Chester B. v. Larry D., 2011AP926, District 2, 11/2/11
court of appeals decision (1-judge, not for publication); for Larry D.: Suzanne L. Hagopian, SPD, Madison Appellate; case activity
Entry of default against parent imprisoned out of state violated his right to due process under the circumstances. On receipt of the petition and summons, Larry contacted the petitioner’s attorney and said he wanted representation. The attorney then contacted the SPD. Larry thought the SPD would contact him, but the SPD thought Larry would contact it. The trial court, on posttermination motion, denied relief on the theory that, even though Larry had wanted to contest the matter, he should have sought help from his prison case worker to call the SPD. The court of appeals holds that this might amount to inexcusable neglect in a typical civil case, but not this one.
¶9 But this is not an ordinary civil action. This is a TPR. Termination of parental rights proceedings “work a unique kind of deprivation” as they “involve the awesome authority of the state to destroy permanently all legal recognition of the parental relationship.” M.L.B. v. S.L.J., 519 U.S. 102, 118, 128 (1996) (internal quotations omitted). Therefore, “heightened legal safeguards” are provided both by statute and by due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, §§ 1 and 8 of the Wisconsin Constitution. Evelyn C.R. v. Tykila S., 2001 WI 110, ¶21, 246 Wis. 2d 1, 629 N.W.2d 768.
The test for determining “whether the parent has met he high threshold of excusable neglect [is] whether the parent has shown that he or she honestly wanted and diligently sought the opportunity to participate in the proceedings,” ¶14, citing State v. Shirley E., 2006 WI 129, ¶49, 298 Wis. 2d 1, 724 N.W.2d 623. “(I)t appears that Larry really wants to contest the termination of his parental rights. He is not one of those parents who waves blandly at the proceedings and then, only after termination has been adjudged, suddenly wants to avail himself of the statutory ‘rights’ found in our TPR law. Larry should get his chance,” ¶15.
Moreover, Larry filed his notice of intent to pursue postdisposition relief late, something that ordinarily would bar jurisdiction over the appeal. But the same circumstances that lead the court to find excusable neglect lead it to conclude that applying a jurisdictional bar to review under § 808.04(7m) would make that provision unconstitutional as applied (not on its face), ¶¶16-19.
