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Challenges to default TPR judgment rejected

State v. T.N., 2014AP2407 & 2014AP2408, District 4, 9/10/15 (one-judge decision; ineligible for publication); case activity

The circuit court properly entered a default judgment against T.N. in his TPR proceeding when, despite the court’s warnings and admonitions, T.N. failed to appear at a scheduled court appearance.

At T.N.’s initial appearance the court told him to stay in contact with his lawyer and make his court appearances or he could lose his “right to a trial in the grounds phase.” At the very next hearing T.N. failed to appear. T.N.’s lawyer advised the court T.N. hadn’t responded to a letter and a phone call, and when the court called the number the lawyer had T.N. for to T.N. it was informed T.N. wasn’t at the number and wouldn’t be returning. The court denied T.N.’s lawyer’s request for more time to find him; instead, concluding T.N.’s conduct was “egregious,” “glaring,” and “flagrant” it granted the State’s motion for default “subject to prove up” based on the failure to appear. The court also said it would revisit the default if T.N. had a reasonable explanation for his failure to appear. (¶¶4-6).

T.N. failed to appear at subsequent hearings, but five months after the default judgment he turned up after being arrested. His lawyer moved to vacate the default judgment, explaining that T.N.’s previous failures to appear were a result of his mental health issues; the circuit court denied the motion. (¶¶7-8). The court conducted a hearing to “prove up” the grounds and then a dispositional hearing and granted the TPR petition. (¶9).

T.N. makes the following challenges to the TPR order:

  • He argues SCR 11.02(1) precludes a circuit court from ordering parents to appear at a hearing when they are represented by counsel. The court of appeals holds this claim is foreclosed by Evelyn C.R. v. Tykila S., 2001 WI 110, ¶17, 246 Wis. 2d 1, 629 N.W.2d 768, which held circuit courts have the authority to order a parent’s appearance and to grant default judgment if the parent fails to appear. Whether SCR 11.02 requires modification or overruling of Evelyn C.R. is a question for the supreme court. (¶¶12-15).
  • He argues the circuit court’s warnings about the consequences of failing to appear were inadequate because they didn’t explicit refer to default and referred to the “grounds” phase, which T.N. says he didn’t understand. The court of appeals concludes the circuit court’s explanations were adequate. (¶¶17-21).
  • He argues the circuit court erroneously exercised its discretion in finding his conduct was “egregious.” Based on the entire record, “T.N. repeatedly and unjustifiably failed to comply with clear orders. This could reasonably be characterized as egregious conduct under the circumstances.” (¶¶22-25).
  • Finally, he argues trial counsel was ineffective for not raising SCR 11.02, failing to contact T.N., and making only a “thin” challenge to the default judgment after T.N. was arrested. The court of appeals concludes trial counsel was not deficient and, if she was, any deficiency didn’t prejudice T.N. (¶¶26-32).

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