State v. D.L.

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.
June 21, 2022
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. 2021AP2137 Cir. Ct. No. 2021TP5
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
IN RE THE TERMINATION OF PARENTAL RIGHTS TO A.M., A PERSON UNDER THE
AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
D.L.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County:
MARSHALL B. MURRAY, Judge. Affirmed.
No. 2021AP2137
¶1 WHITE, J.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.
BACKGROUND
¶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.
A. Predisposition proceedings
¶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
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
The TPR petition also addressed four additional children of S.M., and their respective
fathers. S.M., the other fathers, and the other children are not at issue in this appeal.
2
No. 2021AP2137
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
3
The hearings throughout this case were conducted over Zoom video teleconferencing
because of the ongoing COVID-19 pandemic.
3
No. 2021AP2137
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
4
No. 2021AP2137
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.
B. Postdisposition proceedings
¶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 “[i]f someone is not
participating, he had not entered a plea, he didn’t enter a plea on the second date.
He didn’t show up for the permanency plan hearing to participate[.]” 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
5
No. 2021AP2137
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 UCCJEA4 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
4
The Uniform Child Custody Jurisdiction and Enforcement Act. See WIS. STAT.
§ 822.01.
6
No. 2021AP2137
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 during D.L.’s hearing
and then she remained in the Zoom waiting room for D.L.’s hearing until the judge
brought her in and explained to her what had happened with regard to the default
that day.
¶13 At the second hearing date, the court began with the issue of whether
filing an ineffectiveness motion waived attorney-client confidentiality under State
v. Flores, 170 Wis. 2d 272, 277-78, 488 N.W.2d 116 (Ct. App. 1992) (“We hold
that when a defendant charges that his or her attorney has been ineffective, the
defendant’s lawyer-client privilege is waived to the extent that counsel must
answer questions relevant to the charge of ineffective assistance.”). The court then
ordered trial counsel to testify despite D.L.’s objection.
5
The GAL noted that the emails and letters referenced were not contained in the circuit
court record; however, the circuit court concluded that the testimony was what mattered and the
court did not need to see it. Accordingly, this information is not in the appellate court record and
rely on the circuit court record.
7
No. 2021AP2137
¶14 Trial counsel testified that she appeared late for the March hearing
because of her conflict in another court. She also stated that she appeared late for
the April hearing after D.L. had been found in default. She stated that she wrote
D.L. a letter in April after the default explaining what had happened and his
options going forward. She stated that she had no contact with D.L. after that
letter and before the July 15, 2021 dispositional hearing. After his rights were
terminated, trial counsel called D.L.; however, the call was disconnected and when
she called back, she was unable to reach him.
¶15 Trial counsel testified that she did not ask any questions at the
prove-up or the dispositional phase of the July hearing. She stated she was “very
careful about making sure that all of the points are made for the prove-up and for
disposition and if there is nothing that is dispute[d] based on [her] review of the
record, [she does not] ask any questions.” She testified that she and D.L. had not
had a conversation and that he had not provided her with any information or
evidence. Without his input, she believed her advocacy was to ensure the fairness
of the process. She would not “ask questions just to ask questions.” Trial counsel
testified that D.L. initially indicated that he wanted to contest the petition and in
her April letter she invited him to engage with her; however, he did not call or
communicate with her before she called him on July 15, 2021.
¶16 During cross-examination, trial counsel testified that her
introduction letter to D.L. specifically stated that he had an obligation to appear at
all hearings on time. She testified that D.L. did not contact her between the initial
appearance in January 2021, and July 15, 2021, when she was able to reach him by
phone. She explained that she could not effectively proceed in the case without
information from D.L. and that without his input, she did not have questions to ask
at the hearings. She testified that she was unable to file a motion to vacate the
8
No. 2021AP2137
default judgment because she did not have any information from D.L. as to why he
did not appear. She testified that in her conversation with D.L. in January, she
understood he wanted to contest the petition.
¶17 The GAL called D.L. as a witness. D.L. testified that he received a
call from trial counsel in January and then in April after the default. He said after
he lost his parental rights, he did not want to deal with trial counsel “because she
never called [him] or nothing, talked about nothing and then nothing. Always
calling me with an attitude and it was just ridiculous.” He stated he received a
copy of the termination of parental rights petition “in a written letter, lawyers for
that, typed up in a written letter. What kind of shit is that?” He stated that his
mailing address was his grandmother’s house, where he did not reside, but he
picked up his mail when his grandmother called him. He testified that he did not
receive written notice with Zoom instructions for the April or July hearings. He
testified that he tried to reach the case manager, he “kept trying to call and they
never, never answer their phone.”
¶18 Upon the court’s questioning, D.L. stated that both the case manager
and trial counsel were rude to him. D.L. testified that he received a letter from
trial counsel but he did not receive court documents. During examination by the
State, D.L. testified that he did not know how many hearings occurred after
January 2021, but he tried to attend and tried to call the case manager and the
court’s clerk. He stated that he tried to call trial counsel every week from January
and July and she never returned his calls. He stated that his mother tried calling
the caseworker every two weeks, but he did not know if she had any response.
¶19 The GAL then called the case manager, who testified that she was
the case manager for A.M. throughout the pendency of this case and was present at
9
No. 2021AP2137
the court hearings. She testified that D.L. and trial counsel attended the January
hearing. She wrote down the next hearing as March 29 and attempted to login to
the Zoom meeting that day and was informed the hearing was the next day, March
30. She noted that the foster parents also attempted to login on March 29th, but
she did not see D.L.
¶20 During the pendency of the TPR, the case manager testified she
spoke by telephone to D.L. on January 29, 2021, otherwise, she did not hear from
him. She testified that her phone number remained the same throughout the case.
Her office telephone system kept a record of all calls and voice mails left on her
line and she only received one call from D.L., which occurred on January 29,
2021. She testified that on the notices of the April and July hearings, D.L.’s name
and Texas address were also listed as recipients of the notices.
¶21 The court reviewed the situation, agreeing that it was “clear that
[D.L.] wanted to have his daughter.” It acknowledged the confusion about the
March hearing date, but stated it was at least somewhat D.L.’s responsibility to
call the court and seek information if he did not know what happened next. The
court stated that D.L. was given notice of the April 5, 2021 hearing and he did not
show or call the court. The court “found him to be in default for failure to join in
the action because no plea had been entered, failure to join and failure to
participate.” Upon reviewing the events that transpired, the court did not “find a
basis for vacating the default and reinstating [D.L.’s] context posture.” The court
found that D.L. “did nothing to make himself available to the court on April 5th”
and he had a responsibility to reach out either to the case manager or the court
directly.
10
No. 2021AP2137
¶22 The court continued that it did not know how a lawyer in a civil or
criminal case “can represent someone if the party they are representing doesn’t
give them the information to present to the [c]ourt.” It found that “[D.L.] had not
remained in contact or participated or provided information to his lawyer so that
she could proceed [on] that evidence.” The court found that there was no contact
between trial counsel and D.L. “between April 5th and July 15th” even though
trial counsel tried. D.L. said that he called and texted trial counsel, but the court
stated this came down to a “credibility issue as to who [to] believe” and the court
believed trial counsel did try to reach out to D.L. by phone and in writing. The
court stated that D.L. did not participate and cooperate with trial counsel,
therefore, “What arguments could she make? What questions could she ask?”
The court concluded that there was no “error or ineffective assistance of counsel
by [trial counsel] in not asking questions even though the [c]ourt asked her and
gave her permission to do so but she had no information.” The court denied
D.L.’s postdisposition motion finding that there was no waiver of counsel by trial
counsel. See WIS. STAT. § 48.23(2). Finally, the court found there was no
structural error in the case. The court denied the request to reopen the judgment
and vacate the default.
¶23 This appeal follows.
DISCUSSION
¶24 D.L. renews his argument that the circuit court erred to enter default
judgment against him on the grounds for the TPR when it was not shown that he
failed to obey court orders or exhibited egregious conduct. Second, he argues that
trial counsel provided ineffective assistance of counsel for missing hearings, not
asking questions, and failing to present a defense on his behalf. Finally, he
11
No. 2021AP2137
contends that trial counsel’s inaction in this case amounted to a waiver of counsel.
He argues this meant that the State’s case was not subject to the adversarial
process, which constitutes structural error requiring a new contested hearing on the
termination of D.L’s parental rights. For the reasons discussed below, we reject
D.L.’s arguments.
I. Default judgment
¶25 The decision to terminate parental rights is within the discretion of
the circuit court. See Gerald O. v. Susan R., 203 Wis. 2d 148, 152, 551 N.W.2d
855 (Ct. App. 1996). Moreover, the decision to grant or deny a motion for default
judgment requires an exercise of sound discretion. Split Rock Hardwoods, Inc. v.
Lumber Liquidators, Inc., 2002 WI 66, ¶63, 253 Wis. 2d 238, 646 N.W.2d 19.
We will sustain a circuit court’s discretionary decision unless the court
erroneously exercises its discretion. WIS. STAT. § 805.17(2). A circuit court
properly exercises its discretion when it examines the relevant facts, applies a
proper standard of law, and using a demonstrated rational process reaches a
conclusion that a reasonable judge could reach. Dane Cnty. DHS v. Mable K.,
2013 WI 28, ¶39, 346 Wis. 2d 396, 828 N.W.2d 198.
¶26 Although default judgments are “regarded with particular disfavor,”
they may be granted pursuant to the circuit court’s inherent or statutory authority.
Split Rock Hardwoods, Inc., 253 Wis. 2d 238, ¶¶42 n.15, 64. At issue here, a
circuit court may grant a default judgment if no issue or law or fact has been
joined and the time for joining issue has expired. WIS. STAT. § 806.02(1).
However, a circuit court has authority to enter default judgment against a party
who fails to appear at trial, § 806.02(5); fails to comply with a discovery order,
WIS. STAT. § 804.12(2)(a); or as a sanction for failing to comply with court orders,
12
No. 2021AP2137
WIS. STAT. §§ 802.10(7), 805.03. See Evelyn C.R. v Tykila S., 2001 WI 110, ¶17,
246 Wis. 2d 1, 629 N.W.2d 768. Conversely, a circuit court judge has discretion
to deny a motion for default judgment “when it determines the judgment would be
reopened under [WIS. STAT.] § 806.07.” Johns v. County of Oneida, 201 Wis. 2d
600, 605, 549 N.W.2d 269 (Ct. App. 1996).
¶27 D.L. argues that the circuit court erred to enter default judgment
when he did not disobey court orders; therefore, the court had no reason to
sanction his conduct. See Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261,
273-74, 470 N.W.2d 859 (1991) overruled on other grounds by Industrial
Roofing Servs., Inc. v. Marquardt, 2007 WI 19, 299 Wis. 2d 81, 726 N.W.2d 898The State argues that the circuit court was not entering default judgment as a
sanction, but instead for failure to join under WIS. STAT. § 806.02(1). At the
postdisposition evidentiary hearing, the circuit court clearly explained that D.L.
did not enter a plea and did not participate in the case. The record reflects that the
court was acting under its authority under § 806.02(1) even if it did not name the
statutory authority. Further, the record reflects that the court considered the
relevant facts related to D.L.’s failure to appear or communicate with counsel or
the court, applied the proper standard of law, and demonstrated rational decision-
making in entering the default judgment. Accordingly, we conclude that the
circuit court did not erroneously exercise its discretion when it entered the default
judgment.
¶28 Further, in accordance with the importance and impact of this
decision, our examination of the record shows there was a factual basis to support
the court’s findings of grounds for termination. See Evelyn C.R., 246 Wis. 2d 1,
¶33. The case manager 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.
13
No. 2021AP2137
He had not satisfied the conditions of return before or after the TPR was filed.
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. The record reflects that grounds for the TPR on this basis existed.
¶29 Additionally, we reject D.L.’s argument that the court erred under
the holdings of Evelyn C.R., 246 Wis. 2d 1, ¶24 (“Because it failed to take
evidence at the fact-finding hearing, the circuit court had no evidentiary basis to
support its finding of abandonment prior to finding grounds for the termination of
Tykila’s parental rights.”). D.L.’s reliance on Evelyn C.R. is misplaced. There,
the circuit court entered default judgment without requiring the State to offer proof
to support the grounds in the TPR petition. This case is factually distinct because
the State presented testimony from the case manager that provided clear and
convincing evidence that the grounds for the TPR existed.
¶30 Finally, we reject D.L.’s argument that failure to join is an improper
basis for default judgment in a TPR. Entering default judgment within TPR
proceedings is consistent with WIS. STAT. § 806.02 because a TPR is civil in
nature. See WIS. STAT. § 801.01 (“Chapters 801 to 847 govern procedure and
practice in circuit courts of this state in all civil actions and special proceedings
whether cognizable as cases at law, in equity or of statutory origin except where
different procedure is prescribed by statute or rule.”). A default judgment may be
entered against a parent in a TPR case as to grounds for unfitness, although the
circuit court must receive evidence showing unfitness before it may do so. See
Evelyn C.R., 246 Wis. 2d 1, ¶¶17, 24.
¶31 In reaching this decision, we acknowledge that the “[t]ermination of
parental rights proceedings require heightened legal safeguards to prevent
14
No. 2021AP2137
erroneous decisions.” See State v. Shirley E., 2006 WI 129, ¶24, 298 Wis. 2d 1,
724 N.W.2d 623. However, our review of the record supports our conclusion that
the circuit court properly followed TPR procedure and made a well-reasoned
decision when it granted default against D.L. in April 2021. D.L. had notice of the
hearing, he was aware of the importance of the TPR proceedings, and he had
access to reach trial counsel or the court with any questions. We agree with the
circuit court’s conclusion that D.L. did not participate personally or by
communicating a defense to trial counsel.
II. Ineffective assistance of counsel
¶32 D.L. next argues that trial counsel was ineffective. D.L. argues that
trial counsel’s performance was deficient because she did not appear at the March
and April hearings, and she did not ask questions or present a defense at the July
hearing. He argues she had a duty to provide zealous, competent and independent
representation.
¶33 A parent contesting a TPR petition has a right to the effective
assistance of counsel. WIS. STAT. § 48.23(2); Oneida Cnty. DSS v Nicole W.,
2007 WI 30, ¶33, 299 Wis. 2d 637, 728 N.W.2d 652. To determine whether a
parent received the effective assistance of counsel, we apply the two prong test set
forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). A parent must show
both that counsel’s performance was deficient and that the parent was prejudiced
by counsel’s performance. Id. To establish deficient performance, the parent
must show that counsel’s conduct fell below an objective standard of
reasonableness. Id. at 687-88. To establish prejudice, the parent “must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceedings would have been different. A reasonable probability is a
15
No. 2021AP2137
probability sufficient to undermine confidence in the outcome.” Id. at 694. If a
parent fails to make a showing on one prong, we need not address the other. Id. at
697.
¶34 This court benefits from the evidentiary hearing conducted by the
circuit court that focused on trial counsel’s performance and reasoning. An
evidentiary hearing preserving trial counsel’s testimony allows this court to
“determine whether trial counsel’s actions were the result of incompetence or
deliberate trial strategies.” State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d
905 (Ct. App. 1979). “Trial strategy is afforded the presumption of constitutional
adequacy.” State v. Breitzman, 2017 WI 100, ¶65, 378 Wis. 2d 431, 904 N.W.2d
93. Trial counsel’s performance “need not be perfect, indeed not even very good,
to be constitutionally adequate.” State v. Thiel, 2003 WI 111, ¶19, 264 Wis. 2d
571, 665 N.W.2d 305 (citation omitted).
¶35 Here, the record reflects that trial counsel had received no
information from D.L. to inform a trial strategy or present a defense. The circuit
court found credible trial counsel’s account of her attempts to reach D.L. Trial
counsel testified that she did not ask questions at the July hearing because she had
no information from D.L. She stated, “I believe my advocacy was ensuring the
fairness of the proceeding because I am not just going to ask questions just to ask
questions. They have to be purposeful.” This strategy was limited but reasonable
under the facts and circumstances of this case.
¶36 D.L. argues that trial counsel failed to present a defense and failed to
serve as adversary counsel. It is true that an attorney serving as appointed counsel
in TPR proceedings has the “duties and responsibilities of lawyer to client … set
forth in the Code of Professional Responsibility promulgated by
16
No. 2021AP2137
[the Wisconsin Supreme Court].” E.H. v Milwaukee Cnty., 151 Wis. 2d 725, 736,
445 N.W.2d 729 (Ct. App. 1989). Those duties include confidentiality,
“exercising independent professional judgment on behalf of a client, representing
a client competently, and representing a client zealously within the bounds of the
law.” Id. However, here, the inhibiting factor in trial counsel’s representation
was D.L. himself. The record reflects that the court found trial counsel’s
testimony about her attempts to reach D.L. credible. She exercised a reasonable
strategy to monitor the case and ensure fairness, the only steps she believed she
could take without information from D.L. We conclude that D.L. has failed to
show that trial counsel’s performance was deficient.
¶37 Even if we turn to the second Strickland prong and consider the
issue of prejudice, D.L. fails to show that counsel’s performance adversely
affected the outcome of the proceedings. D.L. complains that trial counsel did not
ask questions despite having the opportunity. He does not explain what questions
trial counsel could have asked or what defense she did not pursue. Trial counsel
testified she was prepared to advocate if the State’s presentation was unfair. We
conclude that D.L. has failed to show prejudice from trial counsel’s performance.
¶38 During the ineffectiveness inquiry, we must made every effort to
avoid the “distorting effects of hindsight.” Strickland, 466 U.S. at 687. The
record reflects that trial counsel took reasonable actions to represent D.L. There
was nothing irrational or capricious about her actions or even as D.L. terms it, her
inaction. See Breitzman, 378 Wis. 2d 431, ¶75. The circuit court determined that
trial counsel did not err or provide ineffective assistance. We agree. We conclude
that D.L. has failed to show that trial counsel’s performance was ineffective.
17
No. 2021AP2137
III. Structural error
¶39 Finally, D.L. argues that trial counsel’s failures meant that the
State’s case was not subject to the adversarial process, which constitutes structural
error requiring vacating the default judgment and conducting a new hearing on the
TPR petition. 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 (quoting Arizona v. Fulminante, 499 U.S. 309(1991)). “Although ‘most constitutional errors can be harmless,’ there are a very
limited number of structural errors that require automatic reversal.” Pinno, 356
Wis. 2d 106, ¶49.6 (quoting Neder v. United States, 527 U.S. 1, 8, (1999)).
Whether a particular error is structural and not subject to a harmless error review
is a question of law we review 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.
¶40 D.L. first argues that trial counsel’s inaction amounted to a waiver of
counsel. WISCONSIN STAT. § 48.23(2) expressly requires that any waiver of
counsel must be knowing and voluntary. D.L. relies upon Shirley E., where our
supreme court held that a parent retained a right to counsel throughout the TPR
proceedings, even after default. See Shirley E., 298 Wis. 2d 1, ¶56. We
distinguish that in this case, the circuit court did not dismiss D.L.’s attorney after
6
“The limited class of structural errors include: complete denial of the right to counsel, a
biased judge, excluding members of the defendant’s race from a grand jury, denial of the right to
self-representation, denial of the right to a public trial, and a defective reasonable doubt
instruction.” State v. Pinno, 2014 WI 74, ¶50, 356 Wis. 2d 106, 850 N.W.2d 207 (footnotes
omitted).
18
No. 2021AP2137
the default, as happened in Shirley E., and trial counsel appeared and participated
in the July hearing within the reasonable strategy of ensuring fairness. Therefore,
we conclude that trial counsel’s actions did not constitute a waiver of counsel.
¶41 D.L. next argues that because counsel’s performance was so lacking,
the State’s case was not subject to the adversarial process and he was deprived of
representation. “Courts have long recognized that the total deprivation of counsel
in criminal proceedings is a ‘structural error.’” Shirley E., 298 Wis. 2d 1, ¶62.
Our examination of the record does not support that D.L. faced a Shirley E.
deprivation of counsel. See id., ¶3. Trial counsel appeared at the July hearing on
the record, and was in contact with the court for the March and April hearings,
even if she was late and did not appear on the record. Further, the circuit court did
not bar trial counsel from participating. See id., ¶16. D.L.’s argument that the
counsel did not fulfill her role in the adversarial system ignores that it was D.L.’s
failure to participate that prevented trial counsel from having the information
needed to present a defense and limited trial counsel to ensuring fairness in the
proceedings. D.L. fails to show how trial counsel could dispute the State’s factual
basis for the TPR without his input and information. We discern no structural
error in this case.7
7
The State argues that the alleged errors in counsel’s conduct are subject to the harmless
error standard. WIS. STAT. § 805.18(1) (“The court shall, in every stage of an action, disregard
any error or defect in the pleadings or proceedings which shall not affect the substantial rights of
the adverse party.”). It is a clear beyond a reasonable doubt that any alleged errors within trial
counsel’s representation does not undermine our confidence in the outcome of the proceedings.
19
No. 2021AP2137
CONCLUSION
¶42 For the reasons stated above, we conclude that the circuit court did
not err when it entered default judgment on the grounds for the TPR for D.L.’s
failure to join, pursuant to WIS. STAT. § 806.02(1). We conclude that D.L. has
failed to show that trial counsel was ineffective and failed to show that structural
error occurred in this case. Accordingly, we affirm the circuit court order
terminating D.L.’s parental rights.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
20