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Failure to appear at adjourned initial hearing on TPR justified default judgment

Barron County DHHS v. M. B.-T., 2016AP1381/1382/1383, 3/31/17, District 3 (one-judge decision; ineligible for publication); case activity

M. B.-T. was personally served with a TPR petition and summons and appeared as directed at the initial appearance on the petition. He didn’t enter a plea at the hearing because he told the circuit court he wanted have a lawyer appointed. He also agreed on the record to return for an adjourned initial appearance in about 3 weeks. He didn’t return, though, and no lawyer appeared for him, either, so the court granted the County’s motion for a default judgment. (¶¶2-5). The court of appeals rejects his challenges to the default judgment.

Though the entry of a default judgment is generally disfavored, it lies within the circuit court’s discretion (¶¶12-13), so M. B.-T. has an uphill road to climb. He argues that a single missed court appearance can justify a default judgment in a TPR case only if that conduct is “egregious conduct” or was done in bad faith, citing Evelyn C.R. v. Tykila S., 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768. The court of appeals says Evelyn C.R. doesn’t address the default judgment standard, but only what the court must do to enter a default in a TPR case—namely, take evidence on whether there are grounds to terminate. (¶¶14-15). The standard for default, the court of appeals says, is in § 806.02(1), and under that standard the circuit court’s decision was proper:

¶17     …. Section 806.02(1) states that “[a] default judgment may be rendered as provided in subs. (1) to (4) if no issue of law or fact has been joined and if the time for joining issue has expired.” Said differently, a defendant’s failure to timely provide an answer or response to the petition may result in no joinder of issue. See Split Rock Hardwoods, [Inc., v. Lumber Liquidators, Inc., 2002 WI 66,] 253 Wis. 2d 238, ¶¶41-45[, 646 N.W.2d 19]. In TPR cases, Wis. Stat. § 48.422(3) provides that “[i]f the petition is not contested[,] the court shall hear testimony in support of the allegations in the petition[.]”

¶18     M.B.-T.’s argument assumes the mere facts that he was present at the first hearing and requested counsel means he implicitly answered the petition. However, by failing to appear at the adjourned initial appearance in any capacity, M.B.-T. provided no timely response to the petition. …. M.B.-T. did not answer the petition within the thirty-day period after the summons and petition were served and the hearing was to be held, nor did he request another continuance to enter a plea. See Wis. Stat. § 48.422(1), (5). In fact, M.B.-T. never offered any express position on the petition until three months later—four calendar days and two business days before trial, at that—and then only indirectly through counsel’s fax to the court, well after the default had been granted.

The circuit court didn’t invoke § 806.02, but that doesn’t matter to the court of appeals, as it gets to search for a reasonable basis to affirm under the applicable legal standard. (¶¶13, 19). In fact, it’s not entirely clear from the opinion what authority the circuit court did rely on, though it may have been § 48.23(2)(b)3. (allowing forfeiture of counsel and a grounds hearing if a parent’s failure to appear is “egregious and without clear and justifiable excuse”) given that M. B.-T. argued in the circuit court that statute is unconstitutional. (¶11). That statute appears inapplicable here because at the time of the adjourned initial appearance counsel hadn’t yet been appointed. (¶¶4-6).

M. B.-T. also argues that he didn’t get adequate notice that failing to appear at the adjourned hearing would lead to default because even though there was warning language in the initial summons, it wasn’t repeated in the notice for the adjourned hearing. (¶20). The court of appeals holds the warning in the summons was enough to satisfy due process: “The summons advised M.B.-T., pursuant to Wis. Stat. § 48.42(3)(c), that his failure to appear at the initial appearance on the petition, and by extension any adjourned hearing on the petition, meant ‘the court may hear testimony in support of the allegations in the attached petition and grant the request of the petitioner to terminate your parental rights.’ Contrary to M.B.-T.’s claim, his obligation to appear for the initial hearing on the petition pursuant to the summons and offer a plea was not eliminated when the hearing at which he was present was adjourned.” (¶22).

Last, M. B.-T. argues the circuit court erroneously exercised its discretion in denying the motion to vacate the default by factoring in “the best interests of the children” standard, which applies only to the dispositional decision, and by not finding egregious conduct or bad faith. (¶¶28-29). The motion to vacate was filed by the lawyer eventually appointed for M. B.-T. after default was entered, but it was filed very shortly before the mother’s trial date (either because M. B.-T. wasn’t communicating with counsel or counsel wasn’t keeping track of M. B.-T.). (¶¶6-9, 34). The court of appeals holds that the proper standard for vacating the default in this case was whether M. B.-T. acted with excusable neglect, and the circuit court properly applied that standard. (¶¶25-31).

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