State v. R. A. M.

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.
June 6, 2023
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 No. 2023AP441 Cir. Ct. No. 2021TP159
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
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.
APPEAL from an order of the circuit court for Milwaukee County:
ELLEN R. BROSTROM, Judge. Reversed and cause remanded with directions.
No. 2023AP441
¶1 WHITE, J.1 R.A.M. appeals the order terminating her parental
rights to her child, P.M. She argues that the circuit court lost competency because
the circuit court proceeded to the dispositional phase of the termination of parental
rights (TPR) proceedings in violation of a statutory mandate. For the reasons
explained below, we agree that the court lost competency and we conclude that the
circuit court violated R.A.M.’s due process rights. We reverse the TPR order and
remand with directions for the circuit court to hold a new dispositional hearing.
BACKGROUND
¶2 R.A.M. is the mother of P.M., born in February 2015. P.M. was
removed from his mother’s care in November 2017, after a police investigation
showed indications of physical child abuse. R.A.M. was convicted of physical
abuse of a child as a result of this incident; she served a twelve-month prison
sentence and twenty-four months of extended supervision. P.M. remained in out-
of-home care after he was detained; his foster placement was changed to his
paternal uncle and his family in July 2019.
¶3 In July 2021, the State brought the underlying petition to terminate
R.A.M.’s parental rights to P.M.2 The State alleged two grounds for the TPR:
(1) that P.M. continues to be a child in need of protection or services (CHIPS);
(2) that R.A.M. failed to assume parental responsibility for P.M.
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
We note that P.M.’s father died in 2020 and his rights are not at issue in this case.
2
No. 2023AP441
¶4 During the first hearing on the TPR petition in July 2021, R.A.M.
acknowledged receiving the petition in the mail, and the court expressly stated that
it was a “standing order[] in the case,” that she “make all court appearances.” The
court warned R.A.M. that if she failed to appear, she could be found in default and
the decisions concerning P.M. would be made without her input. The record
reflects that R.A.M. appeared for at least nine court hearings after that initial
hearing.
¶5 After R.A.M. waived her right to a jury trial, the case proceeded to a
court trial, held on March 28 and 31, 2022, April 1, 2022, and July 5, 2022.
R.A.M. appeared at the March and April trial dates, but did not appear at the July
date. R.A.M. was called by the State as the first witness on the first day of trial;
and she testified in the defense case on April 1, 2022. The court also heard
testimony from the Milwaukee Police Department officer involved in the original
detainment of P.M.; the Division of Milwaukee Child Protective Services
(DMCPS) initial assessment worker (IAW) who made the initial contact with
P.M.; three (of the four) family case managers assigned to P.M.’s case; the
visitation supervisor who supervised R.A.M.’s visits with P.M from approximately
2019 through 2021; a mental health therapist from Pennfield Children’s Center
who worked with P.M. in his foster placement in 2019 and 2020 and who also
worked with R.A.M. in 2020; and a licensed professional counselor who oversaw
therapeutic visitation for R.A.M. with P.M. in 2019.
¶6 On April 1, before the completion of the examination of R.A.M., the
court concluded that this case would need at least two more days to complete the
court trial and any disposition. After discussing the timing, the court decided to
order transcripts of the March and April trial dates, and after negotiating calendar
conflicts, the next trial dates were set on July 5, 6, and 15, 2022.
3
No. 2023AP441
¶7 R.A.M. did not appear on July 5, 2022. Trial counsel informed the
court that R.A.M. was having a custody dispute over her younger daughter, and
she was attempting to clear a bench warrant issued for a criminal complaint for
interference with custody. The circuit court stated that it could see the warrant in
her review of the court records, but the court expressed displeasure that the
warrant had been issued on June 22, and R.A.M. waited until this court date to
attempt to resolve it. Trial counsel responded that R.A.M. claimed to be in close
contact with the District Attorney’s (DA) office, she had filed a complaint with
DMCPS about her daughter’s father, and she was unaware of the warrant until late
the week before.
¶8 The prosecutor informed the court that her colleague at the DA’s
office stated that R.A.M. had been offered an opportunity to resolve things prior to
the issuance of charges and she had not done so. The State moved for default,
asking the court “to strike her contest posture and find her in default for failing to
comply with court orders and failing to appear here in court.” The GAL joined the
request.
¶9 The court stated that R.A.M.’s decision to clear the warrant seemed
“conveniently timed[.]” The court stated that R.A.M.’s actions showed a lack of
prioritization over P.M.’s situation. The court further expressed that the court had
only four weeks until the judicial calendar rotation and wanted to resolve this case
before that. The court found that the “constellation of facts appear[ed] pretty
egregious and in bad faith … I know from her perspective she thinks it looks like a
good excuse for why she’s not here. But given all of those facts, I guess I’m not
persuaded that that’s credible.”
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No. 2023AP441
¶10 Trial counsel disagreed, arguing that R.A.M. was trying to do what
was best for her child, and did not think that the non-appearance that morning was
in “bad faith … [or] rises to the level of being egregious.” Trial counsel stated
that there were still two additional days reserved for this matter and asked the
court for a delay.
¶11 Instead, the court stated it would allow trial counsel to represent
R.A.M. in her absence. The court stated, “if she doesn't show up at some point
this morning, I will grant the State’s motion to strike her contest posture.”
The court felt it was being manipulated by R.A.M. and that she should have dealt
with the “court of law” over this case and that it was not in P.M.’s best interest to
delay.
¶12 After a short delay, at about 10:00 a.m., the court, after discussion
with the prosecutor and the family case manager, decided R.A.M. may not have
been candid with trial counsel. It found that R.A.M.’s story was not credible, the
case could not proceed on the merits without her, the State was prejudiced by not
being able to complete cross-examination of R.A.M., and struck R.A.M.’s contest
posture because her conduct was “egregious and bad faith and without
justification.” The circuit court then decided to use the court trial proceedings for
the “prove up” for the grounds for the TPR petition.3
3
The “prove up” is what generally occurs if the TPR “petition is not contested” meaning
the parent has pleaded no contest to the grounds or the parent’s contest posture had been struck
by the court as a sanction for failing to obey court orders. WIS. STAT. § 48.422(3). In such a
case, “the court shall hear testimony in support of the allegations in the petition,” and fulfill other
statutory duties. Id.
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No. 2023AP441
¶13 The circuit court informed trial counsel, “normally, on prove-up, I
don’t have the parents’ lawyers ask any questions. But I don’t know if you feel
differently about it.” To which trial counsel responded she “would feel differently
about it” and she “would like to be able to ask the case manager questions.” The
court stated, “Sure” and allowed trial counsel to cross-examine the family case
manager who testified for the prove up.
¶14 During the State’s closing testimony proving the grounds, it
referenced R.A.M.’s criminal records in a previous charge related to one of her
older children, trial counsel interrupted to note that “we had specific conversations
about that may have been relevant for DMCPS’s planning, but that shouldn’t be
considered as evidence.” The State responded that R.A.M. “forfeited her right to
participate in trial, and the Court has struck her contest posture.” The court
concluded that “it is correct that at this point her contest posture is struck” and
procedurally, she cannot object. Trial counsel was allowed to make a closing
argument.
¶15 After a break, proceedings resumed at 2:00 p.m., the court noted that
R.A.M.’s “continued lack of contact and involvement here supports the [c]ourt’s
earlier default ruling.” The court found that “the State has proven by clear and
convincing and satisfactory evidence the two grounds that were alleged.” The
court found R.A.M. unfit and concluded it would “move right into disposition.”
The court stated, it would “again find [R.A.M.] in default for purposes of
disposition for her failure to appear here this afternoon.” The court found “her
failure to continue to appear, her failure to stay in contact with her lawyer on this
most important of days, despite the [c]ourt’s order to do so, to be egregious, in bad
faith, and without justification.”
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No. 2023AP441
¶16 The court told trial counsel, if R.A.M. showed up the next day, the
court would not “preclude her from participating.” Trial counsel clarified, “if she
does show up tomorrow, would the [c]ourt consider vacating the default as to—”
and the court responded, “Only if she’s got … a really good reason with solid
documentation.” Trial counsel stated the default “affects my ability whether or
not I can call witnesses. Because if she’s in default, I can cross-examine, but I
can’t call.” The court responded, “Correct … obviously, I’ll consider anything on
the merits that you would bring to me. But I can tell you, it’s going to need to be
highly credible.”
¶17 The case moved immediately into the dispositional phase and relied
only on testimony from the final family case manager. Trial counsel was allowed
to make a closing argument. That same afternoon proceedings concluded at
3:45 p.m.; the court concluded the dispositional phase and determined it was “in
[P.M.’s] best interest that” the court terminate R.A.M.’s rights. The court
reviewed the six required statutory factors on the record. The court noted that
R.A.M. was “difficult.” The court granted the TPR petition and terminated
R.A.M.’s parental rights to P.M. The court vacated the two additional days
reserved for the case.
¶18 R.A.M. appeals.
DISCUSSION
¶19 R.A.M. argues that her due process rights were violated by the
circuit court in the TPR proceedings. We begin with the legal frameworks for:
the circuit court’s competency to hear a case; and the disposition of a TPR
petition, including the right to counsel and the court’s authority to sanction a
parent with default. We then turn to R.A.M.’s arguments: that the court implicitly
7
No. 2023AP441
found that R.A.M. waived her right to counsel, that the circuit court lost
competency to proceed under WIS. STAT. § 48.23(2)(b)3., and that her due process
rights were violated when the court proceeded to the dispositional phase after it
lost competency.
¶20 In order to determine whether the circuit court lost competency, we
must interpret WIS. STAT. § 48.23(2) for the waiver of R.A.M.’s right to counsel.
This issue requires statutory interpretation, which is a question of law that we
review independently. St. Croix DHHS v. Michael D., 2016 WI 35, ¶15, 368
Wis. 2d 170, 880 N.W.2d 107. Statutory interpretation begins by looking at the
language of the statute and if the meaning of the statute is plain, our inquiry
ordinarily stops. State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58,
¶45, 271 Wis. 2d 633, 681 N.W.2d 110. We consider the statute in context,
applying the “common, ordinary, and accepted” meaning of the text, and attempt
to give effect to every word to avoid surplusage. Id., ¶¶45-46. We may not
disregard the plain and clear words in the statute. Id., ¶46. If the language is
unambiguous, we apply the statute according to that meaning. Id.
I. Legal standards
A. Circuit court competency
¶21 “A circuit court has subject matter jurisdiction, conferred by the state
constitution, to consider and determine any type of action[.]” State v. Bollig, 222
Wis. 2d 558, 565, 587 N.W.2d 908 (Ct. App. 1998). However, a circuit court’s
competency to adjudicate a particular case before it may be lost as a result of the
“failure to comply with a statutory mandate pertaining to the exercise of subject
matter jurisdiction.” Village of Trempealeau v. Mikrut, 2004 WI 79, ¶9, 273
Wis. 2d 76, 681 N.W.2d 190. “Whether a particular failure to comply with a
8
No. 2023AP441
statutory mandate implicates the circuit court’s competency depends upon an
evaluation of the effect of noncompliance on the court’s power to proceed in the
particular case before the court.” Id., ¶10. While “[m]any errors in statutory
procedure have no effect on the circuit court’s competency … when the failure to
abide by a statutory mandate is ‘central to the statutory scheme’” of the issue, “the
circuit court’s competency to proceed [may] be implicated.” Id. (quoting Bollig,
222 Wis.2d at 567-68). Whether a circuit court has competency to resolve a case
is a question of law we review independently. Village of Elm Grove v. Brefka,
2013 WI 54, ¶13, 348 Wis. 2d 282, 832 N.W.2d 121.
B. Disposition of a TPR petition
¶22 Termination of parental rights is governed by the Wisconsin
Children’s Code, WIS. STAT. ch. 48. The first step is a fact-finding hearing
pursuant to WIS. STAT. § 48.424 to determine whether the grounds under WIS.
STAT. § 48.415 exist to terminate parental rights exist. The State has the burden to
show that grounds for termination exist by clear and convincing evidence. Evelyn
C.R. v. Tykila S., 2001 WI 110, ¶22, 246 Wis. 2d 1, 629 N.W.2d 768. If the
grounds are found to exist by the fact-finder, whether a jury or the court, “the
court shall find the parent unfit.” Sec. 48.424(4). The second step is the
dispositional phase, in which the circuit court decides whether the evidence
warrants the termination of parental rights and if the termination is in the best
interests of the child. Evelyn C.R., 246 Wis. 2d 1, ¶23. To determine whether
9
No. 2023AP441
termination is in the child’s best interests, the circuit court must consider six
statutory factors. WIS. STAT. § 48.426.4
¶23 “One of the procedural safeguards the legislature has afforded to
parents in termination of parental rights proceedings is the right to counsel.” State
v. Shirley E., 2006 WI 129, ¶30, 298 Wis. 2d 1, 724 N.W.2d 623. WISCONSIN
STAT. § 48.23(2) provides that in “an involuntary termination of parental rights,
any parent who appears before the court shall be represented by counsel,” with
three provisions. First, a parent age eighteen or older “may waive counsel if the
court is satisfied that the waiver is knowingly and voluntarily made.”
Sec. 48.23(2)(b)1. Second, a parent under age eighteen “may not waive counsel.”
Sec. 48.23(2)(b)2. Third, at issue here:
4
In determining the disposition of a TPR petition, the circuit court must consider, but is
not limited to, the following six factors:
(a) The likelihood of the child’s adoption after termination.
(b) The age and health of the child, both at the time of the
disposition and, if applicable, at the time the child was removed
from the home.
(c) Whether the child has substantial relationships with the
parent or other family members, and whether it would be
harmful to the child to sever these relationships.
(d) The wishes of the child.
(e) The duration of the separation of the parent from the child.
(f) Whether the child will be able to enter into a more stable and
permanent family relationship as a result of the termination,
taking into account the conditions of the child’s current
placement, the likelihood of future placements and the results of
prior placements.
WIS. STAT. § 48.426(3).
10
No. 2023AP441
[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.
Sec. 48.23(2)(b)3.
¶24 The circuit court has inherent and statutory authority to sanction a
party for failing to obey a court order, with the limitation that the sanctions be
“just.” See WIS. STAT. §§ 804.12(2)(a), 805.03. “Wisconsin courts have
interpreted this limitation to mean that dismissal requires that the non-complying
party has acted egregiously or in bad faith.” Industrial Roofing Servs., Inc. v.
Marquardt, 2007 WI 19, ¶43, 299 Wis. 2d 81, 726 N.W.2d 898. For a circuit
court to enter default judgment, it is not required to analyze a “specific set of
factors” but instead it focuses on the degree to which the party’s conduct impairs
justice in this action and justice in the operation of our judicial system. Brandon
Apparel Group., Inc. v. Pearson Properties, Ltd., 2001 WI App 205, ¶11, 247
Wis. 2d 521, 634 N.W.2d 544 (citation omitted). We review the circuit court’s
decision to impose a sanction of default judgment under the erroneous exercise of
discretion standard. Id., ¶10.
¶25 It is within the circuit court’s discretion to strike a parent’s contest
posture as a sanction for failing to obey a court order and to default the parent on
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No. 2023AP441
the grounds for the TPR petition.5 See Evelyn C.R., 246 Wis. 2d 1, ¶¶17-18. In
the event that a parent’s contest posture is struck as a sanction, the court “shall
hear testimony in support of the allegations in the petition,” and the State is
required to “prove up” the grounds for the TPR. See WIS. STAT. § 48.422(3).
II. Waiver of the issue of competency
¶26 As a threshold issue, we address the State’s argument that R.A.M.
waived her right to assert that the circuit court lost competency because she failed
to make that argument to the circuit court. The State relies upon Schoenwald v.
M.C., 146 Wis. 2d 377, 432 N.W.2d 588 (Ct. App. 1988), in which this court held
that “because the parents could have litigated the trial court’s competency to
extend the dispositional order [earlier] and failed to do so either before the trial
court at that time or by an appeal, they are precluded from raising the question in
this litigation.” Id. at 396.6
¶27 “[T]he common-law waiver rule applies to challenges to the circuit
court’s competency, such that a challenge to the court’s competency will be
deemed waived if not raised in the circuit court[.]” Mikrut, 273 Wis. 2d 76, ¶25.
However, “a court’s loss of power due to the failure to act within statutory time
periods cannot be stipulated to nor waived.” State v. B.J.N., 162 Wis. 2d 635,
5
R.A.M. points out that the circuit court misstated the law when it stated that it would
take under advisement the motion to default R.A.M. for the dispositional phase as well as the
grounds. The dispositional phase requires the court to consider the six statutory factors and the
best interests of the child; those statutory duties would not be diminished by sanctioning a parent.
See WIS. STAT. § 48.426.
R.A.M. further notes that the State’s reliance on Schoenwald v. M.C., 146 Wis. 2d 377,
6
432 N.W.2d 588 (Ct. App. 1988) was surprising because that case allows a parent to challenge
competency “by an appeal,” which is the action R.A.M. is taking. See id. at 396.
12
No. 2023AP441
657, 469 N.W.2d 845 (1991). Although M.C. reached a conclusion that the parent
had waived the right to object, that case predated B.J.N. In Mikrut, our supreme
court affirmed that B.J.N. was valid law and concluded that its holding applied
only to specific circumstances of “loss of competency based upon noncompliance
with mandatory statutory time periods.” Mikrut, 273 Wis. 2d 76, ¶25. We
conclude that the State has not distinguished that the time period at issue in WIS.
STAT. § 48.23(2)(b)3. would not be a mandatory statutory time period.
¶28 Further, the State argues that R.A.M. waives her challenge under
WIS. STAT. § 48.315(3), which provides in part that “[f]ailure to object to a period
of delay or a continuance waives any challenge to the court’s competency to act
during the period of delay or continuance.” R.A.M. responds that she is not
claiming that the court failed to act within a statutory time period, but that the
circuit court acted before it had the power to do so. We conclude that § 48.415(3)
does not address the facts and circumstances of this case and the application of
WIS. STAT. § 48.23(2)(b)3. Therefore, we conclude that R.A.M. has not waived
her objection to the circuit court’s competency.
III. R.A.M.’s arguments
A. Waiver of counsel
¶29 R.A.M. argues that the court lost competency by acting prior to the
time allowed by the statutory mandate in WIS. STAT. § 48.23(2)(b)3. R.A.M.
contends that statute creates a presumption of a waiver of counsel when three facts
are true: (1) the parent has been ordered to appear “in person at any or all
subsequent hearings in the proceeding,” (2) “the parent fails to appear in person as
ordered,” and finally (3) “the court finds that the parent’s conduct in failing to
appear in person was egregious and without clear and justifiable excuse.” R.A.M.
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No. 2023AP441
asserts that the record reflects those three facts occurred in her case and therefore,
the presumption of waiver of counsel applies.
¶30 R.A.M. asserts that the circuit court implicitly found that R.A.M.
waived her right to counsel, as demonstrated the circuit court’s treatment of trial
counsel’s ability to act. The record reflects that when trial counsel objected to the
consideration of certain information during the prove up, the State argued that
“[R.A.M.] has forfeited her right to participate in trial, and the court has struck her
contest posture.” The court then responded, “it is correct that at this point her
contest posture is struck. So … I don’t think, procedurally, she can object.” The
State points out that the circuit court eventually declined to consider the objected-
to information, which it argues means that trial counsel was allowed to
meaningfully participate. However, that outcome does not negate that the court
considered trial counsel’s role to be reduced and R.A.M. not to have the full right
to counsel.
¶31 The State argues that R.A.M. was not denied her right to counsel and
that while the circuit court struck her contest posture, it did not discharge her
counsel. It points out that even after the court granted the default motion,
R.A.M.’s counsel was allowed to cross-examine witnesses and to make closing
arguments in both the grounds and the dispositional phases. Therefore, the State
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No. 2023AP441
contends that R.A.M.’s right to counsel was not waived and the time periods in
WIS. STAT. § 48.23(2)(b)3. were not triggered.7
¶32 However, the State ignores the circuit court’s statements that showed
it considered trial counsel to have a proscribed and diminished representation after
the egregious conduct without justification finding for default. The State also
ignores the presumption of waiver in the plain language of the statute. The State
fails to address the presumption, arguing instead that the third situation in
WIS. STAT. § 48.23(2)(b) applies when a parent fails to continue to participate in a
TPR action. Although the State cites to other unpublished yet persuasive TPR
cases,8 we consider those cases distinguishable, and we cannot ignore the plain
meaning of the language in statute. State ex rel. Kalal, 271 Wis. 2d 633, ¶46. The
statute states that a parent “is presumed to have waived his or her right to counsel
and to appear by counsel” when the parent is ordered to appear, does not appear,
and the court finds the absence was egregious and without a justifiable excuse.
Sec. 48.23(2)(b)3. That situation and those three findings were made.
We conclude that R.A.M. has demonstrated that her right to counsel was waived,
7
We reject the State’s argument that WIS. STAT. § 48.23(2)(b)3. could not apply because
R.A.M.’s counsel was not formally discharged because it is unsupported by legal authority. See
State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992). At most it relies upon
State v. J.B., Nos. 2016AP483-5, unpublished slip op. (WI App Oct. 4, 2016), which concluded
that a “explicit finding” of the waiver of counsel to trigger the statute. This court did not require
discharge of counsel in that case.
8
For example, the State cites to J.B., Nos. 2016AP483-5, which this court concluded,
when faced with a similar argument that the presumption of waiver occurs when the three facts
were found (order to appear, non-appearance, and egregious conduct), that “[e]ven where those
conditions are met, there is no indication that a default converts automatically into a waiver of the
right to counsel.” Id., ¶19. This court concluded that the waiver of counsel was a separate
finding than the default sanction and that WIS. STAT. § 48.23(2)(b)3. was only triggered by an
express waiver of counsel by the circuit court. The plain meaning of the language of the statute
does not require an express waiver or require the discharge of counsel. Therefore, we decline to
adopt this reasoning.
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No. 2023AP441
that the State has not overcome the presumption of that waiver, and that the waiver
triggered the application of § 48.23(2)(b)3.
B. Competency under WIS. STAT. § 48.23(2)(b)3.
¶33 R.A.M. argues that the circuit court lost competency over the case
by acting before the two day time elapsement provided in WIS. STAT.
§ 48.23(2)(b)3. after the waiver of counsel. In order to determine whether the
circuit court lost competency, we must determine whether the time period was
central to the statutory scheme. See Mikrut, 273 Wis. 2d 76, ¶10. Our supreme
court has addressed the importance of mandatory time constraints in the
Children’s Code, noting, “that Chapter 48 imposes other mandatory time
limitations as well, the violation of which precipitates a loss of competency.”
Mikrut, 273 Wis. 2d 76, ¶12.
¶34 We begin with the relevant statutory language:
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.
Sec. 48.23(2)(b)3. By the plain meaning of the text, the court is prohibited from
moving directly to the dispositional hearing for two days after the waiver of
counsel based upon a parent’s non-appearance and egregious conduct without
excuse. See State ex rel. Kalal, 271 Wis. 2d 633, ¶46. A required delay in
proceedings is undoubtedly unusual in the statutes. However, we find no
ambiguity in its meaning. Further, “[w]here 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)
16
No. 2023AP441
(“May not is a negative term.” (quotation marks omitted)). Accordingly, we
conclude that the two day delay is a mandatory time period and the violation of its
terms resulted in a loss of competency for the circuit court over the disposition of
this case.
¶35 The State points out that after Mikrut was decided, the legislature
amended WIS. STAT. § 48.315 addressing delays, continuances and extensions,
providing that, “[f]ailure by the court or a party to act within any time period
specified in this chapter does not deprive the court of personal or subject matter
jurisdiction or of competency to exercise that jurisdiction.” R.A.M. responds that
she is not asserting that the circuit court exceeded a mandatory, maximum time
limitation, but it acted before the time period began. As we addressed above, we
agree that § 48.315 does not change our interpretation of WIS. STAT.
§ 48.23(2)(b)3.9
¶36 We conclude that the circuit court lost competency over the
disposition of the TPR petition when it moved to the dispositional phase in
violation of the statutory mandate.
C. Due process
¶37 Finally, R.A.M. argues that the circuit court violated her right to due
process when it proceeded to the dispositional phase of the TPR action without
9
Further, when we review the remedies within the continuances statute, it includes that
“[i]f the court … does not act within a time period … the court … may grant a continuance under
sub. (2), dismiss the proceeding without prejudice, release the child from secure or nonsecure
custody … or grant any other relief that the court considers appropriate.” WIS. STAT.
§ 48.315(4). We do not interpret the State to argue that the court did anything other than proceed
immediately to the disposition, or to argue that the circuit court decided it had “good cause” to
ignore the required time delay.
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No. 2023AP441
competency over the case. “Terminations of parental rights affect some of
parents’ most fundamental human rights.” Evelyn C.R., 246 Wis. 2d 1, ¶20.
“A parent’s interest in the parent-child relationship and in the care, custody, and
management of his or her child is recognized as a fundamental liberty interest
protected by the Fourteenth Amendment.” Steven V. v. Kelley H., 2004 WI 47,
¶22, 271 Wis. 2d 1, 678 N.W.2d 856. A parent’s private interest in a termination
of parental rights proceeding is a grievous loss, namely the permanent deprivation
of a legal relationship with his or her child.” Brown Cnty. v. Shannon R., 2005
WI 160, ¶58, 286 Wis. 2d 278, 706 N.W.2d 269. “When the State seeks to
terminate familial bonds, it must provide a fair procedure to the parents, even
when the parents have been derelict in their parental duties.” Id., ¶56.
¶38 R.A.M. argues that the circuit court’s decision to move forward with
the dispositional phase of the TPR proceedings was contrary to statute, as well as
in contradiction to the court’s statement to trial counsel that it would allow R.A.M.
to move to vacate the default grounds with a very good excuse. The court
scheduled hearing times on July 5 and 6 and July 15, 2022. After finding grounds
for termination of R.A.M.’s parental rights, the circuit court told counsel that it
would allow R.A.M. to participate in the disposition hearing if she appeared as
scheduled the following day. However, the court instead conducted the entire
dispositional hearing in under two hours, on the same day, denying R.A.M. an
opportunity to appear and perhaps provide a justifiable reason to vacate the default
finding or at least allow her to participate in the dispositional phase.
¶39 “A fundamental guarantee of due process of law is the opportunity to
be heard ‘at a meaningful time and in a meaningful manner.’” Id., ¶64 (citation
omitted). Although the termination of parental rights does not involve a criminal
penalty, it is a basic right to be given due process when facing this “grievous loss.”
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No. 2023AP441
Id., ¶¶58, 64. R.A.M. expressly states she does not challenge the ability of the
legislature or the circuit court to limit her right to be heard by defaulting her on the
grounds for the TPR based on the court’s finding that her failure to appear was
egregious and without justifiable excuse.10 However, she argues that WIS. STAT.
§ 48.23(2)(b)3. provides a parent with an opportunity to be heard in the
dispositional phase after defaulting on the grounds. She asserts that the two day
required delay before the dispositional phase prevents the situation before us—
where the parent is defaulted on the grounds, the court implicitly finds a waiver of
the parent’s right to counsel, and the court moved immediately to the prove up and
disposition.
¶40 The statutory procedure for the fact-finding hearing on the grounds
for the TPR petition provides that after the grounds are found by the court or jury,
and the court finds the parent unfit, the court then “proceed[s] immediately to hear
evidence and motions related to the dispositions” except as provided in WIS.
STAT. § 48.23(2)(b)3. WIS. STAT. § 48.424(4). Therefore, if § 48.23(2)(b)3.
applies to the case before the court—meaning the court has found the parent
10
Because R.A.M. does not challenge the circuit court’s findings that her non-
appearance on July 5 was egregious and without justifiable excuse, we do not examine that issue.
We will not disturb the circuit court’s findings, but we do note concern that missing a single
hearing while attempting to clear a criminal matter may have been an imperfect choice, but the
court’s concern over R.A.M.’s “priorities” or “manipulation” does not seem founded in the
record. The record does not make clear how the court reached this conclusion. “Egregious
conduct is conduct that, although unintentional, is ‘extreme, substantial and persistent.’” Teff v.
Unity Health Plans Ins. Corp., 2003 WI App 115, ¶14, 265 Wis. 2d 703, 666 N.W.2d 38(citation omitted). This court has also considered egregious conduct to be “extraordinary in some
bad way; glaring, flagrant.” East Winds Properties, LLC v. Jahnke, 2009 WI App 125, ¶15, 320
Wis. 2d 797, 772 N.W.2d 738. Our examination of the record does not support that R.A.M.
repeatedly missed hearings or failed to comply with court orders. Even within WIS. STAT.
§ 48.23(2)(b)3., a parent’s failure “to appear in person at consecutive hearings as ordered is
presumed to be conduct that is egregious and without clear and justifiable excuse.” This logically
supports that missing a single hearing or non-consecutive hearings would not trigger the
presumption of egregious conduct.
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No. 2023AP441
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.
CONCLUSION
¶41 For the reasons stated above, we conclude that R.A.M.’s due process
rights were violated when the circuit court determined the disposition of the TPR
petition when it lacked competency to do so, by operation of WIS. STAT.
§ 48.23(2)(b)3. We reverse the TPR order and remand with directions to hold a
new dispositional hearing.
By the Court.—Order reversed and cause remanded with directions.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
20