Medium Close Up Of An Empty Chair At A Courtroom Witness Table, With Microphone

June 28, 2024  – A circuit court must wait at least two days before adjudicating the dispositional phase of a termination-of-parental-rights (TPR) trial when the parent has failed to appear, the Wisconsin Supreme Court has held (5-2) in State v. R.A.M.2024 WI 26 (June 25, 2024).

Justice Jill Karofsky wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Rebecca Grassl Bradley, Justice Rebecca Dallet, and Justice Janet Protasiewicz. Chief Justice Annette Ziegler dissented, joined by Justice Brian Hagedorn.

In 2021, the State filed a petition in Milwaukee County Circuit Court to terminate R.A.M.’s parental rights, on the grounds that: 1) her child was in the continuing need of protection and services under Wis. Stat. section 48.415(2); and 2) R.A.M. had failed to assume her parental responsibility under section 48.415(6).

After a trial in March 2022, the circuit court set July 5, 6, and 15 as the dates for the grounds and dispositional phases.

At some point prior to the July dates, the circuit court ordered R.A.M. to attend all the hearings or risk being found in default.


R.A.M. failed to appear in court on July 5, 2022. The circuit court found that R.A.M.’s failure to appear was egregious.

Jeff M. Brown
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

The State and the child’s guardian ad litem (GAL) moved to enter a default judgment against R.A.M. The court granted the motion.

Then, the circuit court found that the state had met its burden of proving the two grounds under section 48.415(2) by clear and convincing evidence and moved immediately to the disposition phase, despite R.A.M.’s absence.

The circuit court ordered the termination of R.A.M.’s parental rights, after finding that the termination was in the best interests of the child.

Court of Appeals Reverses

R.A.M. appealed.

The Wisconsin Court of Appeals reversed the circuit court’s order. The Court of Appeals held that the circuit court had lost competency when it conducted the dispositional phase on the same day as the grounds phase.

The Court of Appeals remanded the case, but the GAL petitioned the Supreme Court for review.

Statute is Unambiguous

Justice Karofsky noted that under the third and final sentence of section 48.23(2)(b)3., if a circuit court finds that a parent’s failure to appear as ordered is “egregious and without clear and justifiable excuse,” it may not hold a dispositional hearing until at least two days after the date on which it found that the parent’s failure to appear was egregious.

The State argued that the third sentence of section 48.23(2)(b)3. should be read in context with the section’s first sentence. That sentence specifies that a parent aged 18 or older is presumed to waive his or her right to counsel and right to appear by counsel if:

  • the court has ordered the parent to appear in person at all subsequent proceedings;

  • the parent fails to appear; and

  • the court finds that the parent’s failure to appear “was egregious and without clear and justifiable excuse.”

When read as whole, the State argued, section 48.23(2)(b)3. requires a court to wait at least two days to hold a dispositional hearing only where a parent has waived his or right to counsel by egregiously failing to appear, which hadn’t occurred in R.A.M.’s case.

But Karofsky concluded that the plain and unambiguous wording of the statute cut against the State’s argument.

“The statute does not require additional unwritten elements such as the waiver of counsel, the withdrawal of counsel, or the discharge of counsel, in order for the two-day waiting period to apply,” Karofsky wrote.

Justice Karofsky noted that under Supreme Court case law, the statute’s title – “Right to counsel” – was immaterial.

“Statutory titles may be helpful for ‘for the purpose of relieving ambiguity,’ but ultimately, ‘titles are not part of the statute,” Karofsky wrote.

Circuit Court Lacked Competency

Justice Karofsky noted that, under Wisconsin Supreme Court caselaw, only errors central to the relevant statutory scheme result in a lack of competency.

She pointed out that under section 48.315(3), the failure of a circuit court to act inside any time limit listed in ch. 48 did not deprive the court of competency.

However, Karofsky reasoned that in R.A.M.’s case, the circuit had not failed to act inside a time limit.

“Instead, this case is about a failure to wait an adequate amount of time before proceeding,” Justice Karofsky wrote. “The legislature has not passed a law concerning a court’s failure to abide by a ch. 48 mandatory waiting period.”

Karofsky concluded that the two-day waiting period was central to the relevant statutory scheme. Therefore, the circuit court’s failure to observe the two-day waiting period deprived it of competency to adjudicate the dispositional phase.

“The two-day waiting period serves as a basic procedural safeguard for parents in termination of parental rights proceedings, potentially providing them opportunity to participate in the disposition hearing, or to ask the court to reconsider a default judgment following an egregiousness finding,” Justice Karofsky wrote.

Dissent: Majority Ignores Context

Chief Justice Ziegler argued in her dissent that section 48.23 deals with the right to counsel and waiver of counsel, not default. Consequently, she argued, the two-day waiting period didn’t apply.

“While the title of a statute is not dispositive, the words of a statute are, and every single part of that statute deals with TPR proceedings and whether a parent has a right to counsel,” Ziegler wrote.

Chief Justice Ziegler pointed out that R.A.M.’s attorney took part in the TPR proceedings.

“Counsel was never even presumed waived,” Ziegler wrote. “The statute the majority relies upon is inapplicable here.”

Chief Justice Ziegler argued that the majority had ignored the context of section 48.23(2)(b)3. to “hyper-fixate on the last sentence of the statute.”

“The language of this entire statute is plain: This statute deals with the waiver of counsel,” Ziegler wrote.