circuit court found that N.D. waived
his right to counsel.

¶18 There is no question, however, that the first part of the WIS. STAT.
§ 48.23(2)(b)3 waiver test is met—N.D. clearly failed to appear for the
September 2021 hearing as ordered by the court. It is the second part of the test
that is missing. As noted, 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. And while § 48.23(2)(b)3 does set forth a presumption
that a parent’s failure “to appear in person at consecutive hearings as ordered is
presumed to be conduct that is egregious and without clear and justifiable
excuse[,]” id. (emphasis added), the circuit court here entered default after N.D.
missed just one hearing—not consecutive hearings—and therefore that

14
There also does not appear to have been any hearing between the April 2022 hearing
and the September 2022 hearing at which the circuit court addressed the right-to-counsel/waiver-
of-counsel issue.

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No. 2023AP75

presumption did not apply at the time the circuit court entered the default against
N.D.15

¶19 N.D.’s refusal to attend the mother’s April 2022 grounds hearing,
despite the County’s suggestion to the contrary, also does not necessarily
constitute egregiousness for the purpose of the waiver-of-counsel issue because
N.D. asked to appear by video, which he had been allowed to do in the past.
Moreover, he was not required to attend that hearing because it pertained solely to
the mother. And, in any event, that hearing ultimately did not occur because the
circuit court postponed it, and not attending a hearing that did not even take place
certainly cannot be considered egregious conduct.

¶20 Moreover, despite N.D.’s above-referenced absences, the Record
demonstrates that N.D. was not a parent who repeatedly missed court appearances
during the pendency of this proceeding. To the contrary, the Record indicates that
N.D. appeared at every hearing prior to the one in September 2021. The Record
reflects that N.D. attempted to present information to the circuit court providing a
potentially justifiable excuse for his September 2021 absence—namely, that the
hearing notice the court sent to N.D. for the September 2021 hearing did not reach
him until four days after the hearing due to a change of address. In addition,
having missed the September 2021 hearing, N.D. would not have been aware of
the October 2021 hearing date absent having timely received a hearing notice, and
it is unclear whether the court ever sent such notice to N.D. or whether N.D.

15
There is also nothing in the Record that suggests the circuit court relied on this
presumption after N.D. missed the October 2021 hearing, which was the second consecutive
hearing N.D. missed. Moreover, and as previously noted, it is not clear whether N.D. was even
aware of the October 2021 hearing given he did not appear at the September 2021 hearing. His
lack of awareness may have constituted a “clear and justifiable excuse” for the absence.

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No. 2023AP75

received timely notice of that hearing. The Record also reflects that aside from the
two missed hearings, N.D. continued to actively participate throughout the
remainder of this protracted litigation.

¶21 Despite the lack of any finding that the above-mentioned conduct
constituted egregious conduct or that such conduct lacked a “clear and justifiable
excuse” under WIS. STAT. § 48.23(2)(b)3, the County argues that this court should
essentially make those factual findings on behalf of the circuit court based on
N.D.’s failure to appear for the September 2021 and October 2021 hearings and
his subsequent refusal to attend the April 2022 hearing in person. This court,
however, does not make factual findings and therefore declines the County’s
invitation to do so. See, e.g., Wurtz v. Fleischman, 97 Wis. 2d 100, 108, 293
N.W.2d 155 (1980); State v. Lange, 158 Wis. 2d 609, 627, 463 N.W.2d 390 (Ct.
App. 1990) (“[W]e do not make factual findings[.]”).

¶22 Based on all of the foregoing, this court sees no basis to conclude
that N.D. waived his right to counsel. The legislature has provided two ways in
which a parent facing involuntary termination of parental rights may waive his
right to counsel, both of which require the circuit court to make explicit findings.
Specifically, a circuit court must either: (1) find the parent knowingly and
voluntarily waived his right to counsel; or (2) find that the parent’s failure to
appear in person as ordered constituted egregious conduct for which there is no
clear and justifiable excuse. See WIS. STAT. § 48.23(2)(b)1, (2)(b)3. The circuit
court made neither finding here, and it is not this court’s role to do so.

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No. 2023AP75

Accordingly, this court concludes that N.D. did not waive his right to counsel.16
Because N.D. is legally entitled to counsel unless he waives that right and because
the violation of his right to counsel occurred at a critical stage of the TPR
proceeding, this court reverses the order terminating N.D.’s parental rights and
remands the matter for further proceedings.17

16
Even if N.D. had waived his right to counsel under WIS. STAT. § 48.23(2)(b)1 or was
presumed to have waived his right to counsel under § 48.23(2)(b)3, N.D. also had a right to
counsel as to his motion seeking reconsideration of the default. See § 48.23(2)(c). Specifically,
§ 48.23(2)(c) states:

In a proceeding to vacate or reconsider a default judgment
granted in an involuntary termination of parental rights
proceeding, a parent who has waived counsel under par. (b)1. or
who is presumed to have waived counsel under par. (b)3. in the
involuntary termination of parental rights proceeding shall be
represented by counsel, unless in the proceeding to vacate or
reconsider the default judgment the parent waives counsel as
provided in par. (b)1. or is presumed to have waived counsel as
provided in par. (b)3.

(Emphasis added). Here, N.D. filed a pro se motion “to Dismiss Default Judgement”—which
was effectively a motion asking the circuit court to either vacate or reconsider the default as to
grounds—and the court addressed that motion at the September 2022 dispositional hearing. At
no point during that proceeding was there any discussion of whether N.D. waived his right to
counsel as to that motion, nor did the circuit court make any finding that N.D. had explicitly or
presumptively waived his right to counsel in that proceeding. Consequently, even if N.D. had
previously waived his right to counsel, there was a violation of his right to counsel in regard to
the proceeding wherein the court addressed his motion regarding the default.
17
This court acknowledges that our supreme court has recognized a criminal defendant
may forfeit his constitutional right to representation by his conduct. See State v. Suriano, 2017
WI 42, ¶1, 374 Wis. 2d 683, 893 N.W.2d 543. Assuming without deciding that the same
principle applies to the statutory right to counsel in a TPR case, this Record does not contain any
such finding of forfeiture by the circuit court. In fact, the Record suggests the opposite—that
despite the withdrawal of N.D.’s two appointed attorneys, the circuit court indicated N.D. would
have the right to another attorney.

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No. 2023AP75

By the Court.—Order reversed and cause remanded for further
proceedings.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

15