District I/IV
October 23, 2013
To:
Hon. Pedro Colon
Circuit Court Judge
821 W State St
Milwaukee, WI 53233
Dan Barlich
Juvenile Clerk
Children's Court Center
10201 Watertown Plank Rd.
Milwaukee, WI 53226
Patrick Flanagan
Flanagan Law Office, LLC
759 N. Milwaukee St., #215
Milwaukee, WI 53202-3714
Elisabeth Andrews Mueller
Asst. District Attorney
10201 W. Watertown Plank Rd.
Milwaukee, WI 53226
Anne M. Abell
Legal Aid Society of Milw, Inc.
10201 W. Watertown Plank Rd.
Milwaukee, WI 53226-3532
Bureau of Milwaukee Child Welfare
Arlene Happach
1555 N River Center Drive #220
Milwaukee, WI 53212
Lawanda R.
1113 W. Reservoir Avenue
Milwaukee, WI 53205
Joseph N. Ehmann
First Asst. Public Defender
P.O. Box 7862
Madison, WI 53707-7862
You are hereby notified that the Court has entered the following order:
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In re the termination of parental rights to Will C.-R., a person under the age of 18: State of Wisconsin v. Lawanda R. (L.C. # 2012TP249) |
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Lawanda R. appeals an order that
terminated her parental rights to her son Will R. Attorney Patrick Flanagan has filed a
no-merit report seeking to withdraw as appellate counsel. See
Wis. Stat. Rule 809.32 (2011-12);[1]
Anders v.
Counsel’s discussion of the potential merit of an appeal is inadequate. See McCoy v. Court of Appeals, 486 U.S. 429, 438, 440 (1988) (noting that “a defense attorney has a duty to advance all colorable claims and defenses” and that Wisconsin’s no-merit rule requires citation to cases, statutes, and facts in the record supporting counsel’s conclusion that the appeal is frivolous). Specifically, counsel has not addressed the primary defense that Lawanda raised at trial—namely, that the State violated her substantive due process rights by terminating her parental rights based upon her failure to satisfy conditions of return that were impossible for her to meet given her cognitive disabilities. Lawanda analogized her situation to that in the Jodie W. case, wherein the Wisconsin Supreme Court determined that it was unconstitutional to terminate the parental rights of a mother who was unable to meet an impossible condition of return due to her incarceration. See Kenosha Cnty. DHS v. Jodie W., 2006 WI 93, ¶55, 293 Wis. 2d 530, 716 N.W.2d 845.
The standard for filing a no-merit report is whether an appeal would be frivolous. Wis. Stat. Rule 809.32(1). An appeal may be found frivolous when it is “without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.” Wis. Stat. Rule 809.25(3)(c)2.
Here, the circuit court relied upon the rationale of one or more unpublished court of appeals cases to distinguish Jodie W. and determine that the continuing CHIPS grounds for termination could be constitutionally applied to a parent who lacks the cognitive ability to meet the conditions of return. Unpublished decisions are not, however, precedential. Therefore, we are not persuaded that it would be frivolous for Lawanda to make a good faith argument to extend Jodie W., challenging the constitutionality of Wis. Stat. § 48.415(3) as applied to a parent whose cognitive abilities render the conditions of return impossible to achieve. Rather, this would appear to be an issue that warrants full briefing, and perhaps even publication.
Accordingly,
IT IS ORDERED that the no-merit report is rejected and this appeal shall be converted to a merits appeal. Either Attorney Patrick Flanagan, or a successor appointed by the State Public Defender if appropriate, shall file an appellant’s brief addressing the constitutionality of terminating the rights of a cognitively disabled parent based upon the failure to meet conditions of return that the parent lacks the capacity to achieve. The appellant’s brief shall be due thirty days from this order.
Diane M. Fremgen
Clerk of Court of Appeals