Defense Win! Missing one pre-trial TPR hearing not sufficient basis for default judgment

Kenosha County Division of Child and Family Services v. D.R.-R., 2022AP1812, 06/01/23, District 2 (1-judge opinion, ineligible for publication); case activity

In what should not be a shocking outcome, a mother's failure to appear at a single pre-trial hearing is not "egregious" and does not support a default judgment on grounds.

On Point has covered recent decisions from the Districts 1, 3, and 4, which have affirmed default judgment orders entered after a parent failed to appear at a single hearing. See State v. M.R.K., Price County v. T.L., and Dane County v. A.D.  In this case, District 2 applies the appropriate definition of egregious in the context of a missed TPR hearing. Unlike the cases cited above, the court here reaffirms that the entry of a default judgment is a "particularly harsh sanction" and that an act is "egregious" if it is "extraordinary in some bad way; glaring, flagrant." Further, egregious conduct "means a conscious attempt to affect the outcome of litigation or a flagrant, knowing disregard of the judicial process." Finally, the court notes that unintentional conduct may be egregious only if it is "so extreme, substantial, and persistent." (Opinion,¶¶24-25).

That being said, the facts and record set out in the opinion stand out as truly compelling. D.R.-R. was born in Guatemala, stopped attending school in the first grade, and utilized a K'iche' interpreter for all proceedings in this her TPR case and the underlying CHIPS case. (Op., ¶¶2-5). In 2019, a CHIPS order was entered placing D.R.-R.'s daughter outside of the home. During the CHIPS case, D.R.-R. attended more than a dozen in-person hearings. In March 2021, the county petitioned to terminate her parental rights. Despite clear communication issues between D.R.-R., her trial counsel, the interpreter, and the court, D.R.-R. appeared at the first four TPR hearings and the case was set for trial. Yet, immediately after D.R.-R. failed to appear for a scheduled "jury status" hearing, the county immediately moved for a default judgment on grounds. (Op.,¶¶13-14). The circuit court granted the order based on the fact that the court had "given default warnings" at the three prior TPR hearings.

D.R.-R. opposed the default order, later sought to vacate it, filed a postdisposition motion, which was denied, and then appealed. In a welcome framing of the issue on appeal, the court focuses on the county's arguments in support of the "default sanction." (Op.,¶20). First, the county relied on Wis. Stat. § 806.02(5), which states that a default judgment may be rendered against a party who fails to appear at trial. The court quickly rejects this argument because the provision applies "at trial" and the hearing D.R.-R. missed was a jury status hearing. (Op.,¶22).

Next, the county relied on Wis. Stat. § 805.03, which authorizes grants circuit courts the authority to sanction a party for failure to comply with a court order. The court notes, however, that sanctions imposed under § 805.03 must be "just," and a default judgment is a "particularly harsh sanction" that is "just" only if the non-complying party's conduct has been egregious or in bad faith. (Op.,¶24) (citing Dane Cnty. Dep't of Human Servs. v. Mable K., 2013 WI 28). From there, the outcome seems obvious: D.R.-R.'s single missed jury status hearing "was not egregious." (Op.,¶¶26-39). The court concludes by noting that the county "has not identified any case in which the circuit court determined a parent's conduct was egregious and granted default on such a meager record." (Op.,¶39).

While D.R.-R.'s case presents extremely compelling reasons to reverse, the application of the legal reasoning set forth in this case would seem to apply to any and every case where a parent simply fails to appear at a pre-trial hearing. While the case is not eligible for publication, it is a must cite, as persuasive authority, in any motion to vacate a default judgment order or on appeal from a TPR order premised on a default judgment order that is not supported by a parent's supposedly egregious conduct. If you're looking for a thorough and meaningful definition of "egregious" in this context, look no further. (Op.,¶25).