State v. C. M.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 5, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP1483 Cir. Ct. No. 2018TP55

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE TERMINATION OF PARENTAL RIGHTS TO M.K., JR., A PERSON UNDER
THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

C.M.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
GWENDOLYN G. CONNOLLY, Judge. Affirmed.
No. 2019AP1483

¶1 BRASH, P.J.1 C.M. appeals an order of the trial court terminating
her parental rights of M.K., Jr. C.M. asserts that the court erroneously exercised
its discretion in entering a default judgment against her and then denying C.M.’s
motion to vacate that default judgment without granting an evidentiary hearing.
We affirm.

BACKGROUND

¶2 C.M. is the biological mother of M.K., Jr., who was born January 18,
2013.2 M.K., Jr. has significant physical health issues—cardiomyopathy and
reactive airway disease—for which he takes four different medications, two times
each day, and has a prescribed inhaler. He has medical appointments at various
clinics every six months due to his condition, and also receives an echocardiogram
every six months. M.K., Jr. also has mental health issues: he has been diagnosed
with an anxiety disorder, and has behavioral issues for which he receives weekly
therapy.

¶3 M.K., Jr. was removed from C.M.’s home when he was
approximately three years old. In November 2015, the Division of Milwaukee
Child Protective Services (DMCPS) had received a referral about M.K., Jr.
missing appointments at Children’s Hospital. C.M.’s reasons for missing those
appointments were that she had forgotten or that she did not have transportation.
Along with a history of missing appointments, it was also observed by health care

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
M.K., Jr.’s adjudicated father, M.K., Sr., was named in this action as well. His parental
rights were also terminated as a result of these proceedings; however, he is not involved in this
appeal.

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No. 2019AP1483

providers that M.K., Jr. was regularly missing medication doses. C.M. was
provided with intensive in-home services to assist with taking M.K., Jr. to
appointments, giving him his medications in a timely manner, and getting those
prescriptions refilled regularly. Still, C.M. missed appointments—she was often
found to be sleeping or otherwise unavailable at scheduled appointment times—
and was not consistently providing M.K., Jr. with his medications.

¶4 The in-home services program was for a limited term. Extensions
were granted due to continuing concerns about the consistency of M.K., Jr.’s care
by C.M. The health care workers involved in M.K., Jr.’s case stressed to C.M.
how important it was for M.K., Jr. to receive his medications regularly and attend
all of his appointment as scheduled—he may eventually need a heart transplant,
and inconsistent care could negatively impact his ability to receive one. Even
when Children’s Hospital arranged for transportation for M.K., Jr.’s appointments,
there were multiple occasions where M.K., Jr. was not at home when the driver
arrived.

¶5 As a result, M.K., Jr. was removed from C.M.’s care and put into
foster care.3 A petition for a Child in Need of Protection and Services (CHIPS)
was filed in October 2016, with a dispositional order issued in February 2017.
The order required that C.M. manage her mental health issues; demonstrate an
understanding of the negative impact that domestic violence has on M.K., Jr.;4 and

3
At the time M.K., Jr. was placed in foster care, M.K., Sr. was incarcerated after being
convicted of child neglect regarding M.K., Jr.—he had left M.K., Jr. home alone for an “extended
period.” M.K., Jr. was initially placed with his aunt; however, after approximately nine months,
M.K., Jr. was again taken into custody by DMCPS when the aunt suddenly left Wisconsin,
leaving him in the care of her boyfriend, who was unable to care for him.
4
There was a history of domestic violence between C.M. and M.K., Sr.

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No. 2019AP1483

meet all of M.K., Jr.’s special needs—including all of his medical needs—on a
daily basis. To meet these requirements, DMCPS was to provide C.M. with
services such as a psychological evaluation, individual therapy, domestic violence
programming, and parental programming. C.M. was also required to have regular
visitation with M.K., Jr.

¶6 C.M. failed to meet these requirements. She did not utilize the
services of any of the mental health treatment providers, nor did she regularly
attend therapy. She also failed to complete parental programming, and did not
enroll in domestic violence counseling. She did not consistently visit M.K., Jr.;
furthermore her visits remained fully supervised due to concerns such as C.M. not
timely providing his medication during the visits, and giving him too much “junk
food” which caused him to vomit. She also did not attend all of his medical
appointments.

¶7 As a result, a petition for the Termination of Parental Rights (TPR)
of C.M. with regard to M.K., Jr. was filed on March 29, 2018. In the petition, the
State alleged two grounds for termination: (1) the continuing need of protection or
services, pursuant to WIS. STAT. § 48.415(2); and (2) C.M.’s failure to assume
parental responsibility, pursuant to § 48.415(6).

¶8 Her initial appearance on this matter was scheduled for April 26,
2018. C.M. did not appear. She told her counsel—who had called her from the
courtroom—that she had forgotten and was not coming. The trial court then called
C.M., on the record, to confirm that she had received the TPR petition and that she
understood that she was required to appear in court. The court then explained the
proceedings to her and informed her of the next scheduled court date.
Additionally, the court provided C.M. with the telephone number for the public

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No. 2019AP1483

defender’s office, and ordered her to call to obtain representation. The court also
warned C.M. that if she failed to appear at the next court date, she could be found
to be in default, which would result in her losing the right to contest this matter.

¶9 The next court date was May 21, 2018; again, C.M. did not appear.
Instead, she contacted the trial court by phone, stating that she had mistaken the
time of the hearing and asked to appear by phone. The court then called the public
defender’s office and discovered that C.M. had never contacted them. The court
noted that while C.M. had the right to proceed pro se, she had not indicated that
she “had any desire to be pro se in the matter” during the prior telephone
conversation on April 26, and that “given her inability to come to court on two
separate occasions, [the court would] have some concern whether someone who
can’t get herself to court is capable of representing [herself].” (Italics added.) The
court then found C.M. to be in default.

¶10 The final pretrial hearing was on August 7, 2018. C.M. appeared,
but without counsel. A request to adjourn the trial date of August 20, 2018, was
made by counsel for M.K., Sr., and was granted. Since the trial was already being
delayed, the trial court gave C.M. another opportunity to obtain counsel, informing
her that her lawyer could then file a motion to vacate the default judgment against
her.

¶11 C.M. obtained counsel, who filed a motion to vacate the default
judgment against her. A hearing on that motion was set for September 13, 2018;
C.M. did not appear, and had not responded to calls from her counsel. As a result
of C.M.’s non-appearance without explanation, the trial court denied her motion.

¶12 The new final pretrial hearing was held on October 25, 2018. C.M.
appeared with counsel, and renewed her motion for the trial court to vacate the

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No. 2019AP1483

default judgment against her. The trial court denied the request. It observed that
the trial date for the matter was set for November 5, 2018, and that M.K., Sr. was
prepared to go to trial; however, C.M. had not yet been deposed, and therefore
vacating the default judgment would require the trial date to be adjourned. The
court determined that it would not be in the best interests of M.K., Jr. for the trial
to be further postponed. However, the court stated that it would reconsider its
decision if the trial date was “bumped” for a different reason and had to be
rescheduled in any event.

¶13 At the November 5, 2018 trial date, M.K., Sr. entered a no contest
plea to the ground of failure to assume parental responsibility. The trial court then
heard testimony from M.K., Jr.’s case manager regarding both M.K., Sr. and C.M.
The court—noting the default judgment against C.M. and its previous findings
with regard to that judgment—found that the State had proven both grounds with
regard to C.M.: that M.K., Jr. was in continuing need of protection or services,
and that C.M. had failed to assume parental responsibility for M.K., Jr.

¶14 A dispositional hearing was held on March 28, 2019, continuing on
May 17, 2019. C.M. appeared with counsel, and fully participated in the
proceedings. Ultimately, the trial court concluded that it was in M.K., Jr.’s best
interests for C.M.’s parental rights to be terminated. This appeal follows.

DISCUSSION

¶15 On appeal, C.M. argues that the trial court erroneously exercised its
discretion in granting the default judgment against her and in denying her motion
to vacate the default. “The decision whether to enter a default judgment is a
matter within the sound discretion of the [trial] court.” Evelyn C.R. v. Tykila S.,
2001 WI 110, ¶18, 246 Wis. 2d 1, 629 N.W.2d 768. Our review of a trial court’s

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No. 2019AP1483

discretionary decision is deferential, in that we “examine the record to gauge
whether the [trial] court reached a reasonable conclusion based on proper legal
standards and a logical interpretation of the facts.” State v. Evans, 2000 WI App
178, ¶7, 238 Wis. 2d 411, 617 N.W.2d 220. In fact, because the trial court’s
exercise of its discretion is “so essential to [it]s functioning, we generally look for
reasons to sustain discretionary decisions.” Schneller v. St. Mary’s Hosp. Med.
Ctr., 155 Wis. 2d 365, 374, 455 N.W.2d 250 (Ct. App. 1990).

¶16 The trial court “has both inherent authority and statutory authority”
to impose sanctions on a party who fails to obey a court order. Id., ¶17.
Specifically, under WIS. STAT. § 805.03, when a party fails “to obey any order of
[the] court,” the court “may make such orders in regard to the failure as are just,”
including orders authorized under WIS. STAT. § 804.12(2)(a). Sec. 805.03. That
statute allows for the “rendering [of] a judgment by default against the disobedient
party[.]” Sec. 804.12(2)(a)3. However, imposing that sanction requires the court
to find that the non-complying party has acted “egregiously or in bad faith.” Dane
Cty. DHS v. Mable K., 2013 WI 28, ¶69, 346 Wis. 2d 396, 828 N.W.2d 198
(citation omitted).

¶17 Relevant case law states these criteria in the alternative; that is, it
must be shown that the non-complying party has displayed conduct that is either
egregious or in bad faith. Sentry Ins. v. Davis, 2001 WI App 203, ¶21, 247 Wis.
2d 501, 634 N.W.2d 553. The term “egregious,” as it relates to imposing
sanctions, has been defined as “extraordinary in some bad way; glaring, flagrant,”
whereas “bad faith” denotes a “lack of honesty and trust.” Id., ¶21 n.8 (citation
omitted). With these differing definitions, this court has determined that a party
“can be guilty of egregious conduct even if it did not act in ‘bad faith.’” Id., ¶21.

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No. 2019AP1483

In fact, we have previously concluded that “a party could commit a flagrant …
violation without necessarily lacking honesty in so doing.” Id., ¶21 n.8.

¶18 Although the trial court did not use the term “egregious” in its
ruling, the record indicates that this was its reasoning. When C.M. missed her first
court appearance, the court called her to confirm that she had received the TPR
petition and knew that she was required to appear in court. The court then ordered
her to appear at the next hearing, explaining that she could be found in default if
she did not appear. The court at that time also ordered C.M. to obtain counsel,
stating that it preferred that she was represented and that it was “assuming” that
she wanted representation because this was “an incredibly important proceeding.”

¶19 At her next scheduled court date—almost a month later—C.M. again
did not appear, nor had she contacted the public defender’s office. In making its
determination to find her in default, the trial court observed that C.M.’s failure to
appear that day was “intentional,” that she had “intentionally failed to follow two
court orders,” and that there was “no justifiable excuse for her failure to follow
those court orders.” This indicates that the court considered C.M.’s conduct—
failing to appear at two consecutive hearings and ignoring the court’s directive to
contact the public defender’s office—to be egregious.5 See id., ¶21 n.8; see also
Teff v. Unity Health Plans Ins. Corp., 2003 WI App 115, ¶14, 265 Wis. 2d 703,
666 N.W.2d 38 (holding that the trial court need not use the terms “egregious” or

5
C.M. argues in her appellant’s brief that the trial court did not comply with WIS. STAT.
§ 48.23(2)(b)3. This statute describes the conditions for presuming that a parent in a TPR
proceeding has waived his or her right to counsel; those conditions are not applicable here, as
C.M. did eventually obtain counsel. Furthermore, we note that this statute expressly states that
the “[f]ailure by a parent 18 years of age or over to appear in person at consecutive hearings as
ordered is presumed to be conduct that is egregious and without clear and justifiable excuse,”
which is actually more supportive of the State’s argument. Id. (emphasis added).

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No. 2019AP1483

“bad faith” to describe conduct upon which a default judgment is based “if there is
an implicit finding under the correct standard and if the facts provide a reasonable
basis for the court’s implicit determination”). Thus, the trial court did not err in
entering a default judgment against C.M.

¶20 C.M. also argues that the trial court erred in denying her motion to
vacate the default judgment against her without an evidentiary hearing. In her
motion to vacate the default judgment, C.M. had based her argument on WIS.
STAT. § 48.23(2) which, as noted above, contemplates a parent’s right to counsel
in a TPR proceeding and is not relevant here. Rather, the proper standard for
obtaining relief from a judgment is set forth under WIS. STAT. § 806.07.

¶21 The trial court may grant a party’s motion for relief from a judgment
for a variety of reasons under WIS. STAT. § 806.07, including excusable neglect.
“Excusable neglect is not the same as neglect, carelessness or inattentiveness.”
Connor v. Connor, 2001 WI 49, ¶16, 243 Wis. 2d 279, 627 N.W.2d 182. Rather,
it is “that neglect which might have been the act of a reasonably prudent person
under the same circumstances.” Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461,
468, 326 N.W.2d 727 (1982) (citation omitted). The defendant bears the burden
of demonstrating excusable neglect. Connor, 243 Wis. 2d 279, ¶28. “We will not
disturb a [trial] court’s decision regarding excusable neglect unless an erroneous
exercise of discretion is clearly shown.” Id., ¶18.

¶22 On the date that C.M.’s motion was to be heard, she did not appear
in court—it was the third time that she had failed to appear for these proceedings.
Furthermore, C.M.’s counsel stated that she had tried several times to contact
C.M. and had not received any response. The trial court stated that C.M.’s non-
appearance made it “very hard for the [c]ourt to ascertain whether or not there is a

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No. 2019AP1483

basis to vacate the default” and, accordingly, denied the motion. When C.M.
appeared at the next hearing and renewed her motion, the court denied it,
reasoning that vacating the default judgment at that point would cause the trial to
be postponed, which was not in the best interests of M.K., Jr.

¶23 C.M. argues that the trial court did not give her the opportunity to
provide evidence in support of her motion to vacate the default judgment. That is
incorrect: an opportunity was provided at the hearing on her motion for which she
did not appear. Furthermore, C.M.’s counsel was unable to make specific
arguments on her behalf because C.M. had not contacted counsel, even after
counsel tried numerous times to contact her.

¶24 Additionally, at the next hearing after that motion hearing, C.M.’s
counsel offered a reason for her previous non-appearance: that because of poverty
she did not have bus fare and was unable to get to court. However, in response to
an inquiry by the trial court, M.K., Jr.’s case manager stated that C.M. had
previously asked for and received bus tickets for proceedings related to this
matter. Thus, C.M. has not demonstrated that her nonappearance was due to
excusable neglect. See id., ¶16.

¶25 C.M. argues that “the law generally disfavors default judgments[.]”
See id., ¶17. However, in determining whether a default judgment should be
vacated, the trial court “should also balance other competing interests of a default
judgment, such as promoting prompt adjudication and encouraging quality legal
representation.” Id. That is precisely what the trial court did here—weighed the
“competing interest[]” of “prompt adjudication” for M.K., Jr., who the court noted
had “a right to have this case move forward and to have some finality here.” See
id. Granting C.M.’s motion at that point would have caused the trial to be

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No. 2019AP1483

postponed, which the court found “would negatively affect” M.K., Jr. by further
delaying a permanent resolution for him.

¶26 This was “a reasonable conclusion based on proper legal standards
and a logical interpretation of the facts” by the trial court. See Evans, 238 Wis. 2d
411, ¶7. Therefore, denying C.M.’s motion to vacate the default judgment was not
an erroneous exercise of the court’s discretion. See id. Accordingly, we affirm
the court’s order terminating C.M.’s parental rights of M.K., Jr.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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