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Parent’s failure to cooperate with discovery and with her counsel justified default judgment in TPR proceeding

State v. L.M.-N., 2014AP2405 & 2014AP2406, District 1/4, 10/8/15 (one-judge decision; ineligible for publication); case activity

The circuit court properly entered a default judgment in L.M.-N.’s termination of parental rights proceeding based on her failure to appear at her scheduled deposition and, when she did finally appear, by refusing to testify.

L.M.-N. missed three scheduled deposition dates despite being ordered to cooperate with discovery and being given notice of the dates. At the fourth deposition–which L.M.-N. did attend because it was held in the jail where she was confined–L.M.-N. refused to be sworn in and or answer questions, saying she hadn’t received her lawyer’s letter telling her about the rescheduled date. The circuit court granted the State’s motion for default judgment, subject to being “proved up,” based on L.M.-N.’s failure to cooperate with discovery and with her attorney. (¶¶4-10).

The court of appeals rejects L.M.-N.’s claim that the circuit court should have issued a formal order to compel discovery under § 804.12(1)(a) before defaulting her:

¶16     A TPR is a civil proceeding. Therefore, the rules of civil procedure found in chapters 801-847 of the Wisconsin Statutes apply, unless a different procedure is prescribed by statute or rule. Wis. Stat. § 801.01. Wisconsin Stat. § 804.12(2)(a)… permits courts to enter default judgments for failure to comply with court orders regarding discovery. See also Evelyn C.R. v. Tykila S., 2001 WI 110, ¶17, 246 Wis. 2d 1, 629 N.W.2d 768.

¶17     Under the terms of Wis. Stat. § 804.12(2)(a), the potential sanction of default is not limited to cases in which a court has first issued a formal order to compel discovery, as a court is authorized to do under § 804.12(1)(a). While a court has the authority to impose sanctions on a party for failure to comply with an order to compel issued under subsection (1), a court has the authority to sanction a party for failure to comply with any discovery order, regardless of whether there has been an order to compel. See § 804.12(2)(a) (court may sanction a party for failure “to obey an order to provide or permit discovery, including an order under sub. (1) or s. 804.10”).


¶19     L.M.-N. fails to cite authority supporting her argument that a circuit court can only require cooperation with discovery by issuing an order to compel under Wis. Stat. § 804.12(1)(a). Based on Evelyn C.R.’s recognition of a circuit court’s “inherent” and “statutory authority” to issue orders and to sanction parties for failure to comply with those orders, I conclude that § 804.12(2)(a) does not deprive a circuit court of its inherent authority both to order parents to appear at depositions without first entering an order to compel discovery and to sanction them for failure to comply with such orders.

The court of appeals also holds that L.M.-N. had sufficient notice of the deposition she refused to participate in and knew that refusal to participate might result in default, and that the record supports the circuit court’s conclusion that her conduct was flagrant. (¶¶20-31).

The father of L.M.-N.’s children was also subject to a default judgment for failing to appear in court. State v. T.N., Case Nos. 2014AP2407 & 2014AP2408 (Wis. Ct. App. Sept. 10, 2015) (unpublished).

L.M.-N.’s claim that her lawyer was ineffective fails on both prongs: The record refutes her argument counsel was deficient for not keeping in contact with her and notifying her about the fourth deposition; nor does she show that, in the absence of a default judgment, the evidence in support of termination would have been any different and, therefore, that the result of the proceedings would have been different. (¶¶32-39).

Finally, L.M.-N. argues her right to meaningfully participate was violated when the court proceeded with the second day of the disposition hearing in her absence. She was present the first day, but by the time of the second hearing she was back in custody, and she wasn’t produced for the hearing. (¶12). The court of appeals disagrees. There’s no evidence she attempted to contact her attorney or the court to inform them she was in custody at any point during the five-week period between her arrest and the second hearing date. Moreover, L.M.-N. testified at the “prove-up” hearing, was present at and participated in the first day of the dispositional hearing, and at the second hearing date was represented by counsel, who argued against termination of L.M.-N.’s parental rights or for an alternative guardianship to L.M.-N.’s mother. (¶¶42-43).

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