State v. R. A. M. ( 2024 )

2024 WI 26SUPREME COURT OF WISCONSIN
CASE NO.: 2023AP441
COMPLETE TITLE: In re the termination of parental rights to
P. M., a person under the age of 18:
State of Wisconsin,
Petitioner-Respondent,
v.
R. A. M.,
Respondent-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 408 Wis. 2d 794, 994 N.W.2d 18(2023 - unpublished)
OPINION FILED: June 25, 2024
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 24, 2024
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Ellen R. Brostrom
JUSTICES:
KAROFSKY, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, DALLET, and
PROTASIEWICZ, JJ., joined. ZIEGLER, C.J., filed a dissenting
opinion in which HAGEDORN, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the guardian ad litem, there were briefs filed by
Courtney L.A. Roelandt and The Legal Aid Society of Milwaukee,
INC., Milwaukee. There was an oral argument by Courtney L.A.
Roelandts.
For the petitioner-respondent, there was a brief filed by
Jenni S. Karas, assistant district attorney. There was an oral
argument by Jenni S. Karas, assistant district attorney.
For the respondent-appellant, there was a brief filed by
Pamela Moorshead, assistant state public defender. There was an
oral argument by Pamela Moorshead, assistant state public
defender.
2
2024 WI 26NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2023AP441
(L.C. No. 2021TP159)
STATE OF WISCONSIN : IN SUPREME COURT
In re the termination of parental rights to
P. M., a person under the age of 18:
State of Wisconsin,
FILED
JUN 25, 2024
Petitioner-Respondent,
Samuel A. Christensen
Clerk of Supreme Court
v.
R. A. M.,
Respondent-Appellant.
KAROFSKY, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, DALLET, and
PROTASIEWICZ, JJ., joined. ZIEGLER, C.J., filed a dissenting
opinion in which HAGEDORN, J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 JILL J. KAROFSKY, J. This case concerns whether the
circuit court1 lawfully terminated R.A.M.'s parental rights. Our
1The Honorable Ellen R. Brostrom of the Milwaukee County
Circuit Court presided.
No. 2023AP441
task is to interpret Wis. Stat. § 48.23(2)(b)3. (2021-22)2 in
order to answer two questions. First, was the court required to
wait at least two days before proceeding to a dispositional
hearing once the court found R.A.M.'s conduct in failing to
appear as ordered was "egregious and without clear and
justifiable excuse"? And second, did the court lack competency
to conduct the dispositional hearing because it failed to wait
the statutorily mandated two days before proceeding? We hold
that the circuit court was statutorily bound to wait at least
two days before holding a dispositional hearing under
§ 48.23(2)(b)3. Because those two days are central to the
statutory scheme in ch. 48, the circuit court lacked competency
when it proceeded to the dispositional phase without abiding by
the statutorily mandated waiting period. Therefore, R.A.M. is
entitled to a new dispositional hearing.
I. BACKGROUND
¶2 R.A.M. is the parent of P.M., a son born in February
2015.3 In 2017, a police officer who was already in R.A.M.'s
apartment building for an unrelated reason heard a woman
shouting, a child crying loudly, and a loud thump, after which
he said the child became louder. The officer knocked on the
door, and R.A.M. allowed the officer to enter the residence.
The officer found P.M. with scratches, bruising, and bleeding
2All subsequent references to the Wisconsin Statutes are to
the 2021-22 version.
3P.M.'s father passed away in 2020, and his rights are not
at issue in this case.
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No. 2023AP441
from the nose. R.A.M. was the only adult present at the time of
the incident. She was subsequently convicted of one count of
Child Abuse——Recklessly Causing Harm, and was sentenced to one
year of initial confinement and two years of extended
supervision. Immediately following the incident, the State
placed P.M. in foster care. In 2019, P.M. was placed with his
paternal uncle, with whom he continues to reside.
¶3 The State filed the present petition for the
termination of R.A.M.'s parental rights in 2021, after P.M. had
resided outside of R.A.M.'s home for more than three years. The
grounds for the petition were that P.M. was a child with a
continuing need for protection and services (CHIPS) under Wis.
Stat. § 48.415(2) and that R.A.M. had failed to assume parental
responsibility under § 48.415(6). R.A.M. contested both
grounds, and a court trial began on March 28, 2022. Two
additional hearing dates were set in March and April of 2022,
both of which R.A.M. attended. When more time was needed to
conclude the grounds phase and hold a dispositional hearing,4 the
court set three more dates in July (5, 6 and 15).
¶4 On July 5, 2022, R.A.M. failed to appear in court.
The parties disagree as to the cause of R.A.M.'s absence;
however, there is no dispute that the judge had previously
Termination of parental rights cases proceed in two
4
phases. In the grounds phase of the proceeding, the petitioner
must prove by clear and convincing evidence that at least one of
the grounds for termination of parental rights enumerated in
Wis. Stat. § 48.415 exists. If the petitioner does so, the case
proceeds to the dispositional phase, where the court must
determine whether the termination of parental rights is in the
best interest of the child. Wis. Stat. § 48.426(2).
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No. 2023AP441
issued a standing order requiring R.A.M. to attend all court
appearances or risk being found in default. When R.A.M. did not
appear, the State and the guardian ad litem asked the court to
enter a default judgement against R.A.M. in the grounds phase.
The circuit court made the following finding:
[S]he was ordered to be here this morning and we can't
proceed on the merits without her. The State is
prejudiced in not being able to finish its cross-
examination. I think she's misleading the Court; I
think she's misleading [her counsel] in her version of
the events. And I do find that to be egregious and
bad faith and without justification.
The court then granted the Petitioners' motion for default
judgment.5
¶5 At the conclusion of the grounds phase, the court
found that the State proved by clear and convincing evidence
both a continuing need for CHIPS and a failure to assume
parental responsibility. As a result, the court determined that
R.A.M. was an unfit parent.
¶6 The court immediately moved to the dispositional phase
and concluded the dispositional hearing on that same day without
R.A.M. present.6 The court found that termination would be in
the best interest of P.M. and ordered the termination of
R.A.M.'s parental rights.
R.A.M. does not challenge the egregiousness finding, so we
5
do not examine that issue here.
The court held the dispositional hearing on July 5, even
6
though it had reserved two other days in July to potentially
accommodate a dispositional hearing and had assured R.A.M.'s
attorney that R.A.M. would be not be precluded from
participating were she to appear in court the following day.
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No. 2023AP441
¶7 R.A.M. appealed, and the court of appeals reversed the
order terminating her parental rights. That court held that the
circuit court lost competency when it proceeded to the
dispositional hearing on the same day that the grounds phase
concluded. The court of appeals also held that R.A.M.'s due
process rights were violated. The case was remanded to the
circuit court with instructions to hold a new dispositional
hearing. Subsequently, the guardian ad litem filed a petition
for review, which this court granted.
II. ANALYSIS
¶8 We begin by interpreting Wis. Stat. § 48.23(2)(b)3.,
and determine that the circuit court was required to wait at
least two days after finding R.A.M.'s conduct in failing to
appear as ordered was egregious and without justification before
proceeding to the dispositional phase of proceedings. We then
address whether the circuit court lacked competency to proceed
to the dispositional hearing without abiding by the waiting
period, and we determine that it did.
A. Interpreting Wis. Stat. § 48.23(2)(b)3.
¶9 This is a case of statutory interpretation. We review
questions of statutory interpretation de novo. State v.
Forrett, 2022 WI 37, ¶5, 401 Wis. 2d 678, 974 N.W.2d 422. We
interpret statutes by discerning the plain meaning of the
language in the context of the statute. "If the meaning of the
statute is plain, we ordinarily stop the inquiry." State ex
rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis.
2d 633, 681 N.W.2d 110 (quotations omitted). We use the
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No. 2023AP441
"common, ordinary, and accepted meaning" of words absent a
technical or specially defined usage or meaning. Id."Statutory language is read where possible to give reasonable
effect to every word, in order to avoid surplusage." Id., ¶46.
¶10 To resolve this case we must interpret Wis. Stat.
§ 48.23(2)(b)3., which reads in pertinent part:
[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
proceeding, 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 adoption or
involuntary termination of parental rights until at
least 2 days have elapsed since the date of that
finding.
(Emphasis added).
¶11 The crux of this case is the last sentence of Wis.
Stat. § 48.23(2)(b)3. (underlined above), which presents a
straightforward conditional statement. If the court finds that
the parent's failure to appear as ordered was "egregious and
without clear and justifiable excuse," then the court "may not"
hold a dispositional hearing until at least two days after the
court made the egregiousness finding.
¶12 No party contests that the "if" condition was met
here, and for good reason. The court ordered R.A.M. to appear
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No. 2023AP441
in person, and R.A.M. failed to do so. Then the court found her
failure to appear to be "egregious" and "without justification."
Because the "if" condition was met, the last sentence of
§ 48.23(2)(b)3. requires the court to wait at least two days
before conducting a dispositional hearing. Here the court
violated § 48.23(2)(b)3. when it failed to abide by the
statutorily imposed waiting period.
¶13 The petitioners disagree with this application, but do
not meaningfully contend with the conditional statement
discussed above. Instead, they urge us to consider the statute
in context, and argue that a waiver of counsel must occur in
order for the subdivision to apply. Additionally, petitioners
insist that the statute is ambiguous. To resolve the ambiguity,
petitioners encourage us to look to both the statute's title and
its legislative history.
¶14 Petitioners maintain that the last sentence of
§ 48.23(2)(b)3. should be read in context with the full statute.
According to the petitioners, such a reading leads to the
conclusion that the two-day waiting period applies only when a
parent has waived their right to counsel (or when counsel has
withdrawn or been discharged——the petitioners are inconsistent
on this point). We are not persuaded. While we agree that
analyzing the last sentence in context is essential ("statutory
language is interpreted in the context in which it is used; not
in isolation but as part of a whole," Kalal 271 Wis.2d 633, ¶46)
we see no support in the text for petitioners' assumption
regarding waiver of counsel. When (as here) a parent fails to
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No. 2023AP441
appear as ordered, and the court finds the parent's failure to
appear egregious and unjustified, then Wis. Stat.
§ 48.23(2)(b)3. provides for two consequences. First, the
statute creates a statutory presumption that the parent has
waived counsel, and second the statute imposes a waiting period
for a dispositional hearing. Once a court makes the
egregiousness finding, the two-day waiting period is triggered.
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. In short, the statute's two-day waiting period language
is plain and unambiguous.
¶15 Because the conditions that trigger the two-day
waiting period are plain and unambiguous, we will not use Wis.
Stat § 48.23's title——"right to counsel"——to create ambiguity or
rewrite the plain text of the statute. Statutory titles may be
helpful "for the purpose of relieving ambiguity," but
ultimately, "titles are not part of the statutes." State v.
Dorsey, 2018 WI 10, ¶30, 379 Wis. 2d 386, 410, 906 N.W.2d 158,
170 (internal quotation marks and alterations omitted); see also
Williams v. Am. Transmission Co., 2007 WI App 246, ¶12, 306 Wis.
2d 181, 742 N.W.2d 882 (Ct. App. 2007) ("Wisconsin courts
ordinarily follow the rule that, although statutory titles may
assist in resolving ambiguity in statutory language, statutory
titles cannot be used to create ambiguity."). Therefore, the
title of the statute does not alter our understanding of the
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No. 2023AP441
statute, or compel us to add any additional conditions for the
two-day waiting period to occur.
¶16 Similarly, when the meaning of a statute is plain, we
do not consult legislative history to ascertain its meaning.
See Kalal, 271 Wis. 2d 633, ¶51 ("This rule generally prevents
courts from tapping legislative history to show that an
unambiguous statute is ambiguous." (internal quotations
omitted)). Consequently, we do not consult the statutory title
or legislative history in this case, or use either of them to
supplant the language of the statute itself.
¶17 To summarize, Wis. Stat. § 48.23(2)(b)3. is
unambiguous, allowing us to rely on its plain language without
reliance on extrinsic sources. That plain language dictates
that when a court finds that a parent's failure to appear was
egregious and without justifiable excuse, there is a presumption
that the parent has waived their right to counsel, and,
importantly for this case, the court must wait two days to hold
the dispositional hearing.7
B. Lack of Competency
¶18 Having determined that the circuit court violated Wis.
Stat. § 48.23(2)(b)3. by failing to wait two days to hold the
dispositional hearing, we next must determine whether the court
lacked competency to hold the dispositional hearing before the
two days had elapsed. This is a question of law that this court
Our determination that the two-day waiting period applies
7
is dispositive. Therefore, we decline to address whether a
waiver of the right to counsel occurred here, or delve further
into the statutory presumption of waiver.
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No. 2023AP441
reviews independently. Village of Trempeleau v. Mikrut, 2004 WI
79, ¶7, 273 Wis. 2d 76, 681 N.W.2d 190.
¶19 The two-day waiting period at issue here is couched in
mandatory language. The statute states that if a court makes an
egregiousness finding, it may not proceed to a dispositional
hearing without waiting two days. "'May not' is a negative
term. Where statutory restrictions are couched in negative
terms, they are usually held to be mandatory." Brookhouse v.
State Farm Mut. Auto. Ins. Co., 130 Wis. 2d 166, 170, 387 N.W.2d
82 (Ct. App. 1986). Interpreting a similar "may not" structure,
the court of appeals wrote in Brookhouse: "Negative words in a
grant of power should never be construed as directory. Where an
affirmative direction is followed by a negative or limiting
provision, it becomes mandatory. Thus, where the statute says
that the time for motions after verdict may not be enlarged,
these are negative words regarding the grant of power. We hold
that the language is mandatory." Id. (internal citations
omitted). And here the circuit court clearly failed to follow
the statute's mandate.
¶20 Given the circuit court's failure to follow the
statutory mandate, we must next decide if that failure resulted
in a loss of competency. As we said in Mikrut, a court's
"failure to comply with a statutory mandate pertaining to the
exercise of subject matter jurisdiction may result in a loss of
the circuit court's competency to adjudicate the particular case
before the court." Mikrut, 273 Wis. 2d 76, ¶9.
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No. 2023AP441
¶21 Not all errors of statutory compliance result in a
loss of competency. However, when a circuit court's error is
central to the statutory scheme, a loss of competency results.
"Many errors in statutory procedure have no effect on the
circuit court's competency. Only when the failure to abide by a
statutory mandate is 'central to the statutory scheme' of which
it is a part will the circuit court's competency to proceed be
implicated." Id., ¶10.
¶22 This court has previously held that statutory time
limits in ch. 48 cases are central to the statutory scheme. In
Sheboygan Cnty. Dep't of Soc. Servs. v. Matthew S., 2005 WI 84,
¶36, 282 Wis. 2d 150, 698 N.W.2d 631, a termination of parental
rights case, we held that a failure to adhere to statutory time
limits in ch. 48 cases violates the central scheme of the
statute and therefore the court lacked competency to proceed.
¶23 It is true that the legislature subsequently passed
Wis. Stat. § 48.315(3), stating that the failure "by the
court . . . to act within any time period specified in [Chapter
48] does not deprive the court . . . of competency."
Importantly, however, the failure to act within a time
limitation is not at issue in this case. Instead, this case is
about a failure to wait an adequate amount of time before
proceeding. The legislature has not passed a law concerning a
court's failure to abide by a ch. 48 mandatory waiting period.
Therefore, we must evaluate whether or not the two-day waiting
period requirement is central to the statutory scheme of ch. 48
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No. 2023AP441
such that a violation of the requirement deprives the court of
competency.
¶24 Here, we conclude that the two-day waiting period is
central to the statutory scheme. 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. See Wis. Stat.
§§ 48.427(1); 48.23(2)(c). Affording parents basic procedural
safeguards serves the express legislative purpose of providing
"judicial and other procedures through which children and all
other interested parties are assured fair hearings." Wis. Stat.
§ 48.01(1)(ad). The requirement also serves the underlying
purpose of ch. 48: "the best interests of the child . . . shall
always be of paramount consideration." See Wis. Stat.
§ 48.01(1). This is true not least because a brief, two-day
window may allow certain matters to be resolved that would
otherwise result in months or even years of appeal. The waiting
period is therefore no mere technical requirement, but is
instead central to the statutory scheme of ch. 48.
¶25 Because the two-day waiting period is central to the
statutory scheme, a court lacks competency to proceed to a
dispositional hearing when it fails to wait at least two days
after finding a parent's absence to be egregious and
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No. 2023AP441
unjustifiable. As a result, we hold that the circuit court here
lacked competency to proceed with the dispositional hearing.8
III. CONCLUSION
¶26 We affirm the court of appeals' ruling and remand for
proceedings consistent with this decision. The circuit court
violated Wis. Stat. § 48.23(2)(b)3. when it failed to wait at
least two days before proceeding to a dispositional hearing once
the court found R.A.M.'s absence was "egregious and without
clear and justifiable excuse." Consequently, the court lacked
competency to proceed in this case and R.A.M. is therefore
entitled to a new dispositional hearing.
By the Court.——The decision of the court of appeals is
affirmed.
8Because we determine that the circuit court lacked
competency to proceed with the dispositional hearing, we do not
address R.A.M.'s alternative argument that the failure to wait
two days violated her due process rights. Md. Arms Ltd. P'ship
v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15("Issues that are not dispositive need not be addressed."
(citation omitted)).
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No. 2023AP441.akz
¶27 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). What
happens when a parent, who is represented by a lawyer, fails to
attend the fourth day of a termination of parental rights
("TPR") trial,1 even though the court ordered her to attend? For
the majority opinion, the parent's intentional violation of the
court order and choice not come to court results in her being
able to control the outcome of the proceeding, derail stability
for the child, and undermine the circuit court's conclusion that
parental rights be terminated. "Because of the majority's
conclusion, a circuit court's authority to enforce its orders is
diminished, a non-appearing party's behavior is rewarded, and [a
child's life] continue[s] to hang in the balance." Dane Cnty.
Dep't of Human Servs. v. Mabel K., 2013 WI 28, ¶76, 346
Wis. 2d 396, 828 N.W.2d 198 (Ziegler, J., dissenting). I
dissent.
¶28 The purpose of the TPR statutes is to provide
predictability, permanency, and stability for the child. Wis.
Stat. § 48.01(1)(ag).2 In pursuit of this purpose, "[t]he courts
1 Judge Ellen R. Brostrom of the Milwaukee County circuit
court presided.
2 Wisconsin Stat. § 48.01(1)(ag) provides:
To recognize that children have certain basic needs
which must be provided for, including the need for
adequate food, clothing and shelter; the need to be
free from physical, sexual or emotional injury or
exploitation; the need to develop physically, mentally
and emotionally to their potential; and the need for a
safe and permanent family. It is further recognized
that, under certain circumstances, in order to ensure
that the needs of a child, as described in this
paragraph, are provided for, the court may determine
that it is in the best interests of the child for the
1
No. 2023AP441.akz
and agencies responsible for child welfare should also recognize
that instability and impermanence in family relationships are
contrary to the welfare of children," so they exist to help
"eliminat[e] the need for children to wait unreasonable periods
of time for their parents to correct the conditions that prevent
their safe return to the family." § 48.01(1)(a). But the
opposite is happening for this child. P.M.'s best interests
have not been paramount. P.M. has been left waiting in a place
of ongoing instability for his biological mother, R.A.M., to
correct the conditions preventing his safe return. P.M. has
suffered long periods of instability and impermanence,
culminating in the State's petition to terminate R.A.M.'s
parental rights to P.M.
¶29 R.A.M. failed to appear for a court-ordered trial date
in the TPR proceeding. Despite having knowledge of the TPR
trial and of the court order requiring her attendance, R.A.M.
chose not to attend day four of the scheduled TPR trial. In
situations such as these, the statutes do not divest the circuit
court of the ability to enter default, sanction the non-
appearing parent, and proceed to disposition. R.A.M. was
represented by a lawyer, who advocated for her in court. The
court never dismissed R.A.M.'s counsel from representation. In
fact, counsel actively represented R.A.M. We must afford
deference to the circuit court's credibility determinations and
ability to default the non-appearing party. R.A.M. chose to not
child to be removed from his or her parents,
consistent with any applicable law relating to the
rights of parents.
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No. 2023AP441.akz
attend the "grounds phase" of the hearing, and the circuit court
proceeded immediately to disposition, ultimately granting the
State's petition to terminate R.A.M.'s parental rights.
¶30 To be clear, the record reflects that R.A.M.
understood the gravity of these proceedings. The record is
replete with unpleasant facts demonstrating R.A.M. had
unfortunately been down this road before.3 The court clearly
ordered her to attend the TPR proceedings. R.A.M. was informed
of the consequences of failing to attend. Yet, R.A.M. chose,
for whatever reason, not to appear.
¶31 The majority errs in applying the timing requirements
of Wis. Stat. § 48.23(2)(b)3. to the facts and procedural
posture of this case. Section 48.23 addresses the right to
counsel and waiver of counsel, not default. While the title of
a statute is not dispositive,4 the words of the statute are, and
every single part of that statute deals with TPR proceedings and
whether a parent has a right to counsel. Here, R.A.M. had
counsel, and counsel was present and actively participated at
3This case presents a statutory claim. To that end,
R.A.M.'s familial history, which pre-dates the TPR proceeding
involving P.M., are simply illustrative. But, they are
illustrative in speaking to R.A.M.'s general knowledge and
cognizance of court proceedings in general, and TPR proceedings
specifically. Her experience with the system, and the court's
recognition of her track record of appearing for court
proceedings, belie any insinuation that R.A.M.'s decision to not
obey a court order to appear in this proceeding was done
unknowingly or unwittingly.
4See Wis. Stat. § 990.001(6) ("Statute titles and history
notes.") "The titles to subchapters, sections, subsections,
paragraphs and subdivisions of the statutes and history notes
are not part of the statutes."
3
No. 2023AP441.akz
R.A.M.'s TPR trial. Counsel was never even presumed waived.
The statute the majority relies upon is inapplicable here.
¶32 The majority misapplies the second subsection of Wis.
Stat. § 48.23 to reverse the circuit court's decision to proceed
immediately to disposition. However, the language of that
subsection addresses when a parent is presumed to have waived
their right to counsel by their conduct. As the record clearly
demonstrates, the court never found a presumption that R.A.M.
waived counsel. Counsel was present in court and meaningfully
participated. Waiver of counsel was never discussed. A finding
of waiver of counsel was never made. In fact, the court's
finding, that R.A.M. egregiously failed to appear in the
courtroom,5 was made pursuant to a standard default judgment
sanction with her counsel present, not a waiver of counsel
standard. Hence, the majority applies a statute addressing
5 A finding of egregiousness pursuant to a default sanction
for a parent's failure to appear at a TPR trial is important
because "the extreme sanction of dismissal or default judgment
may not be imposed for mere nonappearance, in the absence of a
showing of bad faith or egregious conduct." Schneider v. Ruch,
146 Wis. 2d 701, 706, 431 N.W.2d 756 (Ct. App. 1988); see also
Dane Cnty. Dep't of Human Servs. v. Mabel K., 2013 WI 28, ¶100,
346 Wis. 2d 396, 828 N.W.2d 198 (Ziegler, J., dissenting)
("Before a circuit court may sanction a party who failed to
comply with a court order, the party's conduct must be egregious
or in bad faith."); Adolph Coors Co. v. Movement Against Racism,
777 F.2d 1538, 1542 (11th Cir. 1985) ("[T]he decision to enter a
default judgment ought to be the last resort——ordered only if
noncompliance is due to willful or bad disregard of court
orders."); United States v. DeFrantz, 708 F.2d 310, 311 (7th
Cir. 1983) (holding that the federal rules of civil procedure
"authorizes the entry of a default judgment as a sanction for a
defendant's failure to show up at his deposition, whether or not
the court has ordered him to attend, . . . but the sanction is
proper only if the failure [to show up] is willful").
4
No. 2023AP441.akz
presumed waiver of counsel via conduct to the wrong context.
The majority relies on the wrong statute to impose time
constraints which handcuff the circuit court from acting.
¶33 In summary, the facts of this case demonstrate that
the majority is not properly applying this statutory scheme.
R.A.M. can be sanctioned for violating a court order by
absenting herself from these proceedings. Default judgment is
an appropriate sanction for R.A.M.'s nonattendance.
I. BACKGROUND
¶34 As the majority lays out, TPR cases follow a
bifurcated process——grounds and disposition. Majority op., ¶3
n.4. At the grounds phase, the State must prove by clear and
convincing evidence that at least one of the statutory grounds
for termination of parental rights exist. Wis. Stat. § 48.415.
If the State succeeds in making this showing, the case proceeds
then to the dispositional phase. At the dispositional phase,
the court must determine whether terminating parental rights is
in the best interests of the child. Wis. Stat. § 48.426(2).
¶35 "Parental rights termination adjudications are among
the most consequential of judicial acts, involving as they do
'the awesome authority of the State to destroy permanently all
legal recognition of the parental relationship.'" Steven V. v.
Kelley H., 2004 WI 47, ¶21, 271 Wis. 2d 1, 678 N.W.2d 856(quoting Evelyn C.R. v. Tykila S., 2001 WI 110, ¶20, 246
Wis. 2d 1, 629 N.W.2d 768 (quoting another source)). "The
profound consequences of termination have necessitated the
development of detailed statutory requirements [as] set out in
5
No. 2023AP441.akz
Subchapter VIII of Chapter 48." Sheboygan Cnty. Dep't of Health
& Human Servs. v. Julie A.B., 2002 WI 95, ¶23, 255 Wis. 2d 170,
648 N.W.2d 402. Chapter 48, also known as the "Children's
Code," directs that "[i]n construing this chapter, the best
interests of the child . . . shall always be of paramount
consideration." Wis. Stat. 48.01(1); see also Darryl T.-H. v.
Margaret H., 2000 WI 42, ¶33, 234 Wis. 2d 606, 610 N.W.2d 475("The best interests of the child is the polestar of all
determinations under ch. 48, the Children's Code."); David S. v.
Laura S., 179 Wis. 2d 114, 149-50, 507 N.W.2d 94 (1993) ("The
legislature and this court have made clear that the best
interests of the child is the polestar of all determinations
under ch. 48.").
¶36 R.A.M., who was appointed a lawyer, contested the TPR
petition. The record reflects that she understood the court's
standing order that she was required to appear in person for all
court appearances and could be found in default for failing to
appear. The court informed R.A.M. of the standing orders in her
case, including ordering R.A.M. to "make all court appearances"
and warning that if she failed to do so, "[the court] could find
you in default in which we would be making decisions without
your input." The court further ordered that R.A.M.
communicate with and cooperate with your attorney once
you get one, and you respond to any discovery should
that come about with their help and also continue to
comply with the CHIPS dispositional order.
Again, any failure to do those things could
result in a default judgment. Okay?
[R.A.M.]: All right.
6
No. 2023AP441.akz
THE COURT: All right. We will get an adjourned
initial appearance date.
¶37 R.A.M. appeared for the first three dates of the
scheduled bench trial on March 28 and 31, 2022, and April 1,
2022. She was present when the court scheduled three more trial
dates for July 5, 6, and 15, 2022. R.A.M. failed to appear for
the July 5 trial date. Interestingly, that was the date the
State would have had the opportunity to cross-examine her.
¶38 The court gave counsel an opportunity to call R.A.M.
R.A.M. said she was "attempting to clear a bench warrant issued
for a criminal complaint with interference with custody." State
v. R.A.M., No. 2023AP441, ¶7, unpublished slip op. (Wis. Ct.
App. June 6, 2023). R.A.M. claimed she was only recently made
aware of the warrant. Id. R.A.M. further claimed that she was
advised to contact the sheriff department and was told to
contact the local police.
¶39 According to the State, R.A.M. had ample opportunity
to resolve the warrant prior to her missed trial date. The
trial court questioned the advice that R.A.M. had "purportedly"
received. The court noted that the warrant had been filed on
June 22, 2022, well before the trial date. The court concluded
that R.A.M. had opportunity to resolve the case before a warrant
was issued and that her testimony conflicted with other facts.
¶40 The State made a motion for default judgment and to
"strike [R.A.M.'s] contest posture and find her in default for
failing to comply with court orders and failing to appear here
in court." R.A.M., No. 2023AP441, ¶8. The guardian ad litem
("GAL") joined the motion.
7
No. 2023AP441.akz
¶41 The court weighed the credibility of R.A.M.'s reason
for not appearing, noting that it was "conveniently timed." The
court did not immediately grant the motion and instead gave
R.A.M. time to appear later that day. Following a break in the
afternoon proceedings, "the court, after discussion with the
prosecutor and the family case manager, decided R.A.M. may not
have been candid with trial counsel" and concluded that R.A.M.'s
story was not credible. R.A.M., No. 2023AP441, ¶12. The
circuit court further concluded that the State was prejudiced by
R.A.M.'s nonappearance and inability to finish its cross-
examination, and that the court was being manipulated by R.A.M.
After an afternoon recess, the court concluded that the State
proved both grounds for termination as alleged in the petition.
It found that R.A.M.'s failure to appear was "egregious, in bad
faith, and without justification." The circuit court made an
egregiousness finding, specifically addressing R.A.M.'s counsel
in declaring that
[R.A.M.'s] story does not seem credible. I -- I think
she's manipulating all sorts of systems. But again,
she was ordered to be here this morning, and we can't
proceed on the merits without her. The State is
prejudiced in not being able to finish its cross-
examination. I think she's misleading the Court; I
think she's misleading you in her version of the
events. And I do find that to be egregious and bad
faith and without justification.
So at this point, I am going to grant the State's
motion. I am going to strike her contest posture.
I can, I think, use the testimony and evidence
that's already been admitted for prove-up, and then
we'll move to disposition.
8
No. 2023AP441.akz
The court stated that it would entertain a motion to re-open the
default if R.A.M. appeared the next day, but "[o]nly if she's
got . . . a really good reason with solid documentation."
However, the circuit court then decided to proceed immediately
to the dispositional stage. The record reflects that testimony
was taken from the family case manager. R.A.M.'s counsel
participated in the "grounds" and "disposition" proceedings, in
fact conducting cross-examination, lodging objections, and
making closing arguments. The record is not clear that R.A.M.
had any witnesses to present, except potentially for herself.
¶42 Ultimately, the court concluded that it was "in
[P.M.'s] best interest that" the court terminate R.A.M.'s
rights. The circuit court therefore granted the TPR petition,
entered an order terminating R.A.M.'s rights, and vacated the
two remaining trial dates. The circuit court sanctioned her
non-appearance, and entered default judgment against R.A.M.
¶43 R.A.M. appealed. The court of appeals reversed the
circuit court's TPR order:
[I]f [Wis. Stat. ]§ 48.23(2)(b)3. applies to the case
before the court——meaning the court has found the
parent waived a right to counsel——then, the court may
not immediately proceed to disposition and must wait
at least the two days required by statute (and not
more than forty-five days, as is also required). When
the court fails to obey the statutory time periods, it
not only lacks competency to proceed, it violates the
parent's right to due process.
R.A.M., No. 2023AP441, ¶40. The GAL petitioned this court for
review. The argument made before us is that the circuit court's
failure to abide by a two-day delay before proceeding to
9
No. 2023AP441.akz
disposition violated the requirements of § 48.23(2)(b)3. That
statute is inapplicable to the facts of this case.6
II. WISCONSIN STAT. § 48.23(2)(b)3.
¶44 Wisconsin Stat. § 48.23 is entitled "Right to
counsel." This section contains the subsection at issue: Wis.
Stat. § 48.23(2), entitled "Right of parent to counsel," which
states:
Notwithstanding subd. 1, 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 proceeding, 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 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 adoption or
involuntary termination of parental rights until at
least 2 days have elapsed since the date of that
finding.
§ 48.23(2)(b)3.
6 Because the record does not reflect that R.A.M.'s counsel
was presumed waived, I determine that Wis. Stat. § 48.23(2)(b)3.
is not applicable. The circuit court did not violate the
statute when it proceeded to disposition after making an
egregiousness finding. Since I do not find the circuit court to
have violated an inapplicable statute, I do not reach the second
question of whether the circuit court lost competency to
proceed. Bergmann v. McCaughtry, 211 Wis. 2d 1, 6, 564
N.W.2d 712 (1997) ("Because our resolution of the first issue is
dispositive, we need not and do not address the
second . . . issue.").
10
No. 2023AP441.akz
¶45 Statutory interpretation begins with the language of
the statute. State ex rel. Kalal v. Cir. Ct. for Dane Cnty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. The purpose
of our inquiry is to give the statute "its full, proper, and
intended effect." Id., ¶44. "Context is important to meaning."
Id., ¶46. "[S]tatutory language is interpreted in the context
in which it is used; not in isolation but as part of a whole; in
relation to the language of surrounding or closely-related
statutes; and reasonably, to avoid absurd or unreasonable
results." Id. "A statute's purpose or scope may be readily
apparent from its plain language or its relationship to
surrounding or closely-related statutes——that is, from its
context or the structure as a coherent whole." Id., ¶49.
¶46 The majority ignores Wis. Stat. § 48.23(2)(b)3.'s
contextual clues to hyper-fixate on the last sentence of the
statute, see majority op., ¶11, which states:
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
adoption or involuntary termination of parental rights
until at least 2 days have elapsed since the date of
that finding.
When we interpret statutes, we begin with the language of the
statute. Kalal, 271 Wis. 2d 633, ¶45. So, while "[c]ontext is
important to meaning," id., ¶46, we cannot isolate portions of a
statute's plain language to analyze while ignoring the rest.
Rather, the "statutory language is interpreted in the context in
which it is used; not in isolation but as part of a
whole . . . ." Id.
11
No. 2023AP441.akz
¶47 The language of this entire statute is plain: This
statute deals with waiver of counsel. Wisconsin Stat.
§ 48.23(2)(b)3. addresses the scenario in which a parent, by
their conduct, is presumed to have waived their right to
counsel. This understanding of the statute mirrors the plain
language of the sentences which immediately precede the sentence
the majority focuses on, which references when a parent over 18
years of age is presumed to have waived counsel.7 This
understanding of the statute is further reflected in the
subsection which immediately follows the sentence the majority
7 The majority, in focusing on the final sentence of Wis.
Stat. § 48.23(2)(b)3. as the "crux of this case," majority op.,
¶11, completely ignores the rest of the statute from which they
pulled the final sentence. The purpose of conducting statutory
interpretation is to give the statute "its full, proper, and
intended effect." State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. We
cannot give § 48.23(2)(b)3. its "full proper, and intended
effect" if we excise the final sentence in a paragraph from the
sentences which immediately precede it in that same paragraph.
These preceding sentences provide important context aiding in
determining the statute's meaning, that this two-day delay
statutory scheme is implicated in situations in which a parent,
by their conduct, is presumed to have waived their right to
counsel. Section 48.23(2)(b)3.'s opening sentences state:
Notwithstanding subd. 1, 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 proceeding, 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 at consecutive hearings as
ordered is presumed to be conduct that is egregious
and without clear and justifiable excuse.
12
No. 2023AP441.akz
focuses on, which again deals with waiver of counsel.8 As the
plain language of the statute shows, this entire statutory
scheme deals with the waiver of counsel. This statute is
intended to apply to situations in which a parent, by their
conduct, is presumed to have waived their right to counsel.
¶48 Because the statutory meaning is plain, we need not
consult the statute's title. But even if we do, the title of
this statute "provide[s] further confirmation for our plain
meaning analysis"9 that the statute is only concerned with the
right to counsel. State v. Lopez, 2019 WI 101, ¶25, 389
Wis. 2d 156, 936 N.W.2d 125.
¶49 The statute at issue here, Wis. Stat. § 48.23(2)(b)3.,
"Right of parent to counsel," clearly deals with the right to
counsel. It is a subsection of Wis. Stat. § 48.23, entitled
"Right to counsel," which deals entirely with whether a parent
Wis. Stat. § 48.23(2)(c) ("In a proceeding to vacate or
8
reconsider a default judgment granted in an involuntary
termination of parental rights proceeding, a parent who has
waived counsel under par. (b)1. or who is presumed to have
waived counsel under par. (b)3. in the involuntary termination
of parental rights proceeding shall be represented by counsel,
unless in the proceeding to vacate or reconsider the default
judgment the parent waives counsel as provided in par. (b)1. or
is presumed to have waived counsel as provided in par. (b)3.").
While not dispositive, statute titles do provide valuable
9
"[c]ontext [which] is important to meaning." Kalal, 271
Wis. 2d 633, ¶46; see also Aiello v. Vill. of Pleasant Prairie,
206 Wis. 2d 68, 73, 556 N.W.2d 697 (1996) ("Although titles are
not part of statutes, . . . they may be helpful in
interpretation."); Wis. Stat. § 990.001(6) ("The titles . . . of
the statutes . . . are not part of the statutes."); State v.
Lopez, 2019 WI 101, ¶25, 389 Wis. 2d 156, 936 N.W.2d 125("Statute titles are not dispositive.").
13
No. 2023AP441.akz
has a right to counsel, the process of accessing counsel, waiver
of counsel, and more.10
¶50 The facts of this case are also clear. R.A.M. was
represented by counsel throughout the TPR proceedings. Counsel
advocated on her behalf. The court never once discussed waiver
of counsel. The issue never came up. Nor did the court make
any findings relating to waiver of counsel. Such would be
required if waiver of counsel occurred. In short, this case had
nothing to do with R.A.M. having the right to representation of
counsel. The circuit court ultimately determined that R.A.M.'s
failure to appear when the court had ordered her to, to be the
reason why the court found R.A.M. to have engaged in "egregious
conduct." Wisconsin Stat. § 48.23 is, therefore, not even
applicable.
¶51 Instead, as the record shows, the court's
egregiousness finding was made pursuant to a standard default
judgment sanction. The circuit court found that R.A.M. was not
being honest about her reasons for failing to appear as the
court ordered her to, and determining that R.A.M.'s behavior was
not forthcoming, the circuit court granted default judgment
against R.A.M. Notably, R.A.M.'s counsel was still present and
still representing R.A.M. even in R.A.M.'s absence. These
factual findings are due our deference. See Wis. Stat.
See e.g., Wis. Stat. § 48.23 "Right to counsel";
10
§ 48.23(2) "Right of parent to counsel"; § 48.23(3) "Power of
the court to appoint counsel"; § 48.23(4) "Providing counsel";
§ 48.23(4m) "Discharge of counsel"; § 48.23(5) "Counsel of own
choosing."
14
No. 2023AP441.akz
§ 805.17(2) ("Findings of fact shall not be set aside unless
clearly erroneous . . . ."); State v. Williams, 2002 WI 1, ¶5,
249 Wis. 2d 492, 637 N.W.2d 733 ("An appellate court reviews the
circuit court's findings of fact under the clearly erroneous
standard of review."). There was no waiver of counsel connected
to these egregiousness findings. R.A.M.'s counsel was still
present and representing her.
¶52 Given this context, we are not in a waiver of counsel
posture as required under Wis. Stat. § 48.23. Instead, default
proceedings and the rules of civil procedure apply, "except
where different procedure is prescribed by statute or rule."
Wis. Stat. § 801.01.
III. DEFAULT JUDGMENT POSTURE, NOT WAIVER OF COUNSEL.
¶53 Courts can enter a default judgment sanction for a
variety of reasons, such as in this case, for violating the
court's scheduling order requiring R.A.M.'s appearance.11 See
Evelyn C.R., 246 Wis. 2d 1, ¶17 ("[A] circuit court has both
inherent authority and statutory authority . . . to sanction
11 Wisconsin Stat. § 806.02, "Default judgment," provides,
"A default judgment may be rendered against any party who has
appeared in the action but who fails to appear at trial. If
proof of any fact is necessary for the court to render judgment,
the court shall receive the proof." Wis. Stat. § 806.02(5).
See also Gaertner v. 880 Corp., 131 Wis. 2d 492, 494-95, 499,
504-06, 389 N.W.2d 59 (Ct. App. 1986) (affirming the circuit
court's entry of default judgment against a party for failure to
appear at a scheduling conference, but reversing as to damages
requested as they were unsupported by the record); State v.
L.M.-N., Nos. 2014AP2405 & 2014AP2406, ¶18, unpublished slip op.
(Wis. Ct. App. Oct. 8, 2015) ("Our supreme court has concluded
that circuit courts have the authority to sanction parties who
do not comply with court orders, including by entering default
judgments.").
15
No. 2023AP441.akz
parties for failing to obey court orders."). "The decision to
sanction a party is within the sound discretion of the circuit
court." Mabel K., 346 Wis. 2d 396, ¶99 (Ziegler, J.,
dissenting) (quoting Evelyn C.R., 246 Wis. 2d 1, ¶18). Of the
sanctions circuit courts can impose, "default judgment is the
ultimate sanction." Miller v. Hanover Ins. Co., 2010 WI 75,
¶31, 326 Wis. 2d 640, 785 N.W.2d 493 (quoting other sources).
Courts imposing this "ultimate sanction" of default must ensure
that it is "just." See Wis. Stat. § 804.12(2)(a)3. ("If a
party . . . fails to obey an order to provide or permit
discovery, . . . the court . . . may make such orders in regard
to the failure as are just, [including] rendering a judgment by
default against the disobedient party[.]"); Wis. Stat. § 805.03("For failure . . . of any party . . . to obey any order of the
court, the court . . . may make such orders in regard to the
failure as are just, including but not limited to orders
authorized under s. 804.12(2)(a)."). For a court to justly
sanction a parent with default, the court must first find the
parent's conduct was "egregious[] or in bad faith." See Mable
K., 346 Wis. 2d 396, ¶69. "Failure to comply with a circuit
court scheduling order without a clear and justifiable excuse is
egregious conduct." Id., ¶100 (Ziegler, J., dissenting); see
also Indus. Roofing Servs. Inc. v. Marquardt, 2007 WI 19, ¶43,
299 Wis. 2d 81, 726 N.W.2d 898 (lead op.). Again, we owe
deference to the circuit court's exercise of discretion.
¶54 Default or finding of default is different than waiver
of the right to counsel under Wis. Stat. § 48.23. Section
16
No. 2023AP441.akz
48.23(2)(b)3. is reflective of how important the right to
counsel is, and how the court must make certain findings before
presuming parents have waived their right to counsel. Here, the
court's findings were related to default by R.A.M. not appearing
as required pursuant to the court's scheduling order. Nothing
in the court's findings dealt with R.A.M. waiving the right to
counsel by conduct, as is discussed in § 48.23(2)(b)3. R.A.M.
was represented by counsel at disposition. The court permitted
R.A.M.'s counsel to continue her representation in R.A.M.'s
absence. The court definitely did not dismiss R.A.M.'s counsel.
So, even though R.A.M. was defaulted at grounds, she was still
actively represented by counsel at disposition. The court made
egregiousness and bad faith findings here pursuant to the court
entering a default judgment sanction against R.A.M. As a
result, the statutory two-day delay is not implicated.
¶55 The majority argues Wis. Stat. § 48.23(2)(b)3.'s two-
day waiting period is intended to be triggered by default.
Majority op., ¶14. But that understanding creates conflicting
factual situations like R.A.M.'s, in which counsel could be
present and participating yet presumed waived.
¶56 Finally, the TPR statutes are not designed to reward a
party who may strategically decide to not appear because the
case is not going well for them. Quite obviously, if a case is
not going well, a party may not want to attend for any number of
reasons——such as not wanting to testify or not having to answer
for failing to comply with discovery requests. For any number
of reasons, in a civil proceeding, a party may choose to have
17
No. 2023AP441.akz
their lawyer appear on their behalf instead to advocate for
them. That is typically allowable in most civil cases.
¶57 Here, the court ordered R.A.M.'s appearance. R.A.M.
violated that order. Violation of a court order is
sanctionable. The two-day waiting period is not implicated by
every default or sanction. I conclude that the record
demonstrates that the circuit court's findings did not presume a
waiver of the right to counsel and instead, the court's findings
related to plain old traditional default judgment and a sanction
for failing to comply with the court order. The two-day delay
before disposition has no bearing on this sanction.
¶58 I would also note that not all default sanctions will
implicate the waiver of counsel. TPR disposition time periods
are outlined in Wis. Stat. § 48.424(4), and a judge may proceed
immediately from receipt of a TPR after factfinding to hear
evidence and motions for disposition. It is only if counsel is
presumed waived by the parent egregiously violating an order to
appear without clear and justifiable cause that the court has to
wait two days before holding a dispositional hearing. To
conclude otherwise would allow the tail to wag the dog: a
parent who wishes, for whatever reason, to cause additional
delay could simply choose to not show up to the remainder of the
hearing and thereby receive additional time they would not
otherwise have. But judges must be able to control their
calendars and courtrooms. Default judgment is a tool available
for judges to use in TPRs, and does not always extinguish the
parent's right to counsel.
18
No. 2023AP441.akz
¶59 Here, the statutory two-day waiting period was not
automatically triggered, as the facts of the case, and the
findings supported in the record, clearly indicate that the
circuit court sanctioned R.A.M. with default for her violation
of the scheduling order. Default judgment is an appropriate
sanction for R.A.M.'s nonattendance. The court never made a
determination that R.A.M.'s still-present counsel was presumed
waived. Wisconsin Stat. § 48.23(2)(b)3. does not properly apply
to the facts of this case.
IV. CONCLUSION
¶60 The statutory scheme the majority employs is
inapplicable as counsel was not presumed waived. Wisconsin
Stat. § 48.23(2)(b)3. addresses a circuit court who makes an
egregiousness finding pursuant to a parent being presumed to
have waived counsel. Section 48.23(2)(b)3. does not apply to
situations such as the one here, where the circuit court made a
finding that R.A.M.'s conduct was "egregious and without
justifiable excuse" and entered default against her, even though
R.A.M.'s counsel was still present, was still communicating with
her client, and was still able to represent R.A.M.'s interests
at the dispositional phase of the TPR trial. As the record
reflects, the circuit court did not make any findings of
egregiousness pursuant to an implied or express waiver of
counsel. Thus, while the majority may be right that the statute
itself is straightforward and unambiguous, majority op., ¶¶14-
15, and 17, it must be applied to the right context. This case
does not present a waiver of counsel issue. The circuit court
19
No. 2023AP441.akz
was not statutorily bound to wait two days to proceed to
disposition.
¶61 Because the findings which the circuit court made in
this case met standard default judgment sanction posture, we
should be affirming that determination. The majority, as did
the court of appeals, applies the wrong statute to the facts of
this case: Wisconsin Stat. § 48.23(2)(b)3.'s two-day waiting
period does not apply to the default judgment finding the
circuit court made here.
¶62 For all the foregoing reasons, I respectfully dissent.
¶63 I am authorized to state that Justice BRIAN HAGEDORN
joins this dissent.
20
No. 2023AP441.akz
1