Rock County Human Services v. A. P.

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.
July 14, 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.
2022AP248 Cir. Ct. Nos. 2020TP29
2020TP30
2022AP249
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

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

ROCK COUNTY HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

A.P.,

RESPONDENT-APPELLANT.

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

ROCK COUNTY HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

A.P.,

RESPONDENT-APPELLANT.
Nos. 2022AP248
2022AP249

APPEALS from orders of the circuit court for Rock County:
MICHAEL A. HAAKENSON, Judge. Affirmed.

¶1 GRAHAM, J.1 Amanda P. appeals from circuit court orders
terminating her parental rights to her two children, A.G. and A.P.2 Amanda argues
that the court erroneously exercised its discretion when it found her in default
during the grounds phase of this termination of parental rights (TPR) proceeding
without first finding that her failure to appear in person or by counsel at the initial
hearing was egregious or in bad faith. She further argues that the court
erroneously exercised its discretion when it denied her motion to vacate the default
finding.3 I reject Amanda’s arguments and affirm.

BACKGROUND

¶2 The Rock County Human Services Department filed petitions to
terminate Amanda’s parental rights regarding A.G. and A.P. on the grounds that
Amanda had abandoned the children and that the children were in continuing need
of protection and services. See WIS. STAT. § 48.415(1)(a)2. and (2)(a). The

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.
2
This court has consolidated these two confidential cases for purposes of appeal. For
ease of reading, I refer to the appellant by a pseudonym and to her children by their initials.
3
I note that Amanda’s appellate reply brief was filed several days late. Nevertheless, on
my own motion, I accept the late brief for filing.

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County also sought to terminate A.P.’s father’s parental rights.4 A.G.’s father is
deceased.

¶3 The circuit court scheduled an initial hearing for July 28, 2020. It
issued a summons for each case that was consistent with the requirements set forth
in WIS. STAT. § 48.42(3) and (4)(c). Among other things, the summonses
provided notice of the location and date of the initial hearing. Additionally,
consistent with § 48.42(4)(c)1., the summonses stated that, if Amanda failed to
appear at the hearing, “the court may hear testimony in support of the allegations
in the attached Petition and grant the request of the petitioner to terminate [her]
parental rights.” Amanda does not contest that she was personally and timely
served with the summonses as well as the petitions and other documents pertaining
to the TPR proceedings no later than July 15, 2020.

¶4 The circuit court held the initial hearing by zoom due to the COVID-
19 pandemic. The attorney for the County, the guardian ad litem who had been
appointed to represent the children’s best interests, and A.P.’s father, among
others, appeared at the hearing. The court advised A.P.’s father of his rights and
scheduled further court dates pertaining to the proceeding against him.

¶5 Amanda did not appear at the initial hearing, nor did any attorney
appear on her behalf. The circuit court stated the following based on a
representation by Jennifer Varela, who is a social worker employed by the County:

The record should reflect that prior to calling the
case, Ms. Varela indicated that she had communicated with
[Amanda]. That’s the mother of both of the children. And

4
A.P.’s father did not appeal the circuit court order terminating his rights, and I discuss
his case only as needed to make sense of procedural facts relating to Amanda’s appeal.

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that [Amanda] was at work, and that she must have
forgotten about today’s court appearance.

Varela agreed that the court’s summary of the facts related to Amanda’s non-
appearance was fair. Varela added that Amanda had confirmed that she had
received notice of the hearing, that Varela told Amanda that the court might find
her in default for failing to appear, and that Amanda responded that “that might
just have to be the case” because she could not leave work.

¶6 The circuit court proceeded to the grounds phase of the TPR
proceedings against Amanda.5 The court took evidence related to Amanda’s
failure to appear, and about whether there were grounds to terminate her parental
rights to both children. The court found that Amanda had received notice of the
initial hearing, that she had not made any attempt to participate in the hearing or to
have it rescheduled, and that she was in default.6 The court further determined

5
TPR 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 grounds phase, sometimes referred to as the
“fact-finding” phase, which consists of an evidentiary hearing to determine whether there are
statutory grounds to find the parent unfit. WIS. STAT. § 48.424; Shirley E., 298 Wis. 2d 1, ¶27.
The second step is the dispositional phase, which consists of an evidentiary hearing at which the
circuit court determines whether termination of parental rights is in the child’s best interests.
WIS. STAT. § 48.427; Shirley E., 298 Wis. 2d 1, ¶28.
6
In her appellant’s brief, Amanda asserts (without proper citation to the record) that the
circuit court found her in default only as to A.P., and not as to A.G. This assertion misconstrues
the facts. Although the court did not specifically use the word “default” when discussing A.G.’s
case, it found that Amanda had been given notice and failed to appear, and it proceeded to find
that Amanda was unfit as to A.G. Thus, the court implicitly determined that Amanda was in
default in the proceeding regarding A.G., consistent with the court’s explicit determination that
Amanda was in default in the proceeding regarding A.P. See Chester B. v. Larry D.,
Nos. 2011AP925 and 2011AP926, unpublished slip op., ¶1 n.2 (WI App Nov. 2, 2011)
(acknowledging an implicit determination of default under similar circumstances).

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that there were grounds to terminate Amanda’s parental rights regarding both
children.7

¶7 Amanda appeared via zoom at the next scheduled status hearing.
She informed the court that she had not appeared at the initial hearing due to
“miscommunication” and because she got her “dates mixed up,” and she stated
that she wanted to be represented by counsel and to contest termination of her
parental rights. The court indicated that it was not going to vacate its prior finding
of default at that time, and it encouraged her to reach out to the public defender’s
office for representation.8

¶8 Amanda was appointed counsel, and she personally appeared at
some (but not all) of the subsequent circuit court proceedings with her attorney.

7
The court went on to consider the factors that would be relevant in the dispositional
phase regarding A.G. Based on its assessment of those factors, the court concluded that it was in
A.G.’s best interest to terminate Amanda’s parental rights. The court purported to enter an oral
order terminating Amanda’s parental rights as to A.G., but it did not enter a written order to that
effect at that time.

Amanda comments on this aspect of the procedure in the fact section of her appellant’s
brief. However, Amanda does not develop any argument about this aspect of the proceedings,
likely because any irregularity, if there was one, was harmless. At the close of the initial hearing,
the County’s attorney asked the court to call both cases (that is, the case pertaining to A.G. as
well as the case pertaining to A.P.) at the next hearing “in case the mother does appear at that
hearing,” and the court agreed to do so. After Amanda appeared at the next scheduled status
conference, the County’s attorney asserted that the disposition phase regarding A.G. would have
to be redone. Evidently, the court agreed—it later scheduled a dispositional hearing pertaining to
both girls, and it took evidence and determined that terminating Amanda’s parental rights was in
A.G.’s best interest at the same time the court held the dispositional hearing pertaining A.P.
8
The circuit court also advised Amanda of her rights. In the fact section of her
appellant’s brief, Amanda appears to take issue with aspects of the court’s recitation, but she does
not develop any argument on this point, and we address it no further.

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¶9 Amanda’s attorney filed a motion to vacate the circuit court’s
finding that she was in default. The effect of the motion, if granted, would be that
the circuit court would vacate its determinations that Amanda had defaulted and
that there were grounds to terminate her parental rights, and it would then schedule
a new trial on the grounds phase at which Amanda would be allowed to
participate.

¶10 Amanda’s attorney attended the hearing that had been scheduled to
address the motion, but Amanda did not appear at the hearing. Her attorney had
no explanation for her absence. The social worker, Varela, represented that she
just received a text from Amanda, who indicated that she had not known about the
hearing and could not leave work. The guardian ad litem and the County’s
attorney urged the court to deny the motion to vacate. They argued that Amanda’s
excuse for not attending the hearing was a repeat of her excuse for missing the
initial hearing, and that Amanda’s actions demonstrated her failure to prioritize her
children. The court dismissed the motion, but it did so without prejudice, giving
Amanda’s attorney two weeks to file a renewed motion.

¶11 At a scheduled hearing on the renewed motion, Amanda’s attorney
informed the circuit court about a potential settlement, which would involve
Amanda withdrawing her motion to vacate and voluntarily terminating her
parental rights. The court adjourned the hearing so that the parties could finalize
the settlement; however, at the adjourned hearing, Amanda reversed course. She
indicated that she did not intend to voluntarily terminate her parental rights, and
that she wished to renew the motion to vacate the court’s finding that she was in
default. Amanda’s attorney asked for a continuance, and the court scheduled
another evidentiary hearing to address the renewed motion to vacate.

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¶12 The evidentiary hearing on Amanda’s motion was eventually held on
April 9, 2021, and I discuss the evidence presented at that hearing in detail below.
Through counsel, Amanda argued that the default finding could be sustained only
if the circuit court found that her failure to appear was “egregious” or done in “bad
faith.” The court disagreed that the egregiousness standard applied. It instead
analyzed the motion under WIS. STAT. §§ 48.46(2) and 806.07(1)(a) (providing
standards for obtaining relief from a previously entered order) and Chester B. v.
Larry D., Nos. 2011AP925 and 2011AP926, unpublished slip op. (WI App
Nov. 2, 2011) (applying the standards from §§ 48.46(2) and 806.07(1)(a) in a
procedurally similar case involving a motion to vacate a default finding on the
grounds phase of a TPR proceeding, which had been entered following the father’s
failure to appear at the initial hearing).9 The court determined that Amanda had
not met her burden under the standards set forth in §§ 48.46(2) and 806.07(1)(a)
and Chester B., and the court denied the motion on that basis.10

¶13 At Amanda’s request, the circuit court held a contested dispositional
hearing regarding both children. At the close of the hearing, the court determined

9
Chester B., 2011AP925 and 2011AP926, which is sometimes referred to in the record
and appellate briefing as In re Jordan P.B., is an authored one-judge opinion. The circuit court
cited it for its persuasive value consistent with WIS. STAT. § 809.23(3).

When originally issued, this opinion cited two authored, unpublished, one-judge opinions
that were issued in 2008. My citation of these opinions was contrary to WIS. STAT.
§ 809.23(3)(a) and (b), which permits citation of such authorities only if they were issued after
July 1, 2009. I acknowledge my error and have issued an errata to correct it.
10
Following that determination, the court held a jury trial on whether there were grounds
to terminate A.P.’s father’s parental rights, and based on the jury’s verdict, the court found A.P.’s
father to be unfit. The court did not need to find Amanda unfit to parent either of her children
because it had already made that finding during the initial hearing, after it found that Amanda was
in default.

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that it would be in their best interest to terminate Amanda’s parental rights to both
children, and it entered final orders to that effect. Amanda appeals.

DISCUSSION

¶14 Amanda challenges the circuit court’s finding that she was in default
and its subsequent denial of her motion to vacate that finding. I review both
decisions for an erroneous exercise of discretion. Evelyn C.R. v. Tykila S., 2001
WI 110, ¶18, 246 Wis. 2d 1, 629 N.W.2d 768 (default); Dugenske v. Dugenske,
80 Wis. 2d 64, 68, 257 N.W.2d 865 (1977) (motion to vacate). “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.” Dane Cnty. DHS v. Mable K.,
2013 WI 28, ¶39, 346 Wis. 2d 396, 828 N.W.2d 198.

¶15 Amanda contends that the circuit court should not have determined
that she was in default without first making a finding of egregiousness. In the
alternative, she contends that, even if the court properly found her in default, the
court erroneously exercised its discretion when it denied her motion to vacate that
finding. I address these arguments in turn.

I

¶16 Amanda argues that the circuit court was required to find
egregiousness or bad faith as a prerequisite for finding her in default as a result of
her failure to appear at the initial hearing. That same argument was advanced
under similar circumstances in Chester B., Nos. 2011AP925 and 2011AP926, and
I reject Amanda’s argument for the same reasons that it was rejected in that case.

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¶17 As Chester B. explains, “there is a distinct difference between a
failure to appear (either in person or by an attorney) in response to a summons as
opposed to a failure to appear in person in contravention of a specific court order
once the proceedings have begun.” Chester B., Nos. 2011AP925 and 2011AP926,
¶10 (emphasis added). The former situation—failing to appear in response to a
summons—occurs when a litigant decides, “for whatever reason, not to show up to
contest a cause of action.” Id. If a parent fails to appear at the initial hearing, the
court may treat the matter as uncontested, and the situation is governed by WIS.
STAT. § 48.422(3). Section 48.422(3) provides: “If the petition is not contested
the court shall hear testimony in support of the allegations in the petition[.]” No
finding of egregiousness or bad faith is required. Chester B., Nos. 2011AP925
and 2011AP926, ¶10.

¶18 By contrast, Chester B. explains that, when a litigant fails to appear
in person in contravention of a specific court order requiring a personal
appearance after the proceedings have begun, a default finding is considered a
sanction that punishes the litigant for failing to obey a court order. Under those
circumstances, a finding of egregiousness or bad faith is required. See id., ¶10
(citing State v. Shirley E., 2006 WI 129, ¶13 n.3, 298 Wis. 2d 1, 724 N.W.2d
623).

¶19 In this case, the circuit court did not make any finding of
egregiousness or bad faith before determining that Amanda was in default. As
noted above, the court later explained that no such finding was required because
Amanda had failed to appear in response to the summonses.

¶20 On appeal, Amanda’s argument focuses on the form of the
summonses at issue in this case. Specifically, Amanda notes that the summonses

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were signed by the circuit court judge, rather than by an attorney. She
acknowledges that, had the summonses been signed by an attorney, the circuit
court could have properly treated her failure to appear at the initial hearing as an
uncontested matter under WIS. STAT. § 48.422(3). Here, however, she asserts that
“the nature of” the summonses were “changed” to orders because both summonses
were signed by the circuit court judge. Therefore, Amanda reasons, her failure to
appear in response to the summons should not be treated as a failure to appear
when summoned, and instead should be treated as a failure to obey a court order.
According to Amanda, it follows that WIS. STAT. § 805.03 applies and a finding of
egregiousness or bad faith was required.

¶21 I reject this argument for two reasons. First, it does not appear that
Amanda advanced this particular argument during the circuit court proceedings.
To be sure, Amanda argued that the circuit court was required to consider whether
her failure to attend the initial hearing was egregious or in bad faith. Yet, she does
not identify any occasion during the circuit court proceedings in which she tied
that argument to the form of the summonses and the fact that they were signed by
the circuit court judge.

¶22 As a general rule, when a party fails to raise an issue before the
circuit court, the party forfeits that issue on appeal. See Schill v. Wisconsin
Rapids Sch. Dist., 2010 WI 86, ¶45 & n.21, 327 Wis. 2d 572, 786 N.W.2d 177.
Although forfeiture “is a rule of judicial administration” and courts have discretion
to overlook a party’s failure to raise an issue in the circuit court, State v.
Kaczmarski, 2009 WI App 117, ¶7, 320 Wis. 2d 811, 772 N.W.2d 702, there are
good reasons to apply the rule in most cases. Among other things, the forfeiture
rule “enable[s] the circuit court to avoid or correct any error with minimal
disruption of the judicial process, eliminating the need for appeal.” State v.

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Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 761 N.W.2d 612 (footnotes omitted).
The rule also gives the parties and circuit court “notice of the issue and a fair
opportunity to address the objection,” “encourages attorneys to diligently prepare
for and conduct trials,” and “prevents attorneys from ‘sandbagging’ opposing
counsel by failing to object to an error for strategic reasons and later claiming that
the error is grounds for reversal.” Id. For all these reasons, it is appropriate to
consider Amanda’s argument about the form of the summonses forfeited.

¶23 Second, even if I were to overlook the forfeiture, Amanda does not
develop any persuasive argument to explain why the circuit court judge’s
signature on each of the summonses transformed it into something other than a
summons to which WIS. STAT. § 48.422(3) applies. Amanda states that “the
parent’s rights are paramount” during the grounds phase of a TPR proceeding,
which “require[s] heightened legal safeguards to prevent erroneous decisions.”
Yet, that principle applies equally whether a summons at issue was signed by an
attorney, a judge, or no one at all. A summons is a summons, whether signed by
an attorney or a judge, and Amanda’s argument elevates form over function
without providing any principled reason for doing so. I conclude that, during the
initial hearing and then later during the hearing on the motion to vacate, the court
properly treated her failure to appear at the initial hearing in person or by counsel
under the standards set forth in § 48.422(3) and Chester B.

II

¶24 I now turn to Amanda’s alternative argument that, even if
egregiousness or bad faith was not required to find her in default during the
grounds phase, the circuit court erroneously exercised its discretion when it denied
her motion to vacate that default finding.

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¶25 As provided in WIS. STAT. § 48.46(2), “[a] parent who … did not
contest the petition initiating the proceeding in which … her parental rights were
terminated may move the court for relief from the judgment on any of the grounds
specified in [WIS. STAT. §] 806.07(1)(a), (b), (c), (d), or (f).”11 Here, the
potentially applicable grounds are found in subsec. (1)(a), which allows relief if a
judgment or order was entered based on “[m]istake” or “excusable neglect.”

¶26 This court has had occasion to apply this standard in Chester B.,
Nos. 2011AP925 and 2011AP926, which also involved a finding that a parent had
defaulted on the grounds phase of a TPR proceeding. In that case, the father, who
was incarcerated in another state, received a summons notifying him of the initial
hearing in a matter to terminate his parental rights. Id., ¶2. The father made
multiple attempts to make arrangements to secure counsel and contest the petition.
Id., ¶¶3-4. Specifically, he contacted his case worker the very next day, and his
case worker helped him find the address and phone number of the state public
defender’s office (SPD). Id., ¶3. The father wrote a letter to the SPD. Id. He
also placed a call to opposing counsel and informed him that he wanted an
attorney to represent him. Id. Opposing counsel contacted the SPD on the
father’s behalf, but the SPD did not attempt to contact the father and instead
waited for the father to directly contact the SPD. Id., ¶¶3-4. The father attempted
to place a collect call to the SPD, but the SPD did not accept the collect call. Id.,
¶4. He could not write to the court because he did not have money to purchase a
stamp or an envelope. Id. The circuit court found the father in default for failing

11
WISCONSIN STAT. § 48.46(2) appears to contemplate that such motions will generally
be made after a final order is entered terminating the parent’s rights. The parties do not argue that
it was improper for the court to consider Amanda’s motion to vacate prior to entering final
written orders terminating Amanda’s rights.

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to appear at the initial hearing and terminated his parental rights. Id., ¶5. It later
characterized the events leading up to his failure to appear as “an instance of the
perfect storm,” id., ¶1, but it denied the father’s motion to vacate the default
finding on the grounds that the father could have sought further help from his
caseworker to make contact with the SPD prior to the hearing, id., ¶7.

¶27 On appeal, this court reversed the circuit court’s order denying the
father’s motion to vacate. Id., ¶1. In so doing, the court explained that, although
the father might not be able to meet his burden to establish excusable neglect as
that standard has been applied in ordinary civil cases, he had taken actions
showing that he “honestly wanted and diligently sought the opportunity to
participate in the proceedings.” Id., ¶14. As the court further explained, the
father’s “desire to participate has been shown,” and his failure to appear was “due
to a ‘perfect storm’ of facts.” Id. Based on the “the facts specific to this case,”
id., ¶1, the father had satisfied his burden under WIS. STAT. §§ 48.46(2) and
806.07(1)(a), id., ¶14.

¶28 Here, in contrast to the facts in Chester B., the circuit court found
that Amanda, who had fifteen days’ notice of the initial hearing, “literally did
nothing” prior to the hearing to prepare to contest the petition. Therefore, the
court implicitly determined that Amanda’s default could not properly be
characterized as the product of mistake or excusable neglect.

¶29 The circuit court’s finding that Amanda “did nothing” is supported
by the testimony introduced at the motion hearing. The primary witnesses at that
hearing were Varela and Amanda, and the circuit court found both witnesses to be
credible. I now summarize their testimony.

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¶30 Varela testified that she was the children’s case manager and had
been working with Amanda since November 2016. Varela spoke with Amanda
about various issues having to do with the children on July 21, July 22, and
July 27, 2020. During those conversations, Varela did not recall specifically
discussing the upcoming initial hearing scheduled for July 28, 2020, and Amanda
did not mention any kind of confusion about the TPR proceedings or the date of
the initial hearing. Varela texted Amanda when she failed to appear at the initial
hearing, and Amanda stated that she had “forgotten [about] the court hearing” and
would not be able to attend due to work.

¶31 Amanda testified as follows. She worked as a customer service
representative with a set schedule and had to request time off in advance. She
timely received the summons for the initial hearing scheduled for July 28, 2020,
but she found the court documents “overwhelming” and “may not have read every
single line.”

¶32 When asked about the efforts she had taken to make herself available
for the hearing, she testified that she “actually thought that the [initial] hearing was
in August.” Amanda explained that her anxiety and depression can affect her
ability to take in information and to express opinions, and that, although she
“wouldn’t use that as an excuse,” she does “sometimes get [] [her] dates mixed
up,” especially during an episode of anxiety. She acknowledged that she
“probably” spoke with Varela several times between the service of the summonses
and the July initial hearing, and that she had not taken any steps to verify the date
of the hearing with Varela or anyone else.

¶33 Amanda acknowledged that Varela had texted her in the “midst of
the hearing,” but at that time, Amanda was at work and “was not able to get off.”

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She also acknowledged that, when Varela texted her that a default finding had
been entered, she responded: “I don’t care. I don’t give a [expletive] anymore.
You can just keep my kids.” However, it had “absolutely not” been her intent to
allow a default finding to occur. According to Amanda, her text message to
Varela was made out of “frustration” but not “bad faith.” Amanda recognized her
history of missing court dates,12 but stated that she had recently been working to
confirm that she had correct scheduling information and to make arrangements to
attend court proceedings, and she asked the court to take that into consideration
when issuing a decision on the motion.

¶34 On appeal, Amanda tacitly acknowledges that her situation is not
like Chester B., and that the circuit court’s finding that she “did nothing” to
prepare to contest the petition is not clearly erroneous. However, she contends
that there was no need for her to do anything to prepare because she was unaware
that the hearing was scheduled for July and thought it was instead scheduled for
the following month. In other words, Amanda contends that the court was
compelled to excuse her failure to do anything under those facts. Amanda cites no
authority to support this position, and I reject it on at least that basis. See State v.
Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (providing that
an appellate court need not consider arguments that are unsupported by adequate
legal citations or are otherwise undeveloped). I conclude that the circuit court did
not erroneously exercise its discretion when it denied Amanda’s motion to vacate
its finding that she was in default.

12
Amanda and Varela also testified about Amanda’s failure to appear at the original
hearing scheduled to address her motion to vacate the default finding, but I do not recount that
testimony because it is not directly pertinent to any issue on appeal.

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By the Court.—Orders affirmed.

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

16