Dane County v. L. D. 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.
October 24, 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. 2024AP1267 Cir. Ct. No. 2023TP45

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

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

DANE COUNTY,

PETITIONER-RESPONDENT,

V.

L.D.D.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Dane County:
RYAN D. NILSESTUEN, Judge. Affirmed.
No. 2024AP1267

¶1 KLOPPENBURG, J.1 L.D.D. appeals orders of the Dane County
Circuit Court terminating her parental rights to her child and denying her motion
to vacate a default judgment. The circuit court found that L.D.D. was in default
when she failed to appear at a hearing on the petition to terminate her parental
rights and granted the County’s request for a default judgment as to grounds after
determining that grounds for termination existed.2 The court then held a
dispositional hearing, at which L.D.D. also failed to appear, and entered a final
order terminating L.D.D.’s parental rights after determining that terminating her
parental rights was in the child’s best interest. The court subsequently denied
L.D.D.’s motion to vacate the default judgment. On appeal, L.D.D. argues that the
court erroneously exercised its discretion in entering the default judgment and in
denying the motion to vacate that judgment. For the following reasons, I affirm
the circuit court’s orders.

BACKGROUND

¶2 Dane County filed a petition to terminate L.D.D.’s parental rights to
her child in August 2023.3 The petition along with a summons and notice of

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
Involuntary termination of parental rights 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 one or more of the statutorily enumerated grounds for termination of
parental rights exist.” Id.; WIS. STAT. § 48.31(1). If it finds that such grounds exist, the circuit
court then proceeds to the second, or “dispositional” phase, in which it decides whether it is in the
best interest of the child that the parent’s rights be terminated. Steven V., 271 Wis. 2d 1, ¶27;
WIS. STAT. § 48.426(2).
3
The County also petitioned to terminate the parental rights of the child’s biological
father, and his parental rights were ultimately terminated. The termination of the father’s parental
rights is not at issue in this appeal.

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hearing were personally served on L.D.D. on September 8, 2023. The notice of
hearing included the following statement under the heading, “NOTICE OF
MOTION FOR DEFAULT JUDGMENT”: “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. Petitioner will move for
such judgment if you fail to appear in court as required.” (Capitalization and bold
in original.)

¶3 L.D.D. appeared without counsel at the initial hearing on the petition
on September 12, 2023. At that hearing, L.D.D. said that she wanted to contest
the petition to terminate her parental rights and that she did not want counsel
appointed. The circuit court stated that it would appoint counsel. L.D.D.
responded that she would “not show[] up to court” and would “let counsel show
up to court” because she was tired of doing this “over and over again.” The court
ordered L.D.D. to appear in person at the next hearing on the petition, set for
October 4, 2023. The court provided copies of the petition and the notice of the
next hearing for L.D.D. to take with her. L.D.D. left at the conclusion of the
hearing without taking the copies with her.

¶4 Also on September 12, 2023, after the initial hearing concluded, the
circuit court asked the State Public Defender (“SPD”) to assign counsel to L.D.D.
Both the appointment clerk and previously appointed counsel at the SPD reached
out to L.D.D., who declined representation.

¶5 L.D.D. failed to appear at the October 4, 2023 hearing on the
petition, and the circuit court found that her failure to appear was egregious and
without a clear and justifiable excuse. The County presented evidence and
testimony supporting the grounds for termination alleged in the petition, and the

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court found that the testimony and evidence sufficed to establish the alleged
grounds. Accordingly, the court granted the County’s request for default
judgment as to grounds and set the dispositional hearing for October 12, 2023.

¶6 L.D.D. failed to appear at the dispositional hearing on October 12.
The circuit court heard testimony presented by the County and the
recommendation by the guardian ad litem, determined that terminating L.D.D.’s
parental rights was in the best interest of the child, and subsequently entered an
order terminating L.D.D.’s parental rights.

¶7 In March 2024, L.D.D., represented by counsel, moved to vacate the
default judgment under WIS. STAT. § 48.46(1), which provides that a parent “may
at any time within one year after the entering of the court’s order petition the court
for a rehearing on the ground that new evidence has been discovered affecting the
advisability of the court’s original adjudication.”4 The parties submitted briefs and
presented argument at a hearing on the motion, and the circuit court denied it. I
will discuss the circuit court’s decision in detail in the analysis that follows.

¶8 L.D.D. appeals.

DISCUSSION

¶9 L.D.D. argues that the circuit court erred when it entered a default
judgment based on her failure to comply with the court’s order requiring her to
appear at the October 4 hearing and when it denied her motion to vacate the

4
L.D.D. also moved to vacate the default judgment under WIS. STAT. § 806.07(1)(a) and
(g). On appeal, L.D.D. renews her arguments under WIS. STAT. § 48.46(1) only and, therefore, I
address only that statute.

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default judgment based on new evidence. This court reviews a circuit court’s
entry of a default judgment, and a circuit court’s decision to grant or deny a
motion to vacate a default judgment, 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
(entry of default judgment); Dugenske v. Dugenske, 80 Wis. 2d 64, 68, 257
N.W.2d 865 (1977) (decision to grant or deny motion to vacate default judgment).
“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.

I. Grant of Default Judgment

¶10 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., 246 Wis. 2d 1, ¶17 (citing WIS. STAT. §§ 802.10(7), 804.12(2)(a),
and 805.03); see also Steven V. v. Kelley H., 2004 WI 47, ¶32, 271 Wis. 2d 1, 678
N.W.2d 856 (the rules of civil procedure generally apply in termination of parental
rights proceedings, including rules permitting default judgment). Under WIS.
STAT. § 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.

¶11 Here, the circuit court entered a default judgment against L.D.D.
under WIS. STAT. § 805.03 based on her “egregious” failure to comply with the
court’s order requiring her to appear at the October 4 hearing. The court based its
decision in part on what had occurred at the September hearing. Accordingly, I
first summarize what the transcript shows occurred at the September hearing and

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what the transcript shows the court decided when L.D.D. did not appear at the
October 4 hearing. I next explain my conclusion that the court did not erroneously
exercise its discretion in entering the default judgment and reject L.D.D.’s
arguments to the contrary.

September 12 Hearing

¶12 The circuit court began by asking L.D.D. whether she contested the
petition, and she responded, “Yes.” The court then asked L.D.D. if she wanted to
have legal counsel, and she responded, “No,” and told the court that an earlier
petition was dismissed and she did not understand why the case “is still going on.”
The court asked L.D.D. if she wanted to have an attorney “help you with this,” and
she responded that the proceedings had been going on for six years without
providing any proof to support termination. The court stated, “[I]f you want to
have an attorney, I can get you an attorney; and then we’re getting to be setting up
some dates in terms of where you can make just those arguments.” L.D.D.
explained that she was “past frustration” with the legal system. The court stated,
“I am going to appoint you counsel because I think it’s important for all the
reasons you said.” L.D.D. responded, “When you appoint counsel, I am not
showing up to court.”

¶13 The circuit court explained the two-phased procedure and L.D.D.’s
rights to a jury trial, to testify, and to cross-examine witnesses, and stated, “So that
is why I’m appointing you an attorney to help you with all that.… You also have
the right to be represented by an attorney. If you cannot afford an attorney, the
Public Defender’s Office will appoint one. I’m going ahead and I’m appointing an
attorney today.”

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¶14 Counsel for the County asked that the circuit court clarify to L.D.D.
the consequences for nonappearance and that “she can’t appear simply through her
attorney.” The court began to tell L.D.D., “[I]t’s important to participate because
what can happen if you don’t show up is—” when L.D.D. interrupted, saying that
she got “nowhere” after participating the past six years and that “I am not going to
participate.” The court continued, “The reason why it’s important in this case,
going forward, if you don’t appear, what they’re going to do is they’re going to
ask me to find you in default. And what that means then is we proceed without
you having … the ability to—”. L.D.D. again interrupted, saying that she would
go to the Supreme Court because her prior case had been dismissed. This
exchange followed:

Court: [T]his is why I’m appointing an attorney so they
can answer all your—

L.D.D.: And that is why they can represent me, and they
can show up in court for me. I don’t have to show up in
court at all again. That’s what I’m saying. If you appoint
me counsel, I don’t need to show up in court.

Court: I’m actually ordering you to be here, in person.

L.D.D.: And I’m not and I’m telling you that I’m not going
to.

¶15 The circuit court then set the date and time for the next hearing and
asked L.D.D., “Did you hear that date…? We’re going to print out a piece of
paper so—”. L.D.D. interrupted, saying, “It don’t matter. Just print it.” The court
repeated that “I’m also going to be appointing counsel for you.” The court
confirmed that the Clerk would provide L.D.D. with a copy of the petition, the
summons, and the notice of hearing. L.D.D. said, “I don’t want it. Y’all can just
keep it. I’m not going to accept it.” L.D.D. “left the proceedings without
receiving any paperwork.”

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October 4 Hearing

¶16 The County asked the circuit court to find L.D.D. in default “for an
egregious failure to appear.”

¶17 The circuit court noted that, at the September hearing:

I … attempted to give [L.D.D.] a copy of the petition….
She refused a copy of the petition…. In addition to that …
we set the time for today’s hearing. I set that orally. We
also printed out a notice to hand to [L.D.D.], but she
refused the notice. And in addition, I … gave her default
warnings and that was also contained in the notice.

The court further explained that, at the September hearing:

I did order her to appear in person [at the October hearing].
I gave her a specific warning about what it would mean to
be in default, and she failed to comply with my order. And
I think based on her conduct, especially with regards to
when I appointed counsel for her and how she engaged
with [the SPD], and then her failure to show up here, …
and she hasn’t provided any excuse. And I think she was
fairly defiant in her behavior at the last hearing and
indicated then [that she] … didn’t want to engage in this
process[.]

The court found L.D.D.’s failure to comply with its order requiring her to appear
at the October 4 hearing egregious and without a clear and justifiable excuse.

Analysis

¶18 I conclude that the circuit court did not erroneously exercise its
discretion in entering a default judgment against L.D.D. based on her failure to
comply with the court’s order requiring her to appear at the October 4 hearing.
The court examined the relevant facts, all of which are supported in the record,
when it noted that it ordered her personal appearance, that she was warned about
the consequences of being in default, that she was “defiant” in response, and that

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she provided no excuse for failing to appear in violation of the court’s order. The
court also applied the proper standard of law by applying 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 Mable K., 346 Wis. 2d 396,
¶69; WIS. STAT. § 805.03. The court further reached a reasonable conclusion that
L.D.D.’s failure to comply with the court’s order requiring her to appear at the
October 4 hearing was egregious using a rational process as reflected in the court’s
remarks quoted above.

¶19 L.D.D. argues that the circuit court erroneously exercised its
discretion because it reached an unreasonable conclusion that L.D.D.’s failure to
comply with the court’s order requiring her to appear at the October 4 hearing was
egregious. L.D.D. argues that the conclusion was unreasonable because the court
failed to fully examine the relevant facts. Specifically, L.D.D. argues that the
court incompletely examined the facts regarding: (1) the court’s statements at the
September hearing about the appointment of counsel and the consequences of
default; (2) an appeal by L.D.D. that was pending at the time of the October 4
hearing showing that she contested the petition; and (3) L.D.D.’s mental health
issues. L.D.D.’s arguments fail for the following reasons.

¶20 L.D.D. first argues that the circuit court erred in finding that it had
appointed counsel based on what it said at the September hearing because it did
not appoint counsel after that hearing. However, the distinction that L.D.D. seeks
to draw between what the court said and what it did is neither meaningful nor
reasonable. L.D.D. accurately notes that at the September hearing the court told
her multiple times that it was “going to appoint” or was “appointing” an attorney.
The record establishes that the court promptly followed up by directing the SPD to
contact L.D.D. in order to set her up with counsel. It is both evident from, and a

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reasonable interpretation of, the court’s statements that it used the phrase
“appointing an attorney” as shorthand for the process that the court initiated, by
which the court would direct the SPD to contact the party, and the SPD, after
working out the details, would submit a proposed order appointing counsel for the
court’s signature. By using that shorthand, the court was indicating that it was
prepared to sign such an order. L.D.D. suggests that when the court told her it was
appointing counsel it was obligated to instruct her to obtain counsel through the
SPD. But she does not explain how the court failed to fulfill its obligation when it
instead instructed the SPD to contact L.D.D. in order to provide her with counsel.

¶21 L.D.D. argues that the circuit court erred in faulting her for declining
the SPD’s appointed counsel because the court did not conduct a proper colloquy
with L.D.D. about waiving her right to counsel. However, the issue of whether
L.D.D. waived her right to counsel is not relevant to this appeal because the record
shows that the court did not grant the default judgment on the ground that L.D.D.
refused counsel. While the court noted L.D.D.’s response to the SPD’s attempt to
appoint counsel as a contributing factor to its finding of egregiousness, the
primary factors on which the court relied were L.D.D.’s failure to comply with the
court’s order requiring that she personally appear at the October 4 hearing, her
failure to provide an excuse for not appearing, and her overall “defiant” conduct
with respect to the court and the proceedings.

¶22 L.D.D. may also be arguing that the circuit court lacked authority to
require her personal appearance at the October 4 hearing and that the court was
instead obligated to ensure that the counsel that the court said it “was appointing”
appear. However, L.D.D. does not cite legal authority supporting such a
proposition. L.D.D. makes reference to WIS. STAT. § 48.23 and case law
interpreting that statute, but the court entered the default judgment under WIS.

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STAT. § 805.03, not § 48.23. In sum, L.D.D. fails to show that the circuit court
incompletely examined the facts regarding the court’s statements at the September
hearing about the appointment of counsel.

¶23 L.D.D. next argues that the circuit court incompletely examined the
facts regarding the court’s statements at the September hearing about the
consequences of default. The record shows to the contrary. When the court first
attempted to tell L.D.D. what would happen if she did not personally appear in
court at future hearings, L.D.D. interrupted, saying that her participation means
“nothing.” The court then told her that her personal appearance “in this case,
going forward” was important because, if she did not appear in person, then the
County would move for default. As the court began to explain what “default”
meant, saying “what that means then is we proceed without you having … the
ability to,” L.D.D. interrupted, and the court did not finish the explanation.
Instead, as L.D.D. continued to interrupt the court, the court told her, “I’m actually
ordering you to be here, in person.” The court also had the clerk print out copies
of the petition and notice of hearing to provide to L.D.D., which contained the
default warnings for failure to appear at court hearings.

¶24 When L.D.D. failed to appear at the October 4 hearing, the circuit
court stated that at the September hearing it had “advised [L.D.D.] … in terms of
default and [given] her default warnings … [which were] also contained in the
notice [of hearing].” As shown in the preceding paragraph, the court accurately
stated that it had advised L.D.D. that if she failed to appear she could be found in
default. The court also accurately stated that it had given her the warnings
explaining the meaning of default by providing her the petition and notice of
hearing, which she refused to take. L.D.D. fails to show that the court

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incompletely examined the facts regarding the court’s statements at the September
hearing about the consequences of default.

¶25 L.D.D. next argues that the circuit court incompletely examined the
facts regarding an appeal by L.D.D. that was pending at the time of the October 4
hearing. L.D.D. argues more specifically that the court did not acknowledge that
L.D.D. was attempting to contest the petition in the appellate court. However,
L.D.D. told the court at the September hearing that she contested the petition, and
the court in its remarks about the importance of both her personal appearance at
future hearings and the court’s appointing counsel stemmed from precisely the
reasons and arguments offered by L.D.D. for why she disagreed with the petition.
L.D.D. fails to show that the court incompletely examined the facts regarding her
contesting the petition.

¶26 L.D.D. also argues that the circuit court incompletely examined the
facts regarding her mental health issues. Before the court made its default ruling,
it heard from the guardian ad litem who entered “an admission to the petition,”
and heard testimony from the social worker assigned to L.D.D.’s termination of
parental rights case. The social worker testified as to L.D.D.’s mental health
diagnoses and her “struggles” with complying with the conditions of return
requiring that she undergo treatment for her mental health issues. In finding that
the County had proven the alleged grounds for termination, the court found that
L.D.D. had not “treated her mental health as required” and that as a result of her
noncompliance her mental health had worsened. Thus, the court was aware of
L.D.D.’s mental health issues when it entered the default judgment.

¶27 L.D.D.’s argument about the circuit court’s failure to fully consider
her mental health issues is in effect an argument that the court should have

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exercised its discretion differently by giving weight to her mental health issues as
the court considered her defiant conduct at the September hearing and her failure
to comply with its order requiring her to appear at the October 4 hearing.
However, L.D.D. points to no basis in the record for the court to have given
weight to her mental health issues in connection with her failure to appear at the
time that the court made its default ruling. And, this court will not disturb a circuit
court’s discretionary decision on the basis that the circuit court should have
exercised its discretion differently. State v. Prineas, 2009 WI App 28, ¶34, 316
Wis. 2d 414, 766 N.W.2d 206. I address L.D.D.’s argument that her mental health
issues constituted new evidence in support of her motion to vacate the default
judgment in the next section.

¶28 Finally, L.D.D. argues that, in light of the asserted factual errors
above, the circuit court erroneously exercised its discretion in concluding that her
failure to appear at the single October 4 hearing was egregious. However, I have
concluded that L.D.D. fails to show that the circuit court made the factual errors
she asserts, and L.D.D. cites no legal authority supporting the proposition that a
party’s failure to comply with a court order by failing to appear at one hearing is
not a proper factor for the circuit court to consider in entering a default judgment
against that party. Cf. Barron Cnty. HHS v. S.R.T., Nos. 2018AP1574 and
2018AP1575, unpublished slip op. ¶17 (WI App May 22, 2019) (applying a statute
different from WIS. STAT. § 805.03 and stating that WIS. STAT. § 48.23(2)(b)3.
“does not prohibit a circuit court from finding a ‘parent’s conduct in failing to
appear in person was egregious and without clear and justifiable excuse’ after

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missing only one hearing”).5 Here, as explained above, L.D.D.’s failure to comply
with the circuit court order requiring her to appear at the October 4 hearing was
only one factor that the court considered in making its default ruling.

II. Denial of Motion to Vacate Default Judgment

¶29 Under WIS. STAT. § 48.46(1), a parent “whose status is adjudicated
by the court … may at any time within one year after the entering of the court’s
order petition the court for a rehearing on the ground that new evidence has been
discovered affecting the advisability of the court’s original adjudication.” 6 A
petitioner under § 48.46(1) must meet two requirements: “(1) There must be
shown the existence of newly discovered evidence, and (2) the evidence must be
of such a character as to affect the advisability of the original adjudication.”
Schroud v. Milwaukee Cnty. Dep’t of Pub. Welfare, 53 Wis. 2d 650, 654, 193
N.W.2d 671 (1972).

5
See WIS. STAT. RULE 809.23(3)(b) (permitting the citation of authored unpublished
opinions issued after July 1, 2009, for their persuasive value).
6
The County argues that WIS. STAT. § 48.46(2) applies to L.D.D.’s motion and,
therefore, that the motion was untimely. That statute provides:

A parent who has consented to the termination of [the parent’s]
parental rights under [WIS. STAT. §] 48.41 or who did not contest
the petition initiating the proceeding in which [the parent’s]
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). Any such motion shall
be filed within 30 days after the entry of the judgment or order
terminating parental rights[.]

Here, L.D.D. did not consent to the termination of her parental rights, did contest the
petition to terminate her parental rights, and appeals only the denial of her motion based on new
evidence under WIS. STAT. § 48.46(1). Accordingly, her motion is not subject to the 30-day
filing deadline in § 48.46(2).

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¶30 In the circuit court, L.D.D., represented by counsel, sought a
rehearing on the default judgment under this provision based on medical records
showing that she was treated for mental health issues for a period beginning on the
day after she did not appear at the October 4 hearing; she asserted that these
records reflect the mental health issues that she was experiencing at the time of
both the September 23 and the October 4 hearings.7 In her motion, L.D.D. noted
that she was not providing the medical records because they contain irrelevant
sensitive medical information but that she would provide the records to the circuit
court for an in camera inspection at the court’s request. At the hearing on the
motion, L.D.D. also offered to testify about her mental health issues at the time of
the September 23 and October 4 hearings. On appeal, L.D.D. argues that the court
erroneously exercised its discretion because it applied an incorrect legal standard
and denied the motion without giving L.D.D. the opportunity to present the new
evidence. I first summarize the court’s ruling and then explain why L.D.D.’s
arguments fail.

¶31 The circuit court held a hearing on L.D.D’s motion at which it heard
argument and made its ruling. L.D.D. appeared by counsel and in person. As
stated, counsel told the court that L.D.D. was prepared to testify about her mental
health issues at the time of the two hearings, for which she was subsequently
treated beginning the day after the October 4 hearing. The court accepted as true
that L.D.D. was treated for mental health issues beginning the day after the

7
In the circuit court, L.D.D. also argued that the transcript of the September hearing is
new evidence under WIS. STAT. § 48.46(1) to the extent that it reflected that the court’s
explanation of the consequences of being found in default was incomplete and the court’s
statements about appointing counsel were inaccurate. On appeal, L.D.D. does not challenge the
court’s decision that the transcript is not new evidence under § 48.46(1). Accordingly, I do not
consider that issue further.

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October 4 hearing and that she was not complying with treatment at the time of the
September 23 and October 4 hearings. However, the court determined that neither
the post-October 4 medical records nor the testimony by L.D.D. about her mental
health on September 23 and October 4 were necessary for the court to be aware of
L.D.D.’s mental health issues at the time. The court explained that L.D.D.’s
mental health struggles, including a pattern of “repeated hospitalizations” and
subsequent “refusal to seek treatment,” were evident as part of the factual basis for
the petition.8

¶32 The circuit court further found that L.D.D. was “coherent … during
the hearing,” and it was clear that “she interacted back and forth with the [c]ourt
about different things” and “made her wants well known.” The court stated that
while L.D.D. probably wished she had treatment before the September 23 hearing
and that “with the benefit of hindsight she would make a different decision
now[,]” “that doesn’t make [the records and her testimony about her mental health
issues at the time] new evidence warranting a rehearing.” The court concluded
that, because L.D.D.’s mental health issues were known to the court at the
September hearing, testimony about those issues and records of her latest
treatment were “cumulative” to the evidence before the court at the time that it
made the default judgment ruling at the October 4 hearing and, therefore, were not
new evidence warranting a rehearing on the default judgment.

¶33 L.D.D. argues that the circuit court applied the wrong legal standard.
Specifically, she argues that the court erred in applying the definition of “newly

8
In addition, the social worker testified at the October 4 hearing as to L.D.D.’s mental
health “struggles” and her cycling in and out of treatment and noncompliance.

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discovered evidence” in WIS. STAT. § 805.15(3), rather than the requirements for
“new evidence” stated in WIS. STAT. § 48.46(1). Under § 805.15(3), a court must
grant a party’s motion for a new trial based on newly discovered evidence if the
court finds that: (1) the evidence was brought to the party’s attention after trial;
(2) the party did not fail to exercise due diligence in seeking to discover it; (3) the
evidence is material and not cumulative; and (4) the new evidence would probably
change the result. Under § 48.46(1), a court must grant a parent’s motion for a
rehearing of the court’s adjudication of the parent’s child’s status if the court finds
that: (1) newly discovered evidence exists; and (2) the evidence is “of such a
character as to affect the advisability of the original adjudication.” Schroud, 53
Wis. 2d at 654. Thus, under both § 805.15(3) and § 48.46(1) as interpreted by
Schroud, L.D.D. was required to show that newly discovered evidence existed.

¶34 Here, the circuit court looked to the definition of newly discovered
evidence in WIS. STAT. § 805.15(3) to guide its analysis of whether L.D.D.
showed the existence of newly discovered evidence under § 48.46(1). As
recounted above, the court determined that the proffered medical records and
testimony were cumulative to evidence that was before the court at the time that it
made its default judgment ruling. That is, the court effectively determined that the
first prong of the Schroud test was not met: L.D.D. failed to show the existence
of newly discovered evidence. Accordingly, L.D.D. fails to show that the court
applied the wrong legal standard.

¶35 L.D.D. also argues that the circuit court erroneously exercised its
discretion when it denied her motion without giving her the opportunity to present
the medical records documenting her treatment for mental health issues after the
October 4 hearing and to offer testimony about her mental health issues at the time
of the September 23 and October 4 hearings. However, the record recounted

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No. 2024AP1267

above shows that the court accepted as true that the records would document her
treatment as described and that she was not complying with treatment for her
mental health issues at the time of the hearings. The court also explained that
L.D.D.’s mental health issues and pattern of cycling through treatment and
noncompliance with treatment were known to the court at the time of the hearings.
In other words, the court determined that the new evidence did not present
information that the court was not already aware of. Thus, the court made the
reasonable decision, based on the facts before it, to deny L.D.D.’s motion without
reviewing the records or hearing testimony by L.D.D. about her mental health
issues at the time of the September 23 and October 4 hearings.

CONCLUSION

¶36 For the reasons stated, I affirm the circuit court’s orders terminating
L.D.D.’s parental rights to her child and denying her motion to vacate the default
judgment.

By the Court.—Orders affirmed.

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

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