¶3 We conclude, and the circuit court has acknowledged, that it erroneously exercised its discretion when it entered a default judgment finding that grounds existed to terminate Mable K.’s parental rights after barring her attorney from offering additional evidence. It also erred when it granted the default judgment before taking evidence sufficient to establish the grounds alleged in the amended petitions. We further conclude that the circuit court’s remedy for correcting the errors is fundamentally unfair under the facts of this case.
The facts and legal posture of this case are unusual, so a summary is indispensable to an understanding of the issues and the decision.
Mable K. appeared late on the second day of a jury trial on TPR grounds. (¶6). Shortly before the trial was scheduled to start that day, Mable called her attorney, saying she didn’t feel well, that court was extremely stressful, and that she didn’t think she could come to court. (¶7). The County asked for a default judgment, but the trial court instead let Mable’s lawyer contact Mable. (¶8). During that conversation Mable said she would come but could not arrive until 9:50; the trial court held the default motion in abeyance and proceeded to take evidence addressing the TPR petitions against the fathers. (¶¶9-10). At 10:20 Mable still hadn’t appeared, so the County renewed its motion. (¶11).
Recognizing the need to take evidence establishing grounds for termination even when granting a default judgment, Evelyn C.R. v. Tykila S., 2001 WI 110, ¶¶16-19, 246 Wis. 2d 1, 629 N.W.2d 768, the trial court allowed the County to call another witness. (¶11). The court allowed Mable’s lawyer to cross examine this witness, but not to present evidence that would contradict the petition’s allegations and, she said, make it “difficult” for the County to prove abandonment. (¶¶12-13, 23-29). Based on the testimony of the County’s final witness and Mable’s nonappearance the trial court entered a default judgment. (¶14). Mable appeared 10 minutes later. (¶15). She testified about why she was late, but based on her “inconsistent” reasons for appearing late the trial court refused to vacate the default judgment due to excusable neglect or mistake. (¶¶16-17).
After her parental rights were terminated, Mable appealed. The court of appeals remanded for postdisposition proceedings; on remand, the trial court agreed it deprived Mable of her statutory right to counsel by barring her attorney from presenting evidence to refute the abandonment grounds. (¶¶21, 30). The trial court vacated the termination order, but fashioned an ad hoc remedy: The case would pick up from the point where counsel was barred from presenting evidence and would be heard by the court, not a jury. (¶¶31, 35). The case returned to the court of appeals, which dismissed the appeal because Mable had obtained partial relief and so wasn’t appealing from a final order. (¶¶32, 36, 37). The supreme court now reverses and orders a new fact-finding trial before a jury. Here’s why:
Relying on State v. Shirley E., 2006 WI 129, 298 Wis. 2d 1, 724 N.W.2d 623 (2006), the supreme court agrees with the trial court’s conclusion on remand (and the County’s concession at oral argument) that it was error to bar Mable’s lawyer from presenting evidence before determining whether grounds existed before granting default judgment. (¶¶43-51). The supreme court also holds (¶¶52-55) that the trial court could not make an independent determination of grounds without hearing the evidence Mable’s attorney planned to offer:
¶56 In refusing to hear Attorney Lehner’s additional evidence before entering a default judgment finding that grounds existed to terminate Mable K.’s parental rights, the circuit court put the cart before the horse. The circuit court could not make a decision based on clear and convincing evidence having heard only one side’s version of the facts when the other side was requesting an opportunity to offer evidence that could defeat the allegations in the amended petitions. See Evelyn C.R., 246 Wis. 2d 1, ¶26.
The majority then concludes the trial court’s remedy—restarting the fact-finding hearing at the point the default motion was granted—is “fundamentally unfair.” It impairs Mable’s right to jury trial, hobbles the effectiveness of her new lawyer because of the trial court’s finding Mable to be incredible, and essentially shifts the burden to Mable to prove she is not unfit because she would have to rebut the County’s case, on which basis the trial court already found grounds to terminate. (¶¶62-65). Thus:
¶72 Under these facts, the only fundamentally fair remedy is a new fact-finding hearing. A new fact-finding hearing honors the intent of the legislature by providing Mable K. with heightened legal safeguards. Shirley E., 298 Wis. 2d 1, ¶24. It provides Mable K. with the only remedy that can assure a fair hearing that recognizes and enforces Mable K.’s statutory rights to an attorney and to a jury. See Wis. Stat. § 48.01(1)(ad).
Note well, however, that the trial court’s remedy could be appropriate in some cases. Under § 805.03, a trial court could conclude the right to a jury was forfeited—and could even enter a default judgment—as a sanction for violating a court order, if the party’s conduct is egregious or in bad faith. (¶¶67-70). That statute, and those grounds, were not cited or analyzed by the trial court when it granted default judgment at Mable’s fact-finding hearing. The trial court did describe Mable’s conduct as egregious and in bad faith, but that was at the postdispostion hearing, and it didn’t assess Mable’s conduct under the applicable standard: To be egregious, the party’s failure to follow orders must be “extreme, substantial and persistent”; to act in bad faith, the party must “intentionally or deliberately” delay, obstruct, or refuse to comply with the court order. (¶¶70-71). Had the trial court done so, the majority says, “our analysis would be different.” (¶71). The dissenters (Justices Ziegler, Roggensack, and Gableman) do just that analysis, concluding that Mable’s conduct was egregious–a remarkable conclusion, really, given Mable’s intellectual challenges (¶19) and the fact she appeared on time at every other court date (¶6 n.4)–and that forfeiture of a jury for the fact-finding hearing was an appropriate sanction. (¶¶97-110).
Finally, our prior post on the grant of review noted another question raised by the case, one the court ordered the parties to brief when it accepted review: Whether Mable had standing to appeal the circuit court’s grant of partial relief, which would turn on whether she is “aggrieved” by the order. The dissent believes there is no final order and that review should not have been granted. (¶¶83-89). The majority doesn’t reach the issue, however, saying only that “[h]aving accepted the petition for review, determining the exact implications of the circuit court’s actions on the status of these appeals is not necessary to the resolution of this case.” (¶38 n.9). Why this sort of ipse dixit instead of a holding Mable was aggrieved? After all, as our prior post put it, surely Mable was aggrieved by the loss of her right to jury, not to say the absence of any integrity to a fact-finding process that would be so disjointed.