The circuit court entered a default judgment terminating J.S.’s parental rights after he failed to appear at the hearing scheduled on the petition, and the court of appeals holds J.S. isn’t entitled to reopen that judgment.
J.S. moved to Oklahoma before the child he fathered with R.Z. was born. Shortly after the child’s birth an adoption agency (AOW) filed a termination petition saying R.Z. would voluntarily terminate her rights and alleging J.S. had failed to assume parental responsibility. J.S. was homeless, so the petition and summons were served on J.S. through his mother sometime before the hearing date. J.S. called AOW and left a voice message the day of the hearing, though after the hearing was scheduled to begin. He was incarcerated a few days later. He argued the judgment should be reopened on the ground of excusable neglect. (¶¶2-9).
The usual standard for reopening a default judgment requires J.S. to show both excusable neglect and a meritorious defense to the TPR petition, J.L. Phillips & Assocs., Inc. v. E & H Plastic Corp., 217 Wis. 2d 348, 351, 358, 577 N.W.2d 13 (1998). (¶13). Citing Chester B. v. Larry D., Nos. 2011AP925 & 2011AP926 (Wis. Ct. App. Nov. 2, 2011) (unpublished), and M.L.B. v. S.L.J., 519 U.S. 102, 118, 128 (1996), J.S. argues that TPR cases involve a “unique kind of deprivation” and that to reopen a default TPR judgment he need only demonstrate that he honestly wanted and diligently sought the opportunity to participate in the proceedings. (¶14). But even if the Larry D. standard applies, J.S. hasn’t met it:
¶15 …. [T]he circuit court found J.S. had knowledge of the hearing at least three days before it was held. It further found that regardless of J.S.’s whereabouts, all he needed to do was contact the court or counsel at some time prior to the hearing to advise that he wished to delay the hearing and to contest the TPR petition. Had he done so, relief could have been afforded. J.S. did not contact counsel for AOW until almost two hours after the hearing began and did so by leaving a voicemail. His voicemail indicated he would “highly, highly appreciate it” if someone called him back. However, he did not respond to any of the return calls from counsel for AOW or otherwise follow up to determine what happened at the hearing. The court reasonably determined this effort was insufficient to constitute diligence in seeking an opportunity to participate in the proceedings.