Dane County DHS v. A. D.

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.
March 31, 2022
A party may file with the Supreme Court a
Sheila T. Reiff 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 Nos. 2022AP76 Cir. Ct. Nos. 2019TP68
2019TP69
2022AP77

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

NO. 2022AP76

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

DANE COUNTY DEPARTMENT OF HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

A. D.,

RESPONDENT-APPELLANT.
Nos. 2022AP76
2022AP77

NO. 2022AP77

IN RE THE TERMINATION OF PARENTAL RIGHTS TO L. F.,
A PERSON UNDER THE AGE OF 18:

DANE COUNTY DEPARTMENT OF HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

A. D.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Dane County:
JUAN B. COLAS, Judge. Affirmed.

¶1 FITZPATRICK, J.1 A.D. appeals orders of the Dane County Circuit
Court terminating his parental rights to his children, A.F. and L.F. The circuit
court entered default judgments against A.D. based on his failure to appear at a
pre-trial hearing and his failure to provide the court with a mailing address. A.D.
argues that the court erroneously exercised its discretion in entering the default
judgments because his failure to appear was not egregious. For the following
reasons, I affirm the circuit court’s orders.

1
These appeals are decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-
20). All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

These appeals were consolidated for briefing and disposition by a February 3, 2022 order
pursuant to WIS. STAT. RULE 809.10(3).

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BACKGROUND

¶2 In October 2019, Dane County (“the County”) filed petitions to
terminate A.D.’s parental rights to his two children, A.F. and L.F. With each of
the petitions, A.D. received a written summons and notice of hearing that included
the following statement: “If you fail to appear at this hearing, or any subsequent
hearing, the court may proceed to hear testimony and enter an order terminating
your parental rights.”

¶3 Over the course of the next nineteen months, A.D. was provided
with at least five more warnings, with language similar or identical to the language
just quoted, from the circuit court that it could enter a default judgment against
A.D. if he failed to appear at a hearing. Two of these warnings were explained to
A.D. by the court in person, and three of these warnings were included with
written scheduling orders that were delivered to A.D. Additionally, the circuit
court informed A.D. in person that he risked default if he failed to provide the
court with an address where he could receive mail from the court.

¶4 Until September 2021, A.D. had appeared at each of the eight
hearings for which he was ordered to appear. The last of these hearings occurred
in May 2021 (the “May hearing”). At the May hearing, at A.D.’s request, the
court allowed A.D. to leave the hearing early so that he could go to work. Later at
the May hearing, after A.D. had been excused, the court scheduled A.D.’s final
pre-trial hearing for September 2021 (the “September hearing”). The circuit court
ordered that A.D. appear in person for that hearing and warned that “a failure to
appear without good cause could result in a default judgment terminating his
parental rights.”

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¶5 A.D.’s counsel appeared at the September hearing, but A.D. failed to
appear. The County moved for a default judgment, arguing that A.D. had been
repeatedly warned of the consequences of failing to appear. A.D.’s counsel
objected to the motion, explaining that in counsel’s opinion A.D. had continued to
stay engaged in the case after the May hearing. A.D.’s counsel also noted that
A.D. had not responded to an email sent to him that morning and A.D. did not
have a phone number. The circuit court granted the County’s motion and entered
a default judgment in each case against A.D. The circuit court’s reasoning will be
set forth in full later in this opinion, but is summarized briefly now. The court
explained that A.D. violated the orders of appearance and that this violation was
egregious given the number of times the court ordered A.D.’s personal
appearance. The court also noted that A.D. failed to comply with the requirement
that he provide the court with an address at which he could receive mail. The
court then heard testimony and arguments from the parties and found that there
were sufficient grounds for termination of A.D.’s parental rights. The court
scheduled a disposition hearing for later that month.

¶6 A.D. appeared at the disposition hearing, and at that time his counsel
requested that the court adjourn the hearing or vacate the default judgments on the
purported grounds that A.D. did not have a working telephone or stable residence
and was therefore limited in his ability to receive notices. The court allowed
A.D.’s counsel to question A.D. regarding his absence at the September hearing.
The testimony and actions of A.D. during the disposition hearing will be set forth
in detail later in this opinion, but are summarized briefly now. As the circuit court
described on the record, A.D. answered with “I don’t know” to a number of
straightforward questions from his own counsel and then tried to leave the
courtroom. Based on this conduct, the circuit court concluded that A.D. waived

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his motion for relief from the default judgment. At the end of the disposition
hearing, the court ordered the termination of A.D.’s parental rights.

¶7 A.D. appeals the circuit court’s orders terminating his parental
rights.

DISCUSSION

¶8 The parties dispute whether the circuit court erred in finding A.D. in
default based on his failure to appear at the September hearing. 2 I begin by setting
forth governing principles concerning termination of parental rights and default
judgments as well as this court’s standard of review.

I. Governing Principles Concerning Termination of Parental Rights and
Default Judgments, and Standard of Review.

¶9 “Parental rights termination adjudications are among the most
consequential of judicial acts, involving as they do ‘the awesome authority of the
State to destroy permanently all legal recognition of the parental relationship.’”
Steven V. v. Kelley H., 2004 WI 47, ¶21, 271 Wis. 2d 1, 678 N.W.2d 856 (quoted
source omitted). Because a parent’s interest in the parent-child relationship and in
the care, custody, and management of his or her child is recognized as a
“fundamental liberty interest protected by the Fourteenth Amendment,” due
process requires that the State provide the parent with “fundamentally fair
procedures.” Id., ¶¶22-23.

A.D. does not dispute the circuit court’s finding that there were grounds to terminate
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his parental rights.

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¶10 Wisconsin has a two-part statutory procedure for the involuntary
termination of parental rights. Id., ¶24. In the first phase of the proceeding—
sometimes described as the “grounds” or “fact-finding” phase—“the petitioner
must prove by clear and convincing evidence that one or more of the statutorily
enumerated grounds for termination of parental rights exist.” Id., ¶24; Dane Cnty.
DHS v. Mable K., 2013 WI 28, ¶60, 346 Wis. 2d 396, 828 N.W.2d 198. Because
parents’ rights are “paramount” during this phase of the proceedings, parents in
this phase “require heightened legal safeguards to prevent erroneous decisions.”
Mable K., 346 Wis. 2d 396, ¶60. In the second, or “dispositional” phase, “the
court is called upon to decide whether it is in the best interest of the child that the
parent’s rights be permanently extinguished.” Steven V., 271 Wis. 2d 1, ¶27.
During this phase, the “child’s best interests are paramount.” Id., ¶26.

¶11 Pursuant to its inherent and statutory authority, a circuit court “may
enter a default judgment against a party that fails to comply with a court order.”
Evelyn C.R. v. Tykila S., 2001 WI 110, ¶17, 246 Wis. 2d 1, 629 N.W.2d 768
(citing WIS. STAT. §§ 802.10(7), 804.12(2)(a), and 805.03). Under § 805.03, the
court may enter a default judgment for failure to comply with a court order only if
the court finds that the non-complying party acted “egregiously or in bad faith.”
Mable K., 346 Wis. 2d 396, ¶69. “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.” Id., ¶70 (quoted source omitted).

¶12 This court reviews a circuit court’s entry of a default judgment for
an erroneous exercise of discretion. Evelyn C.R., 246 Wis. 2d 1, ¶18.
Additionally, a circuit court’s decision to grant or deny a motion seeking to vacate

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a default judgment is a discretionary act that this court reviews for an erroneous
exercise of discretion. Dugenske v. Dugenske, 80 Wis. 2d 64, 68, 257 N.W.2d
865 (1977). “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.” Mable K., 346
Wis. 2d 396, ¶39.

II. The Circuit Court Properly Exercised Its Discretion in
Entering Default Judgments Against A.D.

¶13 As explained earlier, the circuit court found A.D. in default based on
his failure to appear at the September hearing. The court provided the following
reasoning in support of its decision:

I’ll find that the history of orders, both oral and written, as
described by the county in its argument is correct and it’s
not disputed. There have been repeated orders for [A.D.’s]
personal appearance in this case and repeated orders to
keep the court informed of his address. He participated in
the last final pre-trial. During the course of the final pre-
trial on May 13th, I think when it had become clear that
there were going to be two separate trials, he asked if he
could be excused because he was employed and needed to
maintain employment. His attorney had no objection to
him being excused, and I authorized him to be excused and
so then he left the hearing. Up to that point, it did not
appear there had been any problem with him hearing
anything. After he was excused, we set today’s date for the
final pre-trial and I did enter another oral order for personal
appearance with his attorney present here. We presume
that that was conveyed to him to the extent that his attorney
has been able to have communication with him.

He has not notified the court of any new address
after [A.D.’s] release from jail. He has not notified the
[court] of a new address. And it doesn’t appear that he’s
notified anyone of a phone number at which he can be
reliably reached, which is why I’ve tried to call him at this
hearing. He does have an e-mail and communicates by e-
mail. So, essentially, his whereabouts are unknown and

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he’s chosen not to keep the department or the court
informed of where he’s living. And he’s failed to appear
for today’s hearing.

I will find that he is in default and in violation of the
orders for personal appearance and that it is egregious
given the number of times that personal appearance has
been ordered in this case, even though he was not
personally present when this date was set. In addition, the
court attempted to send notices to him. Not all of them for
this -- today’s hearing, but to both the jail which was his
last known address and to [Address] which he had provided
as an address at which he could receive mail. He left no
forwarding address with the jail that they were aware of,
and the [Address] mail that was sent there in June and July
was not picked up. So I’ll find him in default and I’ll allow
the county to put on its testimony.

¶14 Based on the circuit court’s reasoning, I conclude that the circuit
court properly exercised its discretion in entering default judgments against A.D.
See id., ¶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.”). First, the
court examined the relevant facts when it noted that A.D.’s personal appearance
had been ordered by the court numerous times. As the record demonstrates, A.D.
was personally warned at least five times—both verbally and in writing—that the
court could enter default judgment against him if he failed to appear at any
hearing. The court also provided this warning to A.D.’s counsel at the May
hearing after A.D. had been excused. Moreover, the court referenced A.D.’s
failure to comply with the requirement that he provide the court with an address
where he could receive mail. The record indicates that A.D. was personally
warned that the court could enter default judgments if he failed to keep the court
informed of his address.

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¶15 Next, the circuit court applied the proper standard of law. It is clear
from the record that the court correctly applied the rule that a court may enter a
default judgment against a party that fails to comply with a court order if it
determines that the party acted “egregiously.” See WIS. STAT. § 805.03; Mable K.,
346 Wis. 2d 396, ¶69.

¶16 Finally, the circuit court reached a reasonable conclusion using a
rational process. The court explained that its determination of egregiousness was
based on A.D.’s failure to comply with the court’s orders to appear at hearings and
provide a valid mailing address. Given that A.D. had been warned many times
that his failure to comply with the court’s orders could result in a default judgment
against him, it follows that A.D.’s failure to comply could reasonably be
considered “so extreme, substantial and persistent” that it met the standard for
egregiousness. See Mable K., 346 Wis. 2d 396, ¶70. This determination is
reinforced by A.D.’s failure to comply with the court’s order to provide a working
mailing address. Accordingly, the court’s decision to enter a default judgment is a
proper exercise of discretion because the court reached a reasonable and rational
conclusion based on the facts and the appropriate legal standard.

¶17 A.D. argues that the circuit court erroneously exercised its discretion
in entering a default judgment for three reasons. I pause here to note that the
County suggests that this court should not address A.D.’s arguments because A.D.
forfeited his motion to vacate the default judgments by his conduct at the
disposition hearing. A basis for A.D.’s appeal is his alleged difficulty receiving
notices following his incarceration following the May hearing. The circuit court
gave A.D. the opportunity to explain facts supporting his position at the

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disposition hearing. Here is what happened when A.D.’s own attorney asked him
relevant questions:

[Counsel]: [A.D.], you were residing in the Dane
County Jail at some point in 2021; is that correct?

[A.D.]: I don’t know.

[Counsel]: Where -- do you have a current
permanent address? Like apartment or a home or something
like that, right now?

[A.D.]: I don’t know.

[Counsel]: Do you have a -- your own telephone
number that is specifically assigned just to you?

[A.D.]: With fraud going on, shit, I don’t know.
Shit, I don’t have one possessive -- in my possession in
person, no.

….

THE COURT: Let me just make a record that
[A.D.] left the witness stand and started to walk out the
courtroom, was stopped by bailiffs when informed him that
he had a warrant out for him, and he said go ahead, take
me. And the bailiffs are removing him from the courtroom.

A.D.: Thanks, man.

THE COURT: All right. Well, I think, by his
conduct, [A.D.] has waived his motion for relief from the
default judgment. He repeatedly, at least three times, four
times, answered I don’t know to straightforward questions
and then chose to leave. So I think he’s abandoned his
claim to vacate the default judgment.

When the circuit court gave A.D. every reasonable opportunity to explain what
happened and possibly have the default judgments vacated, the excerpt from the
transcript noted above is how A.D. conducted himself and refused to answer
questions in any meaningful manner. The County is correct that A.D. forfeited his
motion to vacate the default judgments when he abandoned the proceedings. See

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State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612. Nonetheless,
for the sake of completeness, I will address the merits of A.D.’s arguments
regarding the court’s determination of egregiousness.

¶18 First, A.D. argues that his failure to appear at the September hearing
was not egregious because he appeared at all previous hearings at which he was
required to appear. A.D. contends that the circuit court unreasonably failed to
acknowledge A.D.’s “persistent and substantial compliance” with the court’s
orders. Contrary to A.D.’s contention, however, the circuit court’s determination
of egregiousness was not based on the number of hearings at which A.D. failed to
appear. Rather, the court determined that A.D.’s failure to comply with the court’s
orders was egregious based on the numerous verbal and written orders regarding
the importance of appearing at hearings and the consequences of failing to appear
at those hearings. A.D.’s appearance at prior hearings does not diminish the
significance of A.D.’s failure to comply with the court’s many orders to appear.
Further, A.D.’s argument fails to mention that the court’s determination of
egregiousness also accounted for A.D.’s failure to provide the court with a
working mailing address. Thus, it was not an erroneous exercise of discretion for
the court to determine that A.D.’s failure to appear was egregious even though
A.D. had complied with the court’s orders at previous hearings.

¶19 Second, A.D. argues that the egregiousness of his failure to appear at
the September hearing is undercut by his excused absence from the May hearing.
A.D. points out that he was not present when the circuit court scheduled the
September hearing and ordered him to appear at that hearing. However, as the
court explained in its default judgment decision quoted earlier, A.D.’s counsel was
present when the court scheduled the September hearing and ordered A.D.’s

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appearance. The court reasonably presumed that A.D.’s attorney would
communicate that information to A.D. Additionally, the court’s prior verbal
warnings to A.D. emphasized the importance of A.D.’s appearance at all hearings
on the petition. Thus, even though A.D. was not present for part of the May
hearing, A.D. was on notice that he was required to appear at a future hearing.

¶20 Finally, A.D. argues that his failure to appear at the September
hearing was not egregious based on his discussion with the court at the May
hearing regarding his excused absence from part of that hearing. That discussion
proceeded as follows:

[A.D.]: Are -- are we almost like -- almost to the
end of this? I do have employment to -- have to maintain
my employment during this process of TPR or in through
my --

THE COURT: Right.… What time do you have to
be at work?

[A.D.]: I got to be at work at 10:15.

….

[A.D.]: It’s not going to -- it’s not going to knock
me off, no points off, is it or include me, is it?

THE COURT: No, no.

….

THE COURT: This is a civil case, and it’s not
unusual that in civil cases we have the attorneys handling
the pretrials. No, no points. It’s up to you.

[A.D.]: All right.

THE COURT: So whenever you feel you need to
leave to get ready to go to work, just go ahead and then you
can just excuse yourself and you can leave the meeting,
okay?

[A.D.]: Okay. Thank you. Y’all have a great day.

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A.D. acknowledges that the court did not excuse him from the September hearing
but nevertheless contends that this discussion weighs against the court’s entry of
the default judgments.

¶21 This discussion does not undermine the court’s egregiousness
determination. Although the circuit court stated that it is “not unusual” for
attorneys to handle pre-trial matters, no part of the court’s comments reasonably
suggests that A.D. was excused from appearing at future hearings. Further,
nothing in the record indicates that A.D. did not know or was confused about the
date of the September hearing or the requirement that he appear at that hearing.
Indeed, when A.D. was given the opportunity to testify as to any confusion or lack
of knowledge about the September hearing, A.D. repeatedly answered “I don’t
know” to straightforward questions and then chose to leave the courtroom.
Accordingly, the court’s determination of egregiousness and its entry of default
judgments are proper exercises of discretion.

CONCLUSION

¶22 For the foregoing reasons, the orders of the circuit court are
affirmed.

By the Court.—Orders affirmed.

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

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