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  • WisBar News
    March 29, 2013

    Supreme Court Says Jury Must Hear Facts in Parental Termination Case

    A mother facing termination of parental rights proceedings did not timely appear at a fact-finding hearing before a jury. But a Wisconsin Supreme Court majority says her attorney could have presented evidence in her absence. Now she'll get a new hearing.

    March 29, 2013 – The Wisconsin Supreme Court, by a 4-3 majority, has ruled that a Dane County woman will have another shot to keep her kids because of erroneous lower court rulings that prevented her from presenting evidence to a jury.

    When the mother (Mable) failed to timely appear at a fact-finding hearing, the circuit court entered a default judgment establishing grounds for termination without letting Mable’s lawyer offer evidence to refute the claim that she abandoned her children.

    The circuit court later vacated the judgment, acknowledging that evidence should have been allowed, but the court’s remedy prevented Mable from presenting the evidence to a jury. That is, the remedy only allowed the judge to hear the mother’s evidence.

    A majority of justices in Dane County Dept. of Human Services v. Mable K., 2013 WI 28 (March 29, 2013), ruled that a jury must hear the evidence, concluding “the circuit court’s remedy for correcting the errors is fundamentally unfair.”

    Three justices dissented, arguing the mother was “solely responsible for her own egregious and volitional failure to appear in court” and the mother “relinquished a right to a jury trial when she chose not to appear before the jury that had been impanelled.”

    Lower Court Rulings

    When the Dane County Department of Human Services sought to terminate Mable’s parental rights, the court ordered her to appear at all subsequent proceedings.

    Mable did not timely appear on the second day of a fact-finding hearing before a jury to determine the grounds for termination of rights, but her lawyer did.

    The attorney was in contact with Mable, who said she was riding her bicycle to court and would arrive shortly. But Mable didn’t show up in time. She arrived 10 minutes after the court entered a default judgment that found grounds for termination.

    Her attorney had been prepared to offer evidence refuting the county’s argument that Mable abandoned her two children, but the court did not allow it. Instead, the attorney was only allowed to cross-examine the county’s witness on the issue of abandonment.

    When Mable showed up, her attorney immediately requested reconsideration of the default judgment, but the court ultimately confirmed the judgment.

    After hearing Mable’s excuses – including the excuse that the previous day’s hearing had sapped her energy and she wanted to get breakfast before coming to court – the judge ruled that Mable did not offer sufficient proof to vacate the judgment.

    The circuit court terminated her parental rights at a dispositional hearing several months later. Mable appealed, arguing the circuit court abused its discretion when it entered the default judgment, and she should have received a new fact-finding hearing.

    On post-disposition motions, the circuit court agreed that Mable should have been allowed to present evidence refuting the abandonment claim.

    It vacated the default judgment, but the circuit court’s remedy did not allow Mable to offer the evidence to a jury. Such evidence could only be presented to the judge. Mable petitioned to the supreme court after a state appeals court dismissed her appeal.

    Supreme Court Majority Rules for Mother

    Justice Ann Walsh Bradley, joined by Chief Justice Shirley Abrahamson and Justices Patrick Crooks and David Prosser, ruled in favor of Mable.

    The attorney, the majority ruled, “could act on her behalf at the fact-finding hearing whether or not Mable personally appeared.” Preventing the attorney from acting on her behalf violated Mable’s statutory right to an attorney, the majority explained.

    It also ruled that the court erred because it entered the default judgment without establishing the grounds for termination by clear and convincing evidence, and fashioned an unfair remedy that doesn’t give Mable a full jury trial.

    “The circuit court’s remedy conflicts with the requirement that the government bears the burden to show that grounds exist for the termination of parental rights, and that the parent should have a ‘full complement of procedural rights,’” Justice Bradley wrote.

    The majority reversed and remanded the case for a new fact-finding hearing before a jury, noting that the case is more than two years old.


    The dissenting justices, Annette Ziegler, Pat Roggensack, and Michael Gableman, faulted the mother for failing to appear. “She knew when she was to appear, but she chose not to follow the circuit court’s order,” wrote Justice Ziegler in the dissent.

    “I conclude that the trial court did not erroneously exercise its discretion when it vacated the default judgment and instead, sanctioned Mable for her egregious behavior by ordering that the remainder of the evidence would be heard as a court trial,” she wrote.

    The dissent also said the majority’s opinion forces the children’s fate to remain “hanging in the balance” and affords accommodation to a parent who is not engaged in their lives. ​​

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