State v. Z. J.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 19, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal Nos.
2019AP1623 Cir. Ct. Nos. 2018TP106
2018TP107
2019AP1624 2018TP108
2019AP1625 2018TP109
2019AP1626
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
IN RE THE TERMINATION OF PARENTAL RIGHTS TO S.J., A PERSON UNDER THE
AGE OF 18:
STATE OF WISCONSIN,
PETITIONER,
V.
Z. J.,
RESPONDENT.
IN RE THE TERMINATION OF PARENTAL RIGHTS TO K.J. JR., A PERSON UNDER
THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER,
V.
Z. J.,
RESPONDENT.
Nos. 2019AP1623
2019AP1624
2019AP1625
2019AP1626
IN RE THE TERMINATION OF PARENTAL RIGHTS TO S.J., A PERSON UNDER THE
AGE OF 18:
STATE OF WISCONSIN,
PETITIONER,
V.
Z. J.,
RESPONDENT.
IN RE THE TERMINATION OF PARENTAL RIGHTS TO S.J., A PERSON UNDER THE
AGE OF 18:
STATE OF WISCONSIN,
PETITIONER,
V.
Z. J.,
RESPONDENT.
APPEALS from orders of the circuit court for Milwaukee County:
M. JOSEPH DONALD, Judge. Affirmed.
¶1 DUGAN, J.1 Z.J. appeals the orders terminating her parental rights
to her four biological children. The only issue on appeal is Z.J.’s argument that
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
Nos. 2019AP1623
2019AP1624
2019AP1625
2019AP1626
the trial court erroneously exercised its discretion when it entered default
judgment against her during the grounds phase of the petitions to terminate her
parental rights to her children. 2 We disagree and, therefore, affirm the trial court’s
orders.
BACKGROUND
¶2 Z.J. is the mother of four children. S.J. is an eight-year-old girl who
was born on February 12, 2011; K.J. Jr. is a seven-year-old boy who was born on
February 29, 2012; S.J. is a five-year-old girl who was born on February 4, 2014;
and S.J. is a three-year-old girl who was born on February 27, 2016.
¶3 The three eldest children were initially removed from Z.J.’s care in
July 2015 due to ongoing concerns of domestic violence in the home directed at
her by K.J. Sr., and drug abuse.3 They were returned to Z.J.’s care in July 2016,
after she participated in inpatient drug treatment. Then, in March 2017, the four
children were removed from Z.J.’s care because she was abusing drugs and
alcohol, and leaving her children with unsafe caregivers. From March 2017 until
2
Judge Christopher R. Foley initially presided over the case. Beginning on July 23,
2018, Judge M. Joseph Donald presided over the case. The case was transferred to Judge Donald
after Z.J. filed a request for substitution of judges on July 9, 2018.
Separate cases were filed for each child and Z.J. filed a separate notice of appeal in each
case. On September 23, 2019, we issued an order consolidating the appeals.
Although the cases were separate before the trial court, in most instances the parties’
papers and court orders in each case were identical, and joint court proceedings were held for the
four cases. For ease of reading, we refer to documents that were filed in the singular, even
though actually a particular document was filed in each case.
3
The fourth child had not been born yet.
3
Nos. 2019AP1623
2019AP1624
2019AP1625
2019AP1626
February 2018, Z.J. did not participate in any alcohol or drug abuse treatment
programs, any domestic violence or mental health services, or any visitation.
Then, in February 2018, she reengaged in services until July or August 2018.
¶4 On May 25, 2018, the State filed a petition to terminate Z.J.’s
parental rights to each of her children on the grounds of children in continuing
need of protective services (CHIPS), and failure to assume parental responsibility.4
In support of the grounds for termination, the petition alleges that Z.J. failed to
meet court ordered conditions for the return of her children, including that she
control her drug and alcohol abuse, of which she had an extensive history, and
understand how her drug and alcohol abuse affected her children; control her
mental health, which included a long history of mental health diagnoses including
bipolar and borderline personality disorders; provide safe care for her children;
and visit her children regularly.
¶5 On June 13, 2018, Z.J., together with counsel,5 and J.T.N. appeared
before the trial court for a plea hearing. The hearing was adjourned so that
counsel could be appointed to represent J.T.N., who appeared without counsel.
However, before adjourning the hearing, the trial court advised Z.J. as follows:
4
The petition also sought to terminate the parental rights of K.J. Sr., the father of Z.J.’s
three older children, and J.T.N., the father of Z.J.’s youngest child, to their children. We have
only included facts relating to the fathers if necessary for clarity. Any issues relating to either
father are not part of this appeal. Since the petition refers to the father of Z.J.’s youngest child as
J.T.N., we use those initials. We note, however, that the hearing transcripts only include his
given name and surname.
5
The attorney, who appeared with Z.J., also advised the trial court that a second attorney
would also be representing Z.J. Counsel did not provide any explanation for the involvement of a
second attorney.
4
Nos. 2019AP1623
2019AP1624
2019AP1625
2019AP1626
[Y]ou need to appear for all subsequently[]scheduled
hearings. You need to be on time for those hearings. You
need to maintain reasonable communication with [counsel],
in your case, [Z.J.]
….
You’re going to get asked later in this process to participate
in a deposition. If you get properly noticed of a deposition,
you have to appear and participate in that process in good
faith.
If you didn’t do those things, emphasizing in
particular appearing for hearings, you could be defaulted,
lose your right to fight against this, because you didn’t
come to court or do the other things that need to be done.
¶6 On July 9, 2018, Z.J. appeared before the trial court, with counsel,
for a hearing. However, prior to the start of the hearing, Z.J. filed a request for
substitution of the judge and the hearing was rescheduled. Before adjourning the
matter, the trial court addressed Z.J. stating, “I’ll advise all the parents you need to
reappear for the next hearing, all subsequently scheduled hearings, maintain
contact with your lawyers, cooperate with the discovery process. If you didn’t do
that you could be defaulted or lose your right to fight against the termination of
your parental rights.”
¶7 On July 23, 2018, Z.J. appeared, with counsel, at the rescheduled
plea hearing before the newly substituted trial court. Z.J. denied the allegations of
the petition and reserved her right to a jury trial.
¶8 On August 16, 2018, Z.J. appeared before the trial court with
counsel. The trial court scheduled a September 27, 2018 hearing on Z.J.’s motion
for unsupervised visitation.
5
Nos. 2019AP1623
2019AP1624
2019AP1625
2019AP1626
¶9 Z.J.’s counsel appeared at the September 27, 2018 hearing, but Z.J.
did not appear. Z.J.’s counsel informed the trial court that she did not know where
Z.J. was that day and she withdrew Z.J.’s motion for unsupervised visitation. The
State then asked the trial court to take under advisement a request for entry of
default against Z.J., based on her failure to appear at the hearing and stated that, if
Z.J. did not appear for her deposition, it would file a motion for default. The trial
court agreed to take the default request as to Z.J. under advisement. The trial court
then heard testimony on J.T.N.’s motion for a change of placement. The hearing
on J.T.N.’s motion was not completed that afternoon, so the hearing was
adjourned until November 14, 2018.
¶10 On November 14, 2018, Z.J.’s counsel was present for the hearing—
Z.J. was not. The trial court asked Z.J.’s counsel to explain Z.J.’s absence. Z.J.’s
counsel responded that Z.J. believed housing was an important part of her case and
that, in order to obtain housing, she had to attend a housing inspection scheduled
during a four-hour window that morning.
¶11 The State then asked the trial court to hold that Z.J. was in default,
subject to prove-up. The State cited Z.J.’s failure to appear for her November 7,
2018 deposition, without any explanation; an outstanding warrant for Z.J.’s arrest,
issued because she had absconded from probation; Z.J.’s failure to attend
visitation with her children since August 2018; and Z.J.’s failure to stay in contact
with the Division of Milwaukee Child Protective Services as required. The
guardian ad litem agreed that default should be entered.
¶12 Counsel for Z.J. asked the trial court to take the default request
under advisement, arguing that Z.J. was absent that day because the timing of the
6
Nos. 2019AP1623
2019AP1624
2019AP1625
2019AP1626
hearing and the housing inspection coincided and Z.J. felt that housing was “one
of the more important things” because she needed housing for anything else to
move forward in the case.
¶13 The trial court stated that housing was important, but that did not
explain the missed deposition, and that Z.J. also needed to clear up the warrant.
The trial court then stated that it would take the motion for default under
advisement until the next hearing and that, if Z.J. did not appear at that time, it
would then rule on the motion for default with respect to the grounds phase of the
proceeding.6 The trial court then heard testimony on J.T.N.’s motion and set a
December 21, 2018 date to hear the parties’ arguments on J.T.N.’s motion, to
render its decision on the motion, and to address the State’s motion for default as
to Z.J.
¶14 On December 4, 2018, the State filed a motion for default judgment
based on Z.J.’s failure to appear for her deposition. In an affidavit, the assistant
district attorney averred that Z.J. had failed to appear for her deposition that was
originally scheduled for November 7, 2018, and then rescheduled for
November 29, 2018, without providing any reasons for her absence. The assistant
district attorney also averred that Z.J. had failed to appear for court proceedings on
September 27, 2018 and November 14, 2018, although the trial court had ordered
6
Wisconsin has a two-part statutory procedure for the involuntary termination of
parental rights. Steven V. v. Kelley H., 2004 WI 47, ¶24, 271 Wis. 2d 1, 678 N.W.2d 856. In the
grounds phase, the petitioner must prove by clear and convincing evidence that at least one of the
twelve grounds enumerated in WIS. STAT. § 48.415 exists. See WIS. STAT. § 48.31(1);
Steven V., 271 Wis. 2d 1, ¶¶24-25. In the dispositional phase, the trial court must decide if it is in
the child’s best interest that the parent’s rights be permanently extinguished. See WIS. STAT.
§ 48.426(2); Steven V., 271 Wis. 2d 1, ¶27.
7
Nos. 2019AP1623
2019AP1624
2019AP1625
2019AP1626
her to appear and warned that Z.J. that any failure to appear could result in a
default finding.
¶15 At the next proceeding before the trial court on December 21, 2018,
Z.J. did not appear, although her counsel were present. The trial court asked about
Z.J.’s whereabouts, and counsel stated that Z.J. was not in custody. The State then
renewed its request for entry of default against Z.J., stated it had filed a motion for
default after Z.J. had failed to appear for her deposition on November 28, 2018,
and asked that Z.J.’s counsel be removed.
¶16 Counsel for Z.J. stated that Z.J. had been in touch with them at
times, but that she was not in court because she was afraid she would then be
arrested on the outstanding probation warrant and lose the housing that she had
just secured. Counsel for Z.J. asked the trial court to allow them to continue
representing her and that no formal order of default be entered.
¶17 The trial court asked the guardian ad litem for her position on the
default request. The guardian ad litem responded that she agreed that default
should be entered. The trial court then found Z.J.’s “nonappearance to be
egregious, and … persistent” and, therefore, the trial court held Z.J. “in default
with respect to phase one.” The trial court also held that it would allow Z.J.’s
counsel to remain on the case, at least until the dispositional phase. The trial court
suggested that Z.J.’s counsel try to get Z.J. to appear, stating that it was
“extremely important” for it to hear what she had to say. The trial court scheduled
the matter for a combined prove-up as to the ground phase and a hearing on the
dispositional phase of the petition to terminate Z.J.’s parental rights.
8
Nos. 2019AP1623
2019AP1624
2019AP1625
2019AP1626
¶18 On February 9, 2019, the trial court presided over the combined
prove-up and dispositional phase hearing. Z.J. did not appear and her counsel,
who were present, had no information to provide to the trial court about where she
was.
¶19 The trial court heard testimony from a family case manager, who
worked on the case from March 2016 through December 2018, regarding Z.J.’s
failure to participate in any drug treatment program since August 2018, her failure
to control her mental health by engaging in required mental health services, her
failure to provide safe care for her children, and her failure to visit her children.
The trial court then found that, for the grounds phase, the State had established by
clear and convincing evidence both Z.J.’s failure to assume parental responsibility
and that the children were in continuing need of protection and services. It then
found that Z.J. was unfit to parent her four children.
¶20 The hearing then shifted to the dispositional phase of the termination
of parental rights case. The trial court heard additional testimony from the former
and current family case managers, and one member of each of the two foster
families with whom the children were living. The trial court then heard the
parties’ arguments regarding the termination of Z.J.’s parental rights and asked the
guardian ad litem to state her position. The guardian ad litem recommended that
Z.J.’s parental rights as to all four children be terminated.
¶21 The trial court then rendered an oral decision terminating Z.J’s
parental rights to the four children. It explained its findings, which included a
finding that all the testimony relating to the statutory factors to be considered in
deciding whether to terminate a parent’s rights to a child was credible, and
9
Nos. 2019AP1623
2019AP1624
2019AP1625
2019AP1626
addressed the required statutory factors and its consideration of the guardian ad
litem’s recommendation. The trial court entered orders terminating Z.J.’s parental
rights on February 20, 2019.
¶22 This appeal follows.
¶23 We refer to additional relevant facts in our discussion.
DISCUSSION
¶24 As noted, Z.J.’s only argument on appeal is that the trial court
erroneously exercised its discretion when it entered default judgment against her
during the grounds phase of the petitions to terminate her parental rights to her
children.
I. Standard of review and applicable law
¶25 The decision whether to enter a default judgment rests with the
sound discretion of the trial court. See Evelyn C.R. v. Tykila S., 2001 WI 110,
¶18, 246 Wis. 2d 1, 629 N.W.2d 768. When reviewing a discretionary
determination, “we examine the record to determine if the circuit court logically
interpreted the facts, applied the proper legal standard, and used a demonstrated,
rational process to reach a conclusion that a reasonable judge could reach.” See
Brandon Apparel Grp., Inc. v. Pearson Props., Ltd., 2001 WI App 205, ¶10, 247
Wis. 2d 521, 634 N.W.2d 544. We will uphold the trial court’s factual findings
unless they are clearly erroneous. See WIS. STAT. § 805.17(2).
¶26 A trial court has “both inherent authority and statutory authority
under WIS. STAT. §§ 802.10(7), 804.12(2)(a), and 805.03 to sanction” a party “for
10
Nos. 2019AP1623
2019AP1624
2019AP1625
2019AP1626
failing to obey court orders,” which includes entering default judgment against
that party. Evelyn C.R., 246 Wis. 2d 1, ¶17 (footnotes omitted). “To grant default
judgment, the circuit court must find that the non-complying party’s conduct is
without a clear and justifiable excuse and conclude that the noncompliance was
either egregious or in bad faith.” Brandon Apparel Grp., Inc., 247 Wis. 2d 521,
¶11. “A circuit court is not required to analyze a specific set of factors before
awarding a default judgment; instead, it should focus on ‘the degree to which the
party’s conduct offends the standards of trial practice.’” See id. (citation omitted).
II. The trial court properly exercised its discretion when it
granted default judgment against Z.J. on the grounds phase of
the termination of parental rights proceeding
¶27 In arguing that the trial court erroneously exercised its discretion in
defaulting her on the grounds phase of the termination of parental rights case, Z.J.
first argues “[a]lthough Judge Foley told Z.J. during the first two hearings in front
of him that she had to appear at subsequent hearings and cooperate with the
discovery process, Judge Foley was not the judge who presided over [the] cases …
after the substitution request was approved.” She then asserts that, after a
substitution request is timely filed, the judge named in the substitution request has
no further jurisdiction.
¶28 Z.J. then states that Judge Donald was assigned to her cases after the
substitution requests were filed. She then asserts that Judge Donald never orally
or in writing ordered Z.J. to make all court appearances personally or comply with
discovery requests. Z.J. asserts that
because [she] was not under an order from Judge Donald—
the court that presided and had jurisdiction over her
cases—to appear personally at all scheduled hearings or
comply with discovery requests, it was erroneous for the
11
Nos. 2019AP1623
2019AP1624
2019AP1625
2019AP1626
[trial] court to determine that she disobeyed the court’s
orders, her conduct was egregious, and default her.
¶29 Z.J.’s argument is undeveloped. She does not provide any reasoning
for her bald assertion that the judicial officer who enters a default judgment
against a party must be the same judicial officer who ordered that party to appear
at all judicial proceedings and cooperate with discovery or face being held to have
defaulted. Moreover, she cites no legal authority for the proposition. “Arguments
unsupported by references to legal authority will not be considered.” State v.
Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).
¶30 As previously stated, not once but twice, Z.J. was ordered to appear
for court proceedings and to comply with discovery requests, and told that, if she
did not do so, she could “lose [her] right to fight against the termination of [her]
parental rights.”7 She was clearly ordered to comply with those requirements and
that, if she did not do so, she could face default judgment. We are not persuaded
by Z.J.s’ first argument.
¶31 Z.J.’s second argument is that her personal appearance at the
September 27, November 14, and December 21, 2018 hearings was unnecessary
7
As noted earlier, Judge Foley advised Z.J., at both the June 13, 2018 plea hearing and
the July 9, 2018 hearing where Z.J. filed the substitution request, that she had to appear at all
scheduled hearings and comply with discovery requests or she could be subject to default—lose
her right to fight against the termination of her parental rights. Z.J. appears to argue that Judge
Foley lost jurisdiction of the cases after the substitution request was filed. Assuming without
deciding whether Judge Foley lost jurisdiction to issue the order after the substitution request was
filed, Z.J. does not argue and, therefore, concedes that he had jurisdiction to issue the order at the
June 13, 2018 hearing. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App.
1992) (declining to develop or to consider party’s undeveloped arguments).
12
Nos. 2019AP1623
2019AP1624
2019AP1625
2019AP1626
because the hearings were all scheduled for J.T.N.’s change of placement motion.
We disagree.
¶32 We begin with the court’s orders. On June 13, 2018, the trial court
stated that “you need to appear for all subsequently[ ]scheduled hearings.”
(Emphasis added.) Then, on July 9, 2018, the trial court stated, “I’ll advise all the
parents you need to reappear for the next hearing, all subsequently scheduled
hearings[.]” (Emphasis added.) The trial court’s order did not include any
exceptions to the order that Z.J. appear at any and all subsequently scheduled
hearings. In addition, the September 27, 2018 hearing was scheduled to address
Z.J.’s motion for a change in visitation. The motion was only withdrawn at the
hearing on September 27, 2018, when Z.J. failed to appear. Z.J.’s appearance was
also never waived at any hearing where she failed to appear.
¶33 Furthermore, the trial court’s decision to enter default judgment as to
the grounds phase against Z.J. was not based solely on her failure to make court
appearances, the trial court also relied upon Z.J.’s failure to appear for her
depositions. The trial court stated as follows:
Given her nonappearance—this is the—and I’ve tried many
times to give her an opportunity to appear in court. Given
her failure to respond to the scheduled depositions, given
her failure to appear in court, given the fact that this is the
second court appearance where the State has made the
request for default finding, I find her nonappearance to be
egregious, and it has been persistent, and given that, the
[c]ourt at this time will find [Z.J.] in default with respect to
phase one.
¶34 Z.J.’s third argument is that her fear of losing housing, which was
one of the conditions for the return of her children, and her fear of being arrested
13
Nos. 2019AP1623
2019AP1624
2019AP1625
2019AP1626
were a justifiable excuse for her failure to appear at the November 14 and
December 21, 2018 hearings.
¶35 Z.J.’s counsel presented the general contours of that argument on
December 21, 2018, in opposition to the State’s request for entry of default
arguing as follows:
[S]he was taken into custody on an outstanding child
support warrant for Marathon County where the intention
was they were going to remove—or move her up there
because she was behind on child support for kids that I
believe are already 18 or close to 18.
So when that happened, her probation officer put an
automatic hold on her at the House of Correction. So she
was sitting and was never brought to Marathon County and
it took two and-a-half weeks for her probation officer to lift
that hold.
In that time she lost her spot at Sojourner. She was
living in their temporary housing. She lost—I mean,
everything stopped. It totally threw her off track and she
struggled mightily to get back on track since then.
She does have—I believe she does still have a
warrant through her probation officer. And she’s
desperately afraid if she goes into custody that she’ll lose
the housing that she was finally able to secure.
….
But if it is because she doesn’t want to be taken into
custody, and this awful cycle starts again and she loses the
housing she’s been trying for years[,] years to get,…. And
so I would ask that we be allowed to stay on and she not be
defaulted.
¶36 The trial court stated that it was “not unsympathetic to the plight of
marginalized and poor individuals in our system.” However, the trial court also
recognized that it had to “balance not only what [was] fair for [Z.J.,] but also what
[was] fair for the children.” The trial court then found Z.J. in default relying on
14
Nos. 2019AP1623
2019AP1624
2019AP1625
2019AP1626
her “egregious” and “persistent” nonappearance and her failure to respond to
depositions. Thus, the trial court rejected the contention that Z.J.’s concerns
regarding housing and being taken into custody on the probation arrest warrant
were a justifiable excuse for her not appearing at scheduled court proceedings.
¶37 Furthermore, even after finding Z.J. in default, the trial court left the
door open for her to appear at the combined prove-up on the grounds phase and
the dispositional phase hearing on February 9, 2019. The trial court stated,
However, what I will do, [Z.J’s trial counsel], is
allow you to remain on the case until we—until—at least
until the disposition phase or phase two of the case. If you
are able to reach out and get her to appear, I—it’s
extremely important for the [c]ourt to hear her voice. But,
you know at this point in time, the [c]ourt will default [Z.J.]
as relates to the grounds phase[.]
¶38 However, Z.J. did not appear at the combined ground phase prove-
up and dispositional phase hearing on February 9, 2019. When the trial court
asked trial counsel about Z.J.’s whereabouts, trial counsel stated that she did not
have any information that she could provide. The State advised the trial court that
Z.J. was not in custody and that she remained in absconder status from her
probation agent. The trial court responded, “All right, then the [c]ourt previously
has found [Z.J.] in default as relates to the filing of the TPR [termination of
parental rights], and I will continue that default finding with respect to the
dispositional phase.”
¶39 Based on the foregoing, we conclude that the record establishes that,
when entering default against Z.J. during the grounds phase, the trial court
“logically interpreted the facts, applied the proper legal standard, and used a
demonstrated, rational process to reach a conclusion that a reasonable judge could
15
Nos. 2019AP1623
2019AP1624
2019AP1625
2019AP1626
reach.” See Brandon Apparel Grp., Inc., 247 Wis. 2d 521, ¶10. Therefore, we
affirm.
CONCLUSION
¶40 We conclude that the trial court properly exercised its discretion
when it entered default judgment against Z.J. during the grounds phase of the
petitions to terminate her parental rights to her children, and reaffirmed its holding
when she failed to appear at the combined grounds phase prove-up and
dispositional phase hearing. Therefore, we affirm the trial court’s orders.
By the Court.—Orders affirmed.
This opinion will not be published. WIS. STAT. RULE
809.23(1)(b)(4).
16