Kenosha County DHS v. V.J.G., 2017AP1150 & 2017AP1151, District 2, 12/27/17 (one-judge decision; ineligible for publication); case activity
V.J.G.’s failed to appear at the pretrial and grounds trial in the TPR proceedings regarding his children. The circuit court then discharged V.J.G.’s lawyer, set a new evidentiary and dispostional hearing, and terminated V.J.G.’s parental rights. The court of appeals rejects V.J.G.’s challenges to § 48.23(2)(b)3., the statute on which the court based its actions.
Under § 48.23(2)(b)3., a court can deem a parent to have waived the right to counsel “if the court has ordered the parent to appear in person at any or all subsequent hearings in the proceeding, the parent fails to appear in person as ordered, and the court finds that the parent’s conduct in failing to appear in person was egregious and without clear and justifiable excuse. Failure by a parent 18 years of age or over to appear in person at consecutive hearings as ordered is presumed to be conduct that is egregious and without clear and justifiable excuse.” In addition to oral and written warnings that failing to appear could result in a default judgment, V.J.G. was ordered to appear by phone or in person to the pretrial and grounds trial, but didn’t appear in person, didn’t call in, and didn’t respond to his lawyer’s attempts to contact him and get him to appear. (¶¶3-8, 10-11).
V.J.G. argues there’s no statute that explicitly authorizes a circuit court to order personal appearance, and notes that SCR 11.02(1) allows a party to appear by counsel rather than in person. Thus the order that V.J.G. appear in person was unlawful, and he can’t be defaulted for failing to follow an unlawful order. (¶¶14, 18). The court of appeals finds the authority in the plain language of § 48.23(2)(b)3., which expressly refers to a court ordering the parent to appear. It would make no sense for the legislature to write a statute that gives the court the power to remove a lawyer based on a violation of an order it has no authority to issue. Further, the statute is based on Evelyn C.R. v. Tykila S., 2001 WI 110, ¶¶1, 17, 246 Wis. 2d 1, 629 N.W.2d 768, “which approved default as a sanction for a parent’s failure to personally appear as ordered—a holding necessarily premised upon the court’s authority to enter such an order in the first place.” (¶17).
As for SCR 11.02(1), while it authorizes appearance through counsel, it “does not, under its plain terms, prevent a court from entering an order requiring a party to personally appear.” (¶19). Finally, V.J.G.’s argument that § 48.23(2)(b)3. violates equal protection by singling out parents facing termination of parental rights is rejected because the statute passes rational basis scrutiny. (¶¶26-29).
V.J.G. also claims the lack of notice to him about the dispositional hearing, which was set after he failed to appear at the grounds hearing, violated his due process rights. The lack of notice was a problem of V.J.G.’s own making, however. He failed to appear at the grounds hearing, which he did have notice of, and did not respond to his (now discharged) attorney’s attempts to contact him after the grounds hearing to advise him to call her back and participate. While the circuit court itself might have done more to give V.J.G. notice, that failure doesn’t amount to a due process violation. (¶¶23-24).
