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Parent’s lies to court justified default TPR judgment

Waukesha County HHS v. S.S., 2020AP592, District 2, 6/10/20 (one-judge decision; ineligible for publication); case activity

The circuit court properly exercised its discretion in ordering default judgment for S.S.’s egregious conduct of lying to the court to get her TPR trial adjourned.

¶13     As entry of a default judgment is a particularly harsh sanction, its use is limited to acts that are “egregious[ ] or in bad faith.” [Industrial Roofing Servs., Inc. v.Marquardt, [2007 WI 19,] 299 Wis. 2d 81, ¶43[, 726 N.W.2d 898]. An act is said to be egregious if it is “extraordinary in some bad way; glaring, flagrant.” [Sentry Ins. v.] Davis, [2001 WI App 203,] 247 Wis. 2d 501, ¶21 n.8[, 634 N.W.2d 553] (citation omitted). “Egregious conduct means a conscious attempt to affect the outcome of litigation or a flagrant, knowing disregard of the judicial process.” Morrison v. Rankin, 2007 WI App 186, ¶20, 305 Wis. 2d 240, 738 N.W.2d 588. “Our cases have defined bad faith by reference to ‘deceit; duplicity; insincerity,’” as “a species of fraud,” and “the knowing failure to exercise an honest and informed judgment.” Roehl Transp., Inc. v. Liberty Mut. Ins. Co., 2010 WI 49, ¶122 n.49, 325 Wis. 2d 56, 784 N.W.2d 542 (citations omitted). “A circuit court is not required to analyze a specific set of factors before awarding a default judgment; instead, it should focus on ‘the degree to which the party’s conduct offends the standards of trial practice.’” Brandon Apparel Grp., Inc. v. Pearson Props., Ltd., 2001 WI App 205, ¶11, 247 Wis. 2d 521, 634 N.W.2d 544 (citation omitted).

¶14     S.S. argues that the circuit court improperly exercised its discretion when it granted a default judgment at the grounds phase as the court did not find that S.S. violated a court order. The department argues that “S.S.’s conduct was a perpetration of fraud upon the Court” and “[h]er actions provided adequate cause for sanctions to be imposed.” We agree and conclude that the circuit court did not erroneously exercise its discretion.


¶16     The record supports the court’s sanction of granting a default judgment on the grounds phase of the TPR proceeding. There is no dispute that S.S. lied to the court. A lie to the circuit court can establish egregious behavior. See, e.g., Jones v. Courtyard Apartments, LLP, No. 2009AP1626, unpublished slip op. ¶9 (WI App May 11, 2010)…. S.S. was aware that the jury trial was scheduled to take place on June 24, 2019, after at least two adjournments. S.S. told counsel that she was “experiencing some extreme physical distress” after purportedly missing several meetings to prepare for trial, knowing that counsel would repeat that information to the court, in order to obtain another adjournment. Over several months, she continued to perpetuate the lie that she had ovarian cancer by falsifying medical documents; lying about a scheduled surgery, both to the court and to the social worker; and refusing to sign off on a release of her medical information to prevent the parties, and by extension the court, from uncovering the lie. Accordingly, we conclude that the record supports the court’s finding that S.S.’s actions were egregious and constitute bad faith.

Both the trial and appellate found two unpublished decisions affirming default TPR judgments to be persuasive: State v. K.C., No. 2017AP32, unpublished slip op. (WI App Apr. 25, 2017); State v. Marquita R., Nos. 2010AP1979, 2010AP1980, 2010AP1981, unpublished slip op. (WI App Dec. 14, 2010).

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