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TPR – Default; TPR – Right to Present Evidence

State v. Laura M., 2011AP2828, District 1, 3/27/12

court of appeals decision(1-judge, not for publication); for Laura M.: Russell D. Bohach; case activity

The trial court properly exercised discretion in finding Laura M. in default when she failed to appear for trial on TPR grounds. A father of one of her children, Padrein K., called counsel to report that he had been stabbed and that Laura M. was going to accompany him to a doctor and then they had to report to the district attorney’s office – this didn’t preclude the trial court from holding her accountable for not appearing at the scheduled trial:

¶32      Here, the trial court properly set forth at least four reasons explaining why it found Laura M.’s failure to appear egregious and supporting its decision to enter default:  (1) Laura M. had been ordered to appear and warned that failure to do so could result in default and yet she failed to heed the court’s warning; (2) Laura M. did not call to explain her absence to the court and the explanation given to her attorney by Padrein K. did not justify her failure to appear; (3) Laura M.’s children had been in foster care for several years due to Laura M.’s failure to comply with the CHIPS orders and further delaying trial would harm the children; and (4) judicial efficiency.  We conclude that each of these reasons is adequately set forth by the record and supports the trial court’s conclusion that Laura M.’s failure to appear was egregious.

The court was unimpressed by the stated reason for absence: “… it was unnecessary for Laura M. to accompany Padrein K. to a follow-up doctor’s appointment and that her decision to do so demonstrated that she did not prioritize her children. The trial court noted that Padrein K.’s injuries did not appear to be life threatening and that even if Laura M. was required to appear at the district attorney’s office downtown at 1:30 in the afternoon, that appearance should not have interfered with her ability to appear for trial at 8:30 in the morning,” ¶35.

The court rejects Laura M.’s argument that the trial court precluded counsel from presenting evidence at the factfinding hearing undertaken at the time it entered the default judgment. A TPR party has “the right to competent and zealous counsel,” ¶41, citing § 48.23 and State v. Shirley E., 2006 WI 129, ¶¶31, 37, 298 Wis. 2d 1, 724 N.W.2d 623 – that right was observed:

¶42      Laura M. does not contest that her counsel, in her absence, was permitted to cross-examine the State’s only witness and to give a closing argument.  Rather, she argues that the trial court “did not allow Laura M. through her counsel to present [her] evidence.”  The record belies her assertion. … In other words, the trial court provided counsel an opportunity to present witnesses on Laura M.’s behalf.  However, because of Laura M.’s failure to appear, which was her choice, the witnesses were required sooner than counsel anticipated.  Because her counsel was otherwise permitted to cross-examine the State’s witness and to make a closing argument, we conclude that she was not denied her statutory right to counsel.

For discussion on TPR factfinding procedure following entry of default, see Evelyn C.R. v. Tykila S., 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768 (generally: nature of TPR requires that court hear evidence necessary to establish grounds before entering default judgment).

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