In Wisconsin parental termination proceedings, a parent whose parental rights are at risk has the constitutional right to effective counsel, much as a criminal defendant has. This means that the parent must be adequately represented in court, and his or her counsel should not commit fundamental errors that prejudice the parent’s defense. When these types of errors occur, a parent may be able to have termination proceedings reopened if he or she can show that ineffective assistance occurred.
In In Re Termination of Parental Rights of A.RC and D.RC, the State of Wisconsin attempted to terminate the parental rights of D.C. D.C.’s two children, A. RC and D. RC, were removed from D.C.’s home after it was discovered that the children were being physically and sexually abused. D.C. was ultimately charged with felony crimes and sentenced to prison for this abuse. During that time, A. RC and D. RC were placed in a foster home, and conditions were set up for the eventual return of the two children to D.C. At the time, however, D.C. was barred from having contact with A. RC as a result of the criminal conviction, and thus he could not visit the kids or have significant contact with them.
About a year later, the state initiated proceedings to terminate D.C.’s rights based on his failure to meet the requirements for reunification and his failure to assume parental responsibility. During the termination proceedings process, D.C. was released from prison and acquired counsel. At an initial pretrial conference, D.C.’s counsel requested that special jury instructions be given to explain that D.C. could not fulfill his parental responsibilities because of the no-contact order and incarceration, rather than any intentional failure on the part of D.C. The judge concluded that he would consider the instructions but reserved the issue for trial. After the pretrial conference, the case was reassigned to a new judge, and the trial was pushed back. D.C. ended up with different counsel for the final trial, and, when the judge offered the standard jury instructions, D.C.’s new counsel did not request the special instructions previously offered by D.C.’s prior counsel. The jury ultimately determined that D.C.’s parental rights should be terminated.