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COA: TPR default judgment was proper; refusal to vacate also proper

Barron County DHHS v. S.R.T., 2018AP1574 & 1575, 5/22/19, District 3 (one-judge decision; ineligible for publication); case activity

S.R.T. appeals the termination of his parental rights to his twin sons. He argues the court erroneously entered default judgments on grounds when he didn’t show up for a hearing, that the proceedings violated his right to due process because they were fundamentally unfair, and that the court erred in refusing to vacate the default judgments. The court of appeals rejects all three claims.

The department filed a petition for termination alleging various grounds; at the first hearing, S.R.T. was present, though without counsel; he’d been produced by the jail where he was incarcerated. That hearing was adjourned, and at the next hearing six weeks later, S.R.T., no longer locked up, didn’t appear. He missed the next hearing a few weeks later as well, and the court ordered that he appear at another adjourned hearing. The court both served his lawyer with this order and had it mailed to S.R.T.’s sister’s house, his last known address.

S.R.T. did not show up for this hearing either. The court found that he’d waived his right to counsel pursuant to Wis. Stat. § 48.23(2)(b)3., and  granted the department’s motion for default judgment.

Three days later, the court held the dispositional hearing. S.R.T. was there–he’d been arrested two days earlier and had been told of the hearing while in jail. His appointed lawyer moved to vacate the default judgments and adjourn the dispositional hearing, but the court refused, and terminated S.R.T.’s parental rights.

S.R.T.’s new lawyer moved the court of appeals to remand for factfinding, which it did. On remand, S.R.T. testified that he’d forgotten about one hearing and never received the mailed notices of the other two hearings. His explanation for not contacting his lawyer or the court did not move the circuit court, which denied his postdisposition motion. (¶¶12-13).

On appeal, S.R.T. argues the circuit court erred in finding that he’d waived the right to counsel under § 48.23(2)(b)3. Per the court of appeals his argument is that the statute doesn’t permit waiver unless a parent misses consecutive hearings after being ordered to appear; the court responds that this is but a statutory presumption, not a requirement. (¶¶14-18). Reviewing the circuit court’s exercise of discretion, the court of appeals concludes it properly found his conduct “egregious and without clear and justifiable excuse” given that he “missed three court dates, apparently did not communicate with his counsel, did nothing to inquire about the status of his TPR cases, and engaged in other conduct for which he had been criminally charged.” (¶23). It rejects S.R.T.’s argument that his due process rights were violated because he didn’t receive notice of the hearings, finding proper service on both S.R.T. and on his attorney. (¶¶25-29). And, for the same reasons as above, it rejects his argument that the circuit court erred in denying his motion to vacate the default judgment. (¶¶30-33).

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