A parent in a termination of parental rights proceeding has a near absolute statutory right to counsel, pursuant to Wis. Stat. section 48.23.

Case law establishes that a parent’s statutory right to counsel is not limited to those who appear in person, and that such a right can withstand default judgment.1

Wis. Stat. Section 48.23(2)(b)3

In response to these cases, the Wisconsin Legislature amended the statutes to create a process by which a parent may presumptively waive their right to counsel by failing to appear in person as ordered by the court, where such conduct in failing to appear is egregious and without clear or justifiable excuse.2

This was to address cases where a parent did not communicate with their counsel, and the attorney was then stuck between an ethical obligation to zealously advocate for their client but unable to do so due to lack of communication. Wis. Stat. section 48.23(2)(b)3 states:

a parent 18 years of age or over is presumed to have waived his or her right to counsel and to appear by counsel if the court has ordered the parent to appear in person at any or all subsequent hearings in the process, 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. If the court finds that a parent’s conduct in failing to appear in person as ordered was egregious and without clear and justifiable excuse, the court may not hold a dispositional hearing on the contested adopted or involuntary termination of parental rights until at least 2 days have elapsed since the date of that finding.

Thus, by statute, a parent has a right to counsel that can be waived either by a voluntary, knowing, and intelligent plea, or by egregious conduct.3

State v. J.B.: Default Judgment Is Automatic Waiver

After this amendment, the first known case to these authors arguing that a default judgment rendered a parent’s counsel waived automatically was
State v. J.B.

Courtney L.A. Roelandts headshot

Courtney L.A. Roelandts,
Marquette 2018, is the assistant managing attorney of the Children’s Court Guardian ad Litem Division of the Legal Aid Society of Milwaukee, Inc. where she practices primarily in CHIPS, TPR, and minor guardianship cases and appeals.

Jenni Spies Karas headshot
Jenni Spies Karas,
Marquette 2006, is an assistant district attorney in Milwaukee County, where she is leads the Termination of Parental Rights Unit.

J.B., the respondent father argued that the trial court had erred when it proceeded directly to the dispositional hearing after defaulting him for failing to appear and conducting the required prove up testimony.

While the circuit court in
J.B. did make a finding that the respondent father’s behavior for failing to appear in person was egregious and without justifiable excuse and defaulted him as a result, the circuit court did not make any additional findings on the record about J.B. waiving his right to counsel nor did the circuit court discharge J.B.’s counsel or restrict his ability to participate in the disposition hearing in any way.

The Court of Appeals in
J.B. held that, while the language in section 48.23(2)(b)3 was “concededly broad,” it did not create an automatic waiver of counsel every time a parent was defaulted after being ordered to appear in person, having failed to appear in person, and the circuit court making a finding of that the nonappearance was egregious and without justifiable excuse.

This is because the legislature placed great emphasis on the need for counsel and a waiver of counsel without an explicit finding by the circuit court would be contrary to the legislative intent.

Further, the
J.B. court found that the two-day waiting period in the statute is only required when the court makes an explicit finding of waiver of counsel and counsel is actually discharged.

State v. R.A.M.: The Issue Revisited

The issue seemed resolved until June 2023.

State v. R.A.M.,5 appellate counsel made the same argument: that the default judgment, which cited the parent’s failure to follow court orders as egregious and bad faith conduct, brought section 48.23(2)(b)3 into play, rendered the parent’s counsel waived, and required a two-day delay of disposition. The Court of Appeals agreed, and “declined to adopt th[e] reasoning” in
State v. J.B., citing the plain language of the statute.

The Wisconsin Supreme Court took the case and heard arguments in January 2024.

The arguments focused on the distinction between default judgment for failure to follow court orders – pursuant to a court’s inherent and statutory authority under general civil procedure – versus a parent’s refusal to communicate or cooperate with the court process, demonstrating a waiver of their right to counsel by their conduct.

R.A.M.’s counsel argued that the court issued restrictions over R.A.M.’s counsel after entering the default judgment for failure to obey court orders, which was tantamount to a deprivation of counsel, making the default judgment an automatic waiver of counsel under Wis. Stat. section 48.23.

Decision Pending

A decision is yet to be issued, but practitioners and judges should be mindful to cite the authority by which they are requesting or entering default judgment.

Keep an eye on this case to see what the Supreme Court rules as to whether an “egregiousness” finding is an automatic waiver of a parent’s statutory right to counsel.

This article was originally published on the State Bar of Wisconsin’s
Children & the Law Section Blog. Visit the State Bar
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1State v. Shirley E., 2006 WI 129 ¶ 43-44, 298 Wis. 2d 1, 724 N.W.2d 623, citing
Evelyn C.R. v. Tykila S., 2001 WI 110 ¶ 17, 246 Wis. 2d 1, 629 N.W.2d 768;
see alsoDane Cty DHS v. Mable K., 2013 WI 28 ¶¶ 48-49, 346 Wis. 2d 396, 828 N.W.2d 198.

2 Wis. Stat. § 48.23(2)(b)3.

3 Wis. Stat. § 48.23(2)(b)1, 3.

4State v. J.B., 2016 AP 283-485.

5State v. R.A.M., 23AP441.