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Default judgment in TPR affirmed

State v. C.M., 2019AP1483, District 1, 11/5/19 (one-judge decision; ineligible for publication); case activity

The circuit court didn’t err in entering a default judgment against C.M. in her termination of parental rights proceeding. 

C.M. failed to appear in person at the initial appearance, so the court called her on the phone, told her to talk to the SPD about getting a lawyer, and warned her that if she didn’t appear at the next hearing she could be found in default. She didn’t appear at the next hearing, but called the court saying she made a mistake about the time and asked to appear by phone. After learning she hadn’t contacted the SPD, the court entered a default judgment. (¶¶7-9).

C.M. appeared without counsel at the final pretrial, at which the court adjourned the trial at the father’s request. Given the adjournment, the court allowed C.M. to seek an attorney, and told her counsel could move to vacate the default judgment. C.M. got a lawyer, the lawyer filed a motion—and then C.M. failed to appear at the hearing on the motion, which the court then denied. C.M. appeared with her lawyer at the final pretrial and renewed her motion, but the court denied it again, saying that would result in a delay of the trial. (¶¶10-12).

Entering a default judgment requires a finding the party acted “egregiously or in bad faith.” Dane Cty. DHS v. Mable K., 2013 WI 28, ¶69, 346 Wis. 2d 396, 828 N.W.2d 198. “Egregious” has been defined as “extraordinary in some bad way; glaring, flagrant,” whereas “bad faith” denotes a “lack of honesty and trust.” Sentry Ins. v. Davis, 2001 WI App 203, ¶21 & n.8, 247 Wis. 2d 501, 634 N.W.2d 553. One or the other will do, and the trial court doesn’t need to invoke either one specifically, as long as the record shows a reasonable basis for finding one of them. Teff v. Unity Health Plans Ins. Corp., 2003 WI App 115, ¶14, 265 Wis. 2d 703, 666 N.W.2d 38.

“Egregious” works here, says the court of appeals:

¶18     Although the trial court did not use the term “egregious” in its ruling, the record indicates that this was its reasoning. When C.M. missed her first court appearance, the court called her to confirm that she had received the TPR petition and knew that she was required to appear in court. The court then ordered her to appear at the next hearing, explaining that she could be found in default if she did not appear. The court at that time also ordered C.M. to obtain counsel, stating that it preferred that she was represented and that it was “assuming” that she wanted representation because this was “an incredibly important proceeding.”

¶19      At her next scheduled court date—almost a month later—C.M. again did not appear, nor had she contacted the public defender’s office. In making its determination to find her in default, the trial court observed that C.M.’s failure to appear that day was “intentional,” that she had “intentionally failed to follow two court orders,” and that there was “no justifiable excuse for her failure to follow those court orders.” This indicates that the court considered C.M.’s conduct—failing to appear at two consecutive hearings and ignoring the court’s directive to contact the public defender’s office—to be egregious. ….

Nor did the trial court erroneously exercise its discretion in denying C.M.’s motion to vacate the default. Her non-appearance at the hearing on the motion made it hard to ascertain whether there was a basis to vacate the default, and granting the motion at the final pretrial, where she renewed the motion, would’ve meant the trial was postponed again. (¶¶21-26).


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