State v. D.L. (In re A.M.)
| Decision Date | 21 June 2022 |
| Docket Number | 2021AP2137 |
| Parties | In re the termination of parental rights to A.M., a person under the age of 18: v. D.L., Respondent-Appellant. State of Wisconsin, Petitioner-Respondent, |
| Court | Court of Appeals of Wisconsin |
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
APPEAL from an order of the circuit court for Milwaukee County, Cir Ct. No. 2021TP5 MARSHALL B. MURRAY, Judge. Affirmed.
¶1 D.L. appeals the order terminating his parental rights to his daughter, A.M. D.L. argues that the circuit court erred when it entered default judgment on the grounds for the termination of parental rights (TPR) without a finding of egregious conduct or failure to follow court orders. Further D.L. argues his counsel was ineffective for failing to present a defense and missing hearings. Upon review, we reject D.L.'s arguments and we affirm.
¶2 In January 2021, the State filed a petition to terminate the parental rights to A.M., born July 2016, who is the biological child of S.M. and D.L.[2]A.M. was found to be a child in need of protection or services (CHIPS) in June 2019 and was placed into the care of the Division of Milwaukee Child Protective Services (DMCPS). In May 2020, D.L. was confirmed to be the biological father of A.M. after a DNA test was filed in the underlying CHIPS case. The State alleged abandonment, continuing CHIPS, and failure to assume parental responsibility as grounds for the TPR as to D.L.
¶3 D.L. and his trial counsel appeared at the January 29, 2021 status hearing on the TPR petition, which addressed appointing counsel for the father of two of S.M.'s other children, and the attempts made to reach and serve S.M. It was determined that D.L. would enter his plea on the TPR petition at the next hearing.[3] D.L. asked the court about the possibility of a video visit with A.M. and the court informed him that he should contact the case manager. The next hearing was held March 30, 2021, and neither D.L. not his trial counsel made an appearance. The State asked that the court find D.L. in default, but stated that it would not object if D.L. moved the vacate the default during the permanency plan hearing on April 5, 2021, provided he appeared at that hearing. The circuit court took the default motion under advisement.
¶4 D.L. and trial counsel did not appear at the April 5, 2021 permanency plan hearing. The court granted the State's motion to find D.L. in "default for failure to follow the [c]ourt's order and be here and participate in these proceedings." The "prove-up" of the grounds for the TPR and the dispositional phase of the TPR was scheduled for the next hearing.
¶5 At the July 15, 2021 hearing, D.L.'s trial counsel appeared, but D.L. did not. The ongoing case manager testified that she last had contact with D.L. eight or nine months before, that D.L. lived in Texas, and that A.M. had never resided with D.L. as far as the case manager was aware. She testified that D.L had not participated in any of the programming services offered to satisfy the conditions to place A.M. in his care. He had not satisfied the conditions of return before or after the TPR was filed. D.L. has had sporadic video visits with A.M. D.L. did not make himself available to sign a consent for DMCPS to take temporary guardianship of A.M. in December 2020. She further testified that D.L. has not participated in A.M.'s medical, educational, or professional appointments and he has not accepted or exercised responsibility for her daily supervision. Neither the guardian ad litem (GAL) nor trial counsel asked the case manager any questions. The court found that the State proved by clear and convincing evidence that the grounds for the TPR existed based on two allegations: (1) failure to assume parental responsibility pursuant to WIS. STAT. § 48.415(6), and (2) abandonment of A.M. The court then found D.L. unfit.
¶6 The case then moved to the dispositional phase, in which the court decided whether a TPR action was in the best interests of the child. The case manager testified that A.M. had been placed with her foster placement since she came into DMCPS care in 2019. Her foster mother was an adoptive resource for A.M. and was interested in adopting her. The case manager reviewed A.M.'s age and health and history with occupational therapy, speech therapy, and treatment for trauma. D.L.'s trial counsel did not ask the case manager any questions. The court then reviewed the factors under WIS. STAT. § 48.426(3), which must be considered when the court determines whether termination is in the best interests of the child. The court concluded:
[T]here is a strong likelihood of adoption after termination of parental rights. There is nothing about the age or health of the child that would be a barrier to the child being adopted even [though] she has some issues as a result of her care or lack of care by her mother when she lived with her mother. She does not have a substantial relationship with either her mother or her father or any maternal or paternal family members _ so it would not be harmful to the child in severing the legal relationship with the parents .... [A.M.] is only five years old and she is not able to express at least to us her wishes or as to her having an understanding of what adoption is about. The child has been removed from the home of a parent when she was two years old and it has been about three years. She will be better able to enter into a more stable and permanent family relationship as a result [of] termination taking into account the number of years she has been in foster care and if the TPR is not granted, she would probably languish in foster care and even though I find she is an age she is adoptable.
The court concluded that as a matter of law, the TPR was in A.M.'s best interests as proven by clear and convincing and satisfactory evidence. The circuit court signed the order terminating D.L's parental rights on July 16, 2021.
¶7 D.L. filed a notice of intent to pursue postdisposition relief on August 16, 2021. He filed his notice of appeal in December 2021. In January 2022, this court found good cause was shown and granted D.L's. motion for remand to the circuit court for postdisposition proceedings. On March 10, 2022, and March 23, 2022, the court held evidentiary hearings on D.L.'s claims that the trial court erred when it defaulted him on the grounds for the TPR and that trial counsel was ineffective.
¶8 D.L.'s postdisposition counsel argued that there was no evidence in the record that D.L. disobeyed a court order, therefore, it was inappropriate for the circuit court to grant default judgment against him on that basis. The court responded that D.L. was defaulted for failure to appear and to participate. The court stated that participation is significant because The court stated that the default was based on D.L.'s failure to appear and enter a plea to the TPR petition.
¶9 D.L.'s postdisposition counsel addressed confusion in the record over whether the next hearing referenced in the January hearing was scheduled for March 29, 2021, or March 30, 2021. The court stated it was the obligation of the party to participate, to call the court with questions, and to confirm dates. The State then referenced that D.L. had the same Texas address throughout these proceedings and that:
The State sent the petition that was filed on January 6th, 2021 to [D.L.] with all of the Zoom log in information, a copy of the summons and petition, the UCCJEA[4] affidavit and instruction on how to appear remotely and part of the summons had the instruction if you fail to appear for the remote hearing, the [c]ourt may hear testimony that supports the allegation in the attached petition and grant the request of the petitioner to terminate your parental rights.
The GAL then informed the court that even with any confusion over the March hearing date, a written notice was sent to D.L. for the April 5, 2021 hearing. The notice contained the phone numbers for the case manager and the court clerk in case D.L. had questions.
¶10 D.L.'s postdisposition counsel argued that in civil proceedings- which includes a TPR action-there is not a requirement that a person must appear if they are represented by counsel. The court noted that there is a difference if testimony from the represented party is required. Further, the court stated that a party must contribute and provide information to counsel so that counsel can be prepared to participate.
¶11 D.L's postdisposition counsel then called trial counsel. However, first, the court swore in D.L. to ask whether he would waive lawyer-client confidentiality, after some discussion about the necessity of such a waiver when a client files an ineffective assistance of counsel claim. D.L. refused to waive confidentiality.
¶12 Trial counsel testified that she sent all new clients an introduction letter referencing appearing at all hearings and warning them that failure to appear may result in a loss of legal representation and parental rights. She did not use the term "default" because it may be confusing. Trial counsel stated that all of her contact information was contained on the introduction letter and that her contact information did not change throughout the pendency of this case. The State questioned trial counsel about a string of emails between trial counsel and the State on April 5 2021.[5] After refreshing her recollection with the emails, trial counsel stated she was stuck in a hearing in another county...
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