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The redefinition of “egregious” in TPR cases continues

Dane County DHS v. A.D., 2022AP76 & 2022AP77, District 4, 3/31/22 (one-judge decision; ineligible for publication); case activity

Another case showing that in TPR proceedings, “egregious” conduct is coming to mean “missing one hearing.”

A.D. appeared at the first eight—count ’em: eight!—hearings at which he was ordered to appear. At the eighth hearing, the court allowed him to leave early so he could go to work, and (after A.D. left) set a final pretrial for a few months later and orally ordered A.D. to appear again in person, giving the boilerplate warning that failure to appear could result in a default TPR judgment—a warning the court had given a half-dozen times previously. (¶¶2-4).

When A.D. didn’t appear at the ninth hearing the County moved for a default judgment. A.D.’s lawyer objected, while noting A.D. didn’t have a phone and hadn’t responded to an email sent that morning. The circuit court granted the motion on the grounds his failure to appear was “egregious” given the number of times the court ordered A.D. to appear in person. The court also cited A.D.’s failure to provide an address at which he could receive mail. (¶5).

A.D. appeared at the subsequently scheduled disposition hearing and moved to vacate the default judgment. A.D. didn’t help his cause by answering “I don’t know” to his lawyer’s questions about his address and phone and then attempted to leave the courtroom before being arrested on a warrant. Based on this conduct, the court of appeals holds A.D. forfeited his motion to vacate the default judgment. (¶17).

Despite the forfeiture finding, the court goes on to to address—and reject—A.D.’s argument that the entry of the default judgment was error because his failure to appear wasn’t egregious.

A court has the discretion to enter a default judgment against a party who fails to comply with a court order when the party acted egregiously or in bad faith. To be egregious, the failure must be “extreme, substantial[,] and persistent….” Dane County DHS v. Mable K., 2013 WI 28, ¶70, 346 Wis. 2d 396, 828 N.W.2d 198. As it has done recently in some other TPR cases, the court of appeals affirms the circuit court’s entry of a default after a parent’s failure to appear at a single hearing after having been warned that failure to appear might lead to that result. (¶¶18-20).

But wait: Doesn’t the fact A.D. followed the court’s orders to appear at eight previous hearings count for something? Nope: “A.D.’s appearance at prior hearings does not diminish the significance of A.D.’s failure to comply with the court’s many orders to appear.” (¶18 (emphasis added)). That is, if the court repeats an order and the parent repeatedly complies, that compliance is not only meaningless, it counts against the parent because it gives the court the chance to keep issuing orders.

At this point the court is not looking at whether the parent persistently failed to comply, but at whether the court persistently issued an order that, on a single occasion, the parent fails to follow. This turns the egregiousness standard on its head. Repeatedly complying with orders to appear is, by definition, not persistent or extreme or substantial failure to comply with the orders. It also means the court of appeals is effectively re-defining “egregious” from “extreme, substantial, and persistent” failure to follow court orders to “fail one time. Period.” Or, at least, that’s apparently the standard for a parent in a TPR proceeding. Other situations might take some actual persistent refusal to follow repeated orders.

And while A.D. failed to provide an address to receive court notices, contrary to the court’s assertion (¶16) that doesn’t make the default judgment any more supportable because it was inconsequential. It didn’t lead to any failures to appear and doesn’t undermine his persistent compliance with the court’s orders to appear. Moreover, the order to appear at the final pretrial was oral, made after A.D. was excused to go to work, and his attorney’s attempts to communicate with his by email were apparently stymied by his incarceration for some period of time at the last hearing at which he appeared. (¶17).

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