The law governing default TPRs is messy. Click here. This decision makes it messier.
The County petitioned for a TPR arguing that “Tad” failed to assume parental responsibility for “Malcom.” The County served Tad with the summons, petition, and notice of hearing at the Sheboygan County Detention Center. It also served him with amended pleadings and notice of hearing. When neither he nor his lawyer appeared at the rescheduled hearing, the circuit court held him in default as to grounds.
About 180 days later, Tad twice moved to vacate the default judgment and lost. On appeal he argued that the Sheboygan County Detention Center staff failed to make arrangements for him to appear at the rescheduled hearing. Due to his incarceration status, he was unable to appear through his own efforts. And due to his indigency, he was unable to contact the court to advise it that staff was not producing him for the hearing. Plus he only received 3 days’ notice of the hearing.
The court of appeals held that Tad had an opportunity to raise these issues in his two circuit court motions to vacate the default judgment, but he failed to do so. He therefore forfeited the arguments. (Opinion, ¶22) (citing State v. Counihan, 2020 WI 12, ¶25, 390 Wis. 2d 172, 938 N.W.2d 530; State v. Dowdy, 2012 WI 12, ¶5, 338 Wis. 2d 565, 808 N.W.2d 691).
On Point does not have access to the record. However, the court of appeals’ description of the arguments Tad made in his motions to vacate sure seem similar to his arguments on appeal. Compare Opinion ¶¶7-8 with ¶¶18-19.
Tad argued that the court of appeals should not apply forfeiture to his case because a default TPR implicates a fundamental liberty interest. The court of appeals said “too bad.” Tad should have established a factual basis in the circuit court for his claims that his custodial status, indigency, and lack of notice interfered with his ability to attend the grounds hearing. (Opinion, ¶27).
Tad also argued that when the circuit court denied his first motion to vacate the default judgment, it applied the wrong legal standard. It should not have looked for “excusable neglect.” Rather, when deciding whether to vacate a default TPR the circuit court should consider “whether [a] parent has shown that he or she honestly wanted and diligently sought the opportunity to participate in the proceedings.” Chester B. v. Larry D., Nos. 2011AP925 and 2011AP926, unpublished slip op. ¶14, (WI App Nov. 2, 2011).
It’s unclear whether the circuit court applied one or both standards. This did not trouble the court of appeals because, in its view, the record amply supported a circuit court finding that Tad did not show that he “honestly wanted and diligently sought an opportunity” to participate in the proceedings. After all, he waited 180 days to move to vacate the default judgment. And he did not seek to establish paternity over Malcom until one year after his birth. (Opinion, ¶31.)
The court of appeals and the parties treat Chester B. as the governing legal standard. It is an unpublished (i.e. not binding) decision from 2011, which relies upon State v. Shirley E., 298 Wis. 2d 1, 724 N.W.2d 623. There is no mention of Shirley E. in this decision. Nor is there any mention of Dane Cnty. DHS v. Mable K., 2013 WI 28, ¶71, 346 Wis. 2d 396, 828 N.W.2d 198, which requires a finding of egregious conduct before entry of a default judgment in a TPR. Our post on Rock County Human Servs. v. A.P. highlights some of the confusion over the legal standards governing default TPRs. Perhaps Tad will file a petition for review and SCOW will sort things out.