Barron Cnty. Dep't of Health & Human Servs. v. S.R.T. (In re Termination Parental Rights to A.A.T.)

388 Wis.2d 145

930 N.W.2d 288 (Table)

2019 WI App 33

IN RE the termination of parental rights to A.A.T., a person under the age of 18:

Barron County Department of Health and Human Services, Petitioner-Respondent,

v.S.R.T., Respondent-Appellant.

In re the termination of parental rights to A.L.T., a person under the age of 18:

Barron County Department of Health and Human Services, Petitioner-Respondent,

v.S.R.T., Respondent-Appellant.

Appeal Nos. 2018AP1574

2018AP1575

Court of Appeals of Wisconsin.

DATED AND FILED May 22, 2019

HRUZ, J.¹

¶1 Simon appeals circuit court orders involuntarily terminating his parental rights to his twin sons, Austin and Anthony.² He argues the court erred when it entered default judgments finding that grounds existed to terminate his parental rights. Simon also asserts that the proceedings violated his right to due process because they were fundamentally unfair. Finally, he contends the court erred when it denied his postdisposition motion to vacate both default judgments. We affirm.

BACKGROUND

¶2 Austin and Anthony were found to be children in need of protection or services and placed in out-of-home care pursuant to CHIPS³ dispositional orders entered in October 2016, when they were just over one and one-half years old. In December 2017, the Barron County Department of Health and Human Services (the Department) petitioned the circuit court to involuntarily terminate Simon’s parental rights to both Austin and Anthony.⁴ The termination of parental rights (TPR) petitions alleged three grounds of parental unfitness: abandonment; continuing need of protection or services; and failure to assume parental responsibility. See WIS. STAT. § 48.415(1)(a)2.-3., (2)(a), (6)(a).

¶3 On January 2, 2018, the Department moved for partial summary judgment only on the abandonment ground, asserting that the undisputed facts showed Simon was an unfit parent on that basis. That same day, Simon was personally served at the Barron County jail with the TPR summonses and petitions. The summons in each case stated: "IF YOU FAIL TO APPEAR, the court may hear testimony in support of the allegations in the attached [TPR] petition and grant the request of the [Department] to terminate your parental rights." (Boldface omitted.) Simon was also personally served with the Department’s notice of motion and motion for partial summary judgment two days later.

¶4 Simon appeared in person, but without counsel, at the first hearing on the TPR petitions on January 18, 2018. He was still in the custody of law enforcement at that time. The circuit court adjourned the hearing because Austin and Anthony’s mother was absent and had not been personally served with the TPR summonses and petitions, and because Simon had yet to be appointed counsel from the public defender’s office. The first adjourned hearing occurred on February 26, 2018. Simon’s counsel appeared in person, but Simon, who was then no longer in the custody of law enforcement, did not appear. The court adjourned the matter for a second time. On April 5, 2018, the court held a hearing encompassing both Simon’s second adjourned TPR hearing and a permanency plan review in Austin’s and Anthony’s CHIPS cases. Simon again did not appear in person, but his appointed attorneys in both the TPR and CHIPS cases were present.

¶5 At the April 5 hearing, the circuit court inquired whether Simon’s TPR counsel had an opportunity to speak with Simon about the petitions. Simon’s counsel responded:

Judge, at this point I don't think I'm comfortable discussing with the Court the contacts I have or haven't had with my client. I do represent him and I'm here today doing that.

I guess maybe what I'll say is [the Department] and I talked before court so I know what requests [it’s] going to make and I think we can get through this hearing easily without [Simon] here with me representing him.

Upon the Department’s request, the court then ordered Simon to appear at the next hearing, which was scheduled for May 1, 2018, at 3:45 p.m. In particular, the resulting order stated:

Based upon [Simon’s] failure to appear, IT IS ORDERED THAT:

....

(2) [Simon] is ordered to appear in person at all future court appearances in these proceedings, and is specifically ordered to appear in person [on May 1, 2018, at 3:45 p.m.] ....

Failure by ... [Simon] to appear in person may result in the Court granting the [TPR petition] by default. Further, pursuant to WIS. STAT. § 48.23(2)(b)3., [Simon] is admonished that where the Court has ordered him to appear in person at all future court proceedings, he is presumed to have waived his right to counsel and to appear by counsel if he fails to appear as ordered, and the Court finds that his conduct in failing to appear is egregious and without justifiable excuse. He is further admonished that failure by a parent 18 years of age or over to appear in person at consecutive hearings as ordered by the Court is presumed to be conduct that is egregious and without clear and justifiable excuse.

(Boldface omitted.) To provide Simon with notice of the order, the court also decided that notice would be served on both Simon’s counsel and on Simon himself, by mailing it to his sister’s address, which was Simon’s last known address according to the court file.

¶6 At the May 1, 2018 hearing, Simon again failed to appear in person. The circuit court first addressed the Department’s motion for the court to determine that Simon had waived his right to counsel, pursuant to WIS. STAT. § 48.23(2)(b)3. After argument from counsel, the court concluded Simon statutorily waived his right to counsel:

We don't know if he wants a jury trial. We don't know if he wants a different judge. We don't know whether he wants to contest these matters any further or not because he hasn't been in touch with anybody. He’s simply fallen off the radar screen and hasn't surfaced since January, some five months ago, nearly, and I don't believe that it’s necessary that we continue to have failures to appear before this Court can find that his failure to appear, failing to communicate with his attorney, otherwise failing to provide any kind of a justification or excuse for this nonappearance or failure to appear is anything other than egregious and a ... lack of concern about these proceedings.

¶7 The Department then moved the circuit court for default judgments finding that grounds existed to terminate Simon’s parental rights. The court received testimony from the Barron County social worker involved in Austin’s and Anthony’s respective CHIPS cases. Thereafter, the court granted the Department’s motion for default judgments, determined Simon was an unfit parent, and found grounds existed to terminate his parental rights to Austin and Anthony based upon abandonment, continuing need for protection or services, and failure to assume parental responsibility.

¶8 The TPR dispositional hearing occurred three days later on May 4, 2018. Simon appeared in person, along with the same counsel whom the circuit court determined Simon had waived his right to at the prior hearing. Simon had been arrested in Barron County on May 3, and, while he was in jail, had been "advised that there was a hearing ... that he could appear at if he wanted to."

¶9 The hearing began with Simon, by counsel, orally moving the circuit court to vacate the default judgments it had ordered on May 1. Counsel also moved to adjourn the dispositional hearing so that Simon could brief his motion to vacate the judgments and prepare for the dispositional hearing. The Department objected to the court hearing any "substantive motions," and it further objected to the possibility of adjourning the dispositional hearing. Following a thorough discussion of whether counsel for Simon was still permitted to represent Simon following Simon’s previous waiver of the right to counsel, the court determined that it would not "preclude [Simon’s counsel] from sitting in on [the] hearing and trying to advocate for [him]," but, nonetheless, it denied Simon’s request to adjourn the dispositional hearing. The court did not explicitly rule on Simon’s oral motion to vacate the default judgments. Thereafter, the court terminated Simon’s parental rights to Austin and Anthony after concluding termination was in their best interests.

¶10 Simon obtained new counsel and initiated his appeals of the circuit court’s TPR orders, which we consolidated on our own motion. Simon then moved to remand the cases to the circuit court for postdispositional fact finding. He argued that the circuit court’s failure to address his motion to vacate the default judgments and its denial of his request for adjournment of the TPR dispositional hearing on May 4 denied him the opportunity "to address legal issues" and "to provide justifiable excuse for failing to appear at the May 1 ... hearing." We determined that Simon’s motion showed good cause, and, therefore, we granted his motion to remand the matter to the circuit court.

¶11 Pursuant to our remand order, Simon moved the circuit court, by written motion, to vacate its May 1, 2018 default orders, and the court held an evidentiary hearing on Simon’s postdisposition motion on January 15, 2019. Simon testified as to the reasons for his failed appearances, and his counsel argued that Simon’s conduct in missing the hearings was not egregious and without clear and justifiable excuse as required to enter default judgments against him under WIS. STAT. § 48.23(2)(b)3.

¶12 In particular, Simon testified he was released from jail on January 26, 2018, and went to live with his sister in Barron for a week. Simon subsequently found work outside of Barron, but he continued to use his sister’s address to receive mail. He also confirmed that his sister’s address was the same address stated on the April 5 and May 1 hearing notices. Simon asserted that he "forgot" about the February 26 hearing and that he never received notice of either the April 5 or May 1 hearings. When asked why he never contacted...