June 7, 2013 – A state appeals court has ruled that a writ of habeas corpus – generally used to address unlawful imprisonment – was warranted in a parental termination case.

A circuit court terminated a father’s parental rights, and appointed counsel failed to file an appeal before the deadline. The father petitioned for a writ of habeas corpus, arguing that his counsel was ineffective and there was no other remedy available.

In Amy W. v. David G., 2013AP731-W (May 29, 2013), a three-judge panel for the District II Wisconsin Court of Appeals held that “the use of habeas corpus is appropriate where a person seeks to challenge a TPR and there is no other legal remedy.”

The panel noted that habeas corpus relief is extraordinary and granted only when there’s a restraint of liberty imposed contrary to constitutional protections.

While the father’s liberty was not restrained, the appeals panel explained that “habeas corpus proceedings have been used in TPRs in Wisconsin.”

And while the Sixth Amendment right to counsel does not generally apply in civil cases, the panel noted, petitioners have a statutory right to counsel in TPR cases in Wisconsin.

“TPR proceedings merit greater protections because they implicate a parent’s fundamental liberty interest in the ‘companionship, care, custody, and management’ of his or her children,” wrote Judge Lisa Neubauer for the appeal court panel.

Without a habeas corpus appeal, the panel explained, the father would be without a remedy to contest the parental termination order. The court noted that petitioner’s appellate counsel was ineffective for failing to timely file the appeal.

“If the relief here is to be suited to the scope of the violation, David’s petition must be granted and the time to file a notice of appeal extended,” Judge Neubauer wrote.