Dane County Department of Human Services v. Mable K.

2013 WI 28

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP825 & 2011AP826
COMPLETE TITLE:
In re the termination of parental rights to
Isaiah H., a person under the age of 18:

Dane County Department of Human Services,
Petitioner-Respondent,
v.
Mable K.,
Respondent-Appellant-Petitioner,
Lee H.,
Respondent.

In re the termination of parental rights to May
K., a person under the age of 18:

Dane County Department of Human Services,
Petitioner-Respondent,
v.
Mable K.,
Respondent-Appellant-Petitioner,
Wesley J.,
Respondent.

REVIEW OF A DECISION OF THE COURT OF APPEALS
(No Cite)

OPINION FILED: March 29, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 7, 2012

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Amy R. Smith

JUSTICES:
CONCURRED:
DISSENTED: Ziegler, Roggensack, Gableman, JJJ., dissent.
(Opinion filed.)
NOT PARTICIPATING:

ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
filed by Brian C. Findley, Darlington, and oral argument by
Brian C. Findley.
 For the petitioner-respondent, there was a brief filed by
Gary Rehfeldt, assistant Dane County corporation counsel, and
oral argument by Gary Rehfeldt.
A guardian ad litem brief was filed by Ginger L. Murray and
Lawton & Cates, S.C., Madison.

2
 2013 WI 28
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP825 & 2011AP826
(L.C. No. 2010TP32 & 2010TP33)

STATE OF WISCONSIN : IN SUPREME COURT

In re the termination of parental rights to
Isaiah H., a person under the age of 18:

Dane County Department of Human Services,

Petitioner-Respondent,
FILED
v. MAR 29, 2013
Mable K., Diane M. Fremgen
Clerk of Supreme Court
Respondent-Appellant-Petitioner,

Lee H.,

Respondent.

In re the termination of parental rights to May
K., a person under the age of 18:

Dane County Department of Human Services,

Petitioner-Respondent,

v.

Mable K.,

Respondent-Appellant-Petitioner,
Wesley J.,

Respondent.

REVIEW of a decision of the Court of Appeals. Reversed and

cause remanded.

¶1 ANN WALSH BRADLEY, J. The petitioner, Mable K.,

seeks review of an order of the court of appeals dismissing her

appeals in two consolidated termination of parental rights

proceedings.1 She contends that the circuit court erroneously

exercised its discretion when it granted a default judgment

finding that grounds existed to terminate her parental rights,

after barring her attorney from offering further evidence

tending to refute the grounds for the termination.

Additionally, she argues that the circuit court erred when it

granted the default judgment prematurely.

¶2 Mable K. further argues that the remedy provided by

the circuit court to address its errors is fundamentally unfair.

The circuit court's remedy was to return Mable K. to the

procedural posture when the error occurred and conduct the

1
Dane Cnty. Dep't of Human Servs. v. Mable K., Case Nos.
2011AP825, 2011AP826, unpublished slip op. (Wis. Ct. App., Jan.
11, 2012), dismissing Mable K.'s appeals after an order of the
circuit court for Dane County, Amy Smith, J. presiding, vacated
its previous order terminating her parental rights.

2
 No. 2011AP825 & 2011AP826

remainder of the fact-finding hearing before the circuit court,

not before a jury.

¶3 We conclude, and the circuit court has acknowledged,

that it erroneously exercised its discretion when it entered a

default judgment finding that grounds existed to terminate Mable

K.'s parental rights after barring her attorney from offering

additional evidence. It also erred when it granted the default

judgment before taking evidence sufficient to establish the

grounds alleged in the amended petitions. We further conclude

that the circuit court's remedy for correcting the errors is

fundamentally unfair under the facts of this case.

¶4 Accordingly, we reverse and remand to the circuit

court for a new fact-finding hearing to be heard by a jury if

Mable K. timely demands one. On remand, the new fact-finding

hearing is to be held at the earliest reasonable opportunity.

I

¶5 Dane County filed amended petitions for the

termination of Mable K.'s parental rights of her children,
Isaiah H. and May K. Dane County also sought to terminate the

parental rights of the fathers of the children in the amended
petitions. The amended petitions allege as grounds for

termination of Mable K.'s parental rights a continuing need of
protection or services under Wis. Stat. § 48.415(2) (2009-10)2

and abandonment under Wis. Stat. § 48.415(1).

2
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

3
 No. 2011AP825 & 2011AP826

¶6 Before the fact-finding hearing, the circuit court

ordered Mable K. to appear in person at all proceedings.3 She

was represented by an attorney, Yolanda Lehner, at the fact-

finding hearing which was being tried by a jury. On September

14, 2010, the second day of the fact-finding hearing, Mable K.

failed to personally appear at 9:00 a.m. when the hearing was

set to resume.4 However, Attorney Lehner was present and

appeared on her behalf.

¶7 When Mable K. failed to personally appear at the

appointed time, the circuit court asked Attorney Lehner about

Mable K.'s absence. Attorney Lehner stated that Mable K. had

called as Attorney Lehner was arriving at the courthouse that

morning. Mable K. told Attorney Lehner that she "wasn't feeling

good" and that the hearing was extremely stressful. She also

told Attorney Lehner that she didn't think she could come to

court.

3
Termination of parental rights proceedings involve a two-
step procedure. State v. Shirley E., 2006 WI 129, ¶26, 298 Wis.
2d 1, 724 N.W.2d 623. The first step is the fact-finding phase,
which consists of an evidentiary hearing to determine whether
adequate grounds exist for the termination of parental rights.
Wis. Stat. § 48.424; Shirley E., 298 Wis. 2d 1, ¶27. The second
step is the dispositional phase, which consists of an
evidentiary hearing in which the circuit court determines
whether termination of parental rights is in the child's best
interests. See Wis. Stat. § 48.427; Shirley E., 298 Wis. 2d 1,
¶28.
4
Mable K. was present for the first day of the fact-finding
hearing. Additionally, there were eight pre-trial proceedings
held by the circuit court prior to the fact-finding hearing and
there is no indication that Mable K. failed to appear on time
for any of those proceedings.

4
 No. 2011AP825 & 2011AP826

¶8 Dane County moved for a default judgment. Attorney

Lehner requested another opportunity to speak with Mable K.

about coming to court. Instead of granting a default judgment

at that time, the circuit court recessed for five minutes in

order to allow Attorney Lehner an opportunity to again contact

Mable K.

¶9 When Attorney Lehner returned to court, she explained

that she had spoken with Mable K. via telephone. Mable K. told

Attorney Lehner that she was going to ride her bicycle to court

and that she would be there in "about half an hour."

¶10 Attorney Lehner asked the circuit court to wait until

"10 to 10," or 9:50 a.m., to see if Mable K. arrived. The

circuit court agreed and took Dane County's motion under

advisement to see whether Mable K. arrived in court later in the

day. The hearing before the jury resumed, and testimony was

presented addressing the petitions against the fathers.

¶11 At approximately 10:20 a.m., outside the presence of

the jury, the circuit court again took up the matter of Mable K.
being absent from court. Dane County renewed its motion for a

default judgment. However, the attorney for Dane County noted
that more evidence would be required to support the abandonment

ground regarding both children before a default judgment could
be entered. He expected a witness who could testify about that

issue to arrive at 10:30 a.m. The circuit court acknowledged
that it needed to hear additional testimony from Dane County's

witness to establish the ground of abandonment before granting

5
 No. 2011AP825 & 2011AP826

the motion for a default judgment finding that grounds existed

to terminate Mable K.'s parental rights.5

¶12 In opposition to the renewed motion, Attorney Lehner

argued that on the abandonment issue, she had "a lot of

evidence." The evidence was, in Attorney Lehner's estimation,

enough to make it "difficult for the County to prove

abandonment."

¶13 Attorney Lehner asked whether she would be allowed to

adduce that evidence, but the circuit court determined that she

would not be allowed to do so. Instead she would be allowed

only to cross-examine Dane County's sole witness in response to

the direct evidence introduced by Dane County. The circuit

court then heard testimony from the witness and Attorney Lehner

cross-examined him.

¶14 Following the testimony from Dane County's witness,

the circuit court "found by default" both grounds for

termination. After making that determination, the circuit court

found Mable K. unfit. There was no reference at the hearing to
Wis. Stat. § 805.03, a statute that allows the circuit court to

enter a sanction for the violation of a court order. In fact,

5
This court determined in Evelyn C.R. v. Tykila S., 2001 WI
110, ¶¶16-19, 246 Wis. 2d 1, 629 N.W.2d 768, that a circuit
court must first take evidence sufficient to support a finding
by clear and convincing evidence that the ground or grounds
alleged in the petition were proven before granting a default
judgment on the grounds at issue. The circuit court did not
reference Evelyn C.R. directly, but in acknowledging that it
needed to hear additional testimony, it appears to have been
aware of that requirement.

6
 No. 2011AP825 & 2011AP826

the words "sanction" or "forfeiture" were not employed as part

of the analysis (for further discussion, see infra ¶¶67-71).

¶15 Mable K. arrived in court approximately ten minutes

later at 10:45 a.m. Outside the presence of the jury Attorney

Lehner requested that the circuit court reconsider its previous

entry of a default judgment finding that grounds existed to

terminate Mable K.'s parental rights. The circuit court invited

Mable K. to testify about why the circuit court should

reconsider the default judgment.

¶16 Mable K. testified that she was "real kind of sick"

from the previous day's "procedure." The proceedings from the

previous day "really kind of hurt" her and she testified that

she arrived late because "[she] was just tired." On cross-

examination, Dane County introduced deposition testimony

regarding inconsistent statements made by Mable K. about her

marital status in previous termination proceedings. On further

questioning from the circuit court, Mable K. testified that

after the second phone call, she said she "had to get me some

breakfast then I will be coming."
¶17 After Mable K. finished testifying, the circuit court

considered whether it should vacate the default judgment. The
circuit court questioned Mable K.'s credibility, citing the

inconsistent statements Mable K. had made in prior depositions
that were introduced during cross-examination by Dane County.

The circuit court also discussed the morning's events and Mable

K.'s testimony, where Mable K. had offered several

"inconsistent" reasons for not appearing in person.
7
 No. 2011AP825 & 2011AP826

Accordingly, the circuit court determined that Mable K. had

introduced insufficient proof to support a finding that the

default judgment should be vacated under Wis. Stat.

§ 806.07(1)(a), which allows relief from a judgment on grounds

of mistake or excusable neglect.6

¶18 The circuit court then dismissed Mable K. and Attorney

Lehner from the remainder of the fact-finding hearing. When the

jury was brought back into court, it was instructed that Mable

K. was no longer involved in the cases and that the claims

against her had been resolved. The hearing before the jury

continued, addressing the petitions against the fathers.

6
The record from the hearing on the motion to vacate the
default judgment reflects that the motion was advanced and
decided pursuant to Wis. Stat. § 806.07(1)(a). The record
reflects the following:

I infer from the information that [Mable K.] has
provided and the comments made by Ms. Lehner that we
are, that [Mable K.] is seeking the Court to vacate
the default judgment based on mistake or excusable
neglect or something of that nature. . . .

I also would note that I do not believe that the
testimony of [Mable K.], even taken in the light most
favorable to [her], could possibly constitute
excusable neglect. [Mable K.] has indicated that for
–- on the record as to a number of different possible
excuses for her failure to appear here today. I do
not believe that any of them constitute mistake or
excusable neglect as those terms are defined in
Section 806.07(1)(a). . . .

I also will find that the information that I have is
insufficient to make a finding that judgment or order
of default should be relieved under 806.07 and I,
therefore, deny the motion to relieve [Mable K.] from
default judgment. I've ruled in that regard.

8
 No. 2011AP825 & 2011AP826

¶19 Before the dispositional hearing, Joyce Brown, a

social worker with the Dane County Department of Human Services,

filed a court report that recommended terminating Mable K.'s

parental rights. According to the psychiatric evaluations

referenced in that court report, Mable K. has "intellectual

deficits" with a performance IQ of 60, and a full scale IQ of

54. The court report indicates that an IQ of 54 is "considered

in the extremely low range."

¶20 The circuit court held a dispositional hearing on

January 3, 2011. Mable K. personally appeared along with

Attorney Lehner. The circuit court heard testimony from Joyce

Brown regarding the best interests of the children. At the

conclusion of the dispositional hearing, the circuit court

entered an order terminating Mable K.'s parental rights.

¶21 Mable K. appealed following the dispositional hearing.

Retaining jurisdiction, the court of appeals remanded the cases

back to the circuit court and ordered the circuit court to hear

and decide postdisposition motions.
¶22 At a postdisposition motion hearing on remand, Mable

K. argued that the circuit court erroneously exercised its
discretion by granting and refusing to vacate the default

judgment finding that grounds existed to terminate her parental
rights. She contended that the appropriate remedy for the

erroneous exercise of discretion was a new fact-finding hearing.
¶23 Attorney Lehner offered testimony about the evidence

she had intended to introduce at the fact-finding hearing. She

testified that she did not think that Dane County could prove
9
 No. 2011AP825 & 2011AP826

the abandonment ground. The amended petitions relating to both

children alleged that Mable K. failed to visit or communicate

with the children during a five-month period between December

17, 2009 and May 27, 2010. The amended petitions further

alleged that there were two e-mail communications from Mable K.

to the children's foster parent, but that both e-mail

communications occurred more than three months after Mable K.'s

last visit with the children on December 17, 2009.

¶24 To rebut the abandonment ground, Attorney Lehner

intended to introduce e-mail correspondence and records of

contacts between Mable K., the social workers involved in her

case, and the children's foster parent. Contrary to the

allegations in the amended petitions, these contacts suggest

that Mable K. contacted the children's foster parent and social

workers on a number of occasions during the period of the

alleged abandonment.

¶25 The e-mail communications that Mable K. sent directly

to the children's foster parent during the period of alleged
abandonment were not two in number as stated in the amended

petitions, but rather there were seven. Also contrary to the
allegations of the amended petitions, the record indicates that

there were e-mails sent during——not after——the three-month
period following Mable K.'s last visit with the children. The

e-mails which Attorney Lehner intended to introduce were sent on
January 21, 2010, March 1, 2010, March 31, 2010, April 22, 2010,

April 29, 2010, May 5, 2010, and May 13, 2010. In those e-mail

communications, Mable K. asked on several occasions about the
10
 No. 2011AP825 & 2011AP826

children's lives, their experiences in school, how big the

children were getting, and whether the foster parent could share

any pictures of the children.

¶26 To further rebut the abandonment ground, Attorney

Lehner intended to introduce e-mail correspondence and records

of contacts between Mable K. and social workers involved in her

case during the alleged period of abandonment. One such record

notes that Mable K. left a voice message with a social worker on

January 7, 2010, cancelling a contact scheduled for that date.

Mable K. sent an e-mail to the same social worker on March 1,

2010 saying she no longer had a telephone and apologizing for

her lack of response. Another record from March 10, 2010 notes

that Mable K. called a social worker and asked whether she could

"see her kids," but there is no indication such a visit

occurred. An additional e-mail from a social worker sent on

March 16, 2010 indicates that the social worker spoke on the

telephone with Mable K. the previous day and that Mable K. said

she "expect[ed] to get the kids back as she will have housing on
the South side next month."

¶27 Attorney Lehner stated she intended to introduce the
evidence to rebut the abandonment ground through cross-

examination of "the social workers" or through Mable K.'s
testimony directly. Nearly all of the e-mails were either

directed to or copied to the social worker, Joyce Brown.
Attorney Lehner had previously listed Joyce Brown on her amended

witness list before the fact-finding hearing.

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 No. 2011AP825 & 2011AP826

¶28 Attorney Lehner further testified that she had

intended to introduce evidence contesting the continuing need of

protection or services ground. She thought that she could "make

a case that [Mable K.] would meet the conditions [of the child

in need of protection or services order] in the next nine

months." Attorney Lehner testified that Mable K. "had an

apartment lined up" and that the apartment evidence would make

it likely that Mable K. would meet the conditions. In Attorney

Lehner's opinion, the fact that Mable K. did not have a place to

live "seemed to be the mainstay with getting her kids back."

¶29 Attorney Lehner thought that she had an additional

defense to this ground, that is a "strong argument that the

Department had not made reasonable efforts." She had intended

to develop the argument that "it was almost set up so that

[Mable K.] would fail...to meet the conditions she needed for

return" by cross-examining Joyce Brown. Additionally, Attorney

Lehner intended for Mable K. to testify regarding both of the

anticipated defenses to the continuing need of protection or
services ground.

¶30 In a later oral decision following the post-
disposition motion hearing, the circuit court determined that it

erroneously deprived Mable K. of her statutory right to an
attorney provided under Wis. Stat. § 48.23(2). Citing State v.

Shirley E., 2006 WI 129, 298 Wis. 2d 1, 724 N.W.2d 623, the

circuit court acknowledged that it had erred when it barred

Attorney Lehner from adducing evidence tending to refute the

grounds alleged in the amended petitions. Dane County argued
12
 No. 2011AP825 & 2011AP826

that there were no witnesses to present when Mable K. was late

on the second day of the fact-finding hearing, but the circuit

court rejected that argument.7 It concluded that Attorney Lehner

"had evidence beyond [Mable K.]" and had "other witnesses on her

witnesses list," stating:

I really think that [Mable K.] should have had that
opportunity to bring in these witnesses and, frankly,
I don't know exactly what they would say but she had a
right to at least present it.
Accordingly, the circuit court vacated its previous orders

terminating Mable K.'s parental rights.

¶31 The circuit court determined that the appropriate

remedy for the erroneous exercise of discretion was to return

Mable K. to the procedural posture when the error occurred. That

procedural posture was after Dane County had moved for a default

judgment and its abandonment witness had testified outside the

presence of the jury, but before the circuit court actually

found by default that grounds existed to terminate Mable K.'s

7
The dissent makes the same argument that there were no
witnesses to present but ignores that the circuit court soundly
rejected that argument. Dissent, ¶110 n.11.

Additionally, Attorney Lehner acknowledged that although
she could not call Mable K. if Mable K. was not present for the
second day of the fact-finding hearing, she "wouldn't have put
[her] case on probably until the next day anyway." Contrary to
the arguments of the dissent, the record indicates that not only
were there witnesses to present, but that the parties had
already scheduled them to testify.

13
 No. 2011AP825 & 2011AP826

parental rights and found Mable K. unfit.8 Under the circuit

court's remedy, any additional evidence Mable K. could offer

would be to the court, not to a jury.

¶32 The cases returned to the court of appeals after the

postdisposition motion hearing. While the cases were pending

before the court of appeals, Dane County filed a motion for

reconsideration with the circuit court concerning its findings

at the postdisposition motion hearing.

¶33 The circuit court issued a written "response" to the

motion for reconsideration, indicating that it would be inclined

to amend portions of its oral decision on remand if the court of

appeals allowed it to do so. However, the circuit court

concluded that it lacked the authority to act while the cases

were pending before the court of appeals.

¶34 After the circuit court issued its written "response,"

the court of appeals issued an order remanding the cases to the

circuit court in order to address Dane County's motion. The

court of appeals reasoned that there was little point in
reviewing a circuit court order that the circuit court itself no

longer believed was the correct outcome.

8
This case presents legal questions for our determination.
In an apparent attempt to obfuscate the legal issues, much of
the dissent's "family background" discussion seemingly is
designed to malign Mable K.'s fitness as a parent——which is not
an issue before us. The dissent seems to be advancing that we
should somehow evaluate the law differently because of Mable
K.'s family background.

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 No. 2011AP825 & 2011AP826

¶35 On remand to address Dane County's reconsideration

motion, the circuit court reaffirmed its earlier oral findings

in a written decision. The circuit court concluded that the

order terminating Mable K.'s parental rights would remain

vacated, "with the expectation that this court will decide at an

evidentiary hearing whether grounds exist to establish

termination of [Mable K.'s] parental rights," at which time

Mable K. could present evidence "contrary to default."

¶36 Following the circuit court's written decision, the

cases returned to the court of appeals. In an order issued on

December 21, 2011, the court of appeals sua sponte questioned

what to do with the appeals, tentatively concluding that no

appeal existed as of right and that it would not be inclined to

take up the appeals on a discretionary basis. However, the

court of appeals invited additional briefing on the matter.

¶37 After additional briefing, the court of appeals issued

an order on January 11, 2012 dismissing the appeals. The court

of appeals relied on the analysis contained in its December 21,
2011 order.

II
¶38 In these cases, we are called upon to examine whether

the circuit court erroneously exercised its discretion in

15
 No. 2011AP825 & 2011AP826

entering a default judgment against Mable K.9 We are asked to

first determine whether it was an erroneous exercise of

discretion to grant a default judgment finding that grounds

existed to terminate Mable K.'s parental rights after the

circuit court barred Attorney Lehner from adducing evidence

tending to refute the allegations in the amended petitions. We

are further called to determine whether the circuit court

erroneously exercised its discretion in granting the default

judgment before establishing the grounds alleged in the amended

petitions.

¶39 A circuit court properly exercises its discretion when

it examines the relevant facts, applies a proper standard of

law, and using a demonstrated rational process reaches a

conclusion that a reasonable judge could reach. Schneller v.

9
Mable K. additionally argues that the circuit court
erroneously exercised its discretion in granting a default
judgment because her conduct was not egregious or in bad faith
and because Wis. Stat. § 806.07(1)(h), which allows relief from
a judgment for "[a]ny other reasons justifying relief from the
operation of the judgment," required the circuit court to vacate
the default judgment. Because we conclude that entering a
default judgment was an erroneous exercise of discretion on
other grounds, we need not address whether granting a default
judgment was an erroneous exercise of discretion for those
reasons.

In accepting the petition for review, we ordered the
parties to brief the issue of whether the circuit court's
decision to vacate its previous order terminating Mable K.'s
parental rights constitutes a final order for the purposes of
appeal. However, we likewise need not decide that issue.
Having accepted the petition for review, determining the exact
implications of the circuit court's actions on the status of
these appeals is not necessary to the resolution of this case.

16
 No. 2011AP825 & 2011AP826

St. Mary's Hosp. Med. Ctr., 162 Wis. 2d 296, 306, 470 N.W.2d 873

(1991). Ultimately our determination rests here on an

examination of whether the circuit court applied proper

standards of law when it granted the default judgment. We

review questions of law independent of the determinations

rendered by the circuit court and the court of appeals.

¶40 If we determine that the circuit court erroneously

exercised its discretion in granting a default judgment finding

that grounds existed to terminate Mable K.'s parental rights, we

must then examine whether the circuit court's remedy is

fundamentally fair under these facts. See Sheboygan Cnty. Dep't
of Health & Human Servs. v. Julie A.B., 2002 WI 95, ¶22, 255

Wis. 2d 170, 648 N.W.2d 402. Whether a circuit court has

provided a parent in a termination of parental rights proceeding

fundamentally fair procedures also presents a question of law

that we review independent of the determinations of the circuit

court and court of appeals. See Monroe Cnty. Dep't of Human

Servs. v. Kelli B., 2004 WI 48, ¶¶16, 27, 271 Wis. 2d 51, 678

N.W.2d 831.

¶41 We address each issue in turn.

III

¶42 We first consider whether the circuit court

erroneously exercised its discretion when it entered a default

judgment finding that grounds existed to terminate Mable K.'s

parental rights. Specifically, Mable K. contends that the

circuit court erroneously exercised its discretion in granting

the default judgment after it deprived her of her statutory
17
 No. 2011AP825 & 2011AP826

right to an attorney under Wis. Stat. § 48.23(2).10 She further

contends that the circuit court erroneously exercised its

discretion when it granted the default judgment before taking

evidence sufficient to establish the grounds alleged in the

amended petitions.

¶43 The circuit court acknowledged that it erred when it

barred Mable K. from presenting further evidence. Citing

Shirley E., the circuit court determined that Attorney Lehner

should have been allowed to present evidence tending to refute

the allegations in the amended petitions to terminate Mable K.'s

parental rights. Likewise, Dane County agreed at oral argument

before this court that the circuit court committed error in not

allowing Attorney Lehner to adduce additional evidence. We

begin our analysis by examining Shirley E.

10
Wisconsin Stat. § 48.23(2) provides the following:

(2) Whenever a child is the subject of a proceeding
involving a contested adoption or the involuntary
termination of parental rights, any parent under 18
years of age who appears before the court shall be
represented by counsel; but no such parent may waive
counsel. Except as provided in sub. (2g), a minor
parent petitioning for the voluntary termination of
parental rights shall be represented by a guardian ad
litem. If a proceeding involves a contested adoption
or the involuntary termination of parental rights, any
parent 18 years old or older who appears before the
court shall be represented by counsel; but the parent
may waive counsel provided the court is satisfied such
waiver is knowingly and voluntarily made.

18
 No. 2011AP825 & 2011AP826

¶44 The Shirley E. court addressed the question of whether

a circuit court may deny a parent the statutory right to an

attorney when the parent appeared in the proceeding but failed

to personally attend the hearing in contravention of a court

order. 298 Wis. 2d 1, ¶2. Shirley E., a parent, failed to

personally attend an initial plea hearing in a termination of

parental rights proceeding. Id., ¶11. The circuit court

rescheduled the hearing so the State could obtain service on

Shirley E. and arrange for the appointment of an attorney. Id.
¶45 At the rescheduled hearing, Shirley E.'s recently-

appointed attorney appeared in person, but Shirley E. did not.

Id., ¶12. The circuit court allowed Shirley E. to appear by

telephone at her attorney's request. Id. The State asked the

circuit court to enter a default judgment against Shirley E.,

but the circuit court instead ordered Shirley E. to appear in

person at the next hearing and warned her that if she did not

appear personally, the circuit court would enter a default

judgment against her. Id. The hearing was adjourned and

rescheduled again. Id.

¶46 Shirley E. failed to personally appear at the

rescheduled hearing. Id., ¶13. The circuit court entered a

default judgment as a sanction for her failure to obey the court

order that Shirley E. appear in person. Id. However, the

circuit court indicated that it would entertain a motion to

vacate the default judgment if Shirley E. appeared in person,

and again adjourned the matter. Id., ¶15.

19
 No. 2011AP825 & 2011AP826

¶47 When Shirley E. failed to appear personally at the

next hearing, the circuit court dismissed her attorney from the

proceeding. Id., ¶16. The circuit court proceeded to hold

hearings in both phases of the proceeding without Shirley E. or

her attorney present and terminated Shirley E.'s parental

rights. Id., ¶18.

¶48 Parents have a statutory right to representation by an

attorney under Wis. Stat. § 48.23(2). The Shirley E. court

concluded that the statutory right to an attorney is not limited

to parents who appear in person at court proceedings. 298 Wis.

2d 1, ¶43. A parent's attorney may act on behalf of a parent

who does not appear in person. Id., ¶46.

¶49 The Shirley E. court further concluded that a parent's

statutory right to an attorney is preserved even after the entry

of a default judgment. Id., ¶56. Parents in termination of

parental rights proceedings have a statutory right to be heard

through an attorney in "a meaningful time and in a meaningful

manner."11 Id., ¶52.

11
The dissent appears to conclude that a parent cannot be
denied her statutory right to an attorney unless the court bars
the parent from participating "before any evidence [is]
presented" and remains barred throughout an entire trial.
Dissent, ¶127. It seems to ignore entirely the actual reasoning
of this opinion and that of the circuit court, which is that the
circuit court erroneously cut off Attorney Lehner before she
could put in her case.

The dissent's analysis would unreasonably expand the
holding of Shirley E. by implying that a parent's participation
is meaningful except when the parent is entirely barred from
participating at trial. See id.

20
 No. 2011AP825 & 2011AP826

¶50 Accordingly, Mable K.'s statutory right to an attorney

did not expire when she did not arrive in court on time.

Attorney Lehner could act on her behalf at the fact-finding

hearing whether or not Mable K. personally appeared.

¶51 We agree with the parties and the circuit court that

the circuit court erroneously exercised its discretion when it

entered a default judgment against Mable K. finding that grounds

existed to terminate her parental rights after depriving her of

her statutory right to an attorney under Wis. Stat. § 48.23(2).

In these cases, Attorney Lehner requested an opportunity to be

heard and told the circuit court that she possessed "a lot of

evidence" on the issue of abandonment, which she thought would

make it "difficult for [Dane County] to prove abandonment" if

she were allowed to enter it into the record. She later

testified that she had intended to introduce additional evidence

tending to refute the allegations of continuing need of

protection or services. However, the circuit court refused to

allow Attorney Lehner any opportunity to adduce that evidence.12

12
Dane County cites to an unpublished court of appeals
opinion, State v. Laura M., Nos. 2011AP2825, 2011AP2828,
2011AP2826, 2011AP2827, unpublished slip op. (Ct. App. March 27,
2012), in support of the argument that because Mable K. was not
present to testify, Attorney Lehner could not adduce any other
evidence. However, Dane County ignores that in Laura M., the
circuit court specifically asked whether the parent's attorney
wished to call any witnesses and the attorney declined the
opportunity. Id., ¶42. In these cases, Attorney Lehner was
never asked if she had any other evidence, and when she asked
for an opportunity to present additional evidence, the circuit
court denied her request.

21
 No. 2011AP825 & 2011AP826

¶52 We turn next to address whether the circuit court

erroneously exercised its discretion in entering the default

judgment finding that grounds existed to terminate Mable K.'s

parental rights before taking evidence sufficient to establish

the grounds alleged in the amended petitions. We look to Evelyn

C.R. v. Tykila S., 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768

for guidance.

¶53 In Evelyn C.R., a child's biological mother failed to

appear in person at a fact-finding hearing. 246 Wis. 2d 1, ¶8.

Because the issue was to be tried before a jury, the circuit

court expressed apprehension about holding the hearing without

the mother's physical presence. Id. The parties rescheduled

the fact-finding hearing for a later date. Id.

¶54 There is no indication that the fact-finding hearing

before a jury ever commenced. Instead, when the mother failed

to appear in person a second time, the petitioner moved for a

default judgment at the rescheduled hearing. Id., ¶9. The

circuit court granted the petitioner's motion, found the mother

unfit based on the allegations in the petition, and scheduled

the case for a dispositional hearing. Id.

¶55 The Evelyn C.R. court concluded that circuit courts

have a duty at the fact-finding hearing to find, by clear and

convincing evidence, that all of the elements of the allegations

in the petition have been met before granting a default judgment

against a parent. Id., ¶24. The duty to establish grounds is

"independent" of the circuit court's authority to grant a

default judgment. Id., ¶¶25-26.
22
 No. 2011AP825 & 2011AP826

¶56 In refusing to hear Attorney Lehner's additional

evidence before entering a default judgment finding that grounds

existed to terminate Mable K.'s parental rights, the circuit

court put the cart before the horse. The circuit court could

not make a decision based on clear and convincing evidence

having heard only one side's version of the facts when the other

side was requesting an opportunity to offer evidence that could

defeat the allegations in the amended petitions. See Evelyn

C.R., 246 Wis. 2d 1, ¶26.

¶57 Accordingly, we also conclude that the circuit court

erroneously exercised its discretion when it entered the default

judgment finding that grounds existed to terminate Mable K.'s

parental rights before establishing the grounds alleged in the

amended petitions by clear and convincing evidence.

IV

¶58 We turn now to examine the remedy for the errors. The

circuit court concluded that the appropriate remedy would be to

return Mable K. procedurally to the time of the error. The

circuit court's remedy would place Mable K. after the testimony

from Dane County's abandonment witness had been taken outside

the presence of the jury, just before the circuit court entered

the default judgment finding that grounds existed to terminate

Mable K.'s parental rights. The circuit court further

determined that Mable K. would be permitted to adduce additional

evidence, but before the circuit court, not before a jury.

¶59 Terminating parental rights works a "unique kind of

deprivation." M.L.B. v. S.L.J., 519 U.S. 102, 118 (1996). A
23
 No. 2011AP825 & 2011AP826

parent's interest in the "accuracy and justice of the

decision . . . is . . . a commanding one." M.L.B., 519 U.S. at

118 (quoting Lassiter v. Dep't of Soc. Servs. of Durham Cnty.,

452 U.S. 18, 27 (1981)). Although "the best interests of the

child" standard set forth in Wis. Stat. § 48.01(1) is a matter

of paramount consideration in a termination proceeding, it does

not dominate every stage of the proceeding. The statutes

carefully balance the interests of all participants including

those of the parents. Wis. Stat. § 48.01(1). The "best

interests of the child" standard does not dominate until the

parent has been found unfit. As this court stated in Julie
A.B.:

Wisconsin Stat. § 48.01(1) provides in part: "In
construing this chapter, the best interests of the
child...shall always be of paramount consideration."
(citations omitted.)

Notwithstanding this broad language, the "best
interests of the child" standard does not dominate
every step of every proceeding, because other vital
interests must be accommodated. When the government
seeks to terminate parental rights, the best interests
of the child standard does not "prevail" until the
affected parent has been found unfit pursuant to Wis.
Stat. § 48.424(4).
255 Wis. 2d 170, ¶¶21-22.

¶60 During the fact-finding phase, "the parent's rights

are paramount." Id., ¶24 (quoting Evelyn C.R., 246 Wis. 2d 1,

¶22). Thus, parents in the fact-finding phase of termination of

parental rights proceedings require heightened legal safeguards

to prevent erroneous decisions. Shirley E., 298 Wis. 2d 1, ¶24.

24
 No. 2011AP825 & 2011AP826

¶61 One of the purposes of Chapter 48, the Children's

Code, is to provide for procedures through which all interested

parties are assured fair hearings that enforce their legal

rights. Wis. Stat. § 48.01(1)(ad). The legislature intended to

be expansive in its according of legal rights to parents.

Shirley E., 298 Wis. 2d 1, ¶43. Therefore, parents must be

provided with fundamentally fair procedures. See Julie A.B.,

255 Wis. 2d 170, ¶22 (quoting Santosky v. Kramer, 455 U.S. 745,

753 (1982)).

¶62 There are problems inherent in restarting the half-

completed hearing that render the circuit court's remedy

fundamentally unfair. To begin, the jury is gone and a new one

cannot be empaneled halfway through the fact-finding hearing,

years after the first portion of the fact-finding hearing

occurred.

¶63 Another problem with restarting the half-completed

fact-finding hearing is that Mable K. will require another

appointed attorney on remand. The new attorney will be stuck

defending Mable K. on a record where the circuit court has twice

found her not to be a credible witness. The circuit court's

remedy sets the newly appointed attorney, and by extension Mable

K., up to fail because the attorney would be restricted to

25
 No. 2011AP825 & 2011AP826

arguing against a default judgment that the circuit court has

previously granted.13

¶64 In essence, restarting the half-completed fact-finding

hearing shifts the burden to Mable K. to prove that she is not

an unfit parent. Under the circuit court's remedy, Mable K.

would be forced to rebut Dane County's case from a hearing that

is now approximately two years old. 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." Julie A.B., 255 Wis. 2d 170,

¶24.

¶65 Holding the remainder of the fact-finding hearing

before the circuit court also appears contrary to the heightened

safeguards envisioned by the legislature for termination of

parental rights proceedings. Wisconsin Stat. §§ 48.31(2) and

48.424(2) provide Mable K. with a statutory right to a jury

trial if she properly demands one.14 None of the parties dispute

13
By setting any new attorney up to fail, the circuit
court's remedy defies the principle that the statutory right to
counsel includes the right to effective counsel. See Shirley
E., 298 Wis. 2d 1, ¶¶36-39 (quoting A.S. v. State, 168 Wis. 2d
995, 1003, 485 N.W.2d 52 (1992)).
14
Wisconsin Stat. § 48.31(2) provides that a fact-finding
hearing shall be to the court "unless the . . . child's
parent . . . exercises the right to a jury trial by demanding a
jury trial at any time before or during the plea hearing."
Wisconsin Stat. § 48.424(2) additionally provides that fact-
finding hearings in termination of parental rights proceedings
"shall be conducted according to the procedure specified in s.
48.31 . . . ."

26
 No. 2011AP825 & 2011AP826

that Mable K. properly demanded a jury for the fact-finding

hearing addressing the grounds for termination. Yet the circuit

court's remedy would take away that right.

¶66 The record is unclear as to what authority the circuit

court employed in denying the statutory right to a jury. There

is nothing in the record to suggest that Mable K. waived her

right to a jury. The circuit court's grant of a default

judgment cannot be a default judgment entered under Wis. Stat.

§ 806.02(5), which allows for a default judgment for non-

appearance at trial. Mable K. appeared personally at the first

day of the fact-finding hearing and Attorney Lehner appeared on

her behalf on the day she was late for court. Furthermore, no

other provisions of the default judgment statute apply because

Mable K. appeared in the action and fully participated until she

was late on the second day of the fact-finding hearing.

¶67 Arguably, the circuit court could have determined that

the statutory right to a jury was forfeited and granted a

default judgment as a sanction for violation of a court order
pursuant to Wis. Stat. § 805.03.15 The record, however, is

15
Wisconsin Stat. § 805.03 states the following:

For failure of any claimant to prosecute or for
failure of any party to comply with the statutes
governing procedure in civil actions or to obey any
order of court, the court in which the action is
pending may make such orders in regard to the failure
as are just, including but not limited to orders
authorized under s. 804.12(2)(a). Any dismissal under
this section operates as an adjudication on the merits
unless the court in its order for dismissal otherwise
specifies for good cause shown recited in the order. A
27
 No. 2011AP825 & 2011AP826

unclear. That statute was never cited by the circuit court or

any attorney.

¶68 In fact, the words "sanction" or "forfeiture" are

nowhere to be found in the transcripts of the fact-finding

hearing or postdisposition motion hearing as they relate to

Mable K. When asked at oral argument whether the record shines

any light on our inquiry into the procedures employed by the

circuit court when it entered the default judgment finding that

grounds existed to terminate Mable K.'s parental rights, Dane

County admitted that the record was "murky," despite the fact

that the attorney for Dane County had "read [the transcript]

over twenty times."

¶69 Even if the circuit court determined that Mable K.

forfeited her right to a jury and granted a default judgment as

a sanction, Wis. Stat. § 805.03 limits the sanctions that a

circuit court may impose for failure to comply with court orders

to those that are "just." See also Indus. Roofing Servs., Inc.

v. Marquardt, 2007 WI 19, ¶43, 299 Wis. 2d 81, 726 N.W.2d 898.

In order for a sanction dismissing a civil case to be "just,"

the non-complying party must act "egregiously or in bad faith."

Id.; Schneller v. St. Mary's Hosp. Med. Ctr., 162 Wis. 2d 296,

311-12, 470 N.W.2d 873 (1991). The Shirley E. court applied

dismissal on the merits may be set aside by the court
on the grounds specified in and in accordance with s.
806.07. A dismissal not on the merits may be set aside
by the court for good cause shown and within a
reasonable time.

28
 No. 2011AP825 & 2011AP826

that requirement to default judgments at fact-finding hearings

in termination of parental rights proceedings. 298 Wis. 2d 1,

¶13 n.3.

¶70 Where a circuit court concludes that a party's failure

to follow court orders, though unintentional, is "so extreme,

substantial and persistent" that the conduct may be considered

egregious, the circuit court may make a finding of

egregiousness. Hudson Diesel, Inc. v. Kenall, 194 Wis. 2d 531,

543, 535 N.W.2d 65 (Ct. App. 1995). Conversely, a party may

also act in bad faith, which by its nature cannot be

unintentional conduct. Id. To find that a party acts in bad

faith, the circuit court must find that the noncomplying party

"intentionally or deliberately" delayed, obstructed, or refused

to comply with the court order. Id.

¶71 Although the circuit court at the postdisposition

motion hearing described Mable K.'s conduct as egregious and in

bad faith in retrospect, it made no reference to egregiousness

or bad faith when the default judgment finding that grounds

existed to terminate Mable K.'s parental rights was granted.

Likewise, there was no analysis as to whether Mable K.'s conduct

was "extreme, substantial and persistent." Hudson Diesel, 194

Wis. 2d at 543. Any analysis of whether Mable K.'s conduct

"intentionally or deliberately" delayed, obstructed, or refused

29
 No. 2011AP825 & 2011AP826

to obey the court order is also absent from the record.16 Id.

Had the record clearly indicated that the default was imposed as

a sanction, then our analysis would be different.

¶72 Under these facts, the only fundamentally fair remedy

is a new fact-finding hearing. A new fact-finding hearing

honors the intent of the legislature by providing Mable K. with

heightened legal safeguards. Shirley E., 298 Wis. 2d 1, ¶24.

It provides Mable K. with the only remedy that can assure a fair

hearing that recognizes and enforces Mable K.'s statutory rights

to an attorney and to a jury. See Wis. Stat. § 48.01(1)(ad).
¶73 Additionally, a new fact-finding hearing avoids the

problems discussed above that are inherent in trying to renew

the fact-finding hearing in mid-stream. A new jury may be

empaneled if Mable K. chooses to demand one. Her new attorney

may act on her behalf unfettered by the events of the first part

of the fact-finding hearing that occurred approximately two

years in the past. Unlike the circuit court's remedy, a new

fact-finding hearing places the burden on Dane County to prove

the allegations in the amended petitions. We therefore conclude

that the circuit court's remedy is fundamentally unfair here.

V

¶74 In sum, we reverse and remand for a new fact-finding

hearing. We conclude, and the circuit court has acknowledged,

16
The dissent appears to conclude that Mable K.'s conduct
was "egregious" in failing to timely appear in court on the
second day of the fact-finding hearing. Dissent, ¶1. As we
previously stated, we need not and do not address the egregious
conduct argument. See supra note 8.

30
 No. 2011AP825 & 2011AP826

that it erroneously exercised its discretion when it entered a

default judgment finding that grounds existed to terminate Mable

K.'s parental rights after barring her attorney from offering

additional evidence. It also erred when it granted the default

judgment before taking evidence sufficient to establish the

grounds alleged in the amended petitions. We further conclude

that the circuit court's remedy for correcting the errors is

fundamentally unfair under the facts of this case.17

¶75 Accordingly, we reverse and remand to the circuit

court for a new fact-finding hearing to be heard by a jury if

Mable K. timely demands one. On remand, the new fact-finding

hearing is to be held at the earliest reasonable opportunity.

By the Court.—The decision of the court of appeals is

reversed, and the cause is remanded to the circuit court for a

new fact-finding hearing.

17
If grounds for termination are found and Mable K. is
determined to be unfit at the fact-finding hearing, the matter
will then proceed to a dispositional hearing.

31
 No. 2011AP825 & 2011AP826.akz

¶76 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). I

respectfully dissent from the majority opinion, which concludes

that the circuit court must hold an entirely new jury trial on

all of the issues in this case when it is Mable K. who is solely

responsible for her own egregious and volitional failure to

appear in court. Because of the majority's conclusion, a

circuit court's authority to enforce its orders is diminished, a

non-appearing party's behavior is rewarded, and at least two

children's lives continue to hang in the balance. Our system of

justice is designed to do better.

¶77 Mable K. chose not to come to court on the second day

of a fact-finding hearing in front of a jury. She knew when she

was to appear, but she chose not to follow the circuit court's

order. Accordingly, I conclude that the trial court did not

erroneously exercise its discretion when it vacated the default

judgment and instead, sanctioned Mable K. for her egregious

behavior by ordering that the remainder of the evidence would be

heard as a court trial. The circuit court was not unreasonable

in concluding that Mable K. relinquished the right to a jury

trial when she chose not to appear before the jury that had been

impanelled.

¶78 Curiously, the majority opinion rests its conclusions

on the hypothetical scenario of default judgment remaining in

place against Mable K. However, the default judgment was

vacated. It is not before this court. Nonetheless, the

majority opinion concludes that because default judgment once

was granted, the rules of State v. Shirley E., 2006 WI 129, 298

1
 No. 2011AP825 & 2011AP826.akz

Wis. 2d 1, 724 N.W.2d 623, and Evelyn C.R. v. Tykila S., 2001 WI

110, 246 Wis. 2d 1, 629 N.W.2d 768, have been irreparably

violated. The majority opinion errs: first, by ducking the

issue this case actually presents, i.e., whether the circuit

court erroneously exercised its discretion by sanctioning Mable

K.'s egregious conduct by ordering that the trial be continued

as a bench trial; and second, by misapplying the opinions it

cites, given the facts of this case.

¶79 In short, the majority opinion is based on a factual

fiction that leaves a circuit court no ability to sanction a

party who egregiously disobeys a court order to appear for the

second day of a jury trial at which grounds for termination are

being adjudicated. Instead, the majority rewards such a party.

The majority's analysis leaves the tail wagging the dog.

¶80 I conclude that the circuit court reasonably exercised

its discretion when it vacated the default judgment and

sanctioned Mable K. for her egregious conduct by reconvening the

termination of parental rights (TPR) proceeding as a trial to

the court, rather than selecting a second jury to replace the

jury that would have heard the termination proceeding if Mable

K. had appeared.

¶81 I also conclude that under Evelyn C.R., when a default

judgment is reviewed, we are to determine whether the circuit

court heard sufficient evidence on the grounds in the petitions

before it granted default. Unlike Evelyn C.R., Dane County had

presented nearly all of the evidence in its case-in-chief before

the court sanctioned Mable K. by granting a default judgment due

2
 No. 2011AP825 & 2011AP826.akz

to her failure to appear before the jury. I further conclude

that under Shirley E., Mable K.'s right to counsel was not

violated because her attorney substantively participated in the

proceedings.

¶82 There are and should be consequences for a party who,

without excuse, fails to appear for trial. Mable K. deserves a

fair trial, but these children deserve stability and security.

Isaiah H. and May K. remain innocent victims who now must wait

even longer for a conclusion in this matter. Instead of

considering that this case also involves two young children, the

majority accepts review of a non-final order and sends this case

back for the selection of a second jury to hear the TPR

proceeding. In so doing, the majority sends a message to

parties who do not like the way a trial is going: do not show up

for the second part of the trial. You get a "do over." The

manner in which the majority reaches this determination is

unprecedented and, for these reasons, I respectfully dissent.

I. THERE IS NO DEFAULT JUDGMENT TO REVIEW
¶83 Procedurally, Mable K.'s appeal is an attack on a non-

final order, and we should not have accepted review. The

majority opinion grants an entirely new jury trial when there

has been no final order in the case below.

¶84 The sanction currently before the court is the

continuation of the fact finding as a bench trial. This

sanction arose out of a fact-finding hearing that commenced on

September 13, 2010. Mable K. appeared for the first day of the

3
 No. 2011AP825 & 2011AP826.akz

hearing.1 However, she chose not to appear at the time set for

the second day of the hearing, despite being court ordered to do

so and being verbally reminded when to appear. Because of her

choice, the circuit court initially entered default judgment

against Mable K., finding that there were grounds to terminate

her parental rights. The circuit court then scheduled a

dispositional hearing for January 3, 2011. At the dispositional

hearing, the circuit court terminated the parental rights of

Mable K., Wesley J., and Lee H.

¶85 After the dispositional hearing on January 3, 2011,

Lee H. and Mable K. both appealed; Wesley J. did not. The court

of appeals issued a decision upholding the termination of

parental rights for Lee H. The court of appeals remanded the

case to the circuit court to determine whether the circuit court

had erroneously entered default judgment against Mable K.

¶86 On remand, the circuit court (1) vacated the orders

terminating her parental rights,2 and (2) returned Mable K. back

to the fact-finding hearing, before default was granted. Mable

K. is currently in a position to have counsel represent her and

present evidence, testimony, and witnesses. No final fact

1
There are two parts to a TPR case. The first part is the
fact-finding hearing, where the jury or the court determines
whether there are grounds to terminate the parental rights.
Wis. Stat. § 48.424. The second part is a dispositional
hearing, where the court determines whether TPR is in the
child's best interest. Wis. Stat. § 48.427.
2
We do not pass judgment today on whether the trial court
was correct in its vacation of the order terminating Mable K.'s
parental rights.

4
 No. 2011AP825 & 2011AP826.akz

finding has been completed, and no final order or judgment

exists because the circuit court vacated the default judgment.

¶87 Appeals in TPR cases, under Wis. Stat. § 809.107, can

be taken from "an order or judgment" under Wis. Stat. § 48.43.

Because there was no final order in place, the court of appeals

concluded that neither party could appeal as a matter of right,

and it was not "inclined to grant leave" to appeal. Cf. Wis.

Stat. § 808.03(1); Wick v. Mueller, 105 Wis. 2d 191, 195-98, 313

N.W.2d 799 (1982) (concluding that an order for a new trial in a

civil case is not appealable as a matter of right because it

does not dispose of the entire matter).

¶88 It is quite unusual, if not unprecedented, for this

court to take such an appeal in a TPR case, where there is no

order or judgment to review. Nonetheless, despite there being

no final order in place, the majority determines that Mable K.

is entitled to the extraordinary relief of a second jury to

replace the previous jury that Mable K. chose not to appear

before beyond the first day of testimony. Curiously, the

majority concludes that the circuit court "erroneously exercised

its discretion when it entered a default judgment" because the

default "depriv[ed] her of her statutory right to an attorney,"

and because the default was granted before Dane County

"establish[ed] the grounds alleged in the amended petitions."

See majority op., ¶¶51, 57.

¶89 By repeatedly discussing a default judgment that does

not exist, the majority opinion ducks the actual issue this case

presents, i.e., whether the circuit court erroneously exercised

5
 No. 2011AP825 & 2011AP826.akz

its discretion in sanctioning Mable K.'s egregious conduct by

ordering that the trial will be continued as a bench trial.

II. FAMILY BACKGROUND

¶90 Notably absent from the majority opinion is any

meaningful discussion of the court record concerning the family

background, repeated attempts to reunite the children with their

mother, and failure of Mable K. to actively engage in the

children's upbringing. The majority opinion leaves Isaiah H.

and May K. to continue hanging in the balance, neglecting

appropriate consideration of the children's interests, and

instead, affords considerable accommodation to a parent who has

not engaged in her children's lives for years and who, without

any reasonable excuse, did not timely attend the second day of

the jury trial at which grounds to terminate her parental rights

were being adjudicated. According to the record before this

court, the lives of these children have hung in the balance for

far too long.

¶91 The majority opinion almost portrays Mable K. to be an

innocent victim of circumstance. A review of the record

reflects that she has had opportunity after opportunity to

parent these children. The record reflects that in January

2007, both of Mable K.'s sons, Samuel C.,3 age three, and Isaiah

H., age five and one-half at the time, were determined to need

3
Mable K.'s parental rights to Samuel C. were terminated in
a prior TPR case. The transcript in this case indicates that
Mable K. arrived three hours late to that proceeding.

6
 No. 2011AP825 & 2011AP826.akz

care that no one could provide.4 The government placed both boys

in out-of-home care. May K., Mable K.'s third child, was placed

at her current foster home shortly after May K. was born in

November 2008, because Mable K. was allegedly not able to meet

her daughter's needs consistently or keep her safe. At the

hospital, staff members raised concerns about Mable K.'s ability

to care for a newborn.5 The social worker opined that Mable K.

would not be able to meet the demands of a newborn baby. May

K., now over four years old, has lived outside of her parental

home consistently since she was born.

¶92 All of the biological parents in this case have

significant criminal histories, which, in and of itself, is not

grounds for termination. However, the current record is replete

with allegations of their impaired ability to be available for

their children, and to provide for the children's basic needs,

stable housing, medical needs, and personal needs. Lee H., the

adjudicated father of Isaiah H., was incarcerated at the time

Isaiah H. was placed in foster care, and he was again

incarcerated in January 2010. He has six criminal convictions.

Mable K. has at least two previous convictions for forgery, and

4
Isaiah H.'s father, Lee H., has had very little direct
contact with Isaiah H., has been unavailable, and has been on
the run or incarcerated. After he was rearrested in January
2010, and placed in Dodge Correctional Institution, he had a
couple of phone contacts with a social worker in March and April
2010. His parental rights have been terminated and are not the
subject of this appeal.
5
The hospital staff observed Mable K. talking on the phone
and ignoring the baby. On one occasion, Mable K. left the
hospital room while the baby was in Mable K.'s hospital bed. It
seemed as if Mable K. forgot that the baby was there.

7
 No. 2011AP825 & 2011AP826.akz

was on probation at the time her sons were placed in foster

care. Initially, Mable K. did not disclose the name of May K.'s

father, Wesley J., purportedly because she was concerned that

Dane County would judge him by his previous criminal record.

Wesley J. was convicted of second-degree sexual assault of a

child and several other violent crimes.6

¶93 The record before us reflects that Mable K. and her

family have had many contacts with the Dane County Department of

Human Services (Dane County) and have been the subject of

approximately 16 referrals to Dane County. In short, the

referrals alleged that the children were in need of protection

or services, that they had unaddressed health problems, and that

they were neglected.

¶94 As part of the services provided by Dane County, Mable

K. completed a psychological evaluation in 2007, and Dane County

attempted to provide her with mental health treatment. Mable K.

remains the only biological parent available to take care of the

two children at issue, as the parental rights of both biological

fathers have been terminated. The record indicates that on

numerous occasions, Mable K. would fail to show up for a

confirmed family contact or would simply cancel the family

contact. According to the court record, before the start of

this case on March 24, 2010, Mable K.'s last contact with her

children was on December 17, 2009. Following that date, she

purportedly missed three weekly, scheduled family contacts

6
Wesley J.'s parental rights have been terminated and are
not the subject of this appeal.

8
 No. 2011AP825 & 2011AP826.akz

despite being told that she needed to have a meeting to discuss

the missed family contacts. Nonetheless, the record indicates

that she failed to request or arrange such a meeting, and her

excuse for not making the scheduled contacts was that she had

many appointments and that it was none of Dane County's business

what she was doing. At best, Mable K. has had sporadic contact

with her children.

¶95 According to Dane County, Mable K. did not make

consistent progress in meeting the specified court ordered

conditions for the return of her children. She did not make

appropriate planning for the children or work closely towards

permanent placement with the assigned Dane County social worker

or social service specialist. The reunification team was

involved with Mable K. and her children from mid-January 2009,

until April 23, 2009, at which time it was clear that Mable K.

was not ready for the children's transition to her full-time

care. Mable K. was unable to consistently and appropriately

address the children's emotional needs and challenging behavior.

During her time with her children, Mable K. appeared to be more

focused on meeting her own personal needs rather than those of

her children. Dane County explained that it attempted to avoid

terminating Mable K.'s parental rights. She was provided with

the opportunity to utilize a variety of resources, attend

meetings, participate in evaluations, attend court hearings, and

work with specialists to improve her parenting skills.

Nonetheless, the record reflects that Dane County filed two TPR

petitions on March 24, 2010, which alleged that both Isaiah H.

9
 No. 2011AP825 & 2011AP826.akz

and May K. were children in need of protection or services

(CHIPS). An amended petition was filed on June 1, 2010, which

also alleged that both children had been abandoned.

¶96 Despite her repeated contact with the system and the

gravitas of the subject matter, on the second day of the jury

trial, Mable K. found it more important to "get me some

breakfast" because she was "real kind of sick" from the

proceedings and she "was just tired."

III. THE CIRCUIT COURT DID NOT ERR

A. The Conduct Was Egregious
¶97 The circuit court did not erroneously exercise its

discretion in concluding that Mable K. demonstrated egregious

conduct by failing to appear at the second day of the fact-

finding hearing. A sanction was warranted.

¶98 Notwithstanding that there is no default judgment to

review in this case, the majority relies on Evelyn C.R. to

support its conclusion that the default judgment was an improper

remedy. However, unlike the majority, I undertake an analysis

of whether a sanction was justified by Mable K.'s failure to

appear, and then I determine whether the circuit court

erroneously exercised its discretion when it sanctioned Mable K.

by continuing the TPR proceeding as a bench trial rather than

impanelling a second jury. This analysis leads me to conclude

that Mable K.'s conduct was egregious and that the circuit court

did not erroneously exercise its discretion in sanctioning Mable

K. by reconvening the TPR proceeding as a trial to the court,

rather than selecting a new jury to replace the jury that would

10
 No. 2011AP825 & 2011AP826.akz

have heard the termination proceeding if Mable K. had timely

appeared.

¶99 A circuit court has inherent and statutory power to

sanction parties who fail to obey court orders. Evelyn C.R.,

246 Wis. 2d 1, ¶17. Under this authority, a circuit court may

sanction a party who fails to comply with a court order.7 Id.

The decision to sanction a party is within the sound discretion

of the circuit court. Id., ¶18; Oostburg State Bank v. United

Sav. & Loan Ass'n, 130 Wis. 2d 4, 11, 386 N.W.2d 53 (1986). An

appellate court reviews a circuit court's discretionary

determination for an erroneous exercise of discretion. Evelyn

C.R., 246 Wis. 2d 1, ¶18. A reviewing court will affirm the

circuit court's exercise of discretion if the circuit court has

examined the relevant facts, has applied a proper standard of

law, and has used a demonstrated, rational process to reach a

conclusion that a reasonable judge could reach. Loy v.

Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982).

¶100 Before a circuit court may sanction a party who failed
to comply with a court order, the party's conduct must be

7
Wisconsin Stat. § 802.10(7), "Sanctions," provides that
"[v]iolations of a scheduling or pretrial order are subject to
ss. 802.05, 804.12 and 805.03." Wisconsin Stat. § 805.03,
"Failure to prosecute or comply with procedure statutes,"
provides in part: "[F]or failure of any party to . . . obey any
order of court, the court in which the action is pending may
make such orders in regard to the failure as are just, including
but not limited to orders authorized under s. 804.12(2)(a)."
Wisconsin Stat. § 804.12(2)(a)3., "Failure to comply with
order," gives the court the power to provide "just" sanctions
for failure to obey an order, including "rendering a judgment by
default against the disobedient party."

11
 No. 2011AP825 & 2011AP826.akz

egregious or in bad faith. Shirley E., 298 Wis. 2d 1, ¶13 n.3.

Failure to comply with a circuit court scheduling order without

a clear and justifiable excuse is egregious conduct. Indus.

Roofing Servs., Inc. v. Marquardt, 2007 WI 19, ¶43, 299

Wis. 2d 81, 726 N.W.2d 898. "Egregious" conduct has been

defined as "extreme, substantial, and persistent." Id. While

the record on appeal must reflect the circuit court's reasoned

application of the appropriate legal standard to the relevant

facts, an appellate court need not remand for such a

determination if the circuit court's finding was implicit.

Englewood Cmty. Apartments Ltd. P'ship v. Alexander Grant & Co.,

119 Wis. 2d 34, 39 n.3, 349 N.W.2d 716 (Ct. App. 1984) ("[A]

remand directing the trial court to make an explicit finding

where it has already made unmistakable but implicit findings to

the same effect would be both superfluous and a waste of

judicial resources.").

¶101 After Dane County filed the petition to terminate her

parental rights, Mable K. was ordered to appear personally at
all proceedings in this case by a court order dated May 24,

2010. Nearly six months later, a fact-finding hearing before a

jury commenced on September 13, 2010. Mable K. appeared for the

first day of the jury trial, but chose not to appear for the

second day of trial at the time when she was instructed to

appear.

¶102 Mable K. is not an innocent victim of circumstance who

was unfairly sanctioned. The circuit court entered an order

requiring that Mable K. personally appear at all hearings. The

12
 No. 2011AP825 & 2011AP826.akz

circuit court took extra effort to remind her at the conclusion

of the first day of trial to be in court the next day before 9

a.m. Mable K. ignored the circuit court's directive and did not

come to court at 9 a.m. to defend herself in a matter where her

children could be taken away forever.

¶103 The circuit court and counsel undertook efforts to get

her to court. She did not come to court when she was instructed

to be there or even when she said that she would be there. When

she did not show, the circuit court, the jury, and counsel

waited for her.

¶104 Specifically, her attorney (Attorney Lehner), who had

talked with Mable K. earlier that morning, later called her to

persuade her to come to court. Mable K. told Attorney Lehner

that she would ride her bike to court and be there within a

half-hour, by 9:45 a.m. By 10:35 a.m., she still had not

arrived. At that point, the circuit court concluded that a

sanction was warranted, and it found Mable K. in default on both

of the allegations, CHIPS and abandonment.8

8
This court has previously rejected the argument that a
parent has an absolute right to a jury trial under the TPR
statutes. Steven V. v. Kelley H., 2004 WI 47, ¶33, 271
Wis. 2d 1, 678 N.W.2d 856. A parent's right to a jury trial in
TPR proceedings is statutory, not constitutional. Id., ¶4.
Because TPR proceedings are civil in nature, the general rules
of civil procedure are applicable unless Chapter 48 of the
Wisconsin Statutes provides a more specific rule. See id., ¶32.
The court in Steven V. concluded:

The circuit court, however, is always responsible for
conclusions of law, as is specifically recognized in
the TPR statutes. See Wis. Stat. § 48.31(4). If a
motion for summary judgment is made and supported as
prescribed by Wis. Stat. § 802.08, the circuit court
may properly conclude at the fact-finding hearing that
13
 No. 2011AP825 & 2011AP826.akz

¶105 At approximately 10:45 a.m., nearly two hours late,

Mable K. finally arrived and counsel moved for relief from the

default judgment. The circuit court allowed Mable K. to testify

about why she did not appear, and she stated that she was "real

kind of sick" from the proceedings, she "was just tired," and

she wanted to "get me some breakfast." She acknowledged that

Attorney Lehner warned her of the consequences of failing to

appear. Mable K. said that she did not sleep well and had just

woken up around 9 a.m. She testified that she knew she needed

to be at the court by 9 a.m.

¶106 In its initial decision, the circuit court did not

explicitly use the word "egregious," but a review of the record

there is no genuine issue of material fact in dispute
and the moving party is entitled to partial summary
judgment on parental unfitness as a matter of law.
See Wis. Stat. § 802.08(2).

Id., ¶34. Further, several cases have concluded that a directed
verdict pursuant to Wis. Stat. § 805.14(4) applies to TPR
proceedings. Id., ¶32 (citing Door Cnty. DHFS v. Scott S., 230
Wis. 2d 460, 465, 602 N.W.2d 167 (Ct. App. 1999); J.A.B. v.
Waukesha Cnty. Human Servs. Dep't, 153 Wis. 2d 761, 765, 451
N.W.2d 799 (Ct. App. 1989)). See also Wis. Stat. § 971.04(3)
(stating that if defendant is present at beginning of criminal
jury trial, then voluntarily absents himself, the trial may
proceed without the defendant).

It is also interesting to note that only five states
currently allow jury trials in TPR cases. See Wis. Stat.
§ 48.31(2); Tex. Fam. Code Ann. § 105.002 (West 2012); Okla.
Stat. Ann. tit. 10A, § 1-4-502 (West 2012); Wyo. Stat. Ann.
§ 14-2-312 (West 2012); Va. Code Ann. § 16.1-296 (West 2012);
Linda Szymanski, Is a Jury Trial Ever Available in a Termination
of Parental Rights Case?, National Center for Juvenile Justice
Snapshot, March 2011, Vol. 16, No. 3; James L. Buchwalter,
Annotation, Right to Jury Trial in Child Neglect, Child Abuse,
or Termination of Parental Rights Proceedings, 102 A.L.R. 5th
227 (2002).

14
 No. 2011AP825 & 2011AP826.akz

makes clear that the court did find her conduct to be egregious.

Our court does not require a circuit court to use "magic words"

when undertaking a legal analysis and in making findings.

Englewood, 119 Wis. 2d at 39 n.3. Furthermore, the court did

find that Mable K. was not credible. The court considered her

excuses but also noted that Mable K. previously arrived three

hours late in the TPR proceeding for her son Samuel C. Indeed,

at a hearing on August 26, 2011, the circuit court judge stated:

It was and, frankly, still is evident to this
Court on this record in this Court's view that it is
an egregious violation of the Court order given the
fact that it was orally issued to Ms. K., it was given
to her in written form, she is in a jury
trial, . . . the fact that she was reminded when the
Court concluded its proceedings the first day of trial
on the 13th that she needed to be here a little bit
before 9:00, this is egregious to the Court and it is
without justifiable basis. It's either egregious or
in bad faith . . . but definitely I don't think you
even need to use those magic words for those things to
in fact be true.
¶107 I agree with the circuit court that Mable K.'s conduct

was deserving of a sanction. Although the court did not use the

word "egregious" initially, the record reflects that the court

found her conduct to be egregious. The circuit court did not

erroneously exercise its discretion when it sanctioned Mable K.

for her failure to appear.

¶108 The record reflects that the circuit court made

several findings to support the sanction for her egregious

behavior. The court cited to the following facts: that the

order dated May 24, 2010, required Mable K. to appear personally
at all hearings; that at the end of the first day of the fact-

15
 No. 2011AP825 & 2011AP826.akz

finding hearing, the court informed all parties that they needed

to be in court shortly before 9 a.m. on the next day; that she

had shown up late to a previous TPR proceeding; and that the

court did not find her explanation about why she could not have

followed the court order credible. In short, Mable K. failed to

demonstrate any credible reason for her failure to appear at the

time set by the court.

¶109 I conclude that Mable K.'s actions were especially

egregious in the context of a TPR trial.9 It took nearly six

months from the time the TPR petition was filed until the time

of the trial. The circuit court held eight hearings before the

first day of trial, including several hearings based on the

petitions, two pretrial conferences, and two motion hearings.

The circuit court and the parties all completed substantial

pretrial work, much of which is now rendered void by the

majority opinion. In addition to the large amount of pretrial

work, there was a full day of the fact-finding hearing before

Mable K. failed to follow the court's order.10

¶110 Mable K. was the witness her attorney would have

called, but her failure to appear precluded her attorney from

presenting her testimony in an attempt to rebut evidence

9
A circuit court may grant a default judgment in a TPR
proceeding for a non-appearing party if, inter alia, there is
sufficient evidence to support the grounds for the petition and
the default does not violate the party's statutory right to
counsel. See infra, parts III.B. and III.C.
10
The transcripts in this case total 587 pages from the
time the petition was filed though the first day of the fact-
finding hearing.

16
 No. 2011AP825 & 2011AP826.akz

presented in support of the petitions to terminate her parental

rights.11 The court and the jury were not required to wait until

Mable K. chose to arrive. Mable K.'s conduct was egregious, and

a sanction was appropriate. If Mable K. valued a jury trial,

she should have appeared for the second day of the trial. That

the court chose not to put Dane County to the expense of

impanelling a second jury, and instead chose to conclude the

fact-finding hearing as a bench trial, is within the circuit

court's discretion.

B. Majority Opinion Errs In Its Analysis Of Evelyn C.R.

¶111 The majority claims to rely on Evelyn C.R. to support

its determination that a second jury must be impanelled and the

trial to begin anew. In my view, because the circuit court had

a significant evidentiary record before it, the court did not

violate the rule of Evelyn C.R.

¶112 In Evelyn C.R., we held that "the circuit court had

the duty at the fact-finding hearing to find by clear and

convincing evidence that all of the elements" of the allegations

11
At the postconviction motion hearing on August 16, 2011,
Attorney Lehner testified that she intended to call Mable K. to
rebut both grounds for termination of her rights that were set
out in the petition. Attorney Lehner also testified that she
intended to cross-examine Joyce Brown to rebut the CHIPS claim,
but Brown was never called as a witness in the fact-finding
hearing. The petitioners rested the case as to Mable K. after
the testimony of Brenda Blank and Mike Boehm, and Attorney
Lehner was allowed to cross-examine both of these witnesses.
Further, Dane County asked Attorney Lehner if she would have
called any other witnesses on her witness list during the fact-
finding hearing, and she stated that she would have called the
social workers if the other parties had not already called them.
She did not name any other witnesses that she was prevented from
calling to testify.

17
 No. 2011AP825 & 2011AP826.akz

in the petition are met. 246 Wis. 2d 1, ¶24. In Evelyn C.R.,

the court did not hold a fact-finding hearing. Id., ¶9.

Instead, the court granted default against the mother, Tykila

S., for failure to appear personally, finding her unfit based

solely upon allegations in the petition. Id. In Evelyn C.R.,

the circuit court "had no evidentiary basis to support its

finding of abandonment." Id., ¶24.

¶113 By contrast, in Mable K.'s case, the circuit court

heard evidence supporting the CHIPS and abandonment claims

before it decided to sanction Mable K. Dane County had

presented evidence at trial, which was tested by Attorney

Lehner's cross-examination. The circuit court made explicit

findings that Mable K. was unfit on both grounds. If no further

testimony was taken, it is because Mable K. did not come to

court to be her own witness. The procedural posture of Evelyn

C.R. is clearly distinguishable from the posture of this case at

the time that Mable K. was sanctioned by the circuit court.

¶114 For example, unlike Evelyn C.R., the circuit court
heard substantial testimony against Mable K., nearly all of Dane

County's case-in-chief.12 On the first day of the fact-finding

12
To establish a CHIPS claim under Wis. Stat.
§ 48.415(2)(a) "Continuing need of protection or services," the
petitioner must prove the following:

1. That the child has been adjudged to be a
child . . . in need of protection or services and
placed, or continued in a placement, outside his or
her home pursuant to one or more court orders under s.
48.345 . . . containing the notice required by s.
48.356(2);

18
 No. 2011AP825 & 2011AP826.akz

hearing, before default was an issue, the circuit court heard

testimony from Brenda Blank (Blank), Mable K.'s case worker.

First, during Blank's testimony, Dane County introduced orders

adjudging both Isaiah H. and May K. as children in need of

protection or services and placing them outside of Mable K.'s

home. The orders, which were entered as exhibits, contained the

notice required by Wis. Stat. § 48.356(2). Second, Blank

testified that Dane County "definitely did" make a reasonable

effort to provide the services ordered by the court. For

example, Mable K. received one-on-one parent education and

support, was assigned a social service specialist, worked with a

family reunification team, and worked with Blank on specific

tasks she could complete to meet the conditions of return.

Third, Blank testified that both children had spent more than

six months outside of Mable K.'s home. May K. has been

continuously outside of the home since she was born, in November

of 2008. Isaiah H. has been continuously outside of the home

since 2007. Finally, Blank testified that Mable K. "will

2. That the agency responsible for the care of the child
and the family . . . has made a reasonable effort to
provide the services ordered by the court;

3. That the child has been outside the home for a
cumulative total period of 6 months or longer pursuant
to such orders; and

4. That the parent has failed to meet the conditions
established for the safe return of the child to the
home and there is a substantial likelihood that the
parent will not meet these conditions within the 9-
month period following the fact-finding hearing under
s. 48.424.

19
 No. 2011AP825 & 2011AP826.akz

absolutely not" meet the conditions for return within nine

months of the fact-finding hearing. Blank testified that Mable

K. failed to meet a majority of the conditions of return,

including maintaining housing, showing interest in the children,

maintaining regular visits without canceling, showing that she

could properly care for the children, and staying in touch and

cooperating with the social worker. Mable K.'s counsel cross-

examined Blank.

¶115 The circuit court also heard evidence of the grounds

of abandonment13 before it decided to sanction Mable K. The

CHIPS orders introduced during Blank's testimony satisfy the

first element of abandonment. Further, it is notable that after

Dane County moved for a default against Mable K., the court

stated, "I need to have Mr. Boehm on the stand . . . to make the

findings related to default on Ms. K. on the abandonment

ground." Dane County then called Michael Boehm to testify on

the abandonment ground. Boehm testified that Mable K. had

failed to communicate with her children for more than three
months before the petitions to terminate her parental rights

were filed, which satisfies the second element of abandonment.

Boehm was also subject to cross-examination by Mable K.'s

counsel.
13
One way to establish an abandonment claim under Wis.
Stat. § 48.415(1), is for the petitioner to prove:

1. That the child has been placed, or continued in a
placement, outside the parent's home by a court order
containing the notice required by s. 48.356(2) . . . ,
and
2. [That] the parent has failed to visit or communicate
with the child for a period of 3 months or longer.
20
 No. 2011AP825 & 2011AP826.akz

¶116 Unlike Evelyn C.R., wherein the court heard no

evidence, the circuit court here heard nearly all of Dane

County's evidence——evidence that was subject to cross-

examination——on both grounds before it found Mable K. unfit and

sanctioned her. Indeed, "[i]f grounds for the termination of

parental rights are found by the court or jury, the court shall

find the parent unfit." Wis. Stat. § 48.424(4) (emphasis

added).

¶117 The majority opinion unnecessarily extends the rule in

Evelyn C.R. such that it undermines the role of a circuit court

in TPR proceedings. The majority opinion does not evaluate the

evidence, does not give proper deference to the circuit court's

exercise of its discretion, and ultimately does not evaluate

whether grounds were established.

¶118 According to the record, Mable K., the absent parent,

had the opportunity to present testimony to rebut the evidence

that was presented on the grounds alleged as the basis for

finding her unfit. She chose not to come to court where a jury
had been impanelled, and it is not her attorney's fault that no

other witnesses testified that day.

¶119 The majority opinion unnecessarily undercuts a circuit

court's authority to sanction a non-appearing parent by trying

the case to the court rather than impanelling a second jury.

The majority opinion does so because it never analyzes whether

the sanction the circuit court chose was within its discretion.

Cf. Shirley E., 298 Wis. 2d 1, ¶70 (Prosser, J., concurring)

("[T]his court's decision to protect a parent who did not care

21
 No. 2011AP825 & 2011AP826.akz

enough to appear and defend herself, seriously undercuts the

authority of circuit judges to enforce their orders.").

Instead, the majority opinion pretends that the default judgment

that has been vacated still exists.

¶120 Not only is giving Mable K. a second jury trial

unjustified, but it fails to consider the children's interests.

The negative impact the majority opinion has on May K. and

Isaiah H. adds insult to injury. After all, these children have

not lived with their biological mother for years. This petition

was filed nearly three years ago, on March 24, 2010, and was

filed based on allegations that these children are in need of

protection or services and that they have been abandoned by

Mable K. and the biological fathers. The children must now wait

even longer to resolve their family status. It is not Mable K.

who was treated unfairly in these proceedings, it is her

children.

C. Majority Opinion Errs In Its Analysis Of Shirley E.

¶121 The majority opinion also concludes that Mable K. was
deprived on her statutory right to counsel under the rule of

Shirley E. See majority op., ¶51. However, unlike Shirley E.,

Mable K. had a lawyer and still has a lawyer. It is clear from

the record that counsel was a zealous advocate for Mable K.

throughout the pretrial proceedings and at trial. Counsel

vigorously advocated for Mable K. even after she did not appear.

Even now, Mable K. and her lawyer can mount a defense at the

unfinished trial. Because the circuit court vacated the default

judgment, the case awaits conclusion at the continued trial.

22
 No. 2011AP825 & 2011AP826.akz

¶122 The majority relies on Shirley E. to conclude that

Mable K. was wrongfully deprived of counsel and a second jury

trial is required. Notably, however, the procedural posture in

Shirley E. and the procedural posture of the case today are

quite different. In Shirley E., the court granted a default

against Shirley E. because she violated a court order personally

to appear. 298 Wis. 2d 1, ¶13. However, unlike counsel for

Mable K., counsel for Shirley E. was not allowed to participate

in any way at the hearings. Id., ¶18. This court held that the

circuit court violated Shirley E.'s statutory right to counsel

because it granted a default judgment against her and also

dismissed Shirley E.'s counsel from the fact-finding and

dispositional hearing before any evidence was taken. Id., ¶56.

Without counsel or Shirley E. present, the court found that

Shirley E. was unfit, and it terminated her parental rights.

¶123 Simply stated, Shirley E. involved a total denial of

counsel at the fact-finding and dispositional phases, which is

not even remotely similar to the facts presented in this case.
To be clear, Mable K. chose not to follow the court's order that

she appear by 9 a.m. Instead, she slept late, stayed home, and

ate breakfast, all the time knowing that she was required to be

in court for the continuation of her trial where she was to be

her own witness. Mable K. should be required to live with the

consequences of the choices she made that morning. Mable K.

absented herself from the trial, and because counsel had no

other scheduled witnesses until the third day of trial,

anticipating that Mable K.'s testimony would fill the second day

23
 No. 2011AP825 & 2011AP826.akz

of trial, Mable K. created the problem of counsel having no one

to call on the second day of trial. See supra note 11.

¶124 Moreover, unlike Shirley E., Mable K.'s attorney did

participate substantively in pretrial matters and at the

hearings. On the first day of the fact-finding hearing, counsel

gave an opening statement that summarized why Mable K. should

not be found unfit. Also on the first day of the hearing, Dane

County presented testimony of Brenda Blank, one of Mable K.'s

case workers. During that testimony, Attorney Lehner objected

to hearsay at least five times and her objections were sustained

several times. On the second day of the hearing, even though

Mable K. was not present, the trial continued. Attorney Lehner

cross-examined Blank, who testified regarding the CHIPS claim.

Later in the hearing, Attorney Lehner cross-examined Dane

County's witness Michael Boehm, a social service specialist, who

testified regarding the abandonment claim.

¶125 After Mable K. arrived, the circuit court allowed her

to testify as to why she was late, and Attorney Lehner argued on

Mable K.'s behalf that the circuit court should vacate the

default judgment. Counsel was present and vigorously defended

Mable K. with respect to the sanction imposed. After Mable K.'s

testimony, the circuit court asked Attorney Lehner whether she

had any further evidence or witnesses to present. Attorney

Lehner responded that she did not. The circuit court did not

take further evidence against Mable K.; Dane County and the

guardian ad litem rested immediately after Mable K. testified.

24
 No. 2011AP825 & 2011AP826.akz

¶126 Mable K. and Attorney Lehner appeared at the

dispositional hearing on January 3, 2011, where Attorney Lehner

once again cross-examined Dane County's witnesses. At the end

of one witness's testimony, the circuit court asked Attorney

Lehner if she had further questions, and she responded that she

did not. The circuit court then asked all of the parties if

they had any further evidence that they would like to produce,

and Attorney Lehner responded "No, Your Honor."

¶127 Unlike in Shirley E., where the circuit court

dismissed Shirley E.'s attorney from the courtroom before any

evidence was presented, Attorney Lehner actively participated in

the trial and vigorously defended Mable K.'s actions. Based on

the extensive participation of Attorney Lehner in this case, I

would conclude that Mable K.'s right to counsel was not violated

under the standards this court set in Shirley E.14

¶128 For the foregoing reasons, I conclude that the circuit

court did not err; accordingly, I respectfully dissent.

¶129 I am authorized to state that Justices PATIENCE DRAKE
ROGGENSACK and MICHAEL J. GABLEMAN join this dissent.

14
At the Machner hearing, Attorney Lehner testified that
she did not have witnesses available and that Mable K.'s absence
left her without any viable witnesses through which she could
present evidence. Counsel testified that she did not have
advanced notice that Mable K. would not appear. If trial
counsel was left with no option, that was Mable K.'s own doing.
Mable K. testified that Attorney Lehner had explained the
effects of a default judgment. In other words, Mable K. created
her own prejudice by failing to appear.

25