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COA affirms default in TPR, violates rules of appellate procedure

Rock County Human. Servs. v. A.P., Appeal nos. 2022AP248-249; 7/14/22, District 4; (1-judge opinion, ineligible for publication); case activity

This is one more in a long line of appellate decisions affirming a default finding of grounds for terminating a parent’s rights without a finding that the parent had behaved egregiously as required by Dane Cnty. DHS v. Mable K., 2013 WI 28, ¶71, 346 Wis. 2d 396, 828 N.W.2d 198. The difference here is that the court of appeals also openly disregards (or perhaps is unfamiliar with?) the rules of appellate procedure.

Neither Amanda nor her lawyer appeared for the grounds phase of the TPR trial regarding her two children.  A county social worker told the court that Amanda had been personally served with the summons but she was at work and must have forgotten about the hearing. The social worker texted Amanda that the court might find her in default. According to the social worker, Amanda said “that might just have to be the case” because she could not leave work.

Despite the absence of Amanda and a defense lawyer, the circuit court took evidence and found grounds to terminate her parental rights. At the next hearing, via Zoom, Amanda appeared and explained that there had been a miscommunication, and she got her dates mixed up. The court refused to vacate its default finding and referred her to the SPD. Opinion, ¶¶6-7.

The SPD appointed a lawyer who moved to vacate the default finding and requested a trial on grounds. The circuit court denied the motion. On appeal, Amanda argued that the court was required to find her behavior egregious before defaulting her on grounds. The court of appeals disagreed. Relying on Chester B. v. Larry D.., Appeal Nos. 2011AP925 and 2011AP926, unpublished slip op. (WI App
Nov. 2, 2011), it held:

¶17 As Chester B. explains, “there is a distinct difference between a failure to appear (either in person or by an attorney) in response to a summons as opposed to a failure to appear in person in contravention of a specific court order once the proceedings have begun.” Chester B., Nos. 2011AP925 and 2011AP926, ¶10 (emphasis added). The former situation—failing to appear in response to a summons—occurs when a litigant decides, “for whatever reason, not to show up to contest a cause of action.” Id. If a parent fails to appear at the initial hearing, the court may treat the matter as uncontested, and the situation is governed by WIS. STAT. § 48.422(3). Section 48.422(3) provides: “If the petition is not contested the court shall hear testimony in support of the allegations in the petition[.]” No finding of egregiousness or bad faith is required. Chester B., Nos. 2011AP925 and 2011AP926, ¶10; Kimberly B., No. 2008AP1715, ¶¶8-9.

¶18 By contrast, Chester B. explains that, when a litigant fails to appear in person in contravention of a specific court order requiring a personal appearance after the proceedings have begun, a default finding is considered a sanction that punishes the litigant for failing to obey a court order. Under those circumstances, a finding of egregiousness or bad faith is required. See Chester B., Nos. 2011AP925 and 2011AP926, ¶10 (citing State v. Shirley E., 2006 WI 129, ¶13 n.3, 298 Wis. 2d 1, 724 N.W.2d 623).

Chester B. does not address the argument that Amanda made in this case. Here, the summons issued to her was signed by the court itself. And like all TPR summonses, it was statutorily required to alert Amanda to the consequences of failing to appear–the court could terminate her parental rights. See §48.42(4)(c)1. How is that court-threatened sanction on a summons any different from a court order?

Speaking of sanctions, lawyers may be sanctioned for citing unpublished opinions. Yet in this opinion, the court of appeals tries to shore up Chester B. (which is only persuasive authority) by repeatedly citing Kenosha Cnty. DHS v. Kimberly B., No. 2008AP1715, unpublished slip op. (WI App Dec. 17, 2008). Opinion, ¶12 n.9, ¶16, ¶17. This violates §809.23(3)(b), which prohibits the citation of unpublished opinions issued before July 1, 2009. And it wasn’t just an oversight regarding Kimberly B. The court of appeals also cites Dane Cnty. DHS v. Angela M.L., Nos. 2008AP237 and 2008AP239, unpublished slip op., ¶10 (WI App April 17, 2008).

Unfortunately, there is another problem. As noted, Amanda argued that a court-issued summons for TPR is like a court order. The court of appeals deemed “this particular argument” forfeited because Amanda did not make it to the circuit court when she insisted that the court had to find egregious conduct before defaulting her. Opinion, ¶22.

But the forfeiture rule applies to new issues, not new arguments.  So if Amanda had failed to ask the circuit court to apply the egregiousness standard, she would have forfeited that issue in the court of appeals. But it is perfectly appropriate for her to argue to the circuit court that the egregiousness  standard applies for reason “a” and then to argue to the court of appeals that the egregiousness standard applies for reasons “a,” “b” and “c.” See State v. Weber, 164 Wis. 2d 788, 791, 476 N.W.2d 867; Diamond Back Funding, LLC v. Chili’s of Wisconsin, Inc., 2004 WI App 161, ¶10 n.1, 276 Wis. 2d 81, 687 N.W.2d 89.

Ultimately, the court of appeals affirmed the circuit court’s denial of Amanda’s motion to vacate based on the §806.07(1)(a) “mistake or excusable neglect” standard. Amanda had 15 days’ notice of the “grounds” hearing and did nothing to prepare for it. That’s what the social worker said even though she also admitted that she “did not recall specifically discussing” the hearing with Amanda. Meanwhile, Amanda testified that she was overwhelmed by the summons and during episodes of anxiety and depression she has trouble processing information, She admitted that she did not try to verify the date of the hearing. And when the social worker texted her that a default finding had been entered she said “I don’t give a [expletive] anymore. You can just keep my kids.” She said that out of sheer frustration not because she didn’t want her children. Opinion, ¶¶30-33.


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