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No error in defaulting parent who didn’t show up for T.P.R. hearing

State v. K.P., 2017AP612 & 613, 7/11/2017 (one-judge decision, ineligible for publication); case activity

K.P. appeals the termination of his parental rights to his two children. He argues that the circuit court erred in striking his contest posture and finding him unfit after he failed to show up for the scheduled jury trial on his parental fitness.

A circuit court has the discretion to enter a default judgment where “(1) the party has been given notice that default is a potential sanction, (2) the party has failed to comply with a court order, (3) the party’s failure to comply is found to be in bad faith or egregious, and (4) the party had no justifiable excuse.” (¶15, citing Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 276-77, 470 N.W.2d 859 (1991)). The only issue here is whether K.P.’s conduct was “egregious”; he argues that it was not because he showed up for some other hearings and telephoned his trial counsel on the days he did not show up, and because he had participated in other decisions and proceedings involving the children. (¶17). The court is unconvinced:

We start by noting that the citation to Shirley E. is unhelpful. In that case, the finding of egregiousness was based on the parent’s failure to appear in person at any hearing at all, see id. However, Shirley E. does not set a threshold or minimum number of no-shows before a court can find a party’s conduct egregious.

Second, K.P.’s brief and argument fails to appreciate the applicable standard of review, which requires that we affirm the trial court decision unless the trial court applied the wrong law or reached an unreasonable conclusion.

Third, the repeated warnings the trial court delivered to K.P. personally and through counsel about the potential for default were clear and are on the record.

Fourth, K.P.’s phone calls to counsel are not an acceptable substitute for appearing in person as ordered by the court. Further, on the date of the jury trial, K.P. was apparently in touch with his trial counsel shortly after 9:00 a.m. but was not reachable thereafter. Even though the case was delayed two hours and was not called until 11:00 a.m., K.P. had neither arrived nor been in touch with counsel with an update. Nor are the other actions he mentions relevant to a determination of whether his failure to appear after multiple in-person warnings constituted egregious conduct.

(¶¶18-21).

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