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COA reverses default in CHIPS appeal, concludes conduct was not egregious or in bad faith

State v. M.A.C., 2023AP1281 & 1282, 7/2/24, District I (one-judge decision; ineligible for publication); case activity

The COA holds that the facts do not establish that “Molly’s” nonappearance at a status hearing in her CHIPS cases was egregious or in bad faith.

After Molly missed some court dates, the commissioner warned her that she needed to be present at the upcoming hearing date, and that failure to appear would result in default. (¶5). Molly was not present at the next hearing on March 15, 2023, because she was attending another hearing in a criminal traffic case that had run over an hour late. (¶6). Molly’s criminal counsel notified the court of the situation prior to the start of the hearing and the court addressed it at the beginning of the CHIPS hearing. (¶6). The state asked the court to find Molly in default and the GAL supported this request. (¶7). Molly’s counsel argued that default was inappropriate and asked to conduct the hearing in her absence (counsel was authorized to select trial dates). (¶7). The court found that Molly’s failure to appear was egregious, struck Molly’s contest posture, and took jurisdiction over both children by default. (¶8).

Molly filed a motion for reconsideration, arguing that her failure to appear was not so egregious to warrant default and explaining that she was prevented from attending the hearing because her criminal hearing ran late (failure to appear there would have resulted in a bench warrant). (¶9). The circuit court faulted Molly for her attorney not asking the criminal court judge to allow her to leave to attend the CHIPS hearing, and for not logging in to the CHIPS Zoom hearing. (¶10). The court denied her motion.

The COA addresses, as a threshold matter, mootness as to one child’s CHIPS case, concluding that it is not moot because Molly’s child support obligation is a collateral consequence of the circuit court taking jurisdiction over the child. (¶¶13-15).

As to the default judgment, the COA concludes that although Molly did not comply with the circuit court’s order when she did not attend the March 15, 2023 hearing, she offered the court a clear and justifiable excuse for her failure to comply. (¶20). The circuit court erred as a matter of law when it concluded that Molly’s conduct was egregious and without a clear and justifiable excuse. The COA reasons that “clear and justifiable excuse” has been “used in the context of ignoring court orders, and thus implies that there can be reasons for a party’s noncompliance that reduces one’s culpability for the failure to comply.” (¶22). The COA points out that there was no evidence in the record to support that Molly knew or even could have taken the measures the circuit court expected her to take to attend the hearing. (¶23). It concludes that Molly’s failure to attend was due to circumstances over which she had no control, and was therefore justifiable. (¶24). The circuit court erroneously exercised its discretion because its “reasoning is supported by its own speculation instead of relevant facts.” See Bentz v. Bentz, 148 Wis. 2d 400, 403, 435 N.W.2d 293 (Ct. App. 1988).

The COA also considers Molly’s failure to attend other hearings, and concludes that Molly did not flagrantly disregarded the judicial process, nor were her three absences “extreme, substantial, or persistent” because that they did not contribute to any significant delays in the proceedings. See Dane Cnty. DHS v. Mable K., 2013 WI 28, ¶70, 346 Wis. 2d 396, 828 N.W.2d 198. (¶¶25-27). Although the state argues that reversal would waste court resources and further delay stability for the children, the COA states that it cannot ignore the unjust sanction here. (¶28).

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