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COA disregards business as usual and reverses default judgment in Milwaukee County TPR

State v. C.D., 2023AP1025, District I, 8/29/23, 1-judge decision ineligible for publication; case activity (briefs not available)

In an exciting defense win, District I signals a willingness to critically review default orders entered in Milwaukee County.

C.D. faced involuntary termination of her parental rights and, as is customary, was warned twice that a failure to appear for scheduled court hearings could result in a default judgment. (¶3, ¶5). She diligently appeared at two hearings, but encountered difficulties in obtaining an attorney, leading to multiple adjournments. At the third scheduled hearing, C.D.’s newly-appointed lawyer appeared on her behalf. (¶6). C.D., however, was not present. (Id.). Although counsel did not have an explanation for her absence, counsel represented that she had been in contact with C.D. and had recently met with her in-person. (Id.). Counsel requested an adjournment. (Id.). Instead, the court granted the State’s motion for a default judgment. (Id.). It would appear that C.D. consistently participated in all hearings thereafter.

On appeal, C.D. argues that the circuit court erroneously exercised its discretion in ordering a default judgment and the court of appeals agrees. (¶19). COA emphasizes the constitutional significance of termination proceedings and makes clear that, given the stakes, there is a need for “heightened legal safeguards.” (¶11). In order to properly enter a default judgment, C.D.’s conduct needed to be “egregious” or in “bad faith.” (¶12). COA concludes neither criterion is met here. As to egregiousness, COA holds that “A single missed appearance for a pre-trial hearing does not rise to the level of egregious conduct.” (¶16). Moreover, there is nothing in the record to support an implied finding (the court made no explicit findings in response to the State’s motion) that C.D.’s conduct was in bad faith. (Id.). Given that “the law prefers, whenever reasonably possible, to afford litigants a day in court,” COA concludes that C.D.’s conduct did not merit the “harsh sanction of a default judgment.” (¶18).

Clearly, this is the correct result. However, as we have discussed previously, the court of appeals has not consistently agreed with that proposition. The problem is especially significant in Milwaukee County, where default TPR orders following exactly this pattern are commonplace and, as this case demonstrates, usually not supported by much in the way of judicial reasoning. This case is a potential breath of fresh air and shows that District I may actually be a court in transition. (Following Judge Pedro Colón’s appointment and the defeat of Judge Brash in an election with clear partisan overtones, D1 has experienced a historic turnover with Presiding Judge Joseph Donald–appointed in 2019–now the most “senior” member).

Notably, Chief Judge Maxine White signalled a few months ago in her R.A.M. decision that she was uncomfortable with the way another Milwaukee County judge handled a request for a default judgment under similar circumstances. The issue was not raised by the appellant, however, so COA reversed on other grounds. Now, with both the Chief Judge of the Court of Appeals and District I’s Presiding Judge presumably united in their skepticism of such default orders, litigants at both the trial and appellate level need to be on notice that, at least for now, COA is skeptical of “business as usual” at the Vel R. Phillips Youth and Family Justice Center. This persuasive authority therefore needs to be front and center in any case involving a contested default judgment.

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