Dane County v. L.D.D., 2024AP1267, District IV, 10/24/24 (one-judge decision; ineligible for publication); case activity
The Court of Appeals affirmed the circuit court’s order terminating L.D.D.’s parental rights after it entered default judgment when she did not appear at the hearing on grounds to terminate or the disposition hearing. The Court also affirmed the circuit court’s order denying L.D.D.’s motion to vacate the default judgment based on new evidence.
L.D.D. appeared without counsel at the initial hearing on the petition to terminate her parental rights. She told the circuit court that she wanted to contest the petition, but did not want counsel appointed. The circuit court advised her 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.’” (¶ 3). The court ordered L.D.D. to appear in person at the next hearing. The circuit court asked the State Public Defender to assign counsel for L.D.D.; an SPD appointment clerk and attorney contacted L.D.D., who declined representation. (¶ 4).
L.D.D. did not appear at the next hearing, and the circuit court found that her failure to appear was egregious and without a clear and justifiable excuse. See Mable K. (default judgment may be entered under Wis. Stat. § 805.03 when party fails to comply with court order if the non-complying party acted egregiously or in bad faith). The court found that the County’s testimony and evidence established grounds to terminate L.D.D.’s parental rights, granted the County’s request for default judgment as to grounds, and scheduled a dispositional hearing. L.D.D. did not appear at the dispositional hearing and the circuit court entered an order terminating L.D.D.’s parental rights. L.D.D.’s motion to vacate the default judgment based on new evidence was denied. (¶¶ 5-6).
On appeal, L.D.D. argued that the circuit court erroneously exercised its discretion when it found that her failure to appear at the hearing on grounds to terminate was egregious. The Court of Appeals rejected L.D.D.’s argument that the circuit court did not adequately inform her about the process to obtain counsel because it did not instruct her to obtain counsel through the SPD: “It is both evident from, and a 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.” (¶ 20). L.D.D. argued that the circuit court was required to instruct her to obtain counsel through the SPD, but the Court concluded the circuit court adequately guaranteed access to counsel for L.D.D. by instructing the S.P.D. to contact L.D.D. (¶ 20).
L.D.D. also argued that the circuit court incompletely examined the facts because the circuit court did not acknowledge she was attempting to contest the petition in the court of appeals. The Court noted that the circuit court stressed to L.D.D. 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.” (¶ 25). The Court therefore concluded that L.D.D. did not show the circuit court incompletely examined the facts regarding her contesting the petition. (¶25).
The Court did not agree with L.D.D. that the circuit court incompletely examined her mental health issues given that, before entering default judgment, a social worker testified regarding L.D.D.’s mental health diagnoses and difficulty complying with the conditions of return requiring that she undergo treatment for her mental health: “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 default judgment.” (¶ 26).
Finally, L.D.D. argued that the circuit court erroneously exercised its discretion when it denied her motion to vacate the default judgment based on medical records showing that she was treated for mental health issues the day after she did not appear at the hearing on grounds to terminate, which L.D.D. argued was newly discovered evidence. See Wis. Stat. § 48.46(1) (parent may petition for rehearing based on new evidence that affects the advisability of the court’s original adjudication). The Court affirmed because the evidence was not new given that the circuit court 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.” (¶ 35).
