A.S. v. State

SUNDBY, J.

(dissenting). In this involuntary termination of parental rights case, the mother of three children, whose parental rights have been terminated by the state, asks the poignant question: "What price a child?" Our decision relegates her and the father to damages in legal malpractice actions if their parental rights have been lost due to ineffective assistance of counsel. I reject the proposition that a legal malpractice remedy is effective to redress the loss of parental rights. I conclude that the parent is entitled to a new hearing at which he or she is represented by effective counsel.

In In re P.L.S., 158 Wis. 2d 712, 463 N.W.2d 403 (Ct. App. 1990) (Sundby, J., dissenting), I concluded that when the legislature gives an indigent person the right to state-appointed counsel, that right includes the right to effective assistance of counsel. Indigent parents in involuntary termination of parental rights proceedings are entitled to counsel. See secs. 48.23(2)(a) and 977.05(4)(h), Stats. In P.L.S., I adopted the following statement from In re Smith, 573 A.2d 1077, 1079 (Pa. Super. Ct. 1990):

To assume that what is meant by assistance of counsel does not include the concept of able, effective representation is to ascribe to the statute a ludicrous result, that is, that such counsel need not be able to perform appropriately, or indeed at all, to fulfill the legislative mandate.

*704 P.L.S., 158 Wis. 2d at 724, 463 N.W.2d at 409.I believe the parents herein were entitled to the effective assistance of counsel.

From my experience as a practitioner and as a judge, I wholeheartedly agree with the mother's assessment of the demands upon counsel in an involuntary termination proceeding, as follows:

Trial counsel must be prepared to attack the jurisdiction of the court, the validity of petitions, the nature of the [CHIPS] warnings, the diligence of the efforts by the assigned agency, deal with expert witnesses, review the agency and court files that may run into the thousands of pages, conduct depositions, answer and promulgate interrogatories, and at the end participate in a difficult and protracted trial in which the public representative and the guardian ad litem are ordinarily in lock-step against the parent.

The U.S. Supreme Court has recognized the vast disparity in an involuntary termination case between the ability of the state to prosecute and the ability of the parent to defend. In Santosky v. Kramer, 455 U.S. 745, 763 (1982), the Court stated as follows:

The State's ability to assemble its case almost inevitably dwarfs the parents' ability to mount a defense. No predetermined limits restrict the sums an agency may spend in prosecuting a given termination proceeding. The State's attorney usually will be expert on the issues contested and the procedures employed at the factfinding hearing, and enjoys full access to all public records concerning the family. The State may call on experts in family relations, psychology, and medicine to bolster its case. Furthermore, the primary witnesses at the hearing will be the agency's own professional caseworkers whom the State has empowered both to investigate the family *705 situation and to testify against the parents. Indeed, because the child is already in agency custody, the State even has the power to shape the historical events that form the basis for termination.

In a footnote to the above statement, the Court noted that the parents claimed that the state sought court orders denying them the right to visit their children, which would have prevented them from maintaining the contact required by the family court act. The parents' claim in Santosky has been realized in this case: The parents were prohibited from exercising visitation with their children and that failure is now used by the state as justification for terminating the parents' parental rights.

To force parents whose rights to their children are threatened by the state to face the enormous resources of the state without the effective assistance of counsel is contrary to the most basic precepts of fair play. As far back as In re Gault, 387 U.S. 1, 36 (1967), the U.S. Supreme Court recognized that "the guiding hand of counsel” is essential to otherwise defenseless persons whose liberty or property interests may be adversely affected by state action. The contention that fair play is nonetheless accorded when the guiding hand of counsel is infirm does not require rebuttal.

The Wisconsin legislature has decided that an indigent parent facing the vast resources of the state in involuntary termination proceedings is entitled to state-appointed counsel. Section 48.23(2)(a), Stats. "It is axiomatic that the right to counsel includes the right to competent counsel." In re Trowbridge, 401 N.W.2d 65, 66 (Mich. Ct. App. 1986). Therefore, we need not look to the state or federal constitutions for the right to effective counsel; the legislature has given indigent parents that right.

*706 The majority relies on Lassiter v. Department of Social Services, 452 U.S. 18 (1981). Lassiter, however, supports my position. In that case, the Court, in a five-to-four decision, concluded that the trial judge did not deny an indigent mother due process when he did not appoint counsel for her in an involuntary parental rights termination case. However, the Court stated:

In its Fourteenth Amendment, our Constitution imposes on the States the standards necessary to ensure that judicial proceedings are fundamentally fair. A wise public policy, however, may require that higher standards be adopted than those minimally tolerable under the Constitution. Informed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counsel not only in parental termination proceedings, but also in dependency and neglect proceedings as well. Most significantly, 33 States and the District of Columbia provide statutorily for the appointment of counsel in termination cases. The Court's opinion today in no way implies that the standards increasingly urged by informed public opinion and now widely followed by the States are other than enlightened and wise.

Id. at 33-34 (citations omitted).

Informed public opinion in Wisconsin, acting through the Wisconsin legislature, demands state-appointed counsel for indigent persons subject to emergency detention or involuntary civil commitment under ch. 51, Stats., for children subject to proceedings under ch. 48, Stats., for alleged fathers in paternity actions, and for parents in involuntary termination of parental rights cases. The "enlightened and wise” public policy has now been judicially nullified for indigent fathers in paternity actions, see In re P.L.S., 158 Wis. 2d 712, 463 N.W.2d 403 (Ct. App. 1990), and, today, for indigent *707 parents in involuntary termination of parental rights proceedings.1

I do not express an opinion on the merits of the parents' claims of ineffective assistance of counsel. These claims should be addressed in a Machner hearing. See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905, 908-09 (Ct. App. 1979).