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    As I See It: The Murky Case of the Disappearing TPR Parent

    Courts may sanction parents who fail to appear in termination-of-parental-rights proceedings by ordering that judgment be imposed against them, but use of this default mechanism must be approached carefully, especially when parents do not have counsel.

    Christopher R. Foley

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    Open doorIn the August 2011 Wisconsin Lawyer (“Ethical Dilemma in TPR Litigation”), this author discussed the ethical issues encountered by counsel for respondent parents in involuntary termination-of-parental-rights (TPR) proceedings when the parent fails to appear and provide direction to counsel. Although legislation (discussed below) has been introduced that will, if enacted, substantially alleviate those problems, issues relating to respondent parents who do not appear or who disappear continue to vex lawyers and judges.

    The most recent evidence in this regard is the Wisconsin Supreme Court decision in Dane County Department of Health Services v. Mable K.1 In Mable K., the respondent parent initially appeared and contested the petition for TPR. She complied with the court’s order to personally appear for hearings until the second day of the jury trial. The circuit court, believing the parent could be defaulted for failing to appear at trial despite the presence of her lawyer, granted the petitioner’s motion for default judgment and terminated the mother’s parental rights. At the conclusion of an extremely convoluted appellate process, the Wisconsin Supreme Court reversed the order.

    This article seeks to clarify, to the extent possible, when a parent in an involuntary TPR proceeding is appropriately defaulted for failure to appear or as a sanction for failure to obey a court order to appear in person at hearings on the petition (or other court orders).2 It also highlights the presently existing constraints on the default sanction when the “disappearing” parent is represented by counsel.

    Recurring Issues in Involuntary TPR Proceedings

    Scenario 1. A properly served parent fails to appear at the initial hearing on a petition for involuntary termination of parental rights. Is he or she subject to default? If so, can the court address both the grounds and dispositional phase of the proceedings at the first hearing?

    Christopher R. Foleygov Christopher.Foley wicourts Christopher R. Foley, Marquette 1978, is a Milwaukee County Circuit Court judge.

    Scenario 2. A properly served parent appears by phone, requests appointment of counsel, secures counsel through the public defender, and contests the petition. The parent then fails to appear in person for subsequent hearings despite orders to personally appear, but his or her lawyer does appear. Is the parent subject to default for failure to appear (or on some other basis) and, if so, may the lawyer for the defaulted parent further participate in the proceedings?

    Or, a properly served parent appears and secures counsel; he or she contests the petition and then complies with the order of the court to appear for multiple hearings before trial but then fails to appear on the second day of trial. Can he or she be defaulted for failure to appear at trial? Can he or she be defaulted on another basis? Does the circuit court have some other viable alternative to address the parent’s behavior?

    Scenario 3. A properly served parent appears at the first hearing on an involuntary TPR petition and requests an adjournment to secure counsel through the Office of the State Public Defender (SPD). Although ordered both to reappear at the adjourned plea hearing and to go to the SPD to complete the appointment process, the parent does neither. Is he or she defaultable at the adjourned plea hearing?

    While the supreme court has addressed the issue of nonappearing and disappearing parents in involuntary TPR proceedings three times in the last 12 years (Evelyn C.R. v. Tykila S.,3 State v. Shirley E.,4 and Mable K.), much remains uncertain as to the appropriate response of a circuit court in the context of the disappearing parent and (to a lesser extent) the nonappearing parent.

    The Nonappearing Parent (Scenario 1)

    Somewhat surprisingly, even in the most obvious of circumstances, there is no clearly stated authority to default a properly served respondent parent who fails to appear in an involuntary TPR proceeding. No specific provision of chapter 48 explicitly states that such a parent may be defaulted for failure to appear and contest the petition. Nevertheless, the authority unquestionably exists.

    Only one Wisconsin appellate decision, an unpublished court of appeals decision, has traced the imprecise legislative path authorizing default of a properly served and nonappearing parent.5 The court noted that the summons required to be served on a respondent parent pursuant to Wis. Stat. section 48.42 requires that the parent be advised to appear and the “parental rights of a parent or alleged parent who fails to appear may be terminated.” The same statute requires notice of appellate rights be contained in the summons “if the court terminates parental rights.” Finally, the court noted that Wis. Stat. section 48.422(3) provides that if a petition for involuntary TPR is not contested, the court “shall hear testimony in support of the allegations” at the plea hearing.

    The court went on to note that chapter 48 proceedings, including TPR proceedings, are civil in nature and the rules of civil procedure apply in the absence of a different specified procedure in chapter 48.6 Because no other procedure is specified, Wis. Stat. section 806.02(1) authorized default because the respondent parent had failed to timely appear and join issue (that is, contest the petition).

    Before leaving this less difficult area of analysis, there are two issues worthy of note for attorneys and, in particular, trial judges. First, when the petition is not contested (whether by default, admission, or a no-contest plea), the court is obligated to hear testimony in support of the petition to determine whether one or more grounds for involuntary TPR have been proved to a reasonable certainty by clear and convincing evidence.7 This evidentiary requirement fulfills both the statutory duty and the requirements of the Due Process Clause.8 This testimonial requirement has evaded the attention of trial judges on several occasions,9 and it is improper to simply rely on the contents of the petition to fulfill this obligation because the statute requires testimony in support of the allegations.

    Second, and more concerning, the Kimberly B. court asserted that a circuit court may not proceed to disposition on default when the properly served parent fails to appear and contest the petition at the hearing on the petition. TPR proceedings are two-phased proceedings; in the first phase, the petitioning party must prove grounds exist to terminate the respondent parent’s parental rights.10 Upon proof of grounds, and the required finding of parental unfitness, the court proceeds to disposition and a determination of whether termination serves the best interests of the child.11 Citing to State v. Shirley E. (discussed at length below and involving circumstances in which a respondent did appear in the action and was defaulted as a sanction), the Kimberly B. court affirmatively asserted that the default for failure to appear in response to the summons would have to be limited to the grounds phase; the dispositional phase would have to be adjourned.12

    Again noting the decision is unpublished and not binding precedent,13 and with due respect to an otherwise very well written opinion, in the author’s view, this is a clearly incorrect reading of the applicable statutes. As the decision itself noted, the summons must advise the parent that failure to appear may result in termination of parental rights. More important, as the court also noted, if the petition is not contested, the court must hear testimony in support of the allegations in the petition pursuant to Wis. Stat. section 48.422(3). Finally, Wis. Stat. section 48.424(4) provides that if grounds are found by the court, the court “shall proceed immediately to hear evidence … related to dispositions.”

    Shirley E. involved an originally appearing parent defaulted as a sanction. Because she had appeared, and continued to appear by counsel, she was entitled to participate in both the grounds and dispositional phases even though she was not physically present.14 In that a Kimberly B. parent never appears and contests the petition, assuming grounds are proved in the default hearing, the statutes strongly presume that the court should move immediately to the dispositional phase.15 There is, to my knowledge, no statutory or precedential bar to this one-hearing procedure.

    The Disappearing Parent (Scenario 2)

    As discussed in the previous “Ethical Dilemma” article, the disappearing client is a frequent and more problematic issue for both trial judges and counsel. The parent, having initially appeared, may then not reappear or may reappear initially and then disappear, either of which might violate not only the court’s order requiring personal appearance but also the requirement to maintain contact with counsel and meet discovery obligations.16

    In ordinary civil litigation, counsel would address this circumstance by motion to withdraw. I have previously suggested that such a motion is mandated because the lawyer is almost invariably incapable of competent representation and because continued representation results, arguably, in violation of the Rules of Professional Conduct.17

    Although counsel in TPR litigation is still well advised to make such a motion, circuit courts are prohibited from allowing withdrawal pursuant to Shirley E.’s interpretation of Wis. Stat. section 48.23, which provides that a parent who has appeared in involuntary TPR litigation “shall appear by counsel” absent a knowing and voluntary waiver. To date, appellate courts have not accepted waiver by conduct (that is, disappearance and noncommunication with counsel) as a basis to allow withdrawal.

    Assembly Bill 152 has been introduced and would amend Wis. Stat. section 48.23 to provide that an egregious and without-justifiable-excuse violation of an order to appear in person would constitute waiver of counsel and permit counsel to withdraw. However, under current law, counsel must continue to represent the disappearing parent until conclusion of the proceedings.

    It is clear that a parent not personally present but appearing by counsel “appears” in the proceeding and may not be defaulted for failure to appear at trial.18 Such an individual therefore is not defaultable for failure to appear at trial pursuant to Wis. Stat. section 806.02 (5), as the Mable K. circuit court apparently assumed.

    However, it is equally clear that a court can sanction the parent for violation(s) of the court’s order to personally appear.19 The sanction may include default, but only if the violation is egregious or in bad faith.20 The appellate courts have emphasized as well that default judgment in the grounds phase as a sanction can only be granted upon compliance with the dictates of Wis. Stat. section 48.422 (3) (discussed above); testimony (and other evidence) to establish the existence of grounds to terminate parental rights to the requisite standard of certainty by appropriate evidence is required.

    The interplay of the authority to sanction by default judgment with the Shirley E. mandate that the disappearing parent continue to be represented by counsel has rendered the default judgment process in this context unique. Justice Prosser, in his concurrence in Shirley E., noted that circuit courts are prohibited from sanctioning the disappearing parent by a “true default judgment,” because that interplay – interpreted in Evelyn C.R. and Shirley E. – proscribes “limit[ing] the role of the parent’s attorney in the fact-finding proceedings.” This process “effectively denies the circuit court the authority to sanction an uncooperative parent.”21

    Nevertheless, if the parent’s conduct is egregious or in bad faith and the court chooses default judgment as a sanction, the defaulting parent’s lawyer must be permitted to present evidence and cross-examine the witnesses offered by the petitioning party.22 In addition, counsel for the defaulting parent must be permitted to participate in the dispositional hearing if grounds are found.23

    Theoretically, the constraints on default judgment as a sanction could be avoided through the use of a different sanction for violation of the court’s order to appear. Wisconsin Statutes section 804.12(2)(a)3. authorizes a court to strike out the pleadings of a disobedient party as a sanction. In Rao v. WMA Securities,24 the court stated that if that sanction is imposed, the court proceeds to default judgment pursuant to Wis. Stat. section 806.02 in that “no issue of law or fact has been joined.”25 If the disappearing and noncompliant parent’s contest posture is stricken, pursuant to Rao, the process of default for a nonappearing parent would arguably apply.

    However, the circuit court would then face the Shirley E. conundrum. Despite the fact that the parent’s contest posture has been stricken, the parent has appeared in the proceeding and, absent waiver, must appear by counsel. Thus, presumptively counsel would have to be allowed to participate in the default proceedings.

    One can only speculate whether other sanctions authorized by Wis. Stat. section 804.12(2) would avoid the proscriptions on the vitality of the default sanction of which Justice Prosser complained. Authorized sanctions include taking “designated facts … to be established for the purposes of the action in accordance with the claim of the party obtaining the order;” and “refusing to allow the disobedient party to support or oppose designated claims or defenses, … or introducing designated matters in evidence.” While on their face such sanctions would warrant limiting the role of the disobedient parent’s counsel in the remainder of the proceedings, given the Shirley E. and Mable K. holdings, in my view, circuit courts would be ill-advised to pursue that course.

    The Mable K. court strongly implied that the circuit court could have sanctioned the disappearing parent by striking her jury demand.26 The Rao court specifically held that conduct on the part of a litigant warranting a sanction pursuant to Wis. Stat. section 804.12 can operate as a waiver of the right to a jury trial.27 This alternative at least avoids the prospect of the parent’s lawyer trying the grounds phase to a jury with an empty chair as a client, a possibility the inanity of which was insightfully noted by Judge Maryann Sumi in the Evelyn C.R. circuit court proceedings.28

    In summary, pending any legislative modification of Wis. Stat. section 48.23, if a parent’s noncompliant behavior in the Scenario 2 context meets the egregious/bad faith standard for default, circuit courts are best advised to strike any existing jury demand and grant default as a sanction and also to allow defense counsel to participate in the (remaining) grounds and dispositional phases to the extent they are able.

    The Hybrid: Appearing/Disappearing Parent Who Fails to Contest (Scenario 3)

    Finally, although the issue posed by scenario 3 actually involves a disappearing parent, many might view it as involving a nonappearing parent. That scenario raises probably the most perplexing problem for trial judges. The parent who appears in court and requests the appointment of counsel has “appeared” in the proceeding.29 In that he or she has appeared, pursuant to Shirley E., he or she must appear by counsel absent waiver. However, the parent has no counsel and has not contested the petition. While one might assume that the parent waives counsel by conduct,30 the Shirley E. court and the court of appeals have implicitly questioned this rationale.31

    Taken to its theoretical extreme, the Shirley E. interpretation of Wis. Stat. section 48.23 could require the circuit court to appoint counsel pursuant to section 48.23(3) and have them represent clients they have never met nor communicated with (unless efforts on their part to locate and engage the parent are successful). Evelyn C.R., Shirley E., and Mable K. all involved parents who had appeared and were subsequently defaulted as a sanction for failure to appear;32 one can only speculate whether default without counsel for the disappearing parent who has failed to contest the petition (join issue under Wis. Stat. section 806.01) is foreclosed in this scenario. In truth, I have never assumed that it is.

    An Impending Solution

    As earlier noted, Assembly Bill 152 is presently pending in the Wisconsin Legislature. It is the product of the Legislative Study Committee on Permanency for Young Children in the Child Welfare System, convened at the request of Sen. Mary Lazich and Rep. Samantha Kirkman.

    The bill would amend Wis. Stat. section 48.23 to provide that violation of a court order to appear in person by an adult respondent parent, if egregious and without justifiable excuse, presumptively waives the parent’s right to counsel and to appear by counsel.33 Discharge of counsel would then be permitted and “true default” could be imposed as a sanction when the parent’s noncompliant behavior warrants. The legislation presumes that consecutive missed appearances are egregious and without justifiable excuse. As a final safeguard, the bill restores the right to be represented by counsel (which can again be waived by conduct) in a motion to vacate or for reconsideration of the default judgment.

    In my view, this amendment of the statute strikes the appropriate balance in protecting the fundamental liberty interests of parents who engage and are invested in the TPR process while guarding against inappropriate expenditure of limited public funds on behalf of parents who are not fulfilling their responsibilities in the process.


    As I indicated in my earlier article, “Circuit courts and all attorneys must be ever mindful of the sacred and fundamental liberty interest at stake in TPR litigation…. Appellate courts appear to be highly sensitive – appropriately so – to any suggestion that circuit courts are looking for short cuts in addressing issues of this magnitude.”

    On the other hand, when resources are stretched beyond reasonable limits and the legal system struggles to provide appropriate representation for parents actively engaged in the process, it seems inane that lawyers (almost all appointed at public expense) are being paid to represent clients they have never met or with whom they have long ago lost contact and who, in direct violation of court orders, fail to appear. It is nonsensical to pay lawyers to represent empty chairs.

    This assumes, of course, that the lawyer has been rendered incapable of competent representation because of the client’s conduct; if the lawyer has not, as was the circumstance in Shirley E., the parent’s conduct would not warrant the sanction of default (although perhaps warranting other sanctions) and counsel should fully participate as directed by the client.34

    In my experience, default hearings pursuant to the dictates of Shirley E. and requiring the participation of counsel for parents who do not appear in violation of a court order are not overly burdensome on the courts. Counsel, as a result of lack of direction or communication from their client, have little capacity to substantively participate in the proceeding. However, the costs associated with providing representation for parents whose volitional and egregious conduct warrants default as a sanction are wholly unjustified.

    Most important, repeated delays, including delays related to the appellate process35 often occasioned by disappearing parents and the courts’ efforts to appropriately respond to such conduct, deprive all parties, most notably the children who are the subject of the proceedings, timely resolution of the litigation and appropriate permanence for those children. For that reason alone, it is my sincere hope that the legislature will amend Wis. Stat. section 48.23 to bring clarity and timeliness to this process.


    1 Dane Cnty. Dep’t of Human Servs. v. Mable K. (In re Termination of Parental Rights to Isaiah H.), 2013 WI 28, 346 Wis. 2d 396, 828 N.W.2d 198.

    2 The article addresses violations of orders to appear in person for hearings on petitions for involuntary TPR. Violations of discovery obligations or orders to maintain reasonable contact and communication with counsel could also form the basis for sanctions.

    3 Evelyn C.R. v. Tykila S. (In re Termination of Parental Rights to Jayton S.), 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768.

    4 State v. Shirley E. (In re Termination of Parental Rights to Torrance P. Jr.), 2006 WI 129, 298 Wis. 2d 1, 724 N.W.2d 623.

    5 Kenosha Cnty. Dep’t of Human Servs. v. Kimberly B. (In re Termination of Parental Rights to Kaylee B.), No. 2008AP1715, 2008 WL 5234343 (Wis. Ct. App. Dec. 17, 2008) (unpublished limited precedent opinion).

    6 Steven V. v. Kelley H. (In re Termination of Parental Rights to Alexander V.), 2004 WI 47, ¶ 32, 271 Wis. 2d 1, 678 N.W.2d 856); Wis. Stat. § 801.01(2).

    7 Wis. Stat. §§ 48.422(3), 48.31.

    8 Evelyn C.R., 2001 WI 110, ¶ 21, 246 Wis. 2d 1. In Santosky v. Kramer, 455 U.S. 745, 769 (1982), the U.S. Supreme Court determined that the Due Process Clause required proof of parental unfitness by clear and convincing evidence to justify termination of parental rights.

    9 See, e.g., Evelyn C.R., 2001 WI 110, 246 Wis. 2d 1; Waukesha Cnty. v. Steven H. (In re Termination of Parental Rights of Brittany Ann H.), 2000 WI 28, 233 Wis. 2d 344, 607 N.W.2d 607; Brown Cnty. Dep’t of Human Servs. v. Antonio E.G. (In re Termination of Parental Rights to Cierra M.G.), No. 2007AP77, 2007AP78, 2007 WL 824030 (Wis. Ct. App. March 20, 2007); Sheboygan Cnty. Dep’t of Health & Human Servs. v. Michele L.S. (In re Termination of Parental Rights to Paige C.S.), 2006AP1965, 2007 WL 755003 (Wis. Ct. App. March 14, 2007) (unpublished limited precedent opinion).

    10 Steven V., 2004 WI 47, ¶ 24, 271 Wis. 2d 1; Wis. Stat. §§ 48.422(2), 48.424(1), (3).

    11 Steven V., 2004 WI 47, ¶ 26, 271 Wis. 2d 1; Wis. Stat. §§ 48.424(4), 48.426, 48.427.

    12 Kimberly B., No. 2008AP1715, 2008 WL 5234343, ¶ 2, n.2.

    13 Wis. Stat. § 809.23(3).

    14 Shirley E., 2006 WI 129, ¶¶ 43-56, 298 Wis. 2d 1.

    15 Wis. Stat. section 48.424(3), which creates the presumption that the court will immediately move to the dispositional phase if grounds are proved, allows adjournment of the dispositional phase if notice requirements of the Indian Child Welfare Act have not been met, all parties agree to the adjournment, or the court report has not been received.

    16 Absent an order to appear in person, the respondent parent is at liberty to appear by counsel. SCR 11.02; Evelyn C.R., 2001 WI 110, ¶ 17, 246 Wis. 2d 1. Hence, it is imperative that, absent unusual circumstances, courts direct the personal appearance of respondent-parents at all hearings. It is also highly advisable to order that they cooperate with the discovery process and maintain reasonable contact/communication with their lawyer.

    17 See SCR 20:1.1, 20:1.16(a)(1).

    18 Evelyn C.R., 2001 WI 110, ¶ 17, 246 Wis. 2d 1; Shirley E., 2006 WI 129, ¶¶ 13 n.3, 32, 49, 298 Wis. 2d 1; Mable K., 2013 WI 28, ¶ 66, 346 Wis. 2d 396.

    19 Wis. Stat. §§ 802.10(7), 804.12(2)(a), 805.03; Evelyn C.R., 2001 WI 110, ¶ 17, 246 Wis. 2d 1.

    20 Shirley E., 2006 WI 129, ¶ 13 n.3, 298 Wis. 2d 1; Mable K., 2013 WI 28, ¶ 69, 346 Wis. 2d 396.

    21 Shirley E., 2006 WI 129, ¶¶ 83-84, 298 Wis. 2d 1 (Prosser, J. concurring).

    22 Id. ¶ 50.

    23 Id. ¶¶ 50-51, 53-55; Mable K., 2013 WI 28, ¶¶ 50-57, 346 Wis. 2d 396.

    24 Rao v. WMA Secs. Inc., 2008 WI 73, ¶ 37, 310 Wis. 2d 623, 752 N.W.2d 220.

    25 The court did not cite the specific subsection of Wis. Stat. section 806.02 to which it referred; however, the language is from section 806.02(1).

    26 Mable K., 2013 WI 28, ¶ 67, 346 Wis. 2d 396.

    27 Rao, 2008 WI 73, ¶ 55, 310 Wis. 2d 623.

    28 Evelyn C.R., 2001 WI 110, ¶ 8, 246 Wis. 2d 1.

    29 Artis-Wergen v. Artis-Wergen, 151 Wis. 2d 445, 444 N.W.2d 750 (Ct. App. 1989) (citing McLaughlin v. Chicago, M., St. P. & P. Ry., 23 Wis. 2d 592, 594, 127 N.W.2d 813 (1964)).

    30 Cf. State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996).

    31 Shirley E., 2006 WI 129, ¶ 57, 298 Wis. 2d 1; State v. Darrell K. (In re Termination of Parental Rights to Marquise L.), 2010AP1910, 2010 WL 4151979 (Wis. Ct. App. Oct. 19, 2010) (unpublished opinion not citable per section 809.23(3)).

    32 While both Mable K. and Evelyn C.R. involved parents who appeared and contested the petition, a close reading of Shirley E. appears to suggest that the parent never contested the petition for TPR. Whether an appearing parent who fails to contest can be defaulted pursuant to Wis. Stat. section 806.02(1) was not directly addressed.

    33 The Shirley E. court noted that the legislature, in the existing version of Wis. Stat. section 48.23, had failed to condition the right to counsel on the personal appearance (or continuing personal appearance) of the respondent parent. Shirley E., 2006 WI 129, ¶¶ 43-46, 298 Wis. 2d 1.

    34 Cf. Shirley E., 2006 WI 129, ¶ 13 n.3, 298 Wis. 2d 1.

    35 The Mable K. dissent bitterly noted that the TPR petition in that case had been in the litigation and appellate process for three years when the case was remanded for a new trial. Mable K., 2013 WI 28, ¶ 120, 346 Wis. 2d 396 (Ziegler, J., dissenting).