State v. A. M. Y.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 26, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP1162 Cir. Ct. No. 2023TP2

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE TERMINATION OF PARENTAL RIGHTS TO Y.R.C.Y,
A PERSON UNDER THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

A.M.Y.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Columbia County:
W. ANDREW VOIGT, Judge. Reversed.
No. 2024AP1162

¶1 TAYLOR, J.1 A.M.Y. appeals an order terminating her parental
rights to her biological daughter Y.R.C.Y. She argues that the circuit court
erroneously exercised its discretion by granting default judgment against her as to
grounds for termination. I conclude that the court erroneously exercised its
discretion by failing to take evidence sufficient to show that grounds for
termination existed prior to granting default judgment, and that the State has failed
to show that the error was harmless. Accordingly, I reverse.

BACKGROUND

¶2 A.M.Y. gave birth to Y.R.C.Y. on August 20, 2021. Six days later,
the child was removed from A.M.Y.’s home and placed in foster care with the
child’s maternal grandparents. A CHIPS action was commenced, and in
February 2022, the child was adjudicated to be in need of protection and services.
The court imposed conditions on the return of the child to A.M.Y.2

¶3 In March 2023, the State petitioned to terminate A.M.Y.’s parental
rights to the child.3 Involuntary termination of parental rights (“TPR”) cases
follow a “two-part statutory procedure.” Steven V. v. Kelley H., 2004 WI 47, ¶24,
271 Wis. 2d 1, 678 N.W.2d 856. “In the first [fact-finding], or ‘grounds’ phase of
the proceeding, the petitioner must prove by clear and convincing evidence that

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
“CHIPS” is a commonly used acronym for “child in need of protection or services.”
Eau Claire Cnty. DHS v. S.E., 2021 WI 56, ¶1, 397 Wis. 2d 462, 960 N.W.2d 391. The
dispositional order in the CHIPS case was not included in the record for this case.
3
The State also petitioned to terminate the parental rights of Y.R.C.Y.’s biological
father, and his parental rights were ultimately terminated.

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No. 2024AP1162

one or more of the statutorily enumerated grounds for termination of parental
rights exist.” Id.; WIS. STAT. § 48.31(1). If so, the court then proceeds to the
second, or “dispositional” phase, in which it decides whether it is in the best
interests of the child that the parent’s rights be terminated. Steven V., 271 Wis. 2d
1, ¶27; WIS. STAT. § 48.426(2). The State’s petition sought to terminate A.M.Y.’s
parental rights on two grounds: that A.M.Y. had failed to meet return conditions
and therefore the child was in continuing need of protection or services; and that
A.M.Y. had failed to assume parental responsibility. See WIS. STAT.
§ 48.415(2)(a), (6).

¶4 An initial hearing was set for March 28, 2023. Eight days before the
hearing, the circuit court received a letter from A.M.Y. seeking a continuance to
obtain counsel. In reply, the register of probate sent A.M.Y. a letter directing her
to contact the state public defender’s office and informing her that she would need
to appear in person at the hearing to request a continuance.

¶5 At the initial hearing, A.M.Y. did not appear personally or by
counsel. However, she had not yet been formally served with the TPR action.
The circuit court granted a continuance to allow the State to serve A.M.Y. A.M.Y.
was eventually served by publication on May 11, 2023.

¶6 At the rescheduled initial hearing on May 19, 2023, A.M.Y. again
did not appear personally or by counsel. The circuit court noted that, prior to the
hearing, A.M.Y. had called the court asking for more time to obtain counsel. The
State moved for default judgment based on A.M.Y.’s nonappearance, and the
court entered a default judgment against A.M.Y. as to the grounds for termination.
The court did not take any evidence or make a finding that grounds for termination
existed before granting the default judgment. See Evelyn C.R. v. Tykila S., 2001

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No. 2024AP1162

WI 110, ¶24, 246 Wis. 2d 1, 629 N.W.2d 768 (prior to granting default as to
grounds for termination of parental rights, the court must first take evidence
sufficient to show that grounds for termination existed).

¶7 Three days later, counsel was appointed to represent A.M.Y.
Through counsel, A.M.Y. moved to vacate the default judgment. The circuit court
denied her motion.

¶8 On January 30, 2024, the circuit court held a dispositional hearing.
At the hearing, the social worker assigned to the case testified as to the statutory
best interest factors governing disposition under WIS. STAT. § 48.426(3), and the
parties presented arguments as to whether termination was in the best interests of
the child. At the conclusion of the hearing, the court granted the petition to
terminate A.M.Y.’s parental rights. The court did not address the issue of grounds
for termination in its oral ruling. In its written order terminating A.M.Y.’s
parental rights after the dispositional hearing, however, the court checked boxes
indicating that grounds existed for the TPR. A.M.Y. appeals.

DISCUSSION

¶9 A.M.Y. argues, among other things, that the circuit court
erroneously exercised its discretion by granting default judgment against her at the
grounds phase without first taking evidence sufficient to show that grounds for

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No. 2024AP1162

termination existed.4 For the reasons explained below, I agree, and I conclude that
this error requires reversal because the State has not shown that the error was
harmless.

¶10 “A judicial proceeding terminating parental rights implicates a
parent’s fundamental rights,” which include “the parent’s interest in the
companionship, care, custody, and management of his or her child.” T.M.F. v.
Children’s Serv. Soc’y of Wis., 112 Wis. 2d 180, 184, 332 N.W.2d 293 (1983).
During the grounds phase of a TPR proceeding, “the parent’s rights are
paramount.” Evelyn C.R., 246 Wis. 2d 1, ¶22. “To protect these rights from
erroneous termination,” the petitioner must prove that grounds for the termination
of parental rights exist by “clear and convincing evidence.” Id., see also WIS.
STAT. § 48.31(1). This requirement derives both from § 48.31(1) and the Due
Process Clause of the Fourteenth Amendment to the United States Constitution.5
Evelyn C.R., 246 Wis. 2d 1, ¶¶21-22.

4
A.M.Y. also argues that the circuit court’s grant of default was an erroneous exercise of
discretion under WIS. STAT. § 805.03, which permits the court to sanction a party’s failure to
obey a court order by “mak[ing] such orders in regard to the failure as are just.” In response, the
State contends that the court’s grant of default was proper under WIS. STAT. § 806.02, which,
among other things, permits a court to grant default judgment “if no issue of law or fact has been
joined on any claim asserted in a complaint, counterclaim, or cross claim and if the time for
joining issue has expired.” Sec. 806.02(1). Because I reverse on other grounds, I do not consider
whether the court had authority to grant the default under either statute. See Barrows v.
American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (“An appellate
court need not address every issue raised by the parties when one issue is dispositive.”).
5
In pertinent part, WIS. STAT. § 48.31(1) states that a “‘fact-finding hearing’ means a
hearing to determine if the allegations in a petition … to terminate parental rights are proved by
clear and convincing evidence.” The Due Process Clause of the Fourteenth Amendment to the
United States Constitution provides that no State may “deprive any person of life, liberty, or
property, without due process of law.” U.S. CONST. amend. XIV, § 1.

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No. 2024AP1162

¶11 Default judgment as to the grounds for termination is available in
TPR proceedings. See Steven V., 271 Wis. 2d 1, ¶32 (the rules of civil procedure
generally apply in TPR proceedings, including rules permitting default judgment).
“The decision whether to enter a default judgment is a matter within the sound
discretion of the circuit court.” Evelyn C.R., 246 Wis. 2d 1, ¶18. However,
before granting default judgment as to grounds, a court has a “duty under the
Fourteenth Amendment and [WIS. STAT. ch.] 48 … to support a finding by clear
and convincing evidence” that grounds for termination exist. Id., ¶26. A court
erroneously exercises its discretion if it fails to do so. Id., ¶19.

¶12 Here, the State does not respond to A.M.Y.’s argument that the
circuit court erred by granting default judgment against her without first taking
evidence sufficient to show that grounds for termination existed. I take this lack
of response by the State as a concession that the court erred. See United Coop. v.
Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578
(An appellant’s failure to respond in its reply brief to argument made in a response
brief may be taken as concession.). Y.R.C.Y’s guardian ad litem (“GAL”)
submitted a brief in this appeal arguing against reversal, and the GAL expressly
concedes this issue.6 I therefore assume without deciding that the court
erroneously exercised its discretion by failing to take evidence sufficient to
support a finding that grounds for termination existed prior to its grant of the
default judgment under Evelyn C.R. However, such an error does not necessarily

6
See WIS. STAT. § 767.407(1), (4) (in this context, a GAL is an attorney appointed by
the circuit court to represent a minor child and to advocate for the child’s best interests).

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No. 2024AP1162

require reversal, and may be harmless.7 See Evelyn C.R., 246 Wis. 2d 1, ¶¶27-32
(applying a harmless error analysis).

¶13 An error requires reversal only if it affects the “substantial rights of
the party.” WIS. STAT. § 805.18(2). An error affects a party’s substantial rights if
there is “a reasonable possibility that the error contributed to the outcome of the
action or proceeding at issue.” Evelyn C.R., 246 Wis. 2d 1, ¶28. “If the error at
issue is not sufficient to undermine the reviewing court’s confidence in the
outcome of the proceeding, the error is harmless.” Id. The beneficiary of the error
bears the burden to show that the error was harmless. See State v. Denton, 2009
WI App 78, ¶24, 319 Wis. 2d 718, 768 N.W.2d 250.

¶14 In Evelyn C.R., the circuit court entered a default judgment at the
grounds phase of a TPR proceeding without first taking evidence sufficient to
support such a finding. Evelyn C.R., 246 Wis. 2d 1, ¶¶24-26. Although our
supreme court determined that this was an erroneous exercise of discretion, it
nonetheless affirmed the termination of parental rights because the record
provided a factual basis to support the court’s finding of grounds for termination.
Id., ¶32. Our supreme court noted that the circuit court did not enter its order
terminating parental rights until after taking testimony which contained sufficient
facts to support a finding that grounds for termination existed, and that the circuit
court expressly reaffirmed its finding that there were grounds for termination after
taking this testimony. Id., ¶¶33-34. Accordingly, under the circumstances, the

7
Certain errors are “structural” and are not subject to a harmless error review. See State
v. C.L.K., 2019 WI 14, ¶12, 385 Wis. 2d 418, 922 N.W.2d 807. A structural error “either affects
the entire proceeding, or affects it in an unquantifiable way.” Id., ¶15. A.M.Y. does not dispute
that a harmless error analysis applies to the error at issue here, and so I address this issue no
further.

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No. 2024AP1162

error did not undermine “confidence in the outcome of the … proceeding” and
was harmless. Id., ¶35.

¶15 Here, the State identifies certain testimony by the social worker at
the dispositional hearing and asserts that this testimony satisfies the ground of
failure to assume parental responsibility; however, the State does not appear to
make any express argument as to how the social worker’s testimony renders the
circuit court’s error harmless. Instead, the State appears to instruct this court to
search the record to make its argument pursuant to Evelyn C.R. The State does
not adequately develop an argument as to why the court’s error was harmless. See
State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (this court
need not address undeveloped arguments); Industrial Risk Insurers v. American
Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (this
court “will not abandon [its] neutrality to develop arguments” for a party).

¶16 Even addressing the harmless error argument that the State may
intend to make, this argument is unpersuasive. The ground of failure to assume
parental responsibility requires the petitioner to prove that the parent has “not had
a substantial parental relationship with the child.” WIS. STAT. § 48.415(6)(a).

“[S]ubstantial parental relationship” means the acceptance
and exercise of significant responsibility for the daily
supervision, education, protection and care of the child. In
evaluating whether the person has had a substantial parental
relationship with the child, the court may consider such
factors, including, but not limited to, whether the person
has expressed concern for or interest in the support, care or
well-being of the child, whether the person has neglected or
refused to provide care or support for the child and
whether, with respect to a person who is or may be the
father of the child, the person has expressed concern for or
interest in the support, care or well-being of the mother
during her pregnancy.

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No. 2024AP1162

Sec. 48.415(6)(b). This statutory language requires the fact finder to “look to the
totality-of-the-circumstances to determine if a parent has assumed parental
responsibility,” considering “the circumstances that have occurred over the
entirety of the child’s life” within the relevant time period. Tammy W-G. v.
Jacob T., 2011 WI 30, ¶22, 333 Wis. 2d 273, 797 N.W.2d 854.

¶17 The only facts identified by the State in its briefing on appeal to
support the failure to assume parental responsibility ground are that Y.R.C.Y. was
removed from A.M.Y.’s care when Y.R.C.Y. was six days old, and that Y.R.C.Y.
refers to her foster parent as “mommy” and looks to her for comfort.8 It is not
apparent how these facts would constitute clear and convincing evidence of failure
to assume parental responsibility under the required totality of the circumstances
analysis. Moreover, as noted above, the circuit court in Evelyn C.R. expressly
reaffirmed its finding that grounds for termination existed in light of the evidence
presented at the dispositional hearing, and our supreme court considered this
additional procedural step to be significant in determining that the error was
harmless. Evelyn C.R., 246 Wis. 2d 1, ¶¶33-34. Here, the court did not
reconsider at the dispositional hearing whether grounds for termination existed. In
fact, it does not appear that the court ever meaningfully considered the issue of
grounds for termination throughout the course of this proceeding—the only time it
addressed that issue was when it checked boxes indicating that grounds existed in
its written order terminating A.M.Y.’s parental rights.9

8
The State also notes that the social worker testified that Y.R.C.Y. did not have a
substantial relationship with A.M.Y.; however, this is a mere conclusory statement.
9
The circuit court’s written order terminating A.M.Y.’s parental rights contains several
concerning errors. In addition to checking two boxes corresponding to the two grounds alleged in
the petition (that the child was in continuing need of protection and services and that A.M.Y.
(continued)

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No. 2024AP1162

¶18 In the absence of any argument from the State as to why the circuit
court’s error was harmless under the analysis set forth in Evelyn C.R., or under
any other authority, I cannot say that the State has shown that there was not a
“reasonable possibility that the error contributed to the outcome of the action or
proceeding at issue.” Id., ¶28.

¶19 The GAL, unlike the State, expressly makes a harmless error
argument; however, this argument is cursory and cites no specific facts. The GAL
contends that the circuit court’s failure to take sufficient evidence prior to granting
default was harmless because “the social worker testified at length to the facts
needed to support the allegations in the petition” at the dispositional hearing.
However, the GAL cites no specific testimony by the social worker, and does not
explain how any such testimony would support any grounds for termination. I
decline to address the GAL’s undeveloped argument. See Pettit, 171 Wis. 2d at
646.

¶20 Accordingly, because I assume without deciding that the circuit
court erroneously exercised its discretion in failing to make findings as to grounds
for termination prior to issuing a default judgment, and neither the State nor the
GAL have shown that the court’s error was harmless, I reverse.

failed to assume parental responsibility), the court also checked a box on the order indicating that
a ground for termination not alleged in the petition, abandonment, existed. The court also
checked a box indicating that A.M.Y. was “found in default” and “[a]n evidentiary hearing was
conducted establishing grounds for termination of parental rights,” but no such hearing was ever
held.

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No. 2024AP1162

CONCLUSION

¶21 For all of these reasons, I reverse the circuit court’s order
terminating A.M.Y.’s parental rights to Y.R.C.Y.

By the Court.—Order reversed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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