Dane County Department of Human Services v. Mable K. , 346 Wis. 2d 396 ( 2013 )

2013 WI 28SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP825 & 2011AP826
COMPLETE TITLE:
In re the termination of parental rights to
Isaiah H., a person under the age of 18:
Dane County Department of Human Services,
Petitioner-Respondent,
v.
Mable K.,
Respondent-Appellant-Petitioner,
Lee H.,
Respondent.
In re the termination of parental rights to May
K., a person under the age of 18:
Dane County Department of Human Services,
Petitioner-Respondent,
v.
Mable K.,
Respondent-Appellant-Petitioner,
Wesley J.,
Respondent.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(No Cite)
OPINION FILED: March 29, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 7, 2012
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Amy R. Smith
JUSTICES:
CONCURRED:
DISSENTED: Ziegler, Roggensack, Gableman, JJJ., dissent.
(Opinion filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
filed by Brian C. Findley, Darlington, and oral argument by
Brian C. Findley.
For the petitioner-respondent, there was a brief filed by
Gary Rehfeldt, assistant Dane County corporation counsel, and
oral argument by Gary Rehfeldt.
A guardian ad litem brief was filed by Ginger L. Murray and
Lawton & Cates, S.C., Madison.
2
2013 WI 28NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP825 & 2011AP826
(L.C. No. 2010TP32 & 2010TP33)
STATE OF WISCONSIN : IN SUPREME COURT
In re the termination of parental rights to
Isaiah H., a person under the age of 18:
Dane County Department of Human Services,
Petitioner-Respondent,
FILED
v. MAR 29, 2013
Mable K., Diane M. Fremgen
Clerk of Supreme Court
Respondent-Appellant-Petitioner,
Lee H.,
Respondent.
In re the termination of parental rights to May
K., a person under the age of 18:
Dane County Department of Human Services,
Petitioner-Respondent,
v.
Mable K.,
Respondent-Appellant-Petitioner,
Wesley J.,
Respondent.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 ANN WALSH BRADLEY, J. The petitioner, Mable K.,
seeks review of an order of the court of appeals dismissing her
appeals in two consolidated termination of parental rights
proceedings.1 She contends that the circuit court erroneously
exercised its discretion when it granted a default judgment
finding that grounds existed to terminate her parental rights,
after barring her attorney from offering further evidence
tending to refute the grounds for the termination.
Additionally, she argues that the circuit court erred when it
granted the default judgment prematurely.
¶2 Mable K. further argues that the remedy provided by
the circuit court to address its errors is fundamentally unfair.
The circuit court's remedy was to return Mable K. to the
procedural posture when the error occurred and conduct the
1
Dane Cnty. Dep't of Human Servs. v. Mable K., Case Nos.
2011AP825, 2011AP826, unpublished slip op. (Wis. Ct. App., Jan.
11, 2012), dismissing Mable K.'s appeals after an order of the
circuit court for Dane County, Amy Smith, J. presiding, vacated
its previous order terminating her parental rights.
2
No. 2011AP825 & 2011AP826
remainder of the fact-finding hearing before the circuit court,
not before a jury.
¶3 We conclude, and the circuit court has acknowledged,
that it erroneously exercised its discretion when it entered a
default judgment finding that grounds existed to terminate Mable
K.'s parental rights after barring her attorney from offering
additional evidence. It also erred when it granted the default
judgment before taking evidence sufficient to establish the
grounds alleged in the amended petitions. We further conclude
that the circuit court's remedy for correcting the errors is
fundamentally unfair under the facts of this case.
¶4 Accordingly, we reverse and remand to the circuit
court for a new fact-finding hearing to be heard by a jury if
Mable K. timely demands one. On remand, the new fact-finding
hearing is to be held at the earliest reasonable opportunity.
I
¶5 Dane County filed amended petitions for the
termination of Mable K.'s parental rights of her children,
Isaiah H. and May K. Dane County also sought to terminate the
parental rights of the fathers of the children in the amended
petitions. The amended petitions allege as grounds for
termination of Mable K.'s parental rights a continuing need of
protection or services under Wis. Stat. § 48.415(2) (2009-10)2
and abandonment under Wis. Stat. § 48.415(1).
2
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
3
No. 2011AP825 & 2011AP826
¶6 Before the fact-finding hearing, the circuit court
ordered Mable K. to appear in person at all proceedings.3 She
was represented by an attorney, Yolanda Lehner, at the fact-
finding hearing which was being tried by a jury. On September
14, 2010, the second day of the fact-finding hearing, Mable K.
failed to personally appear at 9:00 a.m. when the hearing was
set to resume.4 However, Attorney Lehner was present and
appeared on her behalf.
¶7 When Mable K. failed to personally appear at the
appointed time, the circuit court asked Attorney Lehner about
Mable K.'s absence. Attorney Lehner stated that Mable K. had
called as Attorney Lehner was arriving at the courthouse that
morning. Mable K. told Attorney Lehner that she "wasn't feeling
good" and that the hearing was extremely stressful. She also
told Attorney Lehner that she didn't think she could come to
court.
3
Termination of parental rights proceedings involve a two-
step procedure. State v. Shirley E., 2006 WI 129, ¶26, 298 Wis.
2d 1, 724 N.W.2d 623. The first step is the fact-finding phase,
which consists of an evidentiary hearing to determine whether
adequate grounds exist for the termination of parental rights.
Wis. Stat. § 48.424; Shirley E., 298 Wis. 2d 1, ¶27. The second
step is the dispositional phase, which consists of an
evidentiary hearing in which the circuit court determines
whether termination of parental rights is in the child's best
interests. See Wis. Stat. § 48.427; Shirley E., 298 Wis. 2d 1,
¶28.
4
Mable K. was present for the first day of the fact-finding
hearing. Additionally, there were eight pre-trial proceedings
held by the circuit court prior to the fact-finding hearing and
there is no indication that Mable K. failed to appear on time
for any of those proceedings.
4
No. 2011AP825 & 2011AP826
¶8 Dane County moved for a default judgment. Attorney
Lehner requested another opportunity to speak with Mable K.
about coming to court. Instead of granting a default judgment
at that time, the circuit court recessed for five minutes in
order to allow Attorney Lehner an opportunity to again contact
Mable K.
¶9 When Attorney Lehner returned to court, she explained
that she had spoken with Mable K. via telephone. Mable K. told
Attorney Lehner that she was going to ride her bicycle to court
and that she would be there in "about half an hour."
¶10 Attorney Lehner asked the circuit court to wait until
"10 to 10," or 9:50 a.m., to see if Mable K. arrived. The
circuit court agreed and took Dane County's motion under
advisement to see whether Mable K. arrived in court later in the
day. The hearing before the jury resumed, and testimony was
presented addressing the petitions against the fathers.
¶11 At approximately 10:20 a.m., outside the presence of
the jury, the circuit court again took up the matter of Mable K.
being absent from court. Dane County renewed its motion for a
default judgment. However, the attorney for Dane County noted
that more evidence would be required to support the abandonment
ground regarding both children before a default judgment could
be entered. He expected a witness who could testify about that
issue to arrive at 10:30 a.m. The circuit court acknowledged
that it needed to hear additional testimony from Dane County's
witness to establish the ground of abandonment before granting
5
No. 2011AP825 & 2011AP826
the motion for a default judgment finding that grounds existed
to terminate Mable K.'s parental rights.5
¶12 In opposition to the renewed motion, Attorney Lehner
argued that on the abandonment issue, she had "a lot of
evidence." The evidence was, in Attorney Lehner's estimation,
enough to make it "difficult for the County to prove
abandonment."
¶13 Attorney Lehner asked whether she would be allowed to
adduce that evidence, but the circuit court determined that she
would not be allowed to do so. Instead she would be allowed
only to cross-examine Dane County's sole witness in response to
the direct evidence introduced by Dane County. The circuit
court then heard testimony from the witness and Attorney Lehner
cross-examined him.
¶14 Following the testimony from Dane County's witness,
the circuit court "found by default" both grounds for
termination. After making that determination, the circuit court
found Mable K. unfit. There was no reference at the hearing to
Wis. Stat. § 805.03, a statute that allows the circuit court to
enter a sanction for the violation of a court order. In fact,
5
This court determined in Evelyn C.R. v. Tykila S., 2001 WI
110, ¶¶16-19, 246 Wis. 2d 1, 629 N.W.2d 768, that a circuit
court must first take evidence sufficient to support a finding
by clear and convincing evidence that the ground or grounds
alleged in the petition were proven before granting a default
judgment on the grounds at issue. The circuit court did not
reference Evelyn C.R. directly, but in acknowledging that it
needed to hear additional testimony, it appears to have been
aware of that requirement.
6
No. 2011AP825 & 2011AP826
the words "sanction" or "forfeiture" were not employed as part
of the analysis (for further discussion, see infra ¶¶67-71).
¶15 Mable K. arrived in court approximately ten minutes
later at 10:45 a.m. Outside the presence of the jury Attorney
Lehner requested that the circuit court reconsider its previous
entry of a default judgment finding that grounds existed to
terminate Mable K.'s parental rights. The circuit court invited
Mable K. to testify about why the circuit court should
reconsider the default judgment.
¶16 Mable K. testified that she was "real kind of sick"
from the previous day's "procedure." The proceedings from the
previous day "really kind of hurt" her and she testified that
she arrived late because "[she] was just tired." On cross-
examination, Dane County introduced deposition testimony
regarding inconsistent statements made by Mable K. about her
marital status in previous termination proceedings. On further
questioning from the circuit court, Mable K. testified that
after the second phone call, she said she "had to get me some
breakfast then I will be coming."
¶17 After Mable K. finished testifying, the circuit court
considered whether it should vacate the default judgment. The
circuit court questioned Mable K.'s credibility, citing the
inconsistent statements Mable K. had made in prior depositions
that were introduced during cross-examination by Dane County.
The circuit court also discussed the morning's events and Mable
K.'s testimony, where Mable K. had offered several
"inconsistent" reasons for not appearing in person.
7
No. 2011AP825 & 2011AP826
Accordingly, the circuit court determined that Mable K. had
introduced insufficient proof to support a finding that the
default judgment should be vacated under Wis. Stat.
§ 806.07(1)(a), which allows relief from a judgment on grounds
of mistake or excusable neglect.6
¶18 The circuit court then dismissed Mable K. and Attorney
Lehner from the remainder of the fact-finding hearing. When the
jury was brought back into court, it was instructed that Mable
K. was no longer involved in the cases and that the claims
against her had been resolved. The hearing before the jury
continued, addressing the petitions against the fathers.
6
The record from the hearing on the motion to vacate the
default judgment reflects that the motion was advanced and
decided pursuant to Wis. Stat. § 806.07(1)(a). The record
reflects the following:
I infer from the information that [Mable K.] has
provided and the comments made by Ms. Lehner that we
are, that [Mable K.] is seeking the Court to vacate
the default judgment based on mistake or excusable
neglect or something of that nature. . . .
I also would note that I do not believe that the
testimony of [Mable K.], even taken in the light most
favorable to [her], could possibly constitute
excusable neglect. [Mable K.] has indicated that for
–- on the record as to a number of different possible
excuses for her failure to appear here today. I do
not believe that any of them constitute mistake or
excusable neglect as those terms are defined in
Section 806.07(1)(a). . . .
I also will find that the information that I have is
insufficient to make a finding that judgment or order
of default should be relieved under 806.07 and I,
therefore, deny the motion to relieve [Mable K.] from
default judgment. I've ruled in that regard.
8
No. 2011AP825 & 2011AP826
¶19 Before the dispositional hearing, Joyce Brown, a
social worker with the Dane County Department of Human Services,
filed a court report that recommended terminating Mable K.'s
parental rights. According to the psychiatric evaluations
referenced in that court report, Mable K. has "intellectual
deficits" with a performance IQ of 60, and a full scale IQ of
54. The court report indicates that an IQ of 54 is "considered
in the extremely low range."
¶20 The circuit court held a dispositional hearing on
January 3, 2011. Mable K. personally appeared along with
Attorney Lehner. The circuit court heard testimony from Joyce
Brown regarding the best interests of the children. At the
conclusion of the dispositional hearing, the circuit court
entered an order terminating Mable K.'s parental rights.
¶21 Mable K. appealed following the dispositional hearing.
Retaining jurisdiction, the court of appeals remanded the cases
back to the circuit court and ordered the circuit court to hear
and decide postdisposition motions.
¶22 At a postdisposition motion hearing on remand, Mable
K. argued that the circuit court erroneously exercised its
discretion by granting and refusing to vacate the default
judgment finding that grounds existed to terminate her parental
rights. She contended that the appropriate remedy for the
erroneous exercise of discretion was a new fact-finding hearing.
¶23 Attorney Lehner offered testimony about the evidence
she had intended to introduce at the fact-finding hearing. She
testified that she did not think that Dane County could prove
9
No. 2011AP825 & 2011AP826
the abandonment ground. The amended petitions relating to both
children alleged that Mable K. failed to visit or communicate
with the children during a five-month period between December
17, 2009 and May 27, 2010. The amended petitions further
alleged that there were two e-mail communications from Mable K.
to the children's foster parent, but that both e-mail
communications occurred more than three months after Mable K.'s
last visit with the children on December 17, 2009.
¶24 To rebut the abandonment ground, Attorney Lehner
intended to introduce e-mail correspondence and records of
contacts between Mable K., the social workers involved in her
case, and the children's foster parent. Contrary to the
allegations in the amended petitions, these contacts suggest
that Mable K. contacted the children's foster parent and social
workers on a number of occasions during the period of the
alleged abandonment.
¶25 The e-mail communications that Mable K. sent directly
to the children's foster parent during the period of alleged
abandonment were not two in number as stated in the amended
petitions, but rather there were seven. Also contrary to the
allegations of the amended petitions, the record indicates that
there were e-mails sent during——not after——the three-month
period following Mable K.'s last visit with the children. The
e-mails which Attorney Lehner intended to introduce were sent on
January 21, 2010, March 1, 2010, March 31, 2010, April 22, 2010,
April 29, 2010, May 5, 2010, and May 13, 2010. In those e-mail
communications, Mable K. asked on several occasions about the
10
No. 2011AP825 & 2011AP826
children's lives, their experiences in school, how big the
children were getting, and whether the foster parent could share
any pictures of the children.
¶26 To further rebut the abandonment ground, Attorney
Lehner intended to introduce e-mail correspondence and records
of contacts between Mable K. and social workers involved in her
case during the alleged period of abandonment. One such record
notes that Mable K. left a voice message with a social worker on
January 7, 2010, cancelling a contact scheduled for that date.
Mable K. sent an e-mail to the same social worker on March 1,
2010 saying she no longer had a telephone and apologizing for
her lack of response. Another record from March 10, 2010 notes
that Mable K. called a social worker and asked whether she could
"see her kids," but there is no indication such a visit
occurred. An additional e-mail from a social worker sent on
March 16, 2010 indicates that the social worker spoke on the
telephone with Mable K. the previous day and that Mable K. said
she "expect[ed] to get the kids back as she will have housing on
the South side next month."
¶27 Attorney Lehner stated she intended to introduce the
evidence to rebut the abandonment ground through cross-
examination of "the social workers" or through Mable K.'s
testimony directly. Nearly all of the e-mails were either
directed to or copied to the social worker, Joyce Brown.
Attorney Lehner had previously listed Joyce Brown on her amended
witness list before the fact-finding hearing.
11
No. 2011AP825 & 2011AP826
¶28 Attorney Lehner further testified that she had
intended to introduce evidence contesting the continuing need of
protection or services ground. She thought that she could "make
a case that [Mable K.] would meet the conditions [of the child
in need of protection or services order] in the next nine
months." Attorney Lehner testified that Mable K. "had an
apartment lined up" and that the apartment evidence would make
it likely that Mable K. would meet the conditions. In Attorney
Lehner's opinion, the fact that Mable K. did not have a place to
live "seemed to be the mainstay with getting her kids back."
¶29 Attorney Lehner thought that she had an additional
defense to this ground, that is a "strong argument that the
Department had not made reasonable efforts." She had intended
to develop the argument that "it was almost set up so that
[Mable K.] would fail...to meet the conditions she needed for
return" by cross-examining Joyce Brown. Additionally, Attorney
Lehner intended for Mable K. to testify regarding both of the
anticipated defenses to the continuing need of protection or
services ground.
¶30 In a later oral decision following the post-
disposition motion hearing, the circuit court determined that it
erroneously deprived Mable K. of her statutory right to an
attorney provided under Wis. Stat. § 48.23(2). Citing State v.
Shirley E., 2006 WI 129, 298 Wis. 2d 1, 724 N.W.2d 623, the
circuit court acknowledged that it had erred when it barred
Attorney Lehner from adducing evidence tending to refute the
grounds alleged in the amended petitions. Dane County argued
12
No. 2011AP825 & 2011AP826
that there were no witnesses to present when Mable K. was late
on the second day of the fact-finding hearing, but the circuit
court rejected that argument.7 It concluded that Attorney Lehner
"had evidence beyond [Mable K.]" and had "other witnesses on her
witnesses list," stating:
I really think that [Mable K.] should have had that
opportunity to bring in these witnesses and, frankly,
I don't know exactly what they would say but she had a
right to at least present it.
Accordingly, the circuit court vacated its previous orders
terminating Mable K.'s parental rights.
¶31 The circuit court determined that the appropriate
remedy for the erroneous exercise of discretion was to return
Mable K. to the procedural posture when the error occurred. That
procedural posture was after Dane County had moved for a default
judgment and its abandonment witness had testified outside the
presence of the jury, but before the circuit court actually
found by default that grounds existed to terminate Mable K.'s
7
The dissent makes the same argument that there were no
witnesses to present but ignores that the circuit court soundly
rejected that argument. Dissent, ¶110 n.11.
Additionally, Attorney Lehner acknowledged that although
she could not call Mable K. if Mable K. was not present for the
second day of the fact-finding hearing, she "wouldn't have put
[her] case on probably until the next day anyway." Contrary to
the arguments of the dissent, the record indicates that not only
were there witnesses to present, but that the parties had
already scheduled them to testify.
13
No. 2011AP825 & 2011AP826
parental rights and found Mable K. unfit.8 Under the circuit
court's remedy, any additional evidence Mable K. could offer
would be to the court, not to a jury.
¶32 The cases returned to the court of appeals after the
postdisposition motion hearing. While the cases were pending
before the court of appeals, Dane County filed a motion for
reconsideration with the circuit court concerning its findings
at the postdisposition motion hearing.
¶33 The circuit court issued a written "response" to the
motion for reconsideration, indicating that it would be inclined
to amend portions of its oral decision on remand if the court of
appeals allowed it to do so. However, the circuit court
concluded that it lacked the authority to act while the cases
were pending before the court of appeals.
¶34 After the circuit court issued its written "response,"
the court of appeals issued an order remanding the cases to the
circuit court in order to address Dane County's motion. The
court of appeals reasoned that there was little point in
reviewing a circuit court order that the circuit court itself no
longer believed was the correct outcome.
8
This case presents legal questions for our determination.
In an apparent attempt to obfuscate the legal issues, much of
the dissent's "family background" discussion seemingly is
designed to malign Mable K.'s fitness as a parent——which is not
an issue before us. The dissent seems to be advancing that we
should somehow evaluate the law differently because of Mable
K.'s family background.
14
No. 2011AP825 & 2011AP826
¶35 On remand to address Dane County's reconsideration
motion, the circuit court reaffirmed its earlier oral findings
in a written decision. The circuit court concluded that the
order terminating Mable K.'s parental rights would remain
vacated, "with the expectation that this court will decide at an
evidentiary hearing whether grounds exist to establish
termination of [Mable K.'s] parental rights," at which time
Mable K. could present evidence "contrary to default."
¶36 Following the circuit court's written decision, the
cases returned to the court of appeals. In an order issued on
December 21, 2011, the court of appeals sua sponte questioned
what to do with the appeals, tentatively concluding that no
appeal existed as of right and that it would not be inclined to
take up the appeals on a discretionary basis. However, the
court of appeals invited additional briefing on the matter.
¶37 After additional briefing, the court of appeals issued
an order on January 11, 2012 dismissing the appeals. The court
of appeals relied on the analysis contained in its December 21,
2011 order.
II
¶38 In these cases, we are called upon to examine whether
the circuit court erroneously exercised its discretion in
15
No. 2011AP825 & 2011AP826
entering a default judgment against Mable K.9 We are asked to
first determine whether it was an erroneous exercise of
discretion to grant a default judgment finding that grounds
existed to terminate Mable K.'s parental rights after the
circuit court barred Attorney Lehner from adducing evidence
tending to refute the allegations in the amended petitions. We
are further called to determine whether the circuit court
erroneously exercised its discretion in granting the default
judgment before establishing the grounds alleged in the amended
petitions.
¶39 A circuit court properly exercises its discretion when
it examines the relevant facts, applies a proper standard of
law, and using a demonstrated rational process reaches a
conclusion that a reasonable judge could reach. Schneller v.
9
Mable K. additionally argues that the circuit court
erroneously exercised its discretion in granting a default
judgment because her conduct was not egregious or in bad faith
and because Wis. Stat. § 806.07(1)(h), which allows relief from
a judgment for "[a]ny other reasons justifying relief from the
operation of the judgment," required the circuit court to vacate
the default judgment. Because we conclude that entering a
default judgment was an erroneous exercise of discretion on
other grounds, we need not address whether granting a default
judgment was an erroneous exercise of discretion for those
reasons.
In accepting the petition for review, we ordered the
parties to brief the issue of whether the circuit court's
decision to vacate its previous order terminating Mable K.'s
parental rights constitutes a final order for the purposes of
appeal. However, we likewise need not decide that issue.
Having accepted the petition for review, determining the exact
implications of the circuit court's actions on the status of
these appeals is not necessary to the resolution of this case.
16
No. 2011AP825 & 2011AP826
St. Mary's Hosp. Med. Ctr., 162 Wis. 2d 296, 306, 470 N.W.2d 873(1991). Ultimately our determination rests here on an
examination of whether the circuit court applied proper
standards of law when it granted the default judgment. We
review questions of law independent of the determinations
rendered by the circuit court and the court of appeals.
¶40 If we determine that the circuit court erroneously
exercised its discretion in granting a default judgment finding
that grounds existed to terminate Mable K.'s parental rights, we
must then examine whether the circuit court's remedy is
fundamentally fair under these facts. See Sheboygan Cnty. Dep't
of Health & Human Servs. v. Julie A.B., 2002 WI 95, ¶22, 255
Wis. 2d 170, 648 N.W.2d 402. Whether a circuit court has
provided a parent in a termination of parental rights proceeding
fundamentally fair procedures also presents a question of law
that we review independent of the determinations of the circuit
court and court of appeals. See Monroe Cnty. Dep't of Human
Servs. v. Kelli B., 2004 WI 48, ¶¶16, 27, 271 Wis. 2d 51, 678
N.W.2d 831.
¶41 We address each issue in turn.
III
¶42 We first consider whether the circuit court
erroneously exercised its discretion when it entered a default
judgment finding that grounds existed to terminate Mable K.'s
parental rights. Specifically, Mable K. contends that the
circuit court erroneously exercised its discretion in granting
the default judgment after it deprived her of her statutory
17
No. 2011AP825 & 2011AP826
right to an attorney under Wis. Stat. § 48.23(2).10 She further
contends that the circuit court erroneously exercised its
discretion when it granted the default judgment before taking
evidence sufficient to establish the grounds alleged in the
amended petitions.
¶43 The circuit court acknowledged that it erred when it
barred Mable K. from presenting further evidence. Citing
Shirley E., the circuit court determined that Attorney Lehner
should have been allowed to present evidence tending to refute
the allegations in the amended petitions to terminate Mable K.'s
parental rights. Likewise, Dane County agreed at oral argument
before this court that the circuit court committed error in not
allowing Attorney Lehner to adduce additional evidence. We
begin our analysis by examining Shirley E.
10
Wisconsin Stat. § 48.23(2) provides the following:
(2) Whenever a child is the subject of a proceeding
involving a contested adoption or the involuntary
termination of parental rights, any parent under 18
years of age who appears before the court shall be
represented by counsel; but no such parent may waive
counsel. Except as provided in sub. (2g), a minor
parent petitioning for the voluntary termination of
parental rights shall be represented by a guardian ad
litem. If a proceeding involves a contested adoption
or the involuntary termination of parental rights, any
parent 18 years old or older who appears before the
court shall be represented by counsel; but the parent
may waive counsel provided the court is satisfied such
waiver is knowingly and voluntarily made.
18
No. 2011AP825 & 2011AP826
¶44 The Shirley E. court addressed the question of whether
a circuit court may deny a parent the statutory right to an
attorney when the parent appeared in the proceeding but failed
to personally attend the hearing in contravention of a court
order. 298 Wis. 2d 1, ¶2. Shirley E., a parent, failed to
personally attend an initial plea hearing in a termination of
parental rights proceeding. Id., ¶11. The circuit court
rescheduled the hearing so the State could obtain service on
Shirley E. and arrange for the appointment of an attorney. Id.
¶45 At the rescheduled hearing, Shirley E.'s recently-
appointed attorney appeared in person, but Shirley E. did not.
Id., ¶12. The circuit court allowed Shirley E. to appear by
telephone at her attorney's request. Id. The State asked the
circuit court to enter a default judgment against Shirley E.,
but the circuit court instead ordered Shirley E. to appear in
person at the next hearing and warned her that if she did not
appear personally, the circuit court would enter a default
judgment against her. Id. The hearing was adjourned and
rescheduled again. Id.
¶46 Shirley E. failed to personally appear at the
rescheduled hearing. Id., ¶13. The circuit court entered a
default judgment as a sanction for her failure to obey the court
order that Shirley E. appear in person. Id. However, the
circuit court indicated that it would entertain a motion to
vacate the default judgment if Shirley E. appeared in person,
and again adjourned the matter. Id., ¶15.
19
No. 2011AP825 & 2011AP826
¶47 When Shirley E. failed to appear personally at the
next hearing, the circuit court dismissed her attorney from the
proceeding. Id., ¶16. The circuit court proceeded to hold
hearings in both phases of the proceeding without Shirley E. or
her attorney present and terminated Shirley E.'s parental
rights. Id., ¶18.
¶48 Parents have a statutory right to representation by an
attorney under Wis. Stat. § 48.23(2). The Shirley E. court
concluded that the statutory right to an attorney is not limited
to parents who appear in person at court proceedings. 298 Wis.
2d 1, ¶43. A parent's attorney may act on behalf of a parent
who does not appear in person. Id., ¶46.
¶49 The Shirley E. court further concluded that a parent's
statutory right to an attorney is preserved even after the entry
of a default judgment. Id., ¶56. Parents in termination of
parental rights proceedings have a statutory right to be heard
through an attorney in "a meaningful time and in a meaningful
manner."11 Id., ¶52.
11
The dissent appears to conclude that a parent cannot be
denied her statutory right to an attorney unless the court bars
the parent from participating "before any evidence [is]
presented" and remains barred throughout an entire trial.
Dissent, ¶127. It seems to ignore entirely the actual reasoning
of this opinion and that of the circuit court, which is that the
circuit court erroneously cut off Attorney Lehner before she
could put in her case.
The dissent's analysis would unreasonably expand the
holding of Shirley E. by implying that a parent's participation
is meaningful except when the parent is entirely barred from
participating at trial. See id.
20
No. 2011AP825 & 2011AP826
¶50 Accordingly, Mable K.'s statutory right to an attorney
did not expire when she did not arrive in court on time.
Attorney Lehner could act on her behalf at the fact-finding
hearing whether or not Mable K. personally appeared.
¶51 We agree with the parties and the circuit court that
the circuit court erroneously exercised its discretion when it
entered a default judgment against Mable K. finding that grounds
existed to terminate her parental rights after depriving her of
her statutory right to an attorney under Wis. Stat. § 48.23(2).
In these cases, Attorney Lehner requested an opportunity to be
heard and told the circuit court that she possessed "a lot of
evidence" on the issue of abandonment, which she thought would
make it "difficult for [Dane County] to prove abandonment" if
she were allowed to enter it into the record. She later
testified that she had intended to introduce additional evidence
tending to refute the allegations of continuing need of
protection or services. However, the circuit court refused to
allow Attorney Lehner any opportunity to adduce that evidence.12
12
Dane County cites to an unpublished court of appeals
opinion, State v. Laura M., Nos. 2011AP2825, 2011AP2828,
2011AP2826, 2011AP2827, unpublished slip op. (Ct. App. March 27,
2012), in support of the argument that because Mable K. was not
present to testify, Attorney Lehner could not adduce any other
evidence. However, Dane County ignores that in Laura M., the
circuit court specifically asked whether the parent's attorney
wished to call any witnesses and the attorney declined the
opportunity. Id., ¶42. In these cases, Attorney Lehner was
never asked if she had any other evidence, and when she asked
for an opportunity to present additional evidence, the circuit
court denied her request.
21
No. 2011AP825 & 2011AP826
¶52 We turn next to address whether the circuit court
erroneously exercised its discretion in entering the default
judgment finding that grounds existed to terminate Mable K.'s
parental rights before taking evidence sufficient to establish
the grounds alleged in the amended petitions. We look to Evelyn
C.R. v. Tykila S., 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768for guidance.
¶53 In Evelyn C.R., a child's biological mother failed to
appear in person at a fact-finding hearing. 246 Wis. 2d 1, ¶8.
Because the issue was to be tried before a jury, the circuit
court expressed apprehension about holding the hearing without
the mother's physical presence. Id. The parties rescheduled
the fact-finding hearing for a later date. Id.¶54 There is no indication that the fact-finding hearing
before a jury ever commenced. Instead, when the mother failed
to appear in person a second time, the petitioner moved for a
default judgment at the rescheduled hearing. Id., ¶9. The
circuit court granted the petitioner's motion, found the mother
unfit based on the allegations in the petition, and scheduled
the case for a dispositional hearing. Id.
¶55 The Evelyn C.R. court concluded that circuit courts
have a duty at the fact-finding hearing to find, by clear and
convincing evidence, that all of the elements of the allegations
in the petition have been met before granting a default judgment
against a parent. Id., ¶24. The duty to establish grounds is
"independent" of the circuit court's authority to grant a
default judgment. Id., ¶¶25-26.
22
No. 2011AP825 & 2011AP826
¶56 In refusing to hear Attorney Lehner's additional
evidence before entering a default judgment finding that grounds
existed to terminate Mable K.'s parental rights, the circuit
court put the cart before the horse. The circuit court could
not make a decision based on clear and convincing evidence
having heard only one side's version of the facts when the other
side was requesting an opportunity to offer evidence that could
defeat the allegations in the amended petitions. See Evelyn
C.R., 246 Wis. 2d 1, ¶26.
¶57 Accordingly, we also conclude that the circuit court
erroneously exercised its discretion when it entered the default
judgment finding that grounds existed to terminate Mable K.'s
parental rights before establishing the grounds alleged in the
amended petitions by clear and convincing evidence.
IV
¶58 We turn now to examine the remedy for the errors. The
circuit court concluded that the appropriate remedy would be to
return Mable K. procedurally to the time of the error. The
circuit court's remedy would place Mable K. after the testimony
from Dane County's abandonment witness had been taken outside
the presence of the jury, just before the circuit court entered
the default judgment finding that grounds existed to terminate
Mable K.'s parental rights. The circuit court further
determined that Mable K. would be permitted to adduce additional
evidence, but before the circuit court, not before a jury.
¶59 Terminating parental rights works a "unique kind of
deprivation." M.L.B. v. S.L.J., 519 U.S. 102, 118 (1996). A
23
No. 2011AP825 & 2011AP826
parent's interest in the "accuracy and justice of the
decision . . . is . . . a commanding one." M.L.B., 519 U.S. at
118 (quoting Lassiter v. Dep't of Soc. Servs. of Durham Cnty.,
452 U.S. 18, 27 (1981)). Although "the best interests of the
child" standard set forth in Wis. Stat. § 48.01(1) is a matter
of paramount consideration in a termination proceeding, it does
not dominate every stage of the proceeding. The statutes
carefully balance the interests of all participants including
those of the parents. Wis. Stat. § 48.01(1). The "best
interests of the child" standard does not dominate until the
parent has been found unfit. As this court stated in Julie
A.B.:
Wisconsin Stat. § 48.01(1) provides in part: "In
construing this chapter, the best interests of the
child...shall always be of paramount consideration."
(citations omitted.)
Notwithstanding this broad language, the "best
interests of the child" standard does not dominate
every step of every proceeding, because other vital
interests must be accommodated. When the government
seeks to terminate parental rights, the best interests
of the child standard does not "prevail" until the
affected parent has been found unfit pursuant to Wis.
Stat. § 48.424(4).
255 Wis. 2d 170, ¶¶21-22.
¶60 During the fact-finding phase, "the parent's rights
are paramount." Id., ¶24 (quoting Evelyn C.R., 246 Wis. 2d 1,
¶22). Thus, parents in the fact-finding phase of termination of
parental rights proceedings require heightened legal safeguards
to prevent erroneous decisions. Shirley E., 298 Wis. 2d 1, ¶24.
24
No. 2011AP825 & 2011AP826
¶61 One of the purposes of Chapter 48, the Children's
Code, is to provide for procedures through which all interested
parties are assured fair hearings that enforce their legal
rights. Wis. Stat. § 48.01(1)(ad). The legislature intended to
be expansive in its according of legal rights to parents.
Shirley E., 298 Wis. 2d 1, ¶43. Therefore, parents must be
provided with fundamentally fair procedures. See Julie A.B.,
255 Wis. 2d 170, ¶22 (quoting Santosky v. Kramer, 455 U.S. 745,
753 (1982)).
¶62 There are problems inherent in restarting the half-
completed hearing that render the circuit court's remedy
fundamentally unfair. To begin, the jury is gone and a new one
cannot be empaneled halfway through the fact-finding hearing,
years after the first portion of the fact-finding hearing
occurred.
¶63 Another problem with restarting the half-completed
fact-finding hearing is that Mable K. will require another
appointed attorney on remand. The new attorney will be stuck
defending Mable K. on a record where the circuit court has twice
found her not to be a credible witness. The circuit court's
remedy sets the newly appointed attorney, and by extension Mable
K., up to fail because the attorney would be restricted to
25
No. 2011AP825 & 2011AP826
arguing against a default judgment that the circuit court has
previously granted.13
¶64 In essence, restarting the half-completed fact-finding
hearing shifts the burden to Mable K. to prove that she is not
an unfit parent. Under the circuit court's remedy, Mable K.
would be forced to rebut Dane County's case from a hearing that
is now approximately two years old. The circuit court's remedy
conflicts with the requirement that the government bears the
burden to show that grounds exist for the termination of
parental rights, and that the parent should have a "full
complement of procedural rights." Julie A.B., 255 Wis. 2d 170,
¶24.
¶65 Holding the remainder of the fact-finding hearing
before the circuit court also appears contrary to the heightened
safeguards envisioned by the legislature for termination of
parental rights proceedings. Wisconsin Stat. §§ 48.31(2) and
48.424(2) provide Mable K. with a statutory right to a jury
trial if she properly demands one.14 None of the parties dispute
13
By setting any new attorney up to fail, the circuit
court's remedy defies the principle that the statutory right to
counsel includes the right to effective counsel. See Shirley
E., 298 Wis. 2d 1, ¶¶36-39 (quoting A.S. v. State, 168 Wis. 2d
995, 1003, 485 N.W.2d 52 (1992)).
14
Wisconsin Stat. § 48.31(2) provides that a fact-finding
hearing shall be to the court "unless the . . . child's
parent . . . exercises the right to a jury trial by demanding a
jury trial at any time before or during the plea hearing."
Wisconsin Stat. § 48.424(2) additionally provides that fact-
finding hearings in termination of parental rights proceedings
"shall be conducted according to the procedure specified in s.
48.31 . . . ."
26
No. 2011AP825 & 2011AP826
that Mable K. properly demanded a jury for the fact-finding
hearing addressing the grounds for termination. Yet the circuit
court's remedy would take away that right.
¶66 The record is unclear as to what authority the circuit
court employed in denying the statutory right to a jury. There
is nothing in the record to suggest that Mable K. waived her
right to a jury. The circuit court's grant of a default
judgment cannot be a default judgment entered under Wis. Stat.
§ 806.02(5), which allows for a default judgment for non-
appearance at trial. Mable K. appeared personally at the first
day of the fact-finding hearing and Attorney Lehner appeared on
her behalf on the day she was late for court. Furthermore, no
other provisions of the default judgment statute apply because
Mable K. appeared in the action and fully participated until she
was late on the second day of the fact-finding hearing.
¶67 Arguably, the circuit court could have determined that
the statutory right to a jury was forfeited and granted a
default judgment as a sanction for violation of a court order
pursuant to Wis. Stat. § 805.03.15 The record, however, is
15
Wisconsin Stat. § 805.03 states the following:
For failure of any claimant to prosecute or for
failure of any party to comply with the statutes
governing procedure in civil actions or to obey any
order of court, the court in which the action is
pending may make such orders in regard to the failure
as are just, including but not limited to orders
authorized under s. 804.12(2)(a). Any dismissal under
this section operates as an adjudication on the merits
unless the court in its order for dismissal otherwise
specifies for good cause shown recited in the order. A
27
No. 2011AP825 & 2011AP826
unclear. That statute was never cited by the circuit court or
any attorney.
¶68 In fact, the words "sanction" or "forfeiture" are
nowhere to be found in the transcripts of the fact-finding
hearing or postdisposition motion hearing as they relate to
Mable K. When asked at oral argument whether the record shines
any light on our inquiry into the procedures employed by the
circuit court when it entered the default judgment finding that
grounds existed to terminate Mable K.'s parental rights, Dane
County admitted that the record was "murky," despite the fact
that the attorney for Dane County had "read [the transcript]
over twenty times."
¶69 Even if the circuit court determined that Mable K.
forfeited her right to a jury and granted a default judgment as
a sanction, Wis. Stat. § 805.03 limits the sanctions that a
circuit court may impose for failure to comply with court orders
to those that are "just." See also Indus. Roofing Servs., Inc.
v. Marquardt, 2007 WI 19, ¶43, 299 Wis. 2d 81, 726 N.W.2d 898.
In order for a sanction dismissing a civil case to be "just,"
the non-complying party must act "egregiously or in bad faith."
Id.; Schneller v. St. Mary's Hosp. Med. Ctr., 162 Wis. 2d 296,
311-12, 470 N.W.2d 873 (1991). The Shirley E. court applied
dismissal on the merits may be set aside by the court
on the grounds specified in and in accordance with s.
806.07. A dismissal not on the merits may be set aside
by the court for good cause shown and within a
reasonable time.
28
No. 2011AP825 & 2011AP826
that requirement to default judgments at fact-finding hearings
in termination of parental rights proceedings. 298 Wis. 2d 1,
¶13 n.3.
¶70 Where a circuit court concludes that a party's failure
to follow court orders, though unintentional, is "so extreme,
substantial and persistent" that the conduct may be considered
egregious, the circuit court may make a finding of
egregiousness. Hudson Diesel, Inc. v. Kenall, 194 Wis. 2d 531,
543, 535 N.W.2d 65 (Ct. App. 1995). Conversely, a party may
also act in bad faith, which by its nature cannot be
unintentional conduct. Id. To find that a party acts in bad
faith, the circuit court must find that the noncomplying party
"intentionally or deliberately" delayed, obstructed, or refused
to comply with the court order. Id.¶71 Although the circuit court at the postdisposition
motion hearing described Mable K.'s conduct as egregious and in
bad faith in retrospect, it made no reference to egregiousness
or bad faith when the default judgment finding that grounds
existed to terminate Mable K.'s parental rights was granted.
Likewise, there was no analysis as to whether Mable K.'s conduct
was "extreme, substantial and persistent." Hudson Diesel, 194
Wis. 2d at 543. Any analysis of whether Mable K.'s conduct
"intentionally or deliberately" delayed, obstructed, or refused
29
No. 2011AP825 & 2011AP826
to obey the court order is also absent from the record.16 Id.
Had the record clearly indicated that the default was imposed as
a sanction, then our analysis would be different.
¶72 Under these facts, the only fundamentally fair remedy
is a new fact-finding hearing. A new fact-finding hearing
honors the intent of the legislature by providing Mable K. with
heightened legal safeguards. Shirley E., 298 Wis. 2d 1, ¶24.
It provides Mable K. with the only remedy that can assure a fair
hearing that recognizes and enforces Mable K.'s statutory rights
to an attorney and to a jury. See Wis. Stat. § 48.01(1)(ad).
¶73 Additionally, a new fact-finding hearing avoids the
problems discussed above that are inherent in trying to renew
the fact-finding hearing in mid-stream. A new jury may be
empaneled if Mable K. chooses to demand one. Her new attorney
may act on her behalf unfettered by the events of the first part
of the fact-finding hearing that occurred approximately two
years in the past. Unlike the circuit court's remedy, a new
fact-finding hearing places the burden on Dane County to prove
the allegations in the amended petitions. We therefore conclude
that the circuit court's remedy is fundamentally unfair here.
V
¶74 In sum, we reverse and remand for a new fact-finding
hearing. We conclude, and the circuit court has acknowledged,
16
The dissent appears to conclude that Mable K.'s conduct
was "egregious" in failing to timely appear in court on the
second day of the fact-finding hearing. Dissent, ¶1. As we
previously stated, we need not and do not address the egregious
conduct argument. See supra note 8.
30
No. 2011AP825 & 2011AP826
that it erroneously exercised its discretion when it entered a
default judgment finding that grounds existed to terminate Mable
K.'s parental rights after barring her attorney from offering
additional evidence. It also erred when it granted the default
judgment before taking evidence sufficient to establish the
grounds alleged in the amended petitions. We further conclude
that the circuit court's remedy for correcting the errors is
fundamentally unfair under the facts of this case.17
¶75 Accordingly, we reverse and remand to the circuit
court for a new fact-finding hearing to be heard by a jury if
Mable K. timely demands one. On remand, the new fact-finding
hearing is to be held at the earliest reasonable opportunity.
By the Court.—The decision of the court of appeals is
reversed, and the cause is remanded to the circuit court for a
new fact-finding hearing.
17
If grounds for termination are found and Mable K. is
determined to be unfit at the fact-finding hearing, the matter
will then proceed to a dispositional hearing.
31
No. 2011AP825 & 2011AP826.akz
¶76 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). I
respectfully dissent from the majority opinion, which concludes
that the circuit court must hold an entirely new jury trial on
all of the issues in this case when it is Mable K. who is solely
responsible for her own egregious and volitional failure to
appear in court. Because of the majority's conclusion, a
circuit court's authority to enforce its orders is diminished, a
non-appearing party's behavior is rewarded, and at least two
children's lives continue to hang in the balance. Our system of
justice is designed to do better.
¶77 Mable K. chose not to come to court on the second day
of a fact-finding hearing in front of a jury. She knew when she
was to appear, but she chose not to follow the circuit court's
order. Accordingly, I conclude that the trial court did not
erroneously exercise its discretion when it vacated the default
judgment and instead, sanctioned Mable K. for her egregious
behavior by ordering that the remainder of the evidence would be
heard as a court trial. The circuit court was not unreasonable
in concluding that Mable K. relinquished the right to a jury
trial when she chose not to appear before the jury that had been
impanelled.
¶78 Curiously, the majority opinion rests its conclusions
on the hypothetical scenario of default judgment remaining in
place against Mable K. However, the default judgment was
vacated. It is not before this court. Nonetheless, the
majority opinion concludes that because default judgment once
was granted, the rules of State v. Shirley E., 2006 WI 129, 298
1
No. 2011AP825 & 2011AP826.akz
Wis. 2d 1, 724 N.W.2d 623, and Evelyn C.R. v. Tykila S., 2001 WI
110, 246 Wis. 2d 1, 629 N.W.2d 768, have been irreparably
violated. The majority opinion errs: first, by ducking the
issue this case actually presents, i.e., whether the circuit
court erroneously exercised its discretion by sanctioning Mable
K.'s egregious conduct by ordering that the trial be continued
as a bench trial; and second, by misapplying the opinions it
cites, given the facts of this case.
¶79 In short, the majority opinion is based on a factual
fiction that leaves a circuit court no ability to sanction a
party who egregiously disobeys a court order to appear for the
second day of a jury trial at which grounds for termination are
being adjudicated. Instead, the majority rewards such a party.
The majority's analysis leaves the tail wagging the dog.
¶80 I conclude that the circuit court reasonably exercised
its discretion when it vacated the default judgment and
sanctioned Mable K. for her egregious conduct by reconvening the
termination of parental rights (TPR) proceeding as a trial to
the court, rather than selecting a second jury to replace the
jury that would have heard the termination proceeding if Mable
K. had appeared.
¶81 I also conclude that under Evelyn C.R., when a default
judgment is reviewed, we are to determine whether the circuit
court heard sufficient evidence on the grounds in the petitions
before it granted default. Unlike Evelyn C.R., Dane County had
presented nearly all of the evidence in its case-in-chief before
the court sanctioned Mable K. by granting a default judgment due
2
No. 2011AP825 & 2011AP826.akz
to her failure to appear before the jury. I further conclude
that under Shirley E., Mable K.'s right to counsel was not
violated because her attorney substantively participated in the
proceedings.
¶82 There are and should be consequences for a party who,
without excuse, fails to appear for trial. Mable K. deserves a
fair trial, but these children deserve stability and security.
Isaiah H. and May K. remain innocent victims who now must wait
even longer for a conclusion in this matter. Instead of
considering that this case also involves two young children, the
majority accepts review of a non-final order and sends this case
back for the selection of a second jury to hear the TPR
proceeding. In so doing, the majority sends a message to
parties who do not like the way a trial is going: do not show up
for the second part of the trial. You get a "do over." The
manner in which the majority reaches this determination is
unprecedented and, for these reasons, I respectfully dissent.
I. THERE IS NO DEFAULT JUDGMENT TO REVIEW
¶83 Procedurally, Mable K.'s appeal is an attack on a non-
final order, and we should not have accepted review. The
majority opinion grants an entirely new jury trial when there
has been no final order in the case below.
¶84 The sanction currently before the court is the
continuation of the fact finding as a bench trial. This
sanction arose out of a fact-finding hearing that commenced on
September 13, 2010. Mable K. appeared for the first day of the
3
No. 2011AP825 & 2011AP826.akz
hearing.1 However, she chose not to appear at the time set for
the second day of the hearing, despite being court ordered to do
so and being verbally reminded when to appear. Because of her
choice, the circuit court initially entered default judgment
against Mable K., finding that there were grounds to terminate
her parental rights. The circuit court then scheduled a
dispositional hearing for January 3, 2011. At the dispositional
hearing, the circuit court terminated the parental rights of
Mable K., Wesley J., and Lee H.
¶85 After the dispositional hearing on January 3, 2011,
Lee H. and Mable K. both appealed; Wesley J. did not. The court
of appeals issued a decision upholding the termination of
parental rights for Lee H. The court of appeals remanded the
case to the circuit court to determine whether the circuit court
had erroneously entered default judgment against Mable K.
¶86 On remand, the circuit court (1) vacated the orders
terminating her parental rights,2 and (2) returned Mable K. back
to the fact-finding hearing, before default was granted. Mable
K. is currently in a position to have counsel represent her and
present evidence, testimony, and witnesses. No final fact
1
There are two parts to a TPR case. The first part is the
fact-finding hearing, where the jury or the court determines
whether there are grounds to terminate the parental rights.
Wis. Stat. § 48.424. The second part is a dispositional
hearing, where the court determines whether TPR is in the
child's best interest. Wis. Stat. § 48.427.
2
We do not pass judgment today on whether the trial court
was correct in its vacation of the order terminating Mable K.'s
parental rights.
4
No. 2011AP825 & 2011AP826.akz
finding has been completed, and no final order or judgment
exists because the circuit court vacated the default judgment.
¶87 Appeals in TPR cases, under Wis. Stat. § 809.107, can
be taken from "an order or judgment" under Wis. Stat. § 48.43.
Because there was no final order in place, the court of appeals
concluded that neither party could appeal as a matter of right,
and it was not "inclined to grant leave" to appeal. Cf. Wis.
Stat. § 808.03(1); Wick v. Mueller, 105 Wis. 2d 191, 195-98, 313
N.W.2d 799 (1982) (concluding that an order for a new trial in a
civil case is not appealable as a matter of right because it
does not dispose of the entire matter).
¶88 It is quite unusual, if not unprecedented, for this
court to take such an appeal in a TPR case, where there is no
order or judgment to review. Nonetheless, despite there being
no final order in place, the majority determines that Mable K.
is entitled to the extraordinary relief of a second jury to
replace the previous jury that Mable K. chose not to appear
before beyond the first day of testimony. Curiously, the
majority concludes that the circuit court "erroneously exercised
its discretion when it entered a default judgment" because the
default "depriv[ed] her of her statutory right to an attorney,"
and because the default was granted before Dane County
"establish[ed] the grounds alleged in the amended petitions."
See majority op., ¶¶51, 57.
¶89 By repeatedly discussing a default judgment that does
not exist, the majority opinion ducks the actual issue this case
presents, i.e., whether the circuit court erroneously exercised
5
No. 2011AP825 & 2011AP826.akz
its discretion in sanctioning Mable K.'s egregious conduct by
ordering that the trial will be continued as a bench trial.
II. FAMILY BACKGROUND
¶90 Notably absent from the majority opinion is any
meaningful discussion of the court record concerning the family
background, repeated attempts to reunite the children with their
mother, and failure of Mable K. to actively engage in the
children's upbringing. The majority opinion leaves Isaiah H.
and May K. to continue hanging in the balance, neglecting
appropriate consideration of the children's interests, and
instead, affords considerable accommodation to a parent who has
not engaged in her children's lives for years and who, without
any reasonable excuse, did not timely attend the second day of
the jury trial at which grounds to terminate her parental rights
were being adjudicated. According to the record before this
court, the lives of these children have hung in the balance for
far too long.
¶91 The majority opinion almost portrays Mable K. to be an
innocent victim of circumstance. A review of the record
reflects that she has had opportunity after opportunity to
parent these children. The record reflects that in January
2007, both of Mable K.'s sons, Samuel C.,3 age three, and Isaiah
H., age five and one-half at the time, were determined to need
3
Mable K.'s parental rights to Samuel C. were terminated in
a prior TPR case. The transcript in this case indicates that
Mable K. arrived three hours late to that proceeding.
6
No. 2011AP825 & 2011AP826.akz
care that no one could provide.4 The government placed both boys
in out-of-home care. May K., Mable K.'s third child, was placed
at her current foster home shortly after May K. was born in
November 2008, because Mable K. was allegedly not able to meet
her daughter's needs consistently or keep her safe. At the
hospital, staff members raised concerns about Mable K.'s ability
to care for a newborn.5 The social worker opined that Mable K.
would not be able to meet the demands of a newborn baby. May
K., now over four years old, has lived outside of her parental
home consistently since she was born.
¶92 All of the biological parents in this case have
significant criminal histories, which, in and of itself, is not
grounds for termination. However, the current record is replete
with allegations of their impaired ability to be available for
their children, and to provide for the children's basic needs,
stable housing, medical needs, and personal needs. Lee H., the
adjudicated father of Isaiah H., was incarcerated at the time
Isaiah H. was placed in foster care, and he was again
incarcerated in January 2010. He has six criminal convictions.
Mable K. has at least two previous convictions for forgery, and
4
Isaiah H.'s father, Lee H., has had very little direct
contact with Isaiah H., has been unavailable, and has been on
the run or incarcerated. After he was rearrested in January
2010, and placed in Dodge Correctional Institution, he had a
couple of phone contacts with a social worker in March and April
2010. His parental rights have been terminated and are not the
subject of this appeal.
5
The hospital staff observed Mable K. talking on the phone
and ignoring the baby. On one occasion, Mable K. left the
hospital room while the baby was in Mable K.'s hospital bed. It
seemed as if Mable K. forgot that the baby was there.
7
No. 2011AP825 & 2011AP826.akz
was on probation at the time her sons were placed in foster
care. Initially, Mable K. did not disclose the name of May K.'s
father, Wesley J., purportedly because she was concerned that
Dane County would judge him by his previous criminal record.
Wesley J. was convicted of second-degree sexual assault of a
child and several other violent crimes.6
¶93 The record before us reflects that Mable K. and her
family have had many contacts with the Dane County Department of
Human Services (Dane County) and have been the subject of
approximately 16 referrals to Dane County. In short, the
referrals alleged that the children were in need of protection
or services, that they had unaddressed health problems, and that
they were neglected.
¶94 As part of the services provided by Dane County, Mable
K. completed a psychological evaluation in 2007, and Dane County
attempted to provide her with mental health treatment. Mable K.
remains the only biological parent available to take care of the
two children at issue, as the parental rights of both biological
fathers have been terminated. The record indicates that on
numerous occasions, Mable K. would fail to show up for a
confirmed family contact or would simply cancel the family
contact. According to the court record, before the start of
this case on March 24, 2010, Mable K.'s last contact with her
children was on December 17, 2009. Following that date, she
purportedly missed three weekly, scheduled family contacts
6
Wesley J.'s parental rights have been terminated and are
not the subject of this appeal.
8
No. 2011AP825 & 2011AP826.akz
despite being told that she needed to have a meeting to discuss
the missed family contacts. Nonetheless, the record indicates
that she failed to request or arrange such a meeting, and her
excuse for not making the scheduled contacts was that she had
many appointments and that it was none of Dane County's business
what she was doing. At best, Mable K. has had sporadic contact
with her children.
¶95 According to Dane County, Mable K. did not make
consistent progress in meeting the specified court ordered
conditions for the return of her children. She did not make
appropriate planning for the children or work closely towards
permanent placement with the assigned Dane County social worker
or social service specialist. The reunification team was
involved with Mable K. and her children from mid-January 2009,
until April 23, 2009, at which time it was clear that Mable K.
was not ready for the children's transition to her full-time
care. Mable K. was unable to consistently and appropriately
address the children's emotional needs and challenging behavior.
During her time with her children, Mable K. appeared to be more
focused on meeting her own personal needs rather than those of
her children. Dane County explained that it attempted to avoid
terminating Mable K.'s parental rights. She was provided with
the opportunity to utilize a variety of resources, attend
meetings, participate in evaluations, attend court hearings, and
work with specialists to improve her parenting skills.
Nonetheless, the record reflects that Dane County filed two TPR
petitions on March 24, 2010, which alleged that both Isaiah H.
9
No. 2011AP825 & 2011AP826.akz
and May K. were children in need of protection or services
(CHIPS). An amended petition was filed on June 1, 2010, which
also alleged that both children had been abandoned.
¶96 Despite her repeated contact with the system and the
gravitas of the subject matter, on the second day of the jury
trial, Mable K. found it more important to "get me some
breakfast" because she was "real kind of sick" from the
proceedings and she "was just tired."
III. THE CIRCUIT COURT DID NOT ERR
A. The Conduct Was Egregious
¶97 The circuit court did not erroneously exercise its
discretion in concluding that Mable K. demonstrated egregious
conduct by failing to appear at the second day of the fact-
finding hearing. A sanction was warranted.
¶98 Notwithstanding that there is no default judgment to
review in this case, the majority relies on Evelyn C.R. to
support its conclusion that the default judgment was an improper
remedy. However, unlike the majority, I undertake an analysis
of whether a sanction was justified by Mable K.'s failure to
appear, and then I determine whether the circuit court
erroneously exercised its discretion when it sanctioned Mable K.
by continuing the TPR proceeding as a bench trial rather than
impanelling a second jury. This analysis leads me to conclude
that Mable K.'s conduct was egregious and that the circuit court
did not erroneously exercise its discretion in sanctioning Mable
K. by reconvening the TPR proceeding as a trial to the court,
rather than selecting a new jury to replace the jury that would
10
No. 2011AP825 & 2011AP826.akz
have heard the termination proceeding if Mable K. had timely
appeared.
¶99 A circuit court has inherent and statutory power to
sanction parties who fail to obey court orders. Evelyn C.R.,
246 Wis. 2d 1, ¶17. Under this authority, a circuit court may
sanction a party who fails to comply with a court order.7 Id.The decision to sanction a party is within the sound discretion
of the circuit court. Id., ¶18; Oostburg State Bank v. United
Sav. & Loan Ass'n, 130 Wis. 2d 4, 11, 386 N.W.2d 53 (1986). An
appellate court reviews a circuit court's discretionary
determination for an erroneous exercise of discretion. Evelyn
C.R., 246 Wis. 2d 1, ¶18. A reviewing court will affirm the
circuit court's exercise of discretion if the circuit court has
examined the relevant facts, has applied a proper standard of
law, and has used a demonstrated, rational process to reach a
conclusion that a reasonable judge could reach. Loy v.
Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982).
¶100 Before a circuit court may sanction a party who failed
to comply with a court order, the party's conduct must be
7
Wisconsin Stat. § 802.10(7), "Sanctions," provides that
"[v]iolations of a scheduling or pretrial order are subject to
ss. 802.05, 804.12 and 805.03." Wisconsin Stat. § 805.03,
"Failure to prosecute or comply with procedure statutes,"
provides in part: "[F]or failure of any party to . . . obey any
order of court, the court in which the action is pending may
make such orders in regard to the failure as are just, including
but not limited to orders authorized under s. 804.12(2)(a)."
Wisconsin Stat. § 804.12(2)(a)3., "Failure to comply with
order," gives the court the power to provide "just" sanctions
for failure to obey an order, including "rendering a judgment by
default against the disobedient party."
11
No. 2011AP825 & 2011AP826.akz
egregious or in bad faith. Shirley E., 298 Wis. 2d 1, ¶13 n.3.
Failure to comply with a circuit court scheduling order without
a clear and justifiable excuse is egregious conduct. Indus.
Roofing Servs., Inc. v. Marquardt, 2007 WI 19, ¶43, 299
Wis. 2d 81, 726 N.W.2d 898. "Egregious" conduct has been
defined as "extreme, substantial, and persistent." Id. While
the record on appeal must reflect the circuit court's reasoned
application of the appropriate legal standard to the relevant
facts, an appellate court need not remand for such a
determination if the circuit court's finding was implicit.
Englewood Cmty. Apartments Ltd. P'ship v. Alexander Grant & Co.,
119 Wis. 2d 34, 39 n.3, 349 N.W.2d 716 (Ct. App. 1984) ("[A]
remand directing the trial court to make an explicit finding
where it has already made unmistakable but implicit findings to
the same effect would be both superfluous and a waste of
judicial resources.").
¶101 After Dane County filed the petition to terminate her
parental rights, Mable K. was ordered to appear personally at
all proceedings in this case by a court order dated May 24,
2010. Nearly six months later, a fact-finding hearing before a
jury commenced on September 13, 2010. Mable K. appeared for the
first day of the jury trial, but chose not to appear for the
second day of trial at the time when she was instructed to
appear.
¶102 Mable K. is not an innocent victim of circumstance who
was unfairly sanctioned. The circuit court entered an order
requiring that Mable K. personally appear at all hearings. The
12
No. 2011AP825 & 2011AP826.akz
circuit court took extra effort to remind her at the conclusion
of the first day of trial to be in court the next day before 9
a.m. Mable K. ignored the circuit court's directive and did not
come to court at 9 a.m. to defend herself in a matter where her
children could be taken away forever.
¶103 The circuit court and counsel undertook efforts to get
her to court. She did not come to court when she was instructed
to be there or even when she said that she would be there. When
she did not show, the circuit court, the jury, and counsel
waited for her.
¶104 Specifically, her attorney (Attorney Lehner), who had
talked with Mable K. earlier that morning, later called her to
persuade her to come to court. Mable K. told Attorney Lehner
that she would ride her bike to court and be there within a
half-hour, by 9:45 a.m. By 10:35 a.m., she still had not
arrived. At that point, the circuit court concluded that a
sanction was warranted, and it found Mable K. in default on both
of the allegations, CHIPS and abandonment.8
8
This court has previously rejected the argument that a
parent has an absolute right to a jury trial under the TPR
statutes. Steven V. v. Kelley H., 2004 WI 47, ¶33, 271
Wis. 2d 1, 678 N.W.2d 856. A parent's right to a jury trial in
TPR proceedings is statutory, not constitutional. Id., ¶4.
Because TPR proceedings are civil in nature, the general rules
of civil procedure are applicable unless Chapter 48 of the
Wisconsin Statutes provides a more specific rule. See id., ¶32.
The court in Steven V. concluded:
The circuit court, however, is always responsible for
conclusions of law, as is specifically recognized in
the TPR statutes. See Wis. Stat. § 48.31(4). If a
motion for summary judgment is made and supported as
prescribed by Wis. Stat. § 802.08, the circuit court
may properly conclude at the fact-finding hearing that
13
No. 2011AP825 & 2011AP826.akz
¶105 At approximately 10:45 a.m., nearly two hours late,
Mable K. finally arrived and counsel moved for relief from the
default judgment. The circuit court allowed Mable K. to testify
about why she did not appear, and she stated that she was "real
kind of sick" from the proceedings, she "was just tired," and
she wanted to "get me some breakfast." She acknowledged that
Attorney Lehner warned her of the consequences of failing to
appear. Mable K. said that she did not sleep well and had just
woken up around 9 a.m. She testified that she knew she needed
to be at the court by 9 a.m.
¶106 In its initial decision, the circuit court did not
explicitly use the word "egregious," but a review of the record
there is no genuine issue of material fact in dispute
and the moving party is entitled to partial summary
judgment on parental unfitness as a matter of law.
See Wis. Stat. § 802.08(2).
Id., ¶34. Further, several cases have concluded that a directed
verdict pursuant to Wis. Stat. § 805.14(4) applies to TPR
proceedings. Id., ¶32 (citing Door Cnty. DHFS v. Scott S., 230
Wis. 2d 460, 465, 602 N.W.2d 167 (Ct. App. 1999); J.A.B. v.
Waukesha Cnty. Human Servs. Dep't, 153 Wis. 2d 761, 765, 451
N.W.2d 799 (Ct. App. 1989)). See also Wis. Stat. § 971.04(3)
(stating that if defendant is present at beginning of criminal
jury trial, then voluntarily absents himself, the trial may
proceed without the defendant).
It is also interesting to note that only five states
currently allow jury trials in TPR cases. See Wis. Stat.
§ 48.31(2); Tex. Fam. Code Ann. § 105.002 (West 2012); Okla.
Stat. Ann. tit. 10A, § 1-4-502 (West 2012); Wyo. Stat. Ann.
§ 14-2-312 (West 2012); Va. Code Ann. § 16.1-296 (West 2012);
Linda Szymanski, Is a Jury Trial Ever Available in a Termination
of Parental Rights Case?, National Center for Juvenile Justice
Snapshot, March 2011, Vol. 16, No. 3; James L. Buchwalter,
Annotation, Right to Jury Trial in Child Neglect, Child Abuse,
or Termination of Parental Rights Proceedings, 102 A.L.R. 5th
227 (2002).
14
No. 2011AP825 & 2011AP826.akz
makes clear that the court did find her conduct to be egregious.
Our court does not require a circuit court to use "magic words"
when undertaking a legal analysis and in making findings.
Englewood, 119 Wis. 2d at 39 n.3. Furthermore, the court did
find that Mable K. was not credible. The court considered her
excuses but also noted that Mable K. previously arrived three
hours late in the TPR proceeding for her son Samuel C. Indeed,
at a hearing on August 26, 2011, the circuit court judge stated:
It was and, frankly, still is evident to this
Court on this record in this Court's view that it is
an egregious violation of the Court order given the
fact that it was orally issued to Ms. K., it was given
to her in written form, she is in a jury
trial, . . . the fact that she was reminded when the
Court concluded its proceedings the first day of trial
on the 13th that she needed to be here a little bit
before 9:00, this is egregious to the Court and it is
without justifiable basis. It's either egregious or
in bad faith . . . but definitely I don't think you
even need to use those magic words for those things to
in fact be true.
¶107 I agree with the circuit court that Mable K.'s conduct
was deserving of a sanction. Although the court did not use the
word "egregious" initially, the record reflects that the court
found her conduct to be egregious. The circuit court did not
erroneously exercise its discretion when it sanctioned Mable K.
for her failure to appear.
¶108 The record reflects that the circuit court made
several findings to support the sanction for her egregious
behavior. The court cited to the following facts: that the
order dated May 24, 2010, required Mable K. to appear personally
at all hearings; that at the end of the first day of the fact-
15
No. 2011AP825 & 2011AP826.akz
finding hearing, the court informed all parties that they needed
to be in court shortly before 9 a.m. on the next day; that she
had shown up late to a previous TPR proceeding; and that the
court did not find her explanation about why she could not have
followed the court order credible. In short, Mable K. failed to
demonstrate any credible reason for her failure to appear at the
time set by the court.
¶109 I conclude that Mable K.'s actions were especially
egregious in the context of a TPR trial.9 It took nearly six
months from the time the TPR petition was filed until the time
of the trial. The circuit court held eight hearings before the
first day of trial, including several hearings based on the
petitions, two pretrial conferences, and two motion hearings.
The circuit court and the parties all completed substantial
pretrial work, much of which is now rendered void by the
majority opinion. In addition to the large amount of pretrial
work, there was a full day of the fact-finding hearing before
Mable K. failed to follow the court's order.10
¶110 Mable K. was the witness her attorney would have
called, but her failure to appear precluded her attorney from
presenting her testimony in an attempt to rebut evidence
9
A circuit court may grant a default judgment in a TPR
proceeding for a non-appearing party if, inter alia, there is
sufficient evidence to support the grounds for the petition and
the default does not violate the party's statutory right to
counsel. See infra, parts III.B. and III.C.
10
The transcripts in this case total 587 pages from the
time the petition was filed though the first day of the fact-
finding hearing.
16
No. 2011AP825 & 2011AP826.akz
presented in support of the petitions to terminate her parental
rights.11 The court and the jury were not required to wait until
Mable K. chose to arrive. Mable K.'s conduct was egregious, and
a sanction was appropriate. If Mable K. valued a jury trial,
she should have appeared for the second day of the trial. That
the court chose not to put Dane County to the expense of
impanelling a second jury, and instead chose to conclude the
fact-finding hearing as a bench trial, is within the circuit
court's discretion.
B. Majority Opinion Errs In Its Analysis Of Evelyn C.R.
¶111 The majority claims to rely on Evelyn C.R. to support
its determination that a second jury must be impanelled and the
trial to begin anew. In my view, because the circuit court had
a significant evidentiary record before it, the court did not
violate the rule of Evelyn C.R.
¶112 In Evelyn C.R., we held that "the circuit court had
the duty at the fact-finding hearing to find by clear and
convincing evidence that all of the elements" of the allegations
11
At the postconviction motion hearing on August 16, 2011,
Attorney Lehner testified that she intended to call Mable K. to
rebut both grounds for termination of her rights that were set
out in the petition. Attorney Lehner also testified that she
intended to cross-examine Joyce Brown to rebut the CHIPS claim,
but Brown was never called as a witness in the fact-finding
hearing. The petitioners rested the case as to Mable K. after
the testimony of Brenda Blank and Mike Boehm, and Attorney
Lehner was allowed to cross-examine both of these witnesses.
Further, Dane County asked Attorney Lehner if she would have
called any other witnesses on her witness list during the fact-
finding hearing, and she stated that she would have called the
social workers if the other parties had not already called them.
She did not name any other witnesses that she was prevented from
calling to testify.
17
No. 2011AP825 & 2011AP826.akz
in the petition are met. 246 Wis. 2d 1, ¶24. In Evelyn C.R.,
the court did not hold a fact-finding hearing. Id., ¶9.
Instead, the court granted default against the mother, Tykila
S., for failure to appear personally, finding her unfit based
solely upon allegations in the petition. Id. In Evelyn C.R.,
the circuit court "had no evidentiary basis to support its
finding of abandonment." Id., ¶24.
¶113 By contrast, in Mable K.'s case, the circuit court
heard evidence supporting the CHIPS and abandonment claims
before it decided to sanction Mable K. Dane County had
presented evidence at trial, which was tested by Attorney
Lehner's cross-examination. The circuit court made explicit
findings that Mable K. was unfit on both grounds. If no further
testimony was taken, it is because Mable K. did not come to
court to be her own witness. The procedural posture of Evelyn
C.R. is clearly distinguishable from the posture of this case at
the time that Mable K. was sanctioned by the circuit court.
¶114 For example, unlike Evelyn C.R., the circuit court
heard substantial testimony against Mable K., nearly all of Dane
County's case-in-chief.12 On the first day of the fact-finding
12
To establish a CHIPS claim under Wis. Stat.
§ 48.415(2)(a) "Continuing need of protection or services," the
petitioner must prove the following:
1. That the child has been adjudged to be a
child . . . in need of protection or services and
placed, or continued in a placement, outside his or
her home pursuant to one or more court orders under s.
48.345 . . . containing the notice required by s.
48.356(2);
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No. 2011AP825 & 2011AP826.akz
hearing, before default was an issue, the circuit court heard
testimony from Brenda Blank (Blank), Mable K.'s case worker.
First, during Blank's testimony, Dane County introduced orders
adjudging both Isaiah H. and May K. as children in need of
protection or services and placing them outside of Mable K.'s
home. The orders, which were entered as exhibits, contained the
notice required by Wis. Stat. § 48.356(2). Second, Blank
testified that Dane County "definitely did" make a reasonable
effort to provide the services ordered by the court. For
example, Mable K. received one-on-one parent education and
support, was assigned a social service specialist, worked with a
family reunification team, and worked with Blank on specific
tasks she could complete to meet the conditions of return.
Third, Blank testified that both children had spent more than
six months outside of Mable K.'s home. May K. has been
continuously outside of the home since she was born, in November
of 2008. Isaiah H. has been continuously outside of the home
since 2007. Finally, Blank testified that Mable K. "will
2. That the agency responsible for the care of the child
and the family . . . has made a reasonable effort to
provide the services ordered by the court;
3. That the child has been outside the home for a
cumulative total period of 6 months or longer pursuant
to such orders; and
4. That the parent has failed to meet the conditions
established for the safe return of the child to the
home and there is a substantial likelihood that the
parent will not meet these conditions within the 9-
month period following the fact-finding hearing under
s. 48.424.
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No. 2011AP825 & 2011AP826.akz
absolutely not" meet the conditions for return within nine
months of the fact-finding hearing. Blank testified that Mable
K. failed to meet a majority of the conditions of return,
including maintaining housing, showing interest in the children,
maintaining regular visits without canceling, showing that she
could properly care for the children, and staying in touch and
cooperating with the social worker. Mable K.'s counsel cross-
examined Blank.
¶115 The circuit court also heard evidence of the grounds
of abandonment13 before it decided to sanction Mable K. The
CHIPS orders introduced during Blank's testimony satisfy the
first element of abandonment. Further, it is notable that after
Dane County moved for a default against Mable K., the court
stated, "I need to have Mr. Boehm on the stand . . . to make the
findings related to default on Ms. K. on the abandonment
ground." Dane County then called Michael Boehm to testify on
the abandonment ground. Boehm testified that Mable K. had
failed to communicate with her children for more than three
months before the petitions to terminate her parental rights
were filed, which satisfies the second element of abandonment.
Boehm was also subject to cross-examination by Mable K.'s
counsel.
13
One way to establish an abandonment claim under Wis.
Stat. § 48.415(1), is for the petitioner to prove:
1. That the child has been placed, or continued in a
placement, outside the parent's home by a court order
containing the notice required by s. 48.356(2) . . . ,
and
2. [That] the parent has failed to visit or communicate
with the child for a period of 3 months or longer.
20
No. 2011AP825 & 2011AP826.akz
¶116 Unlike Evelyn C.R., wherein the court heard no
evidence, the circuit court here heard nearly all of Dane
County's evidence——evidence that was subject to cross-
examination——on both grounds before it found Mable K. unfit and
sanctioned her. Indeed, "[i]f grounds for the termination of
parental rights are found by the court or jury, the court shall
find the parent unfit." Wis. Stat. § 48.424(4) (emphasis
added).
¶117 The majority opinion unnecessarily extends the rule in
Evelyn C.R. such that it undermines the role of a circuit court
in TPR proceedings. The majority opinion does not evaluate the
evidence, does not give proper deference to the circuit court's
exercise of its discretion, and ultimately does not evaluate
whether grounds were established.
¶118 According to the record, Mable K., the absent parent,
had the opportunity to present testimony to rebut the evidence
that was presented on the grounds alleged as the basis for
finding her unfit. She chose not to come to court where a jury
had been impanelled, and it is not her attorney's fault that no
other witnesses testified that day.
¶119 The majority opinion unnecessarily undercuts a circuit
court's authority to sanction a non-appearing parent by trying
the case to the court rather than impanelling a second jury.
The majority opinion does so because it never analyzes whether
the sanction the circuit court chose was within its discretion.
Cf. Shirley E., 298 Wis. 2d 1, ¶70 (Prosser, J., concurring)
("[T]his court's decision to protect a parent who did not care
21
No. 2011AP825 & 2011AP826.akz
enough to appear and defend herself, seriously undercuts the
authority of circuit judges to enforce their orders.").
Instead, the majority opinion pretends that the default judgment
that has been vacated still exists.
¶120 Not only is giving Mable K. a second jury trial
unjustified, but it fails to consider the children's interests.
The negative impact the majority opinion has on May K. and
Isaiah H. adds insult to injury. After all, these children have
not lived with their biological mother for years. This petition
was filed nearly three years ago, on March 24, 2010, and was
filed based on allegations that these children are in need of
protection or services and that they have been abandoned by
Mable K. and the biological fathers. The children must now wait
even longer to resolve their family status. It is not Mable K.
who was treated unfairly in these proceedings, it is her
children.
C. Majority Opinion Errs In Its Analysis Of Shirley E.
¶121 The majority opinion also concludes that Mable K. was
deprived on her statutory right to counsel under the rule of
Shirley E. See majority op., ¶51. However, unlike Shirley E.,
Mable K. had a lawyer and still has a lawyer. It is clear from
the record that counsel was a zealous advocate for Mable K.
throughout the pretrial proceedings and at trial. Counsel
vigorously advocated for Mable K. even after she did not appear.
Even now, Mable K. and her lawyer can mount a defense at the
unfinished trial. Because the circuit court vacated the default
judgment, the case awaits conclusion at the continued trial.
22
No. 2011AP825 & 2011AP826.akz
¶122 The majority relies on Shirley E. to conclude that
Mable K. was wrongfully deprived of counsel and a second jury
trial is required. Notably, however, the procedural posture in
Shirley E. and the procedural posture of the case today are
quite different. In Shirley E., the court granted a default
against Shirley E. because she violated a court order personally
to appear. 298 Wis. 2d 1, ¶13. However, unlike counsel for
Mable K., counsel for Shirley E. was not allowed to participate
in any way at the hearings. Id., ¶18. This court held that the
circuit court violated Shirley E.'s statutory right to counsel
because it granted a default judgment against her and also
dismissed Shirley E.'s counsel from the fact-finding and
dispositional hearing before any evidence was taken. Id., ¶56.
Without counsel or Shirley E. present, the court found that
Shirley E. was unfit, and it terminated her parental rights.
¶123 Simply stated, Shirley E. involved a total denial of
counsel at the fact-finding and dispositional phases, which is
not even remotely similar to the facts presented in this case.
To be clear, Mable K. chose not to follow the court's order that
she appear by 9 a.m. Instead, she slept late, stayed home, and
ate breakfast, all the time knowing that she was required to be
in court for the continuation of her trial where she was to be
her own witness. Mable K. should be required to live with the
consequences of the choices she made that morning. Mable K.
absented herself from the trial, and because counsel had no
other scheduled witnesses until the third day of trial,
anticipating that Mable K.'s testimony would fill the second day
23
No. 2011AP825 & 2011AP826.akz
of trial, Mable K. created the problem of counsel having no one
to call on the second day of trial. See supra note 11.
¶124 Moreover, unlike Shirley E., Mable K.'s attorney did
participate substantively in pretrial matters and at the
hearings. On the first day of the fact-finding hearing, counsel
gave an opening statement that summarized why Mable K. should
not be found unfit. Also on the first day of the hearing, Dane
County presented testimony of Brenda Blank, one of Mable K.'s
case workers. During that testimony, Attorney Lehner objected
to hearsay at least five times and her objections were sustained
several times. On the second day of the hearing, even though
Mable K. was not present, the trial continued. Attorney Lehner
cross-examined Blank, who testified regarding the CHIPS claim.
Later in the hearing, Attorney Lehner cross-examined Dane
County's witness Michael Boehm, a social service specialist, who
testified regarding the abandonment claim.
¶125 After Mable K. arrived, the circuit court allowed her
to testify as to why she was late, and Attorney Lehner argued on
Mable K.'s behalf that the circuit court should vacate the
default judgment. Counsel was present and vigorously defended
Mable K. with respect to the sanction imposed. After Mable K.'s
testimony, the circuit court asked Attorney Lehner whether she
had any further evidence or witnesses to present. Attorney
Lehner responded that she did not. The circuit court did not
take further evidence against Mable K.; Dane County and the
guardian ad litem rested immediately after Mable K. testified.
24
No. 2011AP825 & 2011AP826.akz
¶126 Mable K. and Attorney Lehner appeared at the
dispositional hearing on January 3, 2011, where Attorney Lehner
once again cross-examined Dane County's witnesses. At the end
of one witness's testimony, the circuit court asked Attorney
Lehner if she had further questions, and she responded that she
did not. The circuit court then asked all of the parties if
they had any further evidence that they would like to produce,
and Attorney Lehner responded "No, Your Honor."
¶127 Unlike in Shirley E., where the circuit court
dismissed Shirley E.'s attorney from the courtroom before any
evidence was presented, Attorney Lehner actively participated in
the trial and vigorously defended Mable K.'s actions. Based on
the extensive participation of Attorney Lehner in this case, I
would conclude that Mable K.'s right to counsel was not violated
under the standards this court set in Shirley E.14
¶128 For the foregoing reasons, I conclude that the circuit
court did not err; accordingly, I respectfully dissent.
¶129 I am authorized to state that Justices PATIENCE DRAKE
ROGGENSACK and MICHAEL J. GABLEMAN join this dissent.
14
At the Machner hearing, Attorney Lehner testified that
she did not have witnesses available and that Mable K.'s absence
left her without any viable witnesses through which she could
present evidence. Counsel testified that she did not have
advanced notice that Mable K. would not appear. If trial
counsel was left with no option, that was Mable K.'s own doing.
Mable K. testified that Attorney Lehner had explained the
effects of a default judgment. In other words, Mable K. created
her own prejudice by failing to appear.
25