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COA affirms default judgment on grounds for termination of parental rights

State v. Z.J., 2019AP1623-1626, District 1, 11/19/19, (1-judge opinion, ineligible for publication); case activity

All TPRs are sad. But this one really highlights the Catch 22 that poverty can create for a parent. Z.J., mother of 4, was struggling with drug and alcohol abuse. The State sought to terminate her parental rights for these and other reasons. But the real issue is whether the circuit court properly exercised its discretion when it entered a default judgment against her at the grounds phase.

Z.J.’s case was originally assigned to one judge, who twice told her that her failure to appear for court hearings could result a default judgment against her. She filed a substitution and second judge took over the case. He did not warn her that a failure to appear for a hearing could result in a default. Well, she failed to appear for a deposition and for some court hearings. At the last one, the court defaulted her.

The sad part is that Z.J. told her lawyer that she could not appear because she was having a housing inspection  on the same morning as the court hearing. Also she was afraid that if she appeared in court she would be arrested, and that would also prevent her from obtaining housing . If she couldn’t get housing, she couldn’t get her kids back. If she went to court, she couldn’t get housing. She chose housing but then lost her kids.

Before a circuit may enter a default judgment on the grounds that a parent failed to comply with a court order, it must find the party’s conduct egregious or in bad faith.  State v. Shirley E., 2006 WI 129, §13 n.3,  298 Wis. 2d 1, 724 N.W.2d 623. The circuit court found Z.J.’s conduct egregious because she failed to appear for scheduled depositions and for multiple court hearings. Opinion, ¶¶32-33. As for her fear of losing housing, the court of appeals observed:

¶36 The trial court stated that it was “not unsympathetic to the plight of marginalized and poor individuals in our system.” However, the trial court also recognized that it had to “balance not only what [was] fair for [Z.J.,] but also what [was] fair for the children.” The trial court then found Z.J. in default relying on her “egregious” and “persistent” nonappearance and her failure to respond to depositions. Thus, the trial court rejected the contention that Z.J.’s concerns regarding housing and being taken into custody on the probation arrest warrant were a justifiable excuse for her not appearing at scheduled court proceedings.

The court of appeals further held that even after finding Z.J. in default the trial court scheduled a hearing for prove up on grounds and disposition of the case and still she did not appear. Thus, the court exercised its discretion appropriately. Opinion, ¶39.


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