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In a refreshingly straightforward statutory construction case, SCOW upholds defense TPR win

State v. R.A.M., 2024 WI 26, 6/25/24, affirming an unpublished court of appeals decision; case activity (including briefs)

In a 5-2 defense win, SCOW concludes that a statute requiring the circuit court to wait two days before proceeding to disposition after finding a parent in default means what it says.

There is no dispute about the facts in this appeal. R.A.M. failed to appear for a hearing in conjunction with this TPR case and, as a result, the circuit court found her conduct “to be egregious and bad faith and without justification.” (¶4). It then granted the Petitioners’ motion for default judgment. (Id.). However, rather than waiting before holding the dispositional phase, the circuit court “immediately moved” to conduct that hearing, at which time it terminated R.A.M.’s rights. (¶6). On appeal, COA reversed, holding that the circuit court failed to abide by the two-day waiting period required by § 48.23(2)(b)3. The GAL petitioned for review and SCOW affirms. (¶7).

The case focuses on the following statutory language:

If the court finds that a parent’s conduct in failing to appear in person as ordered was egregious and without clear and justifiable excuse, the court may not hold a dispositional hearing on the contested adoption or involuntary termination of parental rights until at least 2 days have elapsed since the date of that finding.

(¶10). SCOW describes this as a “straightforward conditional statement.” (¶11). Notably, there is also no dispute that the “if” condition was met, as the circuit court clearly found that R.A.M.’s failure to appear was egregious and without justification. (Id.). However, SCOW describes the petitioners as not “meaningfully” contending with this conditional statement. (¶13). Instead, the petitioners ask for the language to be read “in context” and argue that, for the two-day waiting period to be triggered, “a waiver of counsel must occur […].” (Id.). They also argue that the statutory language is ambiguous. (Id.).

SCOW holds that the text of the statute does not require, as a precondition, that an actual waiver of counsel occur. (¶14). Instead, the plain text illustrates that two consequences flow from a finding that the person’s failure to appear was egregious and without justification:

First, the statute creates a statutory presumption that the parent has waived counsel, and second the statute imposes a waiting period for a dispositional hearing. Once a court makes the egregiousness finding, the two-day waiting period is triggered. The statute does not require additional unwritten elements such as the waiver of counsel, the withdrawal of counsel, or the discharge of counsel, in order for the two-day waiting period to apply.


Having concluded that the statute plainly and unambiguously supports R.A.M.’s reading, SCOW next addresses whether failure to comply with this statutory mandate entails a loss of competency. (¶18). In conducting that analysis, SCOW holds that it is not constrained by § 48.315(3)‘s command that a failure to act “within” a time specified does not deprive the circuit court of competency. (¶23). That is because this is not a case involving a blown deadline, instead, it is a case involving a mandatory waiting period. (Id.). Analyzing the TPR statutes as a whole, SCOW concludes that this waiting period is “central” to that statutory scheme, as “[a]ffording parents basic procedural safeguards serves the express legislative purpose of providing ‘judicial and other procedures through which children and all other interested parties are assured fair hearings.'” (¶24). The waiting period allows parents an opportunity to participate in disposition and provides a window in which the parent may move for reconsideration of a default finding. (Id.). Accordingly, the matter is remanded for a new dispositional hearing. (¶26).

Chief Justice Ziegler, joined by Justice Hagedorn, files a lengthy dissent criticizing the majority’s statutory interpretation, which she believes has rewarded the bad behavior of the parent to the detriment of the child at issue in this TPR proceeding.

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