Opinion · Court of Appeals of Wisconsin

E.H. v. Milwaukee County

E.H. v. Milwaukee County, 151 Wis. 2d 725 (Wis. Ct. App. 1989)

Type: Opinion
Court: Court of Appeals of Wisconsin
Jurisdiction: Wisconsin
Date: 1989-07-26
Topic: general

FINE, J. (concurring). Unlike the majority, I believe that the material provisions of sec. 48.23, Stats., are not ambiguous. I vote to reverse because the trial court's order violates the clear statutory mandate. Section 48.23(2)(b), Stats., provides that if a petition alleging that a child is in need of protection or services "is contested, no child may be placed outside his or her home unless the nonpetitioning parent is represented by counsel at the fact-finding hearing and subsequent proceedings." Even if the petition is not contested, "the child may not be placed outside his or her home unless the nonpetitioning parent is represented by counsel at the hearing at which the placement is made." Ibid.1 In both situations, the parent may waive his or her right to counsel if that waiver is knowing and voluntary.

Citator

UpLaw has not yet analyzed E.H. v. Milwaukee County. The absence of a flag is not a finding that it is good law.

FINE, J.

(concurring). Unlike the majority, I believe that the material provisions of sec. 48.23, Stats., are not ambiguous. I vote to reverse because the trial court's order violates the clear statutory mandate.

Section 48.23(2)(b), Stats., provides that if a petition alleging that a child is in need of protection or services "is contested, no child may be placed outside his or her home unless the nonpetitioning parent is represented by counsel at the fact-finding hearing and subsequent proceedings." Even if the petition is not contested, "the child may not be placed outside his or her home unless the nonpetitioning parent is represented by counsel at the hearing at which the placement is made." Ibid.1 In both situations, the parent may waive his or her right to counsel if that waiver is knowing and voluntary. Ibid. The term "counsel" is defined by statute as:

an attorney acting as adversary counsel who shall advance and protect the legal rights of the party represented, and who may not act as guardian ad litem for any party in the same proceeding.

Sec. 48.23(6), Stats. Counsel was appointed for the mother and, following doubts about the mother's competency, a guardian ad litem was appointed for her as well. See sec. 48.02(9), Stats. A determination of incompetency under ch. 880, Stats., was not sought. See sec. 880.33, Stats.2

*740 The phrase "adversary counsel" means what it says. The person fulfilling that role, whether appointed for an indigent parent, sec. 48.23(4), Stats., or privately retained by a parent who is not indigent, must represent that parent "zealously within the bounds of the law." See State ex rel. Memmel v. Mundy, 75 Wis. 2d 276, 283-284, 249 N.W.2d 573, 577 (1977). The trial court's attempt to devise procedures when counsel must "throw in the towel" for an objecting client thus violates the statute.

Although the United States Supreme Court has declined to make entitlement to appointed counsel for indigent parents subject to termination of parental rights or neglect proceedings a constitutional imperative in all cases, Lassiter v. Department of Social Services, 452 U.S. 18, 31-32 (1981), it has recognized that "[i]informed opinion has clearly come to hold" that such a right generally exists. Id. at 33-34.

This case thus does not concern a situation where a parent *740 seeking to contest a CHIPS petition has been determined to be incompetent under ch. 880, Stats., and a guardian of the person has been appointed. See secs. 880.33 and 880.38, Stats. Cf. sec. 48.235, Stats., ("The guardian ad litem has none of the rights of a general guardian.").