State v. A.M.Y., 2024AP1162, 9/26/24, District 4 (one-judge decision, ineligible for publication); case activity
A.M.Y. appealed the TPR order related to her daughter, Y.R.C.Y., arguing that the circuit court erroneously exercised its discretion by granting default judgment against her as to grounds for termination. The COA agrees, as the circuit court failed to take evidence sufficient to show that grounds for termination existed prior to granting default judgment, and the state fails to show the error was harmless.
A.M.Y.’s daughter was removed and placed in foster care 6 days after A.M.Y. gave birth to her. One year after initiating a CHIPS action, the state petitioned to terminate A.M.Y.’s parental rights on two grounds, continuing CHIPS and failure to assume parental responsibility. (¶3).
Prior to the initial hearing, the circuit court received a letter from A.M.Y. seeking a continuance to obtain counsel. The register of probate responded by letter, directing A.M.Y. to contact the state public defender’s office and informing her that she would need to appear in person at the hearing to request a continuance. A.M.Y. did not appear at the hearing, but she had not yet been formally served with the TPR action and the court granted a continuance to allow for service. A.M.Y. was properly served prior to, but did not appear at the rescheduled initial hearing. The state moved for default judgment based on A.M.Y.’s nonappearance, and the court entered a default judgment against A.M.Y. as to the grounds for termination. The court did not take any evidence or make a finding that grounds for termination existed before granting the default judgment. (¶¶4-6).
Three days later, counsel was appointed to represent A.M.Y. and moved to vacate the default judgment. The circuit court denied A.M.Y.’s motion. At the dispositional hearing, the court granted the petition to terminate A.M.Y.’s parental rights. The court did not address the issue of grounds for termination in its oral ruling, but checked boxes indicating that grounds existed for the TPR in the written order terminating A.M.Y.’s parental rights. (¶¶7-8).
“The decision whether to enter a default judgment is a matter within the sound discretion of the circuit court.” Evelyn C.R. v. Tykila S., 246 Wis. 2d 1, ¶18. However, before granting default judgment as to grounds, a court has a “duty under the Fourteenth Amendment and [WIS. STAT. ch.] 48 … to support a finding by clear and convincing evidence” that grounds for termination exist. Id., ¶26. A court erroneously exercises its discretion if it fails to do so. Id., ¶19. (¶11). The state did not respond to A.M.Y.’s argument, and the COA takes this lack of response as a concession that the circuit court erred. (¶12).
The state did identify certain testimony by the social worker at the dispositional hearing, and asserted that this satisfied the ground of failure to assume parental responsibility but did not adequately develop an argument as to why the court’s error was harmless. (¶15). Regardless, the COA addresses the facts presented at the dispositional hearing and concludes that do not constitute clear and convincing evidence of failure to assume parental responsibility under the required totality of the circumstances analysis. (¶¶16-17). Further, the circuit court did not reconsider at the dispositional hearing whether grounds for termination existed, and the COA notes that it does not appear that the court ever meaningfully considered the issue of grounds for termination throughout the course of the proceeding–only addressing it in the written order with the checked boxes. (¶17).
As the COA reverses on that issue, it does not address A.M.Y.’s other argument on appeal, that the circuit court’s grant of default was an erroneous exercise of discretion under WIS. STAT. § 805.03, which permits the court to sanction a party’s failure to obey a court order by “mak[ing] such orders in regard to the failure as are just.” (¶9 n.4).
